Fitts v. Case
243 Or. App. 543
| Or. Ct. App. | 2011Background
- 2.5-acre disputed property is a southeastern segment of Parcel I in Linn County with the North Santiam River forming a boundary.
- Plaintiffs Janet Fitts and Robert Harris own Parcel I since 1998 but have paid taxes and used land minimally since then.
- Defendant William Case owns the nearby Mitchell farm (~628 acres) surrounding the disputed parcel and has used it for farming and a recreation area since 1994.
- Historical use of the land up to the river by the Mitchells and Towery culminated in continuous open occupancy to the river bank by defendant and predecessors.
- Plaintiffs sued for ejectment; defendant counterclaimed, asserting title by common-law and statutory adverse possession and related theories.
- Trial court found in defendant’s favor on adverse possession claims; plaintiffs appeal the sufficiency of hostility evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was defendant's use hostile to the true owner? | Fitts argues occupancy was permissive due to evident belief in plaintiffs' ownership. | Case contends there was clear, convincing evidence of hostility evidenced by possession to the river and authority of prior owners. | Yes; hostility proven by clear and convincing evidence. |
| Did adverse possession vest before 1990? | Plaintiffs contend evidence does not show ten years of hostile possession before 1990. | Defendant shows predecessors possessed since 1930s–1960s up to river with belief of ownership. | Yes; possession vested before 1990. |
| Does ORS 105.620 apply to this claim? | Plaintiffs argue ORS 105.620's honest belief requirement applies to all post-1990 vesting claims. | statute applies only to post-1990 vesting claims and is inapplicable here. | Inapplicable; pre-1990 evidence controls. |
| Is Parrish v. Minturn applicable to defeat hostility? | Parrish requires notice to the rightful owner, implying lack of hostility here. | Parrish does not apply; no original permission evidence of entry; testimony shows hostility. | Parrish inapplicable; hostility proven. |
Key Cases Cited
- Lieberfreund v. Gregory, 206 Or.App. 484 (Or. App. 2006) (clarifies elements of adverse possession and the statutory overlay)
- Hoffman v. Freeman Land and Timber, LLC, 329 Or. 554 (Or. 1999) (presumes possessory intent absent proof of subjective owner intent or honest mistake)
- Stiles v. Godsey, 233 Or.App. 119 (Or. App. 2009) (hostility can be proven by circumstantial evidence)
- Parrish v. Minturn, 234 Or. 475 (Or. 1963) (permissive possession does not start adverse possession unless holder asserts ownership)
- Rise v. Steckel, 59 Or.App. 675 (Or. App. 1982) (agency/permissive possession rule clarified; applicability to hostility analyses)
- Norgard v. Busher, 220 Or. 297 (Or. 1960) (physical senses evidence of intent to claim land overrides weaker title-based intent)