B.Adverse Possession

The Concept of Adverse Possession

The doctrine of adverse possession is based on statutes of limitation for recovery of real property.Statutes of limitation operate to bar one’s right to recover real property held adversely by another for a specified period of time.These statutes also vest the adverse possessor with as perfect title as if there had been a conveyance by deed.However，this title is not a matter of public record until a court determines that title has been acquired by adverse possession and the court’s judgment is entered on the public records.Common statutes of limitation to recover the possession of real property are 5，10，15 or 20 years.The purposes of such statutes of limitation are to suppress dormant claims，to quiet titles，to require diligence on the part of the owner and penalize those who sit on their rights too long，and to reward the economic activities of a possessor who is utilizing land more efficiently than the true owner is.Many cases with similar facts but divergent results can be explained by considering which of these policies weighed more heavily in the decision making process.

Statutes vary considerably as to such matters as adverse possession under color of title and not under color of title，types of disability and the effect of a disability in specific instances，and whether or not the statute of limitation may run against governmental entities.

In order to acquire a title to real property by adverse possession，the possession throughout the statutory period must be：

a.Actual；

b.Open，visible and notorious (meaning，not secret or clandestine but occupying as an owner would occupy for all the world to see if one cares to look）；

c.Exclusive (meaning sole physical occupancy or occupancy by another with the permission of the person claiming a title by adverse possession）；

d.Continuous and peaceable (meaning without abatement，abandonment or suspension in occupancy by the claimant，and also without interruption by either physical eviction or action in court.In other words there must be an unbroken continuity of possession for the statutory period）； and e.Hostile and under claim of right (meaning that the possession is held against the whole world including the true owner； that the possessor claims to be the owner whether or not there is any justification for her claim，or whether or not there is “color of title”–which is a paper or instrument that does not qualify as an effective legal conveyance but that the claimant may believe is effective.

Possession under a mistaken belief that one is the owner of the land can be adverse under the majority view.Likewise，good faith on the part of the adverse possessor is generally deemed immaterial.Thus，the possessor can prevail with no rightful claim at all if the above elements exist.

These five elements must coexist to enable one to acquire title by adverse possession.

Whether each of these elements exists is primarily a question of fact.

Van Valkenburgh v.Lutz

Court of Appeals of New York，1952

304 N.Y.95，106 N.E.2d 28

[Prologue：Background information taken by the editors from the record and briefs submitted to the New York Court of Appeals.Shortly after their marriage in 1912，Mary and William Lutz bought at auction two wooded lots in Yonkers，a suburb of New York，taking title in the husband’s name.the lots，numbered 14 and 15，were situated high on a hill above Leroy Avenue，at the time an unimproved “paper” street.To the west was a wooded triangular tract – consisting of lots 19，20，21 and 22 – the ownership of which is at issue in this case.(Lots 19-22 appear as one lot – lot 19 – on the current Yonkers tax map reproduced as attached.） Instead of climbing the steep grade from Leroy Avenue to reach lots 14 and 15，the Lutzes found it easier to cross the triangular tract which they did not own； Lutz cleared a “traveled way’ near the northern boundary of the tract to reach Gibson Place on the west.

With the help of his brother Charlie and his wife Mary，William Lutz cleared lots 14 and 15 and built a house for his family on them.The Lutzes also partially cleared the triangular tract and built for Charlie a one-room structure on lot 19.By 1920 the buildings were occupied.In 1921 Mary’s fifth and last child was born to her in the main house.

In 1928 the city graded Leroy Avenue and broke the private water line leading to the main Lutz House.Lutz，who was working in New York City at the time，went home to repair it.As a result，he lost his job； thereafter Lutz stayed home tending a garden on the triangular property，selling vegetables，and doing odd jobs for neighbors.The Lutz children grew up，and all except the youngest son，Eugene，moved away.

In 1937 Joseph and Marion Van Valkenburgh bought lots west of Gibson Place and built a new home there.Some nine years later，in 1946，bad blood developed between the Lutzes and the Van Valkenburghs.In April of that year Mary Lutz was annoyed by the presence of the Van Valkenburgh children in her garden，and she called her husband over.The Van Valkenburgh children ran home，Lutz behind them brandishing an iron pipe and crying，“I’ll kill you.” Van Valkenburgh then appeared and began a heated argument with Lutz.He subsequently swore out a complaint of criminal assault，and Lutz was arrested，jailed，then released on bail.

A year later，in April [1]947，the Van Valkenburghs bought lots 19，20，21 and 22 from the City of Yonkers at a foreclosure sale for non-payment of taxes； no personal notice of the proceedings was given the Lutzes.The purchase price was $379.50.On the following July 6，Van Valkenburgh，accompanied by two policemen，visited the triangular tract and in his words，“took possession” of it.He called to Mrs.Lutz to come out of her house and told her that the Lutzes were to clear from the property all buildings that belonged to them.On July 8 the Van Valkenburghs’ attorney sent Lutz a registered letter informing him that the triangular tract was now owned by the Van Valkenburghs and that he should remove any of his property from the land.A few days later Lutz went to see the attorney and told him he wanted proof of the Van Valkenburghs’ ownership and time to harvest his vegetable crop.Then on July 13，Lutz failed to appear for the trial on the charge of criminal assault，for which he had been arrested a year earlier.A bench warrant was issued，and Lutz was again arrested，jailed，and released on bail.Subsequently he was convicted of criminal assault.

In the meantime Van Valkenburgh had the property surveyed.In response to another letter from the Van Valkenburghs’ attorney，Lutz returned to the attorney’s of fice on July 21，this time accompanied by his own lawyer.At this meeting Lutz agreed to remove his sheds，junk，and garden within thirty days，but he claimed a prescriptive right1 to use the traveled way to reach his property.Lutz then removed the chicken coops and junk.Shortly thereafter the Van Valkenburghs invited legal action by erecting a fence across the traveled way that Lutz claimed a right to use.Lutz joined battle by bringing an action against the Van Valkenburghs to enjoin them from interfering with his right of way.In the suit Lutz alleged that Marion Van Valkenburgh was the owner of the property，but that Lutz had a right of way over it.In January 1948 the trial court handed down a judgment in Lutz’s favor，awarding him a right of way over the traveled way； this judgment was affirmed in June 1948 (Lutz v.Van Valkenburgh，274 A.D.813，81 N.Y.S.2d 161）.

The action in this case was commenced against the Lutzes on April 8，1948.Perhaps realizing the blunder made in the prior lawsuit (the admission that Marion Van Valkenburgh owned lots 19-22），Lutz fired his Yonkers lawyer and hired one from Wall Street.Not to be outdone，the Van Valkenburghs also sought out and employed a Wall Street firm.In August 1948 William Lutz died，devising all his property to his wife Mary.The Van Valkenburghs’ suit was tried in June 1950.The testimony in the case totaled some 250 pages，and in addition there were 56 exhibits consisting of deeds，surveys，and photographs.Several neighbors who had lived in the area a long time testi fied for the Lutzes.Not one testi fied for the Van Valkenburghs，who lost in the trial court and appealed.]

DYE，J.These consolidated actions were brought to compel the removal of certain encroachments upon plaintiffs’ lands，for delivery of possession and incidental relief.The subject property consists of four unimproved building lots designated as 19，20，21 and 22 in block 54 on the official tax map of the city of Yonkers，N.Y.These lots together form a parcel somewhat triangular in shape with dimensions of approximately 150 by 126 by 170 feet fronting on Gibson Place，a street to be laid out within the subdivision running in a northwesterly direction from Leroy Avenue and now surfaced for automobile travel as far as lots 26，27 and 28.The subject premises were purchased by the plaintiffs from the City of Yonkers by deed dated April 14，1947.At that time the defendants were，and had been since 1912，owners of premises designated as lots 14 and 15 in block 54，as shown on the same map.The defendants’ lots front on Leroy Avenue and adjoin lot 19 owned by the plaintiffs at the rear boundary line.All of the lots，though differently numbered，appear on a map of the subdivision of the Murray Estate opened prior to 1912 and numbering 479 lots.At that time that part of the Murray subdivision was covered with a natural wild growth of brush and small trees.

The defendants interposed an answer denying generally the allegations of the complaint and alleging as an affirmative defense，and as a counterclaim，that William Lutz had acquired title to the subject premises by virtue of having held and possessed the same adversely to plaintiffs and predecessors for upwards of thirty years.

The issue thus joined was tried before Hon.Frederick P.Close，Official Referee，who found that title to said lots “was perfected in William Lutz by virtue of adverse possession by the year 1935” and not thereafter disseized.The judgment entered thereon in favor of the defendants was affirmed in the Appellate Division，Second Department，without opinion，one Justice dissenting on the ground that the evidence was insufficient to establish title by adverse possession.

To acquire title to real property by adverse possession not founded upon a written instrument，it must be shown by clear and convincing proof that for at least fifteen years (formerly twenty years） there was an “actual” occupation under a claim of title，for it is only the premises so actually occupied “and no others” that are deemed to have been held adversely (Civ.Prac.Act，§§ 34，38，39）.The essential elements of proof being either that the premises (1） are protected by a substantial inclosure，or are(2） usually cultivated or improved (Civ.Pract.Act，§ 40）.

Concededly，there is no proof here that the subject premises were “protected by a substantial inclosure” which leaves for consideration only whether there is evidence showing that the premises were cultivated or improved sufficiently to satisfy the statute.

We think not.The proof concededly fails to show that the cultivation incident to the garden utilized the whole of the premises claimed.Such lack may not be supplied by inference on the showing that the cultivation of a smaller area，whose boundaries are neither defined not its location fixed with certainty，“must have been … substantial” as several neighbors were “supplied … with vegetables”.This introduces an element of speculation and surmise which may not be considered since the statute clearly limits the premises adversely held to those “actually” occupied “and no others” (CIV.Prac.Act，§ 39 which we have recently interpreted as requiring definition by clear and positive proof (St.William’s Church v.People，296 N.Y.861，revg.269 App.Div.874，motion for reargument denied 296 N.Y.1000）.

Furthermore，on this record，the proof fails to show that the premises were improved (Civ.Prac.Act，§ 40）.According to the proof the small shed or shack (about 5 by 10–feet） which，as shown by survey map，was located on the subject premises about 14 feet from the Lutz boundary line，… was building in about the year 1923 and，as Lutz himself testified，he knew at the time it was not on his land，and his wife，a defendant here，also testified to the same effect.

The statute requires as an essential element of proof，recognized as fundamental on the concept of adversity since ancient times，that the occupation of premises be“under a claim of title” (Civ.Pract.Act，§ 39），in other words，hostile (Belotti v.Bickhardt，228 N.Y.296），and when lacking will not operate to bar the legal title (Doherty v.Matsell，119 N.Y.646），no matter how long the occupation may have continued (La Frombois v.Jackson，8 Cow.589； Colvin v.Burnet，17 Wend.564）.

Similarly，the garage encroachment，extending a few inches over the boundary line，fails to supply proof of occupation by improvement.Lutz himself testified that when he built the garage he had no survey and thought he was getting it on his own property，which certainly falls short of establishing that he did it under a claim of title hostile to the true owner.The other acts committed by Lutz over the years，such as placing a portable chicken coop on the premises which he moved about，the cutting of brush and some of the trees，and the littering of the property with odds and ends of salvaged building materials，cast-off items of house furnishings and parts of automobiles which the defendants and their witnesses described as “personal belongings”，“junk”，“rubbish” and “debris”，were acts which under no stretch of the imagination could be deemed an occupation by improvement within the meaning of the statute，and which，of course，are of no avail in establishing adverse possession.

We are also persuaded that the defendant’s subsequent words and conduct confirm the view that his occupation was not “under a claim of title”.When the defendant had the opportunity to declare his hostility and assert his rights against the true owner，he voluntarily chose to concede that the plaintiffs’ legal title conferred actual ownership entitling them to the possession of these and other premises in order to provide a basis for establishing defendant’s right to an easement by adverse possession–the use of a well-defined “traveled way” that crossed the said premises.In that action (Lutz v.Van Valkenburgh，274 App.Div.813），William Lutz，a defendant here (now deceased），chose to litigate the issue of title and possession and，having succeeded in establishing his claim of easement by adverse possession，he may not now disavow the effect of his favorable judgment (Goebel v.If fl a，111 N.Y.170），or prevent its use as evidence to show his prior intent.Declarations against interest made by a prescriptive tenant are always available on the issue of his intent (6 Wigmore on Evidence，§ 1778）.

On this record we do not reach the question of disseisin by oral disclaimer，since the proof fails to establish actual occupation for such time or in such manner as to establish title.What we are saying is that the proof fails to establish actual occupation for such a time or in such a manner as to establish title by adverse possession.

The judgments should be reversed，the counterclaim dismissed and judgment directed to be entered in favor of plaintiff Joseph D.Van Valkenburgh for the relief prayed for in the complaint subject to the existing easement (Lutz v.Van Valkenburgh，274 App.Div.813），with costs in all courts.

Fuld，J.(dissenting）.In my judgment，the weight of evidence lies with the determination made by the court at Special Term and affirmed by the Appellate Division.But whether that is so or not，there can be no doubt whatsoever that the record contains some evidence that the premises here involved were occupied by William Lutz，defendant’s late husband，for fifteen years under a claim of title–and that，of course，should compel an affirmance.

The four lots in suit，located in the City of Yonkers，comprise a fairly level parcel of land，triangular in shape，with approximate dimensions of 150 by 126 by 170 feet.It is bounded on the north by a “traveled way”，on the west and south by Gibson Place，an unopened street，and on the southeast by a vacant lot.Immediately to the east of the parcel，the land descends sharply to Leroy Avenue，forming a steep hill； on the hill are situated two lots，purchased by Lutz in 1912，upon which his family’s home has stood for over thirty years.

Wild and overgrown when the Lutzes first moved into the neighborhood，the property was cleared by defendant’s husband and had been，by 1916，the referee found，developed into a truck farm “of substantial size”.Lutz，together with his children，worked the farm continuously until his death in 1948； indeed，after 1928，he had no other employment.Each year，a new crop was planted and the harvest of vegetables was sold to neighbors.Lutz also raised chickens on the premises，and constructed coops or sheds for them.Fruit trees were planted，and timber was cut from that portion of the property not used for the farm.On one of the lots，Lutz in 1920 built a one-room dwelling，in which his brother Charles has lived ever since.

Although disputing the referee’s finding that the dimensions of Lutz’s farm were substantial，the court’s opinion fails to remark the plentiful evidence in support thereof.For instance，there is credible testimony in the record that “nearly all” of the property comprised by the four lots was cultivated during the period to which the referee’s finding relates.A survey introduced in evidence indicates the very considerable extent to which the property was cultivated in 1950，and many witnesses testified that the farm was no larger at that time than it had ever been.There is evidence，moreover，that the cultivated area extended from the “traveled way” on one side of the property to a row of logs and brush–placed by Lutz for the express purpose of marking the farm’s boundary–at the opposite end of the premises.

According to defendant’s testimony，she and her husband knowing that they did not have record title to the premises，intended from the first nevertheless to occupy the property as their own.Bearing this out is the fact that Lutz put down the row of logs and brush，which was over 100 feet in length，to mark the southwestern boundary of his farm； this marker，only roughly approximating the lot lines，extended beyond them into the bed of Gibson Place.The property was，moreover，known in the neighborhood as“Mr.Lutz’s garden”，and the one-room dwelling on it as “Charlie’s house”； the evidence clearly indicates that people living in the vicinity believed the property to be owned by Lutz.And it is undisputed that for upwards of thirty-five years–until 1947，when plaintiffs became the record owners–no other person ever asserted title to the parcel.

With evidence such as that in the record，I am at a loss to understand how this court can say that support is lacking for the finding that the premises had been occupied by Lutz under a claim of title.The referee was fully justified in concluding that the character of Lutz’s possession was akin to that of a true owner and indicated，more dramatically and effectively than could words，an intent to claim the property as his own.Recognizing that “A claim of title may be made by acts alone，quite as effectively as by the most emphatic assertions” (Barnes v.Light，116 N.Y.34，39），we have often sustained findings based on evidence of actual occupation and improvement of the property in the manner that “owners are accustomed to possess and improve their estates.” (La Frombois v.Jackson，8 Cow.589，603…）

That Lutz knew that he did not have the record title to the property–a circumstance relied upon by the court–is of no consequence，so long as he intended，notwithstanding that fact，to acquire and use the property as his own.As we stated in Ramapo Mfg.v.Mapes (216 N.Y.362，370-371），“the bona fides of the claim of the occupant is not essential and it will not excuse the negligence of the owner in forbearing to bring his action until after the time in the Statute of Limitations shall have run against him to show that the defendant knew all along that he was in the wrong.(Humbert v.Rector，etc.，of Trinity Church，24 Wend.587.）”

Quite obviously，the fact that Lutz alleged in 1947 easement action–twelve years after the title had，according to the referee，vested in him through adverse possession– that one of the plaintiffs was the owner of three of the lots，simply constituted evidence pointing the other way，to be weighed with the other proof by the courts below.While it is true that a disclaimer of title by the occupant of property，made before the statutory period has run，indelibly stamps his possession as nonadverse and prevents title from vesting in him …，a disclaimer made after the statute has run carries with it totally different legal consequences.Once title has vested by virtue of adverse possession，it is elementary that it may be divested，not by an oral disclaimer，but only by a transfer complying with the formalities prescribed by law….

Hence，an oral acknowledgment of title in another，made after the statutory period is alleged to have run，“is only evidence tending to show the character of the previous possession.” (Smith v.Vermont Marble Co.，99 Vt.384，394….）

Here，official Referee Close，of the opinion that the 1947 admission was made by Lutz under the erroneous advice of his attorney cf.Shirey v.Whitlow，80 Art.444，446-447），chose to rest his decision rather on evidence of Lutz’s numerous and continual acts of dominion over the property–proof of a most persuasive character.Even if we were to feel that the referee was mistaken in so weighing the evidence，we would be powerless to change the determination，where，as we have seen，there is some evidence in the record to support his conclusion.

In view of the extensive cultivation of the parcel in suit，there is no substance to the argument that the requirements of sections 39 and 40 of the Civil Practice Act were not met.Under those provisions，only the premises “actually occupied” in the manner prescribed–that is，“protected by a substantial inclosure” or “usually cultivated or improved”–are deemed to have been held adversely.The object of the statute，we have recognized，“is that the real owner may，by unequivocal acts of the usurper，have notice of the hostile claim and be thereby called upon to assert his legal title.”(Monnot v.Murphy，207 N.Y.240，245； …） Since the character of the acts sufficient to afford such notice “depends upon the nature and situation of the property and the uses to which it can be applied，” it is settled that the provisions of sections 39 and 40 are to be construed，not in a narrow or technical sense，but with reference to the nature，character，condition，and location of the property under consideration….

Judge Dye considers it significant that the proof “fails to show that the cultivation incident to the garden utilized the whole of the premises claimed” [supra].There surely is no requirement in either statute or decision that proof of adverse possession depends upon cultivation of “the whole” plot or of every foot of the property in question.And，indeed，the statute–which，as noted，reads “usually cultivated or improved”–has been construed to mean only that the claimant’s occupation must“consist of acts such as are usual in the ordinary cultivation and improvement of similar lands by thrifty owners.” (Rampao Mfg.Co.，supra）.The evidence demonstrates that by far the greater part of the four lots was regularly and continuously used for farming，and，that being so，the fact that a portion of the property was not cleared should not affect the claimant’s ability to acquire title by adverse possession：any frugal person，owning and occupying lands similar to those here involved，would have permitted，as Lutz did，some of the trees to stand–while clearing the bulk of the property–in order to provide a source of lumber and other tree products for his usual needs.The portion of the property held subservient to the part actively cultivated is a much “occupied” as the portion actually tilled.The nature of the cultivation engaged in by Lutz was more than adequate，as his neighbors’ testimony establishes，to give the owner notice of an adverse claim and to delimit the property to which the claim related.The limits of the parcel in suit were indicated in a general way by boundaries natural as well as man-made：the declivity to Leroy Avenue，the “traveled way”，the bulk of each of the four lots was cultivated，and–even putting to one side the fact that the cottage，called “Charlie’s house”，had been actually occupied and lived in for upwards of thirty years–such substantial use was enough to put the owner on notice that his whole lot was claimed.

In short，there is ample evidence to sustain the finding that William Lutz actually occupied the property in suit for over fifteen years under a claim of title.Since，then，title vested in Lutz by 1935，the judgment must be affirmed.To rule otherwise，on the ground that the weight of evidence is against that finding–a view which I do not，in any event，hold–is to ignore the constitutional provision that limits our jurisdiction to the review of questions of law (N.Y.Const.，art.VI § 7； see，also，Civ.Pract.Act.§ 605）.

I would affirm the judgment reached by both of the courts below.

Lewis，Conway and Froessel，JJ.，concur with Dye，J.； Fuld，J.，dissents in opinion in which Loughran，Ch.J.，and Desmond，J.，concur.

[Epilogue：Litigation between the Van Valkenburghs and the Lutzes did not end with the principal case.The Van Valkenburghs’ judgment included costs and disbursements，and an execution was issued directing the sale of lots 14 and 15 (the Lutz home） to pay the judgment.In the meantime Mary Lutz had transferred all her interest in her home to her son Eugene，who resided there with his mother，his wife，and his child.Eugene moved to set aside the execution，and the motion was granted； the Van Valkenburghs moved for a rehearing，and this was denied.The Van Valkenburghs then appealed the order denying the rehearing instead of appealing，as they should have，the order granting Eugene’s motion.They lost.Van Valkenburgh v.Lutz，6 A.D.2d 812，175 N.Y.S.2d 203 (1958）.By a lawyer’s procedural error，the Lutz home was saved for Mary and Eugene.(Query：Was the lawyer liable to the Van Valkenburghs for malpractice？）]

Notes：

1.Color of Title and Constructive Adverse Possession.The “claim of title” required by the New York statutes，and at issue in Van Valkenburgh v.Lutz，is quite different from “color of title.” Claim of title is simply one way of expressing the requirement of hostility or claim of right on the part of an adverse possessor.Color of title，on the other hand，refers to a claim founded on a written instrument (eg.a deed，a will）or a judgment or decree that is for some reason defective and invalid (as where the grantor does not own the land conveyed by deed or is incompetent to convey，or the deed is improperly executed）.Claim under color of title was not required by English law and is not required in most American jurisdictions.In a few states，color of title is essential to acquiring title by adverse possession.What might be the rationale for the concept of color of title？ Should it be required in all cases？ Dispensed with in all？

Even though color of title is not a prerequisite for adverse possession in most states，it has important advantages for the adverse possessor.Notice，for example，that the statutes involved in Van Valkenburgh v.Lutz set out different requirements for claims of title “founded upon a written instrument or a judgment or decree” and those not so founded.The requirements in the first case are slightly more lenient than those in the second.In some states a shorter statute of limitations is applicable to adverse possessors with color of title than to those without.In all states entry with color of title may have an advantage where the adverse possessor enters into possession of only a part of the property.Actual possession under color of title of only a part of the land covered by the defective writing is constructive possession of all the writing describes.The advantage that a person may gain from constructive possession is that the activities relied upon to establish adverse possession reach not only the part of the premises actually occupied but the entire premises described in a deed to the claimant.This doctrine of constructive adverse possession under color of title，established by judicial rule in some states and by statute in others，is，however，subject to some limitations.

2.Differences in common law action for the return of properties.

a） Trover–a claim for goods misappropriated by another

b） Detinue–a claim for personal property wrongfully held by another

c） Replevin–a claim under ownership to recover goods

d） Appropriation–taking of another’s property as if it is your own without permission

e） Misappropriation–dishonest taking of another’s property

f） Conversion–illegal holding of another’s property

3.Adverse possession.Van Valkenburgh v.Lutz is a weird case lasting nearly a hundred years，in which Lutz，though his attorney，raised the easement argument(the “traveled way”） as a defense to Valkenburgh’s claim of property right，while conceding that Mrs.Valkenburgh was the rightful owner.This，according to the court，damages his later claim of adverse possession (as it is inequitable for him to repudiate a favorable judgment）.How does his ill-advised concession affect his claim for adverse possession？ I don’t get it! Lutz’s adverse possession was complete by 1935，well before the Valkenburgh’s purchase of the property in 1947.His claim should oust Valkenburgh’s title，because the adverse possession，whether it is true or not，was against whoever was the previous owner，not a subsequent owner.The Valkenburghs were not even in a position to argue against Lutz’s claim of adverse possession.They should not even be a party to that game.

4.Dictum–a dictum (pl.dicta） is a discussion of law in general，not necessarily binding to the facts at issue.This is particularly so when a reviewing court is remanding a case to a lower court for further finding of facts，for which the reviewing court gives legal guidance for proper application of the law if the facts so support it，as in Section III of O’Keeffe v.Snyder.A very important thing to note is that a court’s“ruling” is all that is binding on future cases，and is therefore the controlling “law”.A dictum，however，is not binding.It may be highly persuasive，but not controlling.When you cite a case as authority to support your argument，you must bear this clearly in mind，and indicate it as such.A dictum carries less weight in argument.

5.Summary judgment.Some people consider it as similar to the “simplified procedure” in China，but it is not.A summary judgment is a court’s determination of a legal conclusion when there’s no major dispute over the facts.Such a judgment is made on either party’s motion for judgment as a matter of law (JMOL） which is immediately appealable.Summary judgment is frequently used in intellectual property cases.

6.Deposition.In U.S.practice，the fact-finding process usually takes place before the trial in a “discovery” process.All evidence admitted during discovery，including statements made anyone participating in a deposition，could be introduced at trial.

7.Adverse Possession of Chattels.

(a） Generally，a thief cannot acquire or transfer title to stolen personal property，even to an innocent purchaser.

(b） But title to personal property can be lost by adverse possession.Typically statutes of limitation for adverse possession of chattels run from two to six years.

(c） At common law，the statute of limitation began to run when possession became hostile，actual，open，exclusive and continuous，rather than at that point that the goods were stolen or the true owner discovered their location.More recently，it has been held that the statute should begin to run when the true owner discovers or should have discovered the whereabouts of the stolen property.

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[1]Prescription differs from adverse possession in terms of the sorts of interests acquired.By adverse possession one may acquire the title or ownership，and the exclusive possession，of land formerly belonging to someone else，say X，whereas prescription gives rise to rights of use，such as rights of way and other easement，but title to the land remains in X.in some jurisdictions the elements of the two doctrines are essentially identical； in others not.