I can't find any cases that would deal with boundary by acquiescence or by agreement in NJ cases. The cases all seem to morph into adverse possession. But since the fence was placed inside your boundary line by a predecessor and that the fence and boundary are clearly shown on your survey and that the neighbor's use of the property was only casual (as defined in the NJ cases)., I don't think you have any real problems with doing whatever you want.
Of course, a landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side. That loss would occur only if his neighbor should take possession of the strip and hold it for the required period of years. Brown Paper Mill Co., Inc. v. Warnix, 222 Ark. 417, 259 S.W.2d 495 (1953),
For clarity, the quote (and citation) you present is from an Arkansas case, with the New Jersey court applying similar reasoning to the case it was analyzing. Maggio v. Pruzansky, 222 N.J.Super. 567, 537 A.2d 756 ([App.Div.] 1988). Maggio references another helpful case,
The reason for a lack of distinction between adverse possession and acquiescence in New Jersey appears to be that acquiescence has been incorporated as an element of adverse possession.Quoting Mannillo v. Gorski, 54 N.J. 378 (1969), emphasis added
Quoting Patton v. North Jersey Dist. Water Supply Comm'n, 93 N.J. 180, 186, 459 A.2d 1177 (1983), emphasis added.
Thanks for the clarification. One thing I did notice reading the NJ cases is that for adverse possession the element of hostile has been removed.
Thank you for all the helpful replies and research on similar past cases. I hope she's just making empty, misinformed threats to intimidate us and will resolve this matter with us without taking us to court! But if she does, we are much more informed and prepared thanks to all your help. All we want to do is improve our property with a nice, new fence, and establish the fence on the correct line (which will allow us to get rid of the overgrown shrubs and dead tree on our property, but her side of the fence.) Eager to see what our lawyer says, happy to keep the group posted on how this turns out.
What constitutes casual use of property, and what constitutes the neighbor "taking possession of the strip"?
Our neighbor has planted a few flowers along the strip, but it largely consists of overgrown shrubs and one dead tree that her husband admitted was dead but said his wife refuses to take it down.
The person claiming adverse possession (your neighbor) did nothing to place you or your predecessors on notice that they were taking dominion over the land.
The foundation of so-called title by adverse possession is the failure of the true owner to commence an action for the recovery of land within the period designated by the statute. However, no presumption of knowledge arises from a minor encroachment. That is, the true owner is not charged with knowledge of an encroachment unless or until it takes on characteristics of acts of dominion over the land. [“]That failure [to take action] is relevant only if the owner has had notice, actual or constructive, that another considers himself to be, or is using the property as, the owner. Therefore, one criterion of adverse possession is that the use must be so open and notorious that an ordinarily prudent person would be put on notice that the land is in actual possession of another.[”] Patton v. North Jersey Dist. Water, supra [, 93 N.J. at 186, 459 A.2d 1177].Stump v. Whibco, 715 A. 2d 1006 - NJ: Appellate Div. 1998
to close the loop...our lawyer said she has no legal claim, the area in question has not been improved enough to warrant adverse possession since it's just wild shrubs and a few plants, and her burden of proof would be so high she would almost certainly lose, and that any good lawyer would tell her that even if she wanted to try. so his advice was that he would write her a letter on our behalf simply stating his clients had read her letter and that her claims have no legal basis. then he said we should go ahead and build our fence, but to take pictures first so just in case she sues us, we have evidence of what the property looked like before, which should be enough to protect us from a lawsuit.
Good news. I hope it all works out well, and thank you for closing this off. I always wonder how things end...
PS I would be keen to place my fence on the correct property line and not some 3 ' inside my line Or at the very least make clear use of my lands on other side of my fence .
You didn't answer when she bought her property ...It might matter ...and go read both deeds .
Somewhere in back of my mind, NJ allows for tacking but requires it be done inside of 1 year of transfer ...or so it was when I bought lands in NJ and covered the point.