436 P.3d 36
Or. Ct. App.2019Background
- Plaintiffs (Morris and Snider) and defendants (Kanne and Lind) own adjoining parcels that were once one Carson parcel; the disputed property is an ~18.5-foot-wide driveway strip between two parallel fences.
- The eastern (disputed) fence predated both parties' ownership; plaintiffs' and defendants' recorded boundaries fall between the two fences (in the strip).
- Plaintiffs occasionally used, maintained, and fenced over gates in the disputed fence (electrified in 2011); defendants had a separate primary driveway and sometimes used the gates before 2011.
- Plaintiffs sued asserting boundary by agreement, boundary by acquiescence, adverse possession, and two tort claims; defendants counterclaimed. Cross-motions for summary judgment disposed of the first three claims; the tort claims were rendered moot.
- Trial court granted summary judgment to defendants on adverse possession, holding plaintiffs failed to show hostility; post-trial the court awarded defendants attorney fees under ORS 20.105 and an enhanced prevailing party fee under ORS 20.190(3). Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs established hostility (element of common-law adverse possession) | Plaintiffs contend the fence was treated as a boundary, they used and maintained the strip, gates were rarely used by defendants, and plaintiffs intended to possess the strip | Defendants argue plaintiffs' use was not hostile (not inconsistent with true owner's rights); fence predated both owners; gates and occasional use show lack of hostile claim | Court: Affirmed summary judgment for defendants — plaintiffs failed to present evidence of hostility sufficient for adverse possession over the 10-year period |
| Whether trial court properly awarded an enhanced prevailing party fee under ORS 20.190(3) | Plaintiffs argue the court gave only conclusory reasons and failed to apply or explain the statutory factors | Defendants argued plaintiffs' claims lacked objective reasonableness justifying enhancement | Court: Vacated and remanded the $2,500 enhanced fee because the trial court’s findings were too conclusory to permit meaningful review |
| Whether attorney fees under ORS 20.105(1) were properly awarded | Plaintiffs argue the court used ORS 20.075 discretionary factors instead of the mandatory ORS 20.105(1) standard and so applied incorrect legal standard | Defendants rely on trial court's finding that plaintiffs' claims lacked an objectively reasonable basis | Court: Vacated and remanded the attorney-fee award so the trial court can clarify and apply the correct ORS 20.105(1) standard |
| Whether plaintiffs’ alternative legal theories (e.g., "pure mistake" doctrine) provide grounds for reversal | Plaintiffs raised pure mistake on appeal as alternative hostility theory | Defendants note that pure mistake theory was not raised below and is unpreserved | Court: Declined to consider unpreserved pure-mistake theory on appeal; review confined to theories raised below |
Key Cases Cited
- Stiles v. Godsey, 233 Or. App. 119 (recognizes six common-law elements for adverse possession)
- Hoffman v. Freeman Land and Timber, LLC, 329 Or. 554 (hostility can be shown by subjective intent to possess)
- Faulconer v. Williams, 327 Or. 381 (discusses "pure mistake" doctrine as alternative to subjective hostility)
- Slak v. Porter, 128 Or. App. 274 (construction of a fence can indicate hostility in some cases)
- Seida v. West Linn-Wilsonville School Dist. 3J, 169 Or. App. 418 (vacating enhanced fee where findings were too conclusory)
- Williams v. Salem Women's Clinic, 245 Or. App. 476 (explaining ORS 20.105(1) mandatory award; ORS 20.075 factors are for discretionary awards)
- Sea River Props., LLC v. Parks, 355 Or. 831 (statutory codification of adverse possession elements post-1990)