Question for the legal scholars, and others.

Background:
There are aspects of our legal system that have never been voted on but are legally enforceable, called 'common law'. Some areas inherited their common law from British tradition, others (Louisiana, I'm looking at you) from the French.

Example, for purposes of discussion********************

For purposes of discussion, assume there is in common law effective in a jurisdiction a rule to the effect that, if a property owner lets someone walk across their property for a sufficiently long period of time, the property owner loses the ability to ever stop those persons from walking across their property; that under common law they will have over time acquired the right to continue doing so forever, can pass that right on to their successors, etc.
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The question:

Could a jurisdiction pass a law changing an aspect of common law such as the example above? If so, what level jurisdiction - Federal, state, county, local could do so, and what form would the legislation take?

quote:

Originally posted by joel9507:
Question for the legal scholars, and others.

Background:
There are aspects of our legal system that have never been voted on but are legally enforceable, called 'common law'. Some areas inherited their common law from British tradition, others (Louisiana, I'm looking at you) from the French.

Example, for purposes of discussion********************

For purposes of discussion, assume there is in common law effective in a jurisdiction a rule to the effect that, if a property owner lets someone walk across their property for a sufficiently long period of time, the property owner loses the ability to ever stop those persons from walking across their property; that under common law they will have over time acquired the right to continue doing so forever, can pass that right on to their successors, etc.
***********************************************

The question:

Could a jurisdiction pass a law changing an aspect of common law such as the example above? If so, what level jurisdiction - Federal, state, county, local could do so, and what form would the legislation take?

Yes. Has happened repeatedly, and happens all the time. Plenty of statutes on both the Federal and State level can be and do impose rules in derogation of common law, and municipal codes could do so as well, with the qualification that municipalities often do not have the legislative breadth to act in such areas of the law.

In your example, that sort of a new law would have to be on the state level, as the Federal Gov't typically is viewed as not having constitutional authority to legislate on such an intrastate matter as real property rights and interests which are so far removed from interstate commerce.

quote:

Originally posted by ShneaSIG:
derogation

There you go tossin' around them fancy law school words again.

What you're describing is adverse possession, or squatters rights. I know here in CO, the kicker is the person who owns the property must know that the other person was using their property, and didn't do anything about it.

quote:

Originally posted by RogueJSK:

quote:

Originally posted by ShneaSIG:
derogation

There you go tossin' around them fancy law school words again.

Hold on to yer butts - I'm about to do it again...

quote:

Originally posted by 1967Goat:
What you're describing is adverse possession, or squatters rights. I know here in CO, the kicker is the person who owns the property must know that the other person was using their property, and didn't do anything about it.

Sorry, but the proper term in this case is a prescriptive easement. We're discussing a limited right to use acquired by open and notorious, continued, and uncontested use for a prescribed period of time such that the use ripens into an easement.

Adverse possession is in instances were full ownership of real property is taken by the continued, open and notorious possession of real property for the required period of time.

I bet you even own an actual lawyerly suit.

Y'know... one made from some sort of cloth.

quote:

Originally posted by RogueJSK:
I bet you even own an actual lawyerly suit.

Y'know... one made from some sort of cloth.

It was a very embarrassing day when I wore a lawsuit instead of a cloth suit. Glad I had on mostly clean underwear.

quote:

Originally posted by RogueJSK:
I bet you even own an actual lawyerly suit.

Y'know... one made from some sort of cloth.

Rich boy!

Now this is the Forum at its best.

1) quick, authoritative answers,
2) wit,
3) respect,
4) useful additions to vocabulary, and
5) pictures!

Thanks!

You forgot 6) Movie quotes

Yup, the statute outweighs the common-law.

There was an interesting ruling from SCOTUS today that touched a bit on common law and the federal courts.

https://qz.com/1808158/us-supr...ous-tax-refund-case/

The US Supreme Court rules unanimously in a “curious” tax refund case

US Supreme Court justice Neil Gorsuch today delivered a statement on the bench’s unanimous decision in Rodriguez v. Federal Deposit Insurance Corporation (FDIC). It’s a strange case about what he calls “a curious corner of the law.”

The matter stems from a dispute between two affiliated corporations about the allocation of their $4 million return on consolidated taxes. But the question before the court wasn’t who gets the money.

Rather, it was about the Bob Richards rule, which only some courts follow and isn’t written into any congressionally-approved statute. It determines how a consolidated corporate tax refund is distributed in bankruptcy cases.

The rule at issue stems from a 1973 Ninth Circuit court of appeals case, In re Bob Richards Chrysler-Plymouth Corp., about the bankruptcy of a car dealership and a disputed tax refund. It states that, absent an explicit agreement otherwise, when a parent corporation gets a refund on behalf of its various subsidiaries, the money presumptively belongs to the company whose losses gave rise to it.

The Tenth Circuit court of appeals applied Bob Richards in a dispute between the FDIC—as receiver for a bank—and the bank’s parent corporation’s bankruptcy trustee, ultimately finding for the FDIC. The justices agreed to review its spotty use and resolve a circuit court split.

“Should federal courts rely on state law, together with any applicable federal rules, or should they devise their own federal common law test? To ask the question is nearly to answer it,” Gorsuch writes. “The cases in which federal courts may engage in common lawmaking are few and far between. And this is one of the areas that lie between.”

At the oral arguments in December, Bob Richards had no advocates—not even the respondent FDIC, which benefited from it and wanted it affirmed theoretically. That made for a laughable hearing, except when it caused justice Elena Kagan to express dismay that there was no one to defend the rule and regret that no friend of the court was appointed to stand up for the sad, abandoned position.

Petitioner’s counsel, on the other hand, argued that the case had “massive economic implications” for businesses and creditors. He urged the justices to clear up confusion about Bob Richards, allowing financial advisors to provide clear guidance nationwide about applicable laws.

And now he has what he wanted. That hearing apparently sounded the rule’s death knell.

“We took this case to…decide Bob Richards’ fate. We now hold—unanimously—that Bob Richards must go,” Gorsuch declared this morning, his deep voice betraying a hint of delight at his own amusing writing.

Kagan and justice Brett Kavanaugh couldn’t help grinning, too, seeming to beam approval across the room at their colleague. So much for that pesky rule!

In the high court’s view, federal courts overstep when they apply common law rules without some special federal interest at stake. Because Article I of the Constitution gives Congress legislative power, and the 10th Amendment leaves most regulatory authority to states, the federal judiciary must tread very carefully in lawmaking territory, Gorsuch warned.

He accused lower courts that apply Bob Richards of “making the mistake of moving too quickly past important threshold questions at the heart of our separation of powers.” Thus, they fail to respect the “proper allocation of lawmaking authority” among Congress, states, and courts.

Gorsuch concluded, no longer sounding at all amused. “Bob Richards, we hold, supplies no appropriate rule of decision, only a cautionary tale about the limits of federal common lawmaking.”

Link to ruling:
https://www.supremecourt.gov/o...pdf/18-1269_h3dj.pdf

The few actual Adverse Possession cases I've run across in Oil & Gas / Minerals work are exceptionally rare and take many years, like farmer Bob mowed that empty field next door and made other improvements like fence repairs/etc for something like 32yrs and nobody said a thing all along, then, maybe.

quote:

Originally posted by joel9507:
Question for the legal scholars, and others.

Background:
There are aspects of our legal system that have never been voted on but are legally enforceable, called 'common law'. Some areas inherited their common law from British tradition, others (Louisiana, I'm looking at you) from the French.

Example, for purposes of discussion********************

For purposes of discussion, assume there is in common law effective in a jurisdiction a rule to the effect that, if a property owner lets someone walk across their property for a sufficiently long period of time, the property owner loses the ability to ever stop those persons from walking across their property; that under common law they will have over time acquired the right to continue doing so forever, can pass that right on to their successors, etc.
***********************************************

The question:

Could a jurisdiction pass a law changing an aspect of common law such as the example above? If so, what level jurisdiction - Federal, state, county, local could do so, and what form would the legislation take?

With that specific example (a prescriptive easement), in California the solution is Section 1018 of the Civil Code. If the property is posted with something much like “Right to pass by permission and subject to control of owner. California Civil Code Section 1018.” then another persons trespass cannot mature into a prescriptive easement.

Yes. Virginia doesn't have a stand your ground law and several pro gun legal scholars have argued that the common law self defense in Virginia is stronger than a stand your ground law so passing it would invalidate common law and we would be worse off.