Property I, Pages 193–198

Stump v. Whibco

Superior Court of New Jersey, Appellate Division, 1998

Facts:

Plaintiffs bought land from the Coxes in 1974. The Coxes bought this land in 1948 and replaced the fence at some point without surveying. The plaintiffs improved this land and thought that it was their own until 1990, when it was discovered that part of it was actually owned by defendant.

Procedural History:

The trial court concluded that the plaintiffs had failed to satisfy New Jersey's 30-year limitations period.

Issue:

Did the fence satisfy "open and notorious" possession?

Rule:

The possession must be open and notorious, so that it could be noticed by the true owner.

Reasoning:

The fence was small and close to the actual border. It could not be noticed that it was wrong without a survey, so the true owner was not expected to notice it.

Holding:

No, it was not open and notorious possession. Affirmed.

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