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“The 2Point Way” – The Lost Grant Theory (or) The Doctrine of the Presumed Grant

The Lost Grant Theory is a distinct sub-category in the pantheon of prescriptive rights—related to adverse possession, but independent of any statutory basis. Recognized by the U.S. Supreme Court, this doctrine can operate to transfer fee title, and is the early basis of prescriptive easement principles in the United States.

One rational argument for a presumed grant is the reluctance of courts to address stale claims raised long after the original parties to an agreement are gone. Quoting early United States Supreme Court precedent, an Arkansas judge observes in Arbuckle v. Kelley, 144 F. 276 (1906): “…courts of equity “will discourage stale demands, for the peace of society…” The Lost Grant Theory is strengthened by the premise that courts will not presume that unexplained possession or use of land is unlawful. In general, the presumption becomes more powerful as the duration of use increases.

Lost Grant Principles vs. Statute—English Antecedents

The many aspects of prescription applied in the United States become more comprehensible when considered within the framework of early English precedent. In Folsom v. Freeborn, 13 R.I. 200 (1881), the Rhode Island court identifies the ancient origins of the Lost Grant Theory in English law: In Read v. Brookman, 8 Term Rep. 151, 158, decided in 1789, Mr. Justice Buller said: “For these last two hundred years it has been considered as clear law that grants, letters patent, and records may be presumed from length of time.” This statement identifies precedent extending back to circa 1580. It also demonstrates that a grant may be presumed—in appropriate circumstances—both for claims of fee or for an easement.

In contrast with the common law presumption described above, early English authorities also established a statutory 20-year bar for adverse claims of fee title in 1623. Claims of adverse possession based on 21 Jac. I., c. 16 did not depend on a presumption of a grant; the British authorities concluded that under the statute, a new right of ownership was actually created by continued use of the land. In other words, an initial ‘wrong’ became a ‘right’ after the 20-year period had passed.

On the other hand, the Lost Grant Theory does not require an initial wrong. It presumes that the right claimed has a lawful origin, de-emphasizing or eliminating any requirement for adverse use. Under a presumed grant, open and peaceable possession with the apparent acquiescence of the servient owner over a long period of time is sufficient to prove the existence of a right. These simple criteria are the basis of prescriptive easement law in the United States.

Early English courts considered the Lost Grant—as applied to prescriptive easements—a rebuttable presumption. The time required—either 20 or 40 years, depending on the court—would constitute prima facie evidence of use ‘beyond the span of human memory,’ where no contrary evidence was presented. As it continued to develop in England, the Lost Grant Theory was formalized as a conclusive presumption of right after 20 years had elapsed. This set of principles was still poorly defined at the time of the American Revolution. It was formalized more recently in England under 2 & 3 William IV. c. 71. (1st August 1832) as described in Real Property Statutes Passed in the Reign of William IV and Victoria: Author: Leonard Shelford, Esq. 1842.

The doctrine of the presumed grant became the subject of dispute among English legal authorities circa 1820. The British government enacted remedies (2d and 3d Wm. 4 (1832)) to limit the application of the presumed grant. This was considered necessary by the English authorities in part because of the strain that it put on the conscience of the jury, who were required to presume a grant where no evidence existed to support the claim.

Landmark Rulings – U.S. Supreme Court

In Rhode Island v. Massachusetts: 45 U.S. 591 (1846), The U.S. Supreme court admits the existence of several variants of prescription that existed in English common law. The court also observes that either prescription under statute, or the Lost Grant Theory, could be applied to a claim of an easement in the American legal system.

In their brief on behalf of Rhode Island, counsel considered the mechanisms of prescription as provided by English precedent—and the possible confusion between them: “In England there is but little difference between the doctrine of prescription, and the doctrine of presuming lost grants, in regard to the objects embraced by the two principles.

The doctrine of prescription never extended to lands in fee, or corporeal hereditaments, nor did it extend to such incorporeal rights as could exist only by matter of record; …

On the other hand, the doctrine of presuming grants never extended to corporeal hereditaments; but, unlike the doctrine of prescription, it embraced all incorporeal hereditaments, whether evidenced by matters of record, or purely by grant. Patents from the crown, and acts of parliament even, were presumed to exist.”

This decision affirms that English courts applied the doctrine of presumed grants solely to establish incorporeal rights between dominant and servient estates.

Fletcher v. Fuller: 120 U.S. 534 (1887) firmly establishes the presumed grant as a legitimate concept for the American legal system. This case also affirms the use of the Lost Grant Theory to corporeal rights in the United States.

While this decision described a situation where ownership of an entire tract was disputed, research on the origins of the doctrine notes: “Where one uses an easement whenever he sees fit, without asking leave and without objection,” says the Supreme Court of Pennsylvania, “it is adverse and an interrupted adverse enjoyment for twenty-one years is a title which cannot afterward be disputed. Such enjoyment, without evidence to explain how it began, is presumed to have been in pursuance of a full and unqualified grant.” Garrett v. Jackson, 20 Penn. St. 331, 335. The same presumption will arise whether the grant relate to corporeal or incorporeal hereditaments. As said by this court in Ricard v. Williams, 7 Wheat. 59, 119, speaking by Mr. Justice Story: “A grant of land may as well be presumed as a grant of a fishery, or of common, or of a way.”

Early vs. Recent Adoption of the Lost Grant Theory

While numerous states have applied variations of a presumed grant to fee title in their early histories, New Mexico is one of the few to add the doctrine more recently. In 1993, this court applied principles from Fletcher v. Fuller to provide an alternative to the existing statutory framework for adverse possession claims.

El Paso Production v. PWG: 116 N.M. 583 (1993) considers the doctrine of presumed grant as an alternative to claims of adverse possession. While local statute only mandates a 10-year period of occupation, New Mexico law also requires color of title and payment of taxes as prerequisites for a claim of statutory adverse possession.

With this ruling, the New Mexico Supreme Court affirmed the lost grant theory for claims of fee simple title. This addition to the common law was not considered antithetical to existing statutory requirements for adverse possession. The claimant in question possessed the land for more than 50 years and evidence was presented to indicate that the previous owner was a brilliant businessman but a terrible record-keeper: “In New Mexico, adverse possession requires color of title supported by a writing or conveyance of some kind and payment of taxes during the period of possession, see NMSA 1978, § 37-1-22 … neither of which are required to find presumption of a grant.

Therefore, a presumption of grant may be found from evidence supporting the inference (a logical presumption) of a lost or neglected grant followed by long-term, open, active, exclusive possession of property under claim of right and acquiescence or no resistance by interested parties to that possession or claim of right. Here, based on the written and signed agreements to transfer the leases, the complete performance of one of the parties, and the statement by Mike Abraham that the interests had been conveyed, the trial court found that the grant should have been made if it in fact had not been made. We affirm the trial court's decision on ownership.” Notice that this court has applied the earlier rebuttable presumption rather than the later conclusive version of the lost grant theory.

Lost Grant Theory & Prescriptive Easements

While claims of adverse possession are judged by relatively consistent general standards in many states, the same cannot be said for disputes over prescriptive easements. This is due in large part to the origins of prescriptive easement law in the Lost Grant Theory, as derived from early English common law.

Requirements for prescriptive easements in the United States usually conform to one of three general standards, depending on the court in which the case is heard. In one extreme example from Kentucky, a single court ruling describes—and apparently recognizes—three separate sets of requirements. In Cole v. Gilvin: 59 S.W.3d 468 (2001), the court identifies these standards:

“1.—As a general matter, in order to obtain a right to a prescriptive easement, a claimant’s adverse use must be “actual, open, notorious, forcible, exclusive, and hostile, and must continue in full force…for at least fifteen years.”

2.—A prescriptive easement … is based on a presumed grant that arises from the adverse, uninterrupted, and continued use for a 15-year statutory period. … Continuous, uninterrupted use of a passway without interference for 15 years or more raises a presumption the use was under a claim of right…

3.—A private passway may be acquired by prescriptive use although a right of way is not strictly a subject of continuous, exclusive, and adverse possession. It is sufficient if the use exercised by the owner of the dominant tenement is unobstructed, open, peaceable, continuous, and as of right for the prescribed statutory period…” [Note: numbering and some re-formatting by the author]

The first definition listed above is by far the most stringent and leans heavily on common law requirements for adverse possession. However, the second set of requirements is less restrictive and identifies the Lost Grant Theory as its source. The third option also makes reference to the Lost Grant Theory, though that mechanism is not expressly identified. It is noteworthy that all of these definitions are based on pre-existing Kentucky precedent.

While early history may not hold the answers to all legal questions, in this case it provides the necessary context from which to gain a greater understanding of the constellation of issues that surround prescriptive claims. Further information on the Lost Grant Theory may be found in two of my recent books: “How to Fix a Boundary Line” and “Prescriptive Easements & Related Principles,” both available only from my website under ‘Publications.’

The Natchez Trace is--at a minimum--400 years old.

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