Acquisition by way of original possession must be distinguished from adverse possession. Original possession is accepted as a basis upon which one can legitimately acquire property by subsequent possession what we really mean is that the property in question may certainly have belonged to someone else initially through any combination of factors. That original owner may have lost possession and parted with the property so as to make it possible for one to talk of subsequent possession by the new owner. That may arise by way of finding. The Scot say finders keepers while losers are weepers. The Scots endorsed this secondary way of acquiring possession as a legitimate way of asserting rights so that where property A is owned by X comes into possession of Y as a result of X having lost the same, the person who finds title is in law good in the whole world except for the true owner. He acquires the thing or object but cannot claim absolute title or ownership in the face of competing claims from the actual owner but as against everybody else he acquires good title. If the owner does not turn up, he acquires such property and is entitled to keep it by virtue of that subsequent possession. If the original owner turns up a duty is cast on such a person to prove that fact so he can only succeed in law by rebutting that presumption that the finder has a good claim to the property against everybody else but the true owner. First ownership displaces rights acquired by subsequent possession. ADVERSE POSSESSION Through the operation of law, law on limitation certain rights are extinguished. Adverse possession only applies to property in land and operates as against persons other than the government. What happens is that land which is initially owned by a particular rights thereto say land owned by A. Without A’s consent, B moves in occupies that land openly without consent from A and without breaking that factor of occupation for a continuous period of 12 years. B openly remains in possession as against expressed wishes of A and a period of 12 years passes, B is deemed to have acquired title to that land by operation of the law. In effect adverse possession is essentially a method of transferring interest in land without the consent of the prior owner provided that the criteria spelt out regarding the prescriptive period and the manner that it must be exercised is fulfilled. The theory is based on proposition that there should be a restricted duration for assertion of edging claims and that upon the expiry of such periods, the adverse possessor should by operation of law be accorded security of title to that which he has acquired. That piece that he has openly occupied without consent of the owner of a continuous period of a minimum of 12 years.
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- Fall '16