- Tioga Coal Co
- Supermarkets General Corp
The Coal Company challenged the appellate court decision which
affirmed the trial court's holding that Coal Company's use of a
street was not hostile or adverse to the true owner, the
supermarket, as required to perfect its claim of adverse
There was a strip of land known as Agate Street, located within
Supermarkets' property and bordering the Coal Companys
Agate Street is a paper street forty feet wide which was entered
on the plan of the City of Philadelphia but was never opened to
paper street is a road or street that appears on maps but does
not exist in reality.
Paper streets generally occur when city planners or subdivision
developers lay out and dedicate streets that are never built.
Agate Street was stricken from the city plan in 1966.
Locked Gate for 30 years
The Coal Company took control of the gate to Agate Street in
1948 by putting a lock on the gate.
The Coal Company controlled ingress and egress for 30 years.
Although the court found that Tioga's possession was "actual,
open, notorious, exclusive and continuous" for a period in
excess of the required twenty-one years, it determined that
the Coal Company
had failed to establish that its use or possession of Agate
Street was hostile or adverse to the true owner of the land.
Modern Law - Availability
Many commentators regard the availability or non-availability of
an action in ejectment as dispositive of whether an adverse
possession claim will succeed
Modern Law - Statute of Limitation
The emphasis in modern law is on the statute of limitations
which bars an action for ejectment.
Dominant View - Acquiring Title by Adverse Possession Test
Has the adverse possessor so acted on the land in question as to
give the record owner a cause of action in ejectment against him
for the period defined by the statute of limitations?
It matters not what the motives or the state of mind of the
What matters is the possessor's physical relationship to the
land over a sufficient length of time.
IF the possessor has the record owner's PERMISSION, THEN
possession is then NOT LONGER HOSTILE in a legal sense, and no
right to title will accrue to the possessor.
The record owner has no cause of action against one whom he has
permitted to occupy the land.
Hostility does not mean ill will, it simply implies the INTENT
to hold title against the record owner.
Schlagel v. Lombardi
Superior Court observed that possession may be hostile even if
the claimant knows of no other claim and falsely believes that
he owned the land in question.
Some Jurisdictions [Minority]
One who does not know he is in possession of anothers land
CANNOT harbor the specific INTENT to OUST the other out of his
Most Jurisdictions [Majority]
Deem the animus [ill will intention] of the possessor
They look at the actual physical facts of the possession to
determine if such circumstances of notoriety exist so that the
true owner is put on NOTICE.
Hostility is implied is all other elements have been
Superior Court Analysis
Took the position that the doctrine of implied hostility
was applicable only in
cases involving boundary disputes
or mistaken belief of ownership
by one or both of the parties involved.
Not present in this case
Tioga believed that Agate Street was owned by the City.
The Superior Court was unwilling to imply hostility "where the
claimant acknowledges the ownership of another."
In Superior Court's view, therefore, what was required was that
Tioga know who the true owner of the land was, meet all of the
other requirements of actual, continuous, exclusive, visible,
notorious, and distinct possession, and direct its hostility
toward the true owner of the land.
Tioga Arguments - Both boundary dispute mistaken belief
This case involves both a boundary dispute and a mistaken belief
of ownership on the part of one of the parties.
Boundary of both parties
The disputed strip of land was located on the boundary of both
Thought it was the Cities land and not the supermarket
Tioga mistakenly believed that Agate Street was city property,
not part of the parcel owned by Supermarkets.
Used land for more than 21 years.
Tioga asserts that its taking and using the lands of another for
longer than the required twenty-one years is "hostile" within
the meaning of the law of adverse possession.
Justice Holmes - Objective (Person puts down roots deserves
The use of objective, as opposed to subjective tests,
may involve an essentially equitable
consideration that a
person who has put down his
roots on land develops an attachment to the land
which is deserving protection.
Justice Holmes - cannot be displaced without cutting at his life
The true explanation of title by prescription seems to me to be
that man, like a tree in a cleft of a rock, gradually shapes his
roots to his surroundings, and when the roots have grown to a
certain size, cannot be displaced without cutting at his life.
Justice Holmes - View of Adverse Possession
If an owner abandons his land
and the land is possessed and used
by another for the
statutory period, beyond which
the true owner no longer has a
cause of action in ejectment, the trespasser has put
down roots which we should not disturb.
- If open, notorious, exclusive and continuous, then hostility
Justice Holmes' view is consistent with a requirement that
adverse possession be characterized by hostility as well as the
other elements of the cause of action, for it is
if an adverse possessor
actually takes possession of land in a manner that is open,
notorious, exclusive and continuous, his actions
will not be hostile to the true owner
of the land as well as to the world at large, regardless of the
adverse possessor's state of mind.
If the true owner has not ejected the interloper within the time
allotted for an action in ejectment, and
all other elements of adverse
possession have been established, hostility will be implied,
regardless of the subjective state of mind of the trespasser.