573 P.3d 421
Or. Ct. App.2025Background
- Plaintiff (Warren) and defendants (the Burnhams) are neighboring homeowners in Beaverton, Oregon, disputing ownership of an 18-inch by 36-foot strip of land included in defendants’ deed but maintained by plaintiff’s predecessors.
- The disputed strip runs alongside defendants’ driveway; both properties were developed in 1996, and for over 20 years the strip was mowed and maintained by the owners of plaintiff’s property without discussion, survey, or dispute over the property line.
- Owners on both sides assumed the property line was at the edge of the driveway, but no party gave much thought to the actual boundary as everyone maintained cordial, neighborly relations.
- In 2020, after plaintiff bought her lot, the defendants had a survey done, discovered the true property line, and built a fence; this led to a dispute and plaintiff filing a quiet title and nuisance action, claiming adverse possession of the strip. Defendants counterclaimed for trespass.
- The trial court ruled in plaintiff’s favor, finding adverse possession established by the regular mowing and maintenance, and ordered defendants to remove the fence.
- Defendants appealed, challenging the sufficiency of the evidence for the “open and notorious” element of adverse possession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adverse possession: open and notorious | Regular mowing and maintenance put owners on notice | Mowing and maintenance was neighborly, not a claim of right | Evidence insufficient for open and notorious use |
| Adverse possession: exclusivity | Only plaintiff’s side maintained the strip | Use was not exclusive; mutual use by both lots’ occupants | Not reached (decided on open and notorious) |
| Adverse possession: continuous | Maintenance was unbroken for more than 10 years | No evidence for one time period (2017-2020) | Not reached (decided on open and notorious) |
| Adverse possession: hostility/pure mistake | Predecessors honestly believed they owned the strip | No conscious claim of ownership; mere mistake/assumption | Not disputed; pure mistake doctrine accepted |
Key Cases Cited
- Hoffman v. Freeman Land and Timber, LLC, 329 Or 554 (Or. 1999) (mowing/maintenance is only open and notorious if clearly adverse to owner claim)
- Reeves et al. v. Porta, 173 Or 147 (Or. 1944) (occasional use not sufficient to alert owner to adverse claim)
- Stiles v. Godsey, 233 Or App 119 (Or. Ct. App. 2009) (sets adverse possession elements in Oregon)