For the purpose of constituting an adverse possession by any 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: 1. Where it has been usually cultivated or improved; 2. Where it has been protected by a substantial inclosure; 3. Where, although not inclosed, 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; 4. 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 inclosed 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.
§ 323.Land Deemed Possessed and Occupied By Person Claiming Title Founded Upon Instrument Or Decree Or Judgment
Title 2. Of the Time of Commencing Civil Actions · Chapter 2. The Time of Commencing Actions for the Recovery of Real Property · Enacted 1872 · no amendments on record · Last verified July 28, 2026
In one sentenceSection 323 lists the ways land counts as possessed and occupied under a written-instrument claim: usual cultivation or improvement, a substantial enclosure, unenclosed use for fuel or pasturage, or, on a partly improved farm, treating the unimproved remainder as occupied like the improved part.
Full Text of § 323
Plain-English Summary
Section 323 fills in the practical meaning of "possessed and occupied" for a written-instrument adverse possession claim under § 322. It lists four situations that qualify: land usually cultivated or improved; land protected by a substantial enclosure; unenclosed land used for fuel, fencing timber, pasturage, or the occupant's ordinary use; and a known farm or lot that has been partly improved, where the unimproved remainder is deemed occupied for the same length of time as the improved part, so long as leaving it unimproved matches the usual practice in the surrounding country.
These are alternative tests, not cumulative requirements; meeting any one of them satisfies the possession-and-occupation element for this type of claim.
Frequently Asked Questions
Do I have to fence land to establish adverse possession under a written instrument?
Not necessarily. Section 323 also treats usual cultivation or improvement, or certain unenclosed uses like gathering fuel or fencing timber or pasturing livestock, as sufficient possession.
What if only part of my farm or lot is improved?
Section 323 deems the unimproved remainder occupied for the same length of time as the improved portion, provided that matches the usual practice in the surrounding country.
Amendment History
Enacted 1872.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as: what counts as possession adverse possession california