As a general matter, it is possible to adversely possess land by leasing it to others. See Lusk v. City of Yankton, 40 S.D. 498, 168 N.W. 375, 376 (S.D. 1918); contra Harlow v. Giles, 132 S.W.3d 641, 648 (Tex. App. 2004).
However, the standard to prove adverse possession is clear and convincing evidence. Smith v. Krebs, 768 P.2d 124, 125 (Alaska 1989); Hoffman v. Freeman Land and Timber, 329 Ore. 554, 994 P.2d 106, 109 (Or. 1999).
Proving adverse possession by clear and convincing evidence is not feasible in a hearing on a motion to dismiss for failure to state a claim because such a motion does not allow the parties to argue disputed facts. See Govendo v. Micronesian Garment Mfg., Inc., 2 NMI 270, 283 (1991).
Rule 12(b)(6) of the Commonwealth Rules of Civil Procedure allows a party to seek dismissal of a claim if the claimant fails to state a claim upon which relief can be granted. Under Rule 12(b)(6), "dismissal is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Govendo, 2 NMI at 283.
Factual argument is inappropriate in a Rule 12(b)(6) motion because the motion only tests the legal sufficiency of the