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9. If the agency prevails in that action, it will be because
Last year, the man died, and his son succeeded him as the owner of Blackacre. The son became aware of the facts, demanded that the agency stop using Blackacre for the piling of waste, and, when the agency refused his demand, brought an appropriate action to enjoin any such use of Blackacre in the future.
The time for acquiring title by adverse possession in the jurisdiction is 10 years.
During the past 12 years, some of the trucks bringing waste to the agency facility have dumped their loads so that the piles of waste extend from Whiteacre onto a portion of Blackacre. However, prior to the four-week period during each calendar year when the agency facility is closed for inspection and repairs, the waste piles are reduced to minimal levels so that during each of the four-week closures no waste was, in fact, piled on Blackacre. Neither the man nor any representative of the agency knew the facts about the relation of the boundary line to the waste piles.
A man owned Blackacre, a tract of undeveloped land. Blackacre abuts Whiteacre, a tract of land owned by the state's governmental energy agency. At Whiteacre, the agency has operated a waste-to-electricity recycling facility for 12 years. Blackacre and Whiteacre are in a remote area and Whiteacre is the only developed parcel of real estate within a ten-mile radius. The boundary line between Blackacre and Whiteacre had never been surveyed or marked on the face of the earth.
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Regarding the «hostile» element, the majority view holds that it does not matter whether the possessor believes he is on his own land, knows he is trespassing on someone else's land, or has no idea who owns the land. In this case, the agency had actual physical possession of the land beneath the waste piles, maintained that possession continuously for 12 years, excluded the man and his son from using that area of land, did so without permission (even though it was unaware of the boundary line), and did so openly (as the piles were large and were not concealed).
Continuous possession only requires the degree of occupancy and use that the average owner would make of the property. Although the agency took the waste out of Blackacre for four weeks each year, it is not enough to defeat continuous possession. Blackacre is an undeveloped lot, and a four-week break once a year is not under the degree of current occupancy and use typical for this property.
B is incorrect. Failure to discover the presence of a trespasser does not constitute consent to that trespasser's use of the land.
C is incorrect. Without an exercise of eminent domain by the government, the son's rights do not automatically become subordinate to it.
D is incorrect. The state never exercised its eminent domain powers. In an eminent domain matter, a governmental entity seeks to acquire an interest in a citizen's private property. The government expropriates the land through a condemnation decree, which transfers title from the citizen to the government entity doing the condemning. The condemnation must be for a legitimate public purpose, and the citizen must receive just compensation for the private property.