I’m very excited to be visiting here as a guest blogger. I thought I’d start off by discussing a very interesting Arizona case I came across while exploring recent developments in Property Law. Sussex v. State of Arizona is a trespass case that’s currently pending in the Arizona Court of Appeals, and I’ve found it to be a great teaching tool as well as an interesting factual setting in which to think about laches. The facts are contested, but the Sussex family, who are the defendants, have averred that their family has been living on the property that the state claims to own since 1894 (part of the property appears to be claimed by the City of Tempe—it’s the driveway to the house that is allegedly on state land). Arizona sued siblings Steven Sussex and Judy Troutman and Mr. Sussex’s wife Virginia Sussex for trespass to the land in 2005. In August 2012, a jury awarded the State $1,500 in damages after a judge ruled against the Sussex family’s laches argument. The State apparently originally received the land from the federal government as Common Schools Land.
Although there are several issues in the case, the laches argument interests me the most. The basic argument is that the State’s ability to enforce its claim to the land is barred by laches because the Sate waited so long to enforce it, to the detriment of the Sussex family. The trial court ruled that laches doesn’t apply to the State when acting in its sovereign capacity and also suggested that the Sussex family’s laches argument was improper because it was basically an attempt to adversely possess state land despite the bar on adverse possession of government land.
Although the defense of laches traditionally has not been available against government land claims, the issue has been coming up in Federal Indian Law cases in the past few years. In that context, the Supreme Court has begun to apply the doctrine against tribes on land-related claims (loosely speaking), without even requiring a factual showing as to the first element of laches—the unreasonably long delay in assertion of rights. See City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 217-221 (2005); see generally Kathryn Fort, Disruption and Impossibility: The New Laches and the Unfortunate Resolution of the Modern Iroquois Land Claims, 11 Wyo. L. Rev. 375 (2011). Given the legal and economic obstacles tribes faced in bringing such claims until recent years, this application of laches seems quite troubling, but , in the Sussex case, the equities appear (to me at least—my students have not always agreed) to cut the other way. Here we have a family that has been using land for over one hundred years, and the State decided only fairly recently to sue for trespass, which would cut off their access to their home. The State’s responses--that, because it acted in its sovereign capacity with respect to the land, laches shouldn’t apply and that it shouldn’t be expected to have been keeping track of whether trespassers were utilizing its vast land holdings seem like they would allow the State to work an injustice in this particular case, if accepted (although that doesn't necessarily mean the traditional bar against asserting laches against a sovereign should be jettisoned). And the prejudice the Sussex family has suffered as a result of the delay is linked to—and illustrates nicely-- some of the justifications of adverse possession—particularly those of Radin and Holmes (even though laches and adverse possession are clearly separate issues).
The case has been a great teaching tool for me in Property, where I use it to introduce the notion of laches and to discuss the policy implications of applying the doctrine to a sovereign, as well as to illustrate some of the justifications for adverse possession. I also use it as a jumping off point to explore creative approaches the State’s lawyers might have taken instead of litigation. And, especially given my Indian law background, the case also provides an interesting framework in which to think about the application of laches.