Manifest Destiny, a Continuous Project

Land grabbers barrel toward 
The heartland. 
American lawmakers
And unhappy urban masses
Look deep in their hearts
And ask if
Taking away someone’s land
Is really so extreme? 
Or something wholly natural. 
Lions chasing off cheetahs.
Coyotes chase off buzzards,
If you don’t use it as well, 
Then we’ll come for it. 
The electoral college
In part
Asks us to care for
The enormous expanse
Of America. 
We trust Mr. Wyoming
With that extra voting power
Because he is supposed to
Use his first-hand knowledge,
His personal investment,
To help us decide
How to help the land. 
Mr. Wyoming,
And all their friends 
Grew big monocultures
Let the topsoil blow off,
Flooded rivers
And down the way,
Our gulf with nitrogen inputs. 
Then they voted 
To gut the EPA 
So they could do it some more. 
Fewer and fewer people
In rural towns.
More meth
And opioids,
And decaying main streets,
And apathy. 
Less and less
Exciting ideas.
New businesses shuttering.
Farmers conglomerating,
Using financial tools to
“Survive” at scale,
While close ups are starving. 
More leases.
Farming contracts,
Hoping for oil booms,
Settling for 
Incompetent wildcatters when
The hope fades.
Animals that aren’t theirs. 
Fields full of 
Anonymous Black Angus cattle. 
Divided land holdings
Between splintered
Absentee owner grandchildren. 
When the Feds legislate 
Wide reaching
Adverse possession standards,
And open the flood gates. 
Tent cities go on the march. 
A great Eastward expansion
Hacking clearings into
Thickets of brush
And utilizing the property
At least as much as 
The out of state
Shreveport refinery owner
Who hasn’t visited in 8 years. 
Couples living their van lives
Start parking.
Feverishly reading
Survival guides,
Permaculture blogs,
Articles on cabin building
And meeting the deadlines 
For their work on the road
Tech day jobs. 
Before and after
Soil samples
Productivity assessments
Statements of reliance
Statements from new neighbors
Attesting to how they’ve
Improved the community. 
The Range Wars are on again. 
As urban outcasts 
Step timidly into small town churches.
Farmers markets pop up,
Tractor Supply stocks soar,
Tents get set on fire,
Van lifers shot in their van,
Before anyone saw they were
The new neighbors. 
Little plots of sweet peas,
Red clover cover crop,
Growing mushrooms in logs,
Selling duck eggs,
Chasing goats,
And turning weeds into teas. 
Legal battles,
Where local judges
Order removal
As a matter of course
Until the suit is resolved. 
No loans.
More bartering.
Who do you sell to
When it’s just you.
Opioid rates don't decline, 
But the surveys are harder. 
Shooting heroin tents, 
Around the fire, 
Staring at a clear night sky. 
Too little cash, 
When there’s so much bartering.
The drug dealer’s van 
Travels up dirt roads,
And only takes cash,
And the ranch house over there,
Has cash. 
Federal agency decisions
Arrive by email.
Citing soil health,
Constructive use,
Good relations with
Their neighbors
Who swore by affidavits
That they lived nearby. 
The land is theirs,
In trust,
For 2 years.
Will need to resubmit 
Evidence of improvement. 
2 more hard years, 
Only for the crazy, 
The creative, 
The listless, 
The rootless, 
The people that, 
Better or worse, 
Made America the first time. 

*This piece is about my property class talking about adverse possession, indigenous land reform efforts I read about in Mexico, and the tent cities that popped up during the 2008 financial crisis.

Adverse possession is an interesting and exciting concept in law (in the US). The typical requirements for someone to gain title to land through adverse posession are:

  1. Actual possession: (Happened in this story) Physically occupying the land, meaning at least the “ordinary use to which the land is capable and such as an owner would make of it.” [Singer (2017) at pg. 293, citing Smith v. Hayden, 772 P.2d 47, 55 (Colo. 1989)].
  2. The possession is open and notorious: (Happened in this story) Some occupancy that is sufficient to put a reasonable land owner on notice that you are occupying the land. They don’t have to actually see it, as long as they reasonably should have. ***LOTS of state by state variation apparently. Singer (2017) at pg. 294.
  3. It is exclusive: (Happened in this story) Means that the person occupied the land was using it like a true owner of the land would, and wasn’t trying to share true owner rights with another party (the true owner, or an adverse possessor who is also trying to claim the land separately from the main adverse possessor). Singer (2017) at pg. 294.
  4. It is continuous: (They were working on it in the story) A level of constant occupation that looks like was a true owner would do. For example a summer cabin an adverse possessor only occupied in the summer might qualify since that’s what other reasonable owners of that type of property in that area were doing. Singer (2017) at pg. 295.
  5. It is adverse or hostile: (Happened in this story) A non-permissive use. So if the adverse possessor was given permission to be there, it probably wouldn’t count. Singer (2017) at pg. 295. But there is a general presumption that occupying the land is non-permissive. [Singer (2017) at pg. 295 citing Robarge v. Willett, 636 N.Y.S.2d 938 (App. Div. 1996)].
  6. It is maintained for the statutory period. (They were working on it in the story)
  7. SOME states require that it happened “under color of title.” (NOT what happened in this story).
  8. SOME states require the person paid property taxes on the land.

There is also a discussion on the adverse possessors state of mind. This story focuses on what many courts, and people, would think of as the least sympathetic adverse possessors. These characters did not make an honest mistake about boundary lines or have a deed with a typo, they are basically land pirates. They are out to purposefully take land from someone else with the only moral justification being that the permaculture attempting grabbers might do a better job of using it.

A law article by Cooter & Ulen cited by that same textbook discusses an economic rationale that adverse possession “prevents valuable resources from being left idle for long periods of time.” Another law article cited by that textbook talks about why it may be more efficient to give the land to these possessors through the adverse possession doctrine instead of asking them to just buy the land. “The adverse possessor’s long term use (and improvement) of the property, combined with the rick of civil and criminal sanctions, will in many cases constitute strong prima facia evidence that the lawbreaker places high value on the property.” Peñalver (2010). And Judge Richard Posner says that comparing the value an absentee landowner seems to attach to the property, to the value the adverse possessor who is working hard on the land seems to attach to it, we should award the land to the adverse possessor because, “their combined utility will be greater if the adverse possessor is allowed to keep the property.” Posner (2014).

If those arguments sound strange to you, or unpleasant, then it is worth considering the kinds of arguments made during the 1800s advocating for a manifest destiny and westward expansion.

Peñalver, E. M., & Katyal, S. (2010). Property outlaws: How squatters, pirates, and protesters improve the law of ownership. Yale University Press.

Posner, R. A. (2014). Economic analysis of law. Wolters kluwer law & business.

Singer, J. W., Berger, B. R., Davidson, N. M., & Penalver, E. M. (2017). Property Law: Rules, Policies, and Practices. Wolters Kluwer Law & Business.

Are those citations poorly done? Yes. Is this a poetry blog? Yes.

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