WHOSE LAND IS IT ANYWAY?: IT'S TIME TO RECONSIDER SOVEREIGN IMMUNITY FROM ADVERSE POSSESSION Walter Quentin Impert The topic of sovereign immunity from adverse possession is largely unexplored. This Comment addresses the issue, specifically focusing on whether such sovereign immunity isjustified by public policy, and conversely, whether the traditional justifications for adverse possession apply with equal force in the context of government-owned land. First, government land is not sufficiently different from privately held land to justify its sovereign immunity from adverse possession. The traditionaljudicial arguments for sovereign immunity of certain municipal land, as well as the arguments that government-owned environmental land and land held as an investment deserve special protection from adverse possession, are examined and rejected. Next, considering the realities of government administration, the threat of adverse possession could actually motivate government to use its land more efficiently. The substantial benefits, including accountability for the effective use of government-owned land, are contrasted with the low costs of subjecting government land to adverse possession. These costs include land lost to adverse possession and the costs of monitoring government land that the threat of adverse possession would require. Finally, equity requires that the government, which may take title to privately owned land under doctrines akin to adverse possession, subject its own land to adverse possession. IN TRO DU CTION ............................................................................................................. 448 1. A BRIEF OVERVIEW OF SOVEREIGN IMMUNITY FROM A DVERSE POSSESSION .................................................................................. 449 A. Nullum Tempus Occurrit Regi and Sovereign Immunity ................................ 449 B. The Current State of Adverse Possession Against the Sovereign ................. 450 II. WHY NOT ALLOW ADVERSE POSSESSION AGAINST THE GOVERNMENT? . .. .......... 451 A. Government Land Is Unique in and of Itself ................................................ 452 1. Judicial Justifications for the Sovereign Immunity of Municipal Land .................................................................................. 452 2. Land Held in an Environmental Capacity ............................................. 455 * Managing Editor, UCLA Law Review, Volume 49. J.D. candidate, UCLA School of Law, 2002; B.A., Occidental College, 1996. I am grateful to Professor Grant Nelson for his invaluable guidance and suggestions. I also wish to thank my friends David W. Tang, J.D. candi- date, UCLA School of Law, 2002, and Julie Kwon, Occidental College, 1994, on whom many of the ideas in this Comment were first tested. Finally, I would like to express my gratitude to my parents for their constant support and encouragement. 448 49 UCLA LAW REVIEW 447 (2001) 3. Government Land Held as an Investment .............................................458 B. IsThere Something Special About the Government? ..................................459 1. The Government Can Be Distinguished from Individuals ....................459 2. The Efficiency Rationale for Adverse Possession as Applied to the G overnm ent ................................................................................461 a. Adverse Possession as an Independent Motivation for Productive Land U se .................................................................462 b. Adverse Possession as a Form of Government Accountability ......................................................464 C. The Costs of Land Lost to Adverse Possession ..............................................465 D. The M onitoring Cost of Adverse Possession .................................................467 III. FAIRNESS: THE GOVERNMENT MAY TAKE YOUR LAND THROUGH IM PLIED D EDICATION .............................................................................................468 CO N C LU SION ...............................................................................................................469 INTRODUCTION People are often surprised to learn that a trespasser may take title to land from a true owner under certain conditions' and that such theft is authorized by the government under laws of adverse possession. One of the justifications for adverse possession is the policy of encouraging efficient land use. This argument asserts that the threat of having land adversely possessed encourages landowners to make productive use of the land, or at the very least keep a watchful eye over it. Along the same lines, the adverse possessor is rewarded, in the form of receiving title to the property, for productively using land that has been abandoned by the true owner. Recently, the City of Seattle attempted to make use of long-ignored, narrow strips of land that run from city streets to dead ends at the Lake Washington waterfront These so-called "street ends" typically lie between residential waterfront properties. In most cases this land had been ignored by the city, and in many cases it has been used for years by adjacent land- owners. About one-third of the 149 shoreline street ends have become overgrown and unusable, while another third have been "absorbed by neighboring property owners . ." In at least one case, a resident adjacent to a street end has used itfor nineteen years.' Were itnot for restrictions 1. Use of land by a nonowner must be actual, open and notorious, hostile, exclusive, and continuous in order to constitute adverse possession. See GRANT S. NELSON ET AL., CONTEMPORARY PROPERTY 77 (1996). 2. See Lisa Stiffler, Search for More Parks May Rest in Dead Ends, SEATTLE POST- INTELLIGENCER, Sept. 27, 1999, at Bi. 3. Id. 4. See id. Whose Land Is it An was? 449 on adverse possession against the City of Seattle, this land would now belong to the people who have tended to and cared for it over many years.' I. A BRIEF OVERVIEW OF SOVEREIGN IMMUNITY FROM ADVERSE POSSESSION A. Nullum Tempus Occurrit Regi and Sovereign Immunity Although the government authorizes adverse possession, it exempts 6 itself from these statutes under the doctrine of sovereign immunity. The doctrine that the sovereign was immune from the tolling of statutes of limi- tations, termed nullum tempus occurrit regi, or sovereign immunity, origi- nated in England as a means of protecting the king,7 who was too busy acting for the benefit of his subjects to look after his land.8 Sovereign immunity was further justified under the dramatic yet questionable policy that "might makes right," or to put it another way, "the King established his own rules for litigation. ' Though widely accepted in the United States as a rule of statutory construction, 0 the doctrine of sovereign immunity has not been free from attack. Legal scholars have argued that the consequences of delaying a cause of action are no less prejudicial when the delay can be attributed to the government rather than to a private citizen. Although the government, acting in the best interest of the people, may not be as likely to intention- ally defer a cause of action as a private citizen might be, the sovereign immunity exception encourages administrative delay and inefficiency." Furthermore, "the argument that statutes of limitation should not be applied to busy government officials is not consistent with the burden placed on the same officials through tax and penal laws."12 More recently, sovereign immunity from tort liability has come under attack by both courts 5. See State v. Scott, 89 Wash. 63 (1916). 6. See NELSON ET AL., supra note 1, at 82. 7. See 1 WILLIAM BLACKSTONE, COMMENTARIES *243-.49. 8. See, e.g., Devins v. Borough of Bogota, 592 A.2d 199, 202 (N.J. 1991); Note, Develop- ments in the Law: Statutes of Limitations, 63 HARV. L. REV. 1177, 1251 (1950) (citing 1 BLACKSTONE COMMENTARIES *247; ROBERT DORSEY WATKINS, THE STATE AS A PARTY LITIGANT 33 (1927)). 9. Devins, 592 A.2d at 202. 10. See Note, supra note 8, at 1251. 11. See id. 12. Carl C. Risch, Encouraging the Responsible Use of Land by Municipalities: The Erosion of Nullum Tempus Occurrit Regi and the Use of Adverse PossessionAgainst Municipal Land Owners, 99 DICK. L. REV. 197, 200 n.24 (1994) (citing Note, supra note 8, at 1252-53). 450 49 UCLA LAW REVIEW 447 (2001) and commentators." Despite these attacks, sovereign immunity adverse possession, with a few exceptions, has largely survived. from B. The Current State of Adverse Possession Against the Sovereign Although federal and state land is almost universally protected from adverse possession, municipal land is not immune in many jurisdictions. 4 These jurisdictions usually allow adverse possession under one of two lines of analysis. Municipalities either create an additional element of adverse possession-public use-or they distinguish between land held in a proprie- tary, versus a governmental, capacity, 15 protecting land held in a govern- mental capacity. In some jurisdictions that apply the public use approach, a municipality may defeat a claim of adverse possession by proving that the land in question was put to an actual public use. Other jurisdictions require the adverse possessor to prove that the land in question was not dedicated to a present 6 or future public use. The Supreme Court of Vermont, for example, upheld a claim of adverse possession against a parcel of land that a municipality had acquired for the settlement of debt because it had not been dedicated to a public use. The