Idaho Code
Idaho Code

Idaho Code § 5-208 (2026)

Claim under written instrument — Possession defined. 

✓ current as of May 2026
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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.
Notes of Decisions
Cited in 16 cases, 1974–2011 · leading case: Kennedy v. Schneider, 259 P.3d 586 (Idaho 2011).
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Kennedy v. Schneider, 259 P.3d 586 (Idaho 2011). · cites it 8× “2d 922, 925 (1999), this Court identified the well-established elements that a party must establish by clear and satisfactory evidence in order to establish adverse possession upon a written claim of title: (1) that they entered into possession, as that term is defined by I.C. §…”
Rice v. Hill City Stock Yards Co., 826 P.2d 1288 (Idaho 1992). · cites it 9× “Thus, the Court of Appeals held, under I.C. § 5-208, “the adverse possession of the fenced parcel would extend to the balance of the real property under I.”
Persyn v. Favreau, 804 P.2d 327 (Idaho Ct. App. 1990). · cites it 18× “Idaho Code § 5-208 , a claim under a written instrument, and I.”
Pincock v. Pocatello Gold & Copper Mining Co., 597 P.2d 211 (Idaho 1979). · cites it 5× “§ 5-208, of the disputed property; (2) under a claim of title, which claim in this case is founded upon a decree of a competent court; (3) exclusive of other right; (4) that there has been a continued occupation and possession of the disputed property described in the decree of…”
DeChambeau v. Est. of Smith, 976 P.2d 922 (Idaho 1999). · cites it 6× “This Court has set forth six requirements that a party must meet to establish adverse possession based upon a written claim of title: (1) that they entered into possession, as that term is defined by I.C. § 5-208, of the disputed property; (2) under a claim of title .”
Revello v. Revello, 606 P.2d 933 (Idaho 1979). · cites it 4× “Because the Court where acceptance of appointment is filed may as a practical matter be the only forum where jurisdiction over the person of the guardian may be obtained (by reason of Section 5-208), that Court is given concurrent jurisdiction.”
Hodgins v. Sales, 76 P.3d 969 (Idaho 2003). · cites it 2× “2d 1093, 1099 (1979) (holding I.C. § 5-208 “in effect gives an owner five years to take the necessary and appropriate legal action to have an unauthorized use of property stopped”).”
Owen v. Boydstun, 624 P.2d 413 (Idaho 1981). · cites it 3× “” No specific findings were made as to whether the disputed property had been possessed as defined by either § 5-208(1), (2) or (3) and, if so, whether § 5-208(4) would then apply whereby possession of part of a lot might conceivably entitle one to possession of the whole if all…”
Gage v. Davis, 655 P.2d 942 (Idaho Ct. App. 1982). · cites it 7× “Section 5-208 provides that “land is deemed to have been [so] possessed and occupied” where, as pertains to this case, it has been “improved” or put to the “ordinary use of the occupant.”
Utter v. Gibbins, 48 P.3d 1250 (Idaho 2002). · cites it 2× “We do not find the argument over exclusivity of possession to be dispositive in this case. Furthermore, the appellants do not contend that any genuine issue of material fact exists that would prevent the district court from entering a summary judgment.”
Capps v. Wood, 790 P.2d 395 (Idaho Ct. App. 1990). · cites it 2× “See I.C. §§ 5-208(2), 5-210(1). The court noted that the evidence showed a meandering barbed wire fence on the property, built by employees of the defendants’ predecessor, Burton, to separate livestock.”
Stout v. Westover, 681 P.2d 1008 (Idaho 1984). · cites it 2× “§ 5-207 and § 5-208, the section defining “possession under written claim of title”, the court also made specific findings of fact regarding Mrs.”
Show all 16 citing cases →
— Idaho Code § 5-208(1) — 1 case
Owen v. Boydstun, 624 P.2d 413 (Idaho 1981). “” No specific findings were made as to whether the disputed property had been possessed as defined by either § 5-208(1), (2) or (3) and, if so, whether § 5-208(4) would then apply whereby possession of part of a lot might conceivably entitle one to possession of the whole if all…”
— Idaho Code § 5-208(2) — 1 case
Capps v. Wood, 790 P.2d 395 (Idaho Ct. App. 1990). “See I.C. §§ 5-208(2), 5-210(1). The court noted that the evidence showed a meandering barbed wire fence on the property, built by employees of the defendants’ predecessor, Burton, to separate livestock.”
— Idaho Code § 5-208(3) — 1 case
Owen v. Boydstun, 624 P.2d 413 (Idaho 1981). “” No specific findings were made as to whether the disputed property had been possessed as defined by either § 5-208(1), (2) or (3) and, if so, whether § 5-208(4) would then apply whereby possession of part of a lot might conceivably entitle one to possession of the whole if all…”
— Idaho Code § 5-208(4) — 3 cases
Rice v. Hill City Stock Yards Co., 826 P.2d 1288 (Idaho 1992). “Thus, the Court of Appeals held, under I.C. § 5-208, “the adverse possession of the fenced parcel would extend to the balance of the real property under I.”
Owen v. Boydstun, 624 P.2d 413 (Idaho 1981). “” No specific findings were made as to whether the disputed property had been possessed as defined by either § 5-208(1), (2) or (3) and, if so, whether § 5-208(4) would then apply whereby possession of part of a lot might conceivably entitle one to possession of the whole if all…”
Rice v. Hill City Stock Yards Co., 826 P.2d 1328 (Idaho Ct. App. 1990).
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