Marengo Cave Co. v. Ross

Supreme Court of Indiana · Property

PropertyAdverse possessionSubsurface rightsadverse possessionsubterranean cavesubsurface estateopen and notoriousvisible possession

Facts

The entrance to Marengo Cave was located on the company's land, and since 1883 the company and its predecessors had possessed, improved, exhibited, and charged admission for use of the cave, believing the entire cave lay beneath their land. Part of the cave in fact extended beneath Ross's adjoining land, but neither party nor their predecessors knew that until a court-ordered survey in 1932. Ross had owned his surface tract since 1908, had never possessed the cave passages beneath it, and the cave's use had not interfered with his surface use. No severance of the cave from the surface estate had ever been made by deed or other instrument.

Issue

Can the owner of a cave entrance acquire title by adverse possession to the portion of the cave lying beneath a neighbor's land when the underground encroachment was unknown to both parties and could not be discovered by ordinary observation from the surface? More specifically, does such subterranean occupation satisfy the visible, open, notorious, and exclusive elements of adverse possession?

Rule

To acquire title by adverse possession, possession must be actual, visible, notorious, exclusive, under claim of ownership, hostile to the legal owner and the world at large, and continuous for the statutory period. For subterranean encroachments, possession is not open, visible, or notorious where the true owner neither knows nor reasonably could know of the underground invasion, and in the absence of severance of the subsurface estate, the surface owner's legal title carries constructive possession downward.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In rural Kentucky, Blue Hollow Tours owns a parcel with the only entrance to a limestone cavern. For 27 years, it has installed lights and walkways and guided paying visitors through chambers that, unknown to everyone, extend beneath neighboring land owned by Elena Park. Elena used her surface tract continuously, and nothing on the ground suggested the cavern crossed the boundary until a court-ordered underground survey.

If Blue Hollow Tours claims title by adverse possession to the cavern portions beneath Elena's land, which is the strongest argument against the claim?

Explanation. The majority rule is that adverse possession of subsurface land requires the usual elements, including possession that is visible, notorious, and exclusive. Where the underground encroachment is hidden by the nature of the land and the surface owner neither knows nor reasonably can know of it, the possession does not give the kind of notice required to divest record title. Because the subsurface estate was unsevered, Elena's legal title also carried constructive possession downward. (Derived from Marengo Cave Co. v. Ross (n.d.).)