Eminent Domain Report

A question that arises with some frequency in our practice is whether a public entity can adversely possess a property interest against another public entity. The general rule of thumb is that a private entity cannot obtain an interest in real property owned by a public entity through adverse possession. This rule is in part based off of the long-established principle nullum tempus occurrit regi, which means "time does not run against the king."

In California, this common law principle has been affirmed and reaffirmed for over a century in our courts and has been codified by the legislature in California Civil Code section 1007 which reads, in part, that “no possession by any person, firm or corporation” of land owned by the state or any public entity can ripen into any title, interest or right against the owner.  

Interestingly, California Civil Code section 1007 seemingly limits those who cannot adversely possess against a public entity to “any person, firm, or corporation” causing some to believe there is a purposeful loophole in the statute which makes it inapplicable to public entities. Unfortunately for those seeking out that loophole, the California Supreme Court has interpreted the phrase “no possession by any person” to include government agencies. (City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d 199,273-277 (disapproved of by, City of Barstow v. Mojave Water Agency, on other grounds (2000) 23 Cal. 4th 1224)).

Thus, at least in the state of California, no such loophole exists and public entities are also barred from acquiring property interests from other public entities via prescription or adverse possession.

That said, the answer to this question may vary if you are in a state other than California. In fact, in Washington State there is precedent for allowing a prescriptive acquisition of title from one public entity against another. In Highline School Dist. No. 401, King County v. Port of Seattle (1976) 87 Wash.2d 6, 11–12, an appellant tried to invoke the rule that property of a municipal corporation held in its governmental capacity for public purposes cannot be acquired by adverse possession. The Court found that previous decisions establishing that rule did not involve a situation in which the claimant was also a governmental entity. In their decision they state that “however valid the policies which underlie the rule against acquisition of municipal properties when the claimant is a private party, nothing favors its application where another unit of government seeks to acquire the property interest.”  

In sum, the ability for public entities to acquire property via adverse possession from another public entity can vary by jurisdiction. Therefore, it is important to understand local rules to protect long-term property rights.