Many years ago, when I was at Meadowdale Junior High School, a teacher explained to us the legal theory of adverse possession. If you used somebody else’s property, he said, and the owner didn’t use it himself, after a certain number of years the owner lost the right to stop you from using it. Indeed, he said, the property became yours.

This teacher said he had stacked a woodpile on his neighbor’s lot. He was going to wait the requisite number of years, and lay claim to the lot.

Whether his aggression-by-woodpile was successful I never knew, but I remember him talking about it, and thinking that his cleverness was not much better than stealing. The chief justice of the Washington Supreme Court, Barbara Madsen, seems to think so, too.

This comes up in her concurring opinion in a new adverse-possession case, Gorman v. City of Woodinville. The case was about a man who “adversely possessed” his neighbor’s land by parking vehicles on it but did not try to claim the land it until after the city condemned it for a road. The Court unanimously ruled that his claim against the city is no good.

My interest is in Madsen’s concurring opinion. It's not about the case in Woodinville at all. It is an argument to the politicians in the Legislature to strike adverse possession from the law. And it’s a good argument. She gets right to the point:

“The doctrine's basic premise is legalization of wrongful acquisition of land by ‘theft,’ conduct that in our time we should discourage… The doctrine also creates uncertainty of ownership, lying as it does outside documents in writing... and it undisputedly adds to costs for title insurance.”

Regarding the doctrine’s history, she writes, it “was originally intended to protect both individuals who knew they were appropriating another person's land and individuals who believed the land belonged to them.” But why protect thieves? And why, really, would you want to protect people dumb enough to build on someone else’s land by mistake? “Hey, I thought the land was mine when I built this cabin on it. Not my fault.” What good a claim is that?

Also, the environment has changed. Adverse possession was designed for a world of land plentiful and cheap, and a worry that people who got it cheap would let it sit there. Back in the 1800s, if you built a house on some land, the house would be worth more than the land, and usually a lot more. But that’s changed. Land is valuable now, and allowing someone to claim it by parking cars on it makes no sense at all.

Madsen points out that Minnesota has made it impossible to claim land by adverse possession once a title is registered. She concludes:

“I believe the doctrine should be phased out entirely…”

Her comments are signed also by Justice Charles Wiggins. Good for him.