438 P.3d 408
Or. Ct. App.2019Background
- Sherman Hammond (plaintiff) holds legal title to Jackson County Tax Lot 800; Michael Hammond (defendant) lived on the lot since the 1970s; plaintiff lives on adjacent Tax Lot 600.
- Mother deeded Tax Lot 800 to plaintiff in 1985; plaintiff paid taxes and did some maintenance. Mother’s 2001 will purported to divide Tax Lot 800 into four quarters, giving two quarters to defendant; defendant showed plaintiff the will in 2001.
- Defendant remained in the family house after mother’s death, accumulated large amounts of junk that eventually blocked an access road, and in 2003–04 authorized a third party to dig up a septic tank on the property.
- Defendant filed for probate of the will in 2009; prior litigation established plaintiff’s fee title and that the devise in the will had no effect; that decision became final in 2014 and plaintiff then filed ejectment.
- Trial court denied plaintiff’s ejectment claim as barred by ORS 12.050 (10-year limit) and denied defendant’s adverse-possession counterclaim for failure to prove the boundaries and required elements; both rulings were appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant proved adverse possession of defined land | Michael never proved boundaries or exclusive hostile use; trial court erred denying adverse-possession | He adversely possessed at least the SW quarter (or area from blocked road to Elk Creek Rd) based on will and use | Affirmed: defendant failed to prove by clear and convincing evidence the boundaries and elements of adverse possession |
| When ORS 12.050 statute of limitations begins to run for ejectment | Statute should run only when possessory acts meet adverse-possession elements (i.e., later, e.g., 2009 probate) | Discovery rule applies; accrual when owner knows or should know of repudiation/adverse claim (2001 will or by 2003 septic/road incidents) | Affirmed: discovery rule applies via ORS 12.010; action accrues when owner is (or reasonably should be) on notice that claimant asserts ownership (imputed when adverse-possession elements manifested) |
| Whether defendant’s words/conduct constituted sufficient notice (hostility/ouster) to start limitations | Plaintiff: continued permissive use; no clear repudiation until probate filing | Defendant: throwing the will, blocking road with junk, and digging up septic put plaintiff on notice by 2003 | Affirmed: trial court reasonably found defendant’s 2001 will delivery plus 2003 conduct put plaintiff on notice by 2003, so ejectment barred |
| Standard of appellate fact review for defendant’s adverse-possession claim | Defendant sought de novo review, arguing trial findings conflict with uncontroverted evidence | Trial court’s factual findings should be accepted unless exceptional; appellate court may decline de novo review | Appellate court declined de novo review, accepted trial findings supported by evidence, and reviewed legal conclusions for error |
Key Cases Cited
- Spears v. Dizick, 235 Or. App. 594 (discusses ejectment as action at law and review standard)
- McIntyre v. Photinos, 175 Or. App. 478 (appellate review of factual findings and adverse-possession principles)
- Sea River Properties, LLC v. Parks, 355 Or. 831 (standards for appellate review of trial court findings)
- Rice v. Rabb, 354 Or. 721 (discovery rule applied to chapter 12 limitations via ORS 12.010)
- Berry v. Branner, 245 Or. 307 (definition of accrual under ORS 12.010 and discovery rule foundation)
- Hoffman v. Freeman Land & Timber, LLC, 329 Or. 554 (hostility requirement for adverse possession)
- McCall v. Hyde, 39 Or. App. 531 (possession that began permissive becomes adverse only after clear repudiation)
- Case v. Burton, 250 Or. App. 14 (statutory and common-law elements of adverse possession)