Action to recover real property
Source:
Section 12.050 — Action to recover real property, https://www.oregonlegislature.gov/bills_laws/ors/ors012.html.
Notes of Decisions
In general
Action in ejectment “accrues” when actual repudiation occurs or adverse claim has been asserted against property owner’s interest such that owner knows or reasonably should have known of repudiation or adverse claim, as defined by elements of adverse possession. Hammond v. Hammond, 296 Or App 321, 438 P3d 408 (2019)
Application to public property
Statute of limitations could not properly be asserted against state’s cause of action in ejectment. State ex rel Highway Division v. Rosanbalm, 31 Or App 717, 571 P2d 537 (1977), Sup Ct review denied
Necessity for possession
Adverse claimant must establish occupation or use of land that would be made by owner of same type of land, taking into account uses for which land was suitable. Almond v. Anderegg, 276 Or 1041, 557 P2d 220 (1976); Lee v. Hansen, 282 Or 371, 578 P2d 784 (1978)
In determining whether party has shown sufficient occupancy and use to establish title by adverse possession, use for which land is suitable should be taken into account. Hopkins v. State of Oregon, 96 Or App 717, 773 P2d 825 (1989)
Exclusiveness of possession
Where adverse claimant built roadway across land, used roadway for passage and planted crops on bordering piece of land, activities of adverse claimant established exclusive possession of roadway and bordering piece of land. Almond v. Anderegg, 276 Or 1041, 557 P2d 220 (1976)
Where adverse claimants had built clothesline and maintained strip of land under it, exclusive use requirement was satisfied, even though claimants allowed neighbors to use clothesline with permission. Russell v. Gullett, 285 Or 63, 589 P2d 729 (1979)
Because occupant used strip of land between suburban lots consistent with typical suburban owner, occupant exclusively possessed strip of land. Schoeller v. Kulawiak, 118 Or App 524, 848 P2d 619 (1993), Sup Ct review denied
Hostile character of possession
Where possession under belief of ownership was based on pure mistake, hostility element was satisfied. Lee v. Hansen, 282 Or 371, 578 P2d 784 (1978)
Plaintiff acted under claim of right for requisite period where he used disputed parcels for agricultural production and knowledge that others paid the taxes on the land did not defeat his claim. Garrett v. Lundgren, 41 Or App 23, 596 P2d 1318 (1979), Sup Ct review denied
Knowledge that record owner was paying taxes on parcel is evidence that adverse possessor used property furtively or with permission. White v. Chandler, 52 Or App 951, 630 P2d 372 (1981)
Use of area in manner that exceeded easement right in property meant use was not permissive. Schoeller v. Kulawiak, 118 Or App 524, 848 P2d 619 (1993), Sup Ct review denied
Open and notorious character of possession
Where plaintiffs made no attempt to clear brush from disputed parcel and made few plantings to fill in gaps in “privacy screen” but otherwise never entered parcel, there was no evidence to support finding that their use of parcel as privacy screen was open and notorious for required period. Corson v. Williford, 44 Or App 145, 605 P2d 1194 (1980)
Mere existence of overgrown foundation claimed as boundary to disputed strip of land was insufficient notice of adverse claim. Bartell v. Hollinshead, 47 Or App 145, 617 P2d 688 (1980)
Where predecessor in interest to disputed strip of land openly declared property to be his own and exclusively used land for 15-year period as average owner would by maintaining fence, cutting fallen trees and running horses and cattle on property predecessor established title by adverse possession so defendants, as successors in interest, succeeded to his interest. Braley v. Hess, 48 Or App 505, 617 P2d 308 (1980)
Where parties claiming adverse possession of three lots adjacent to their business proved that they had paid taxes on property for 20 years and that they had made use of various parts of property at different times over 20-year period, evidence showed that they had occupied and used property in same manner as owner of property would have done and therefore had established ownership by adverse possession. Owens v. Bartruff, 59 Or App 37, 650 P2d 155 (1982), aff’d 297 Or 610, 687 P2d 1072 (1984)
Continuity of possession
Where adverse claimant built roadway across land, used and maintained roadway, planted crops and harvested hay from bordering piece of land for several years and record owner did not act for 28 years, adverse claimant established continued possession of roadway and bordering piece of land. Almond v. Anderegg, 276 Or 1041, 557 P2d 220 (1976)
Where the only action by defendant inconsistent with use of easement was locking of one gate during deer hunting season and there was no indication that use of easement was limited to deer season, requirement that adverse use be continuous was not satisfied. Abbott v. Thompson, 56 Or App 311, 641 P2d 652 (1982), Sup Ct review denied
Conclusion that ten years continued to accrue after plaintiffs filed suit and up to time interest was conveyed to defendants was erroneous application of statute of limitations. Evans v. Hogue, 296 Or 745, 681 P2d 1133 (1984)
Where there is evidence of intent between grantor and grantee to transfer grantor’s interest in property, grantee may acquire grantor’s interest, vested and complete, in those situations in which grantor has adversely possessed for statutory period. Evans v. Hogue, 296 Or 745, 681 P2d 1133 (1984)
Relationship of parties
Where cotenant held land under deed purporting to convey full title, and cotenant met all requirements of adverse possession, no actual notice of ouster was required. Nedry v. Morgan, 284 Or 65, 584 P2d 1381 (1978)
During administration period, administrator may not acquire by adverse possession real property previously belonging to decedent, without fully informing heirs of value and nature of their interest in land. Venator v. Quier, 285 Or 19, 589 P2d 731 (1979)
Effect of adverse possession
Where defendant’s title to disputed parcel of property had matured by adverse possession, doctrine of relation-back applied to prevent recovery for timber trespass under ORS 105.815. Breuer v. Covert, 47 Or App 225, 614 P2d 1169 (1980), Sup Ct review denied
Prescriptive title to easements
Proof of adverse uses must be clear and positive. State Hwy. Comm. v. Bauman, 16 Or App 275, 517 P2d 1202 (1974), Sup Ct review denied
Where defendants could not rebut continuous, open and notorious use by showing permission to use road, use was sufficiently adverse to establish easement by prescription. Kondor v. Prose, 50 Or App 55, 622 P2d 741 (1981)
Defendants carried burden of proving adverse use when they used driveway under mistaken belief that it was easement described in their deed, did not use driveway with plaintiff’s permission and did all maintenance and major repair work. Hanscam v. Sousa, 56 Or App 117, 641 P2d 86 (1982)
Presumption of adverseness which arose from plaintiff’s continuous use of road for 10 years was rebutted where there was no evidence that plaintiff’s use interfered with defendant’s use of road which defendant had constructed before plaintiff’s acquisition of his property. Stone v. Henry Enterprises, Inc., 95 Or App 355, 768 P2d 442 (1989)
Evidence
Evidence that contested strip of land had been enclosed by substantial fence for more than statutory period was insufficient to establish adverse possession. Woolfolk v. Isler, 37 Or App 687, 588 P2d 632 (1978)
Where testimony of possessor of land, who had lived on land more than 10 years, did not clearly establish when he began to assert an adverse claim, no title by adverse possession was established. McCall v. Hyde, 39 Or App 531, 592 P2d 1064 (1979)
Proof of use of portion of disputed strip as garden was not sufficiently clear and convincing so as to establish continuity of adverse use. Bartell v. Hollinshead, 47 Or App 145, 617 P2d 688 (1980)
Law Review Citations
4 EL 391 (1974)
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