5-208 CLAIM UNDER WRITTEN INSTRUMENT — POSSESSION DEFINED.

5-208. Claim under written instrument — Possession defined. (1) Except as provided in subsection (2) of this section, for the purpose of constituting an adverse possession by a person claiming a title founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in the following cases:

(a) Where it has been usually cultivated or improved.

(b) Where it has been protected by a substantial enclosure.

(c) Where, although not enclosed, it has been used for the supply of fuel, or of fencing timber for the purposes of husbandry, or for pasturage, or for the ordinary use of the occupant.

(d) Where a known farm or single lot has been partly improved, the portion of such farm or lot that may have been left not cleared, or not enclosed, according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.

(2) Notwithstanding the provisions of subsection (1) of this section, adverse possession shall not be considered established under the provisions of any sections of this code if a written instrument has been recorded in the real estate records kept by the county recorder of the county in which the property is located and such written instrument declares that it was not the intent of a party to such instrument, by permitting possession or occupation of real property as set forth in subsection (1) of this section, to thereby define property boundaries or ownership.

(3) For purposes of establishing adverse possession pursuant to this section, a person claiming adverse possession must present clear and convincing evidence that the requirements of subsections (1) or (2) of this section have been met.

History:

[(5-208) C.C.P. 1881, sec. 148; R.S., R.C., & C.L., sec. 4041; C.S., sec. 6601; I.C.A., sec. 5-208; am. 2001, ch. 290, sec. 1, p. 1027.]