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Estate of Cannara v. County of Essex

A-2315-01T2 (N.J. Super. App. Div. 2003) (Unpublished)

ADVERSE POSSESSION—To be exempt from claims based upon adverse possession, governmentally owned property need only be used or dedicated for a public purpose.

In 1945 a family “deforested, leveled, and seeded a portion of” an adjacent property owner’s tract. That tract, then owned by an organization, was deeded three years later to two individuals. Ten years later, a county government acquired the tract for “parklands and ‘public resort and recreation’ purposes.” The county’s governing board declared the tract was to be “dedicated to the public for the purpose of providing parklands [and] ‘public resort and recreation.’” Despite this conveyance, the family continued to use a portion of the new park “exclusively, continuously, and without interruption,” as well as “notoriously,” until it commenced a suit for adverse possession. The county defended the suit by asserting “the legal principle that there can be no adverse possession against ... the State as to property dedicated to or used for a public purpose.” Prior to a New Jersey Supreme Court decision in 1991, “land which was governmentally owned was not subject to acquirement by adverse possession under the nullum tempus doctrine, which held that time does not run against the king.” In 1991, the New Jersey Supreme Court “concluded that the nullum tempus doctrine should no longer protect all municipally owned property from claims by adverse possession and proceeded to carve out an exception to the doctrine,” requiring that protected land be either dedicated to or used for an appointed purpose. The lower court was satisfied that the county had dedicated the land for the purpose of providing parklands or public resort land and recreation land. It found that the dedication was meaningful because the county was involved in plans to render improvements to the parkland, even though it apparently was not aware that the parkland extended over the land that was being used by the neighboring family. The family argued that application of the doctrine was “inappropriate because, for that exemption to apply, the law now requires that the public entity must have both dedicated and used the property for a public purpose.” The Appellate Division disagreed with the neighboring land owners, holding that the Supreme Court “only abrogated the nullum tempus defense as to property held by a public entity for non-governmental purposes.” Here, the Court found that there was no dispute that the land was dedicated for a public purpose and refused to allow the neighboring property owner to take title to a portion of the parkland by adverse possession.

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