Warren v. BurnhamWarren v. Burnham
- Reporters:
- ,
- Before:
- Aoyagi, Egan, Joyce
AOYAGI, P. J.
This is a residential property dispute between neighbors regarding a strip of land approximately 18 inches wide and 36 feet long that runs alongside defendants’ driveway. The disputed strip is included in defendants’ property deed, but plaintiff claims to have acquired title by adverse possession. The case went to trial on plaintiff‘s claims for quiet title and nuisance and defendants’ counterclaim for trespass. The trial court denied defendants’ motion to dismiss for insufficient evidence under
The parties live next door to each other in a residential neighborhood in Beaverton. Plaintiff owns lot 97, which she purchased in 2020, and defendants own lot 98, which they purchased in 2018. Their dispute concerns an approximately 18-inch strip of land that runs alongside defendants’ driveway. The disputed strip is shown in the center of the survey map excerpted below:
It is also shown on this excerpt from a 2007 photograph, with the white lines showing the deeded property lines, and the arrows pointing to the disputed strip:
(Arrows added.)
Both properties were developed by the same developer, who built the houses, put in the landscaping, and sold both lots in 1996. Lot 97 was sold to Pan (1996 to 2001), who sold it to the Lehnans (2001 to 2007), who sold it to Ruhl (2007 to 2017), who sold it to Wijsman (2017 to 2020), who sold it to plaintiff (2020 to present). Lot 98 was sold to the Josephs (1996 to 2018), who sold it to defendants (2018 to present).
The witnesses at trial included plaintiff, most of plaintiff‘s predecessors, defendants, and defendants’ predecessors. As aptly summarized by the trial court, all of the predecessors who testified said essentially the same thing—that no one had ever gotten a survey of the lots, that everyone assumed that the property line ran along the edge of lot 98‘s driveway, but that no one had put any thought into the issue or ever cared where the property line was, because everyone got along well and were very neighborly.
In that context, from 1996 until 2017, plaintiff‘s predecessors mowed and watered the entire lawn area that lies physically in front of lot 97, including the disputed strip, without anyone ever discussing where the property line was. Pan and the Lehnans mowed the
Other than maintaining it, there is no evidence that either party‘s predecessors did anything with the disputed strip.2 The neighborhood children played freely on the lawns and driveways of both lots, which the trial court described as “consistent with normal use in a neighborhood.”
Plaintiff bought lot 97 in 2020, and a dispute soon arose with defendants regarding the location of the property line. Defendants had a survey done, which showed that the property line was 18 inches from the edge of the driveway. Defendants placed flags on the property line. Shortly thereafter, plaintiff began a large landscaping project in her front yard, and the landscapers, unbeknownst to plaintiff, ripped up the grass in the entire 18-inch strip. Defendants objected, and the landscaper placed new grass in the strip. In October 2020, defendants built a fence along the property line. In August 2021, plaintiff filed this action.
The claims that went to trial were plaintiff‘s quiet title and nuisance claims and defendants’ trespass counterclaim.3 At the close of plaintiff‘s evidence, defendants filed a written motion to dismiss based on insufficient evidence under
The trial court subsequently rendered a verdict for plaintiff on her quiet title claim, finding that plaintiff‘s predecessors had acquired title to the disputed strip by adversely possessing it from 1996 to 2006. (The court did not specify the vesting period, but it made clear that it viewed all time periods as equal dating back to 1996, thus implicitly finding that title transferred by adverse possession in 2006.) The court acknowledged that plaintiff‘s predecessors had engaged in “very de minimis activity” in the disputed strip but disagreed with defendants that it was insufficient to put defendants’ predecessors on notice that plaintiff‘s predecessors were claiming ownership. It noted “the uncontroverted testimony * * * that the owners of lot 97 always acted like the disputed property belonged to them and in no instance tried to hide that belief,” as well as the evidence that defendants’ predecessors knew that their neighbors were maintaining the disputed strip in conjunction with maintaining their own lawn. Defendants were ordered to remove the fence that they had built on the deeded property line. The court dismissed the nuisance and trespass claims.
The trial court entered a limited judgment for plaintiff, which defendants appeal. As they did in the trial court, defendants argue that the evidence was legally insufficient to prove adverse possession. Defendants focus their arguments on appeal on the open and notorious, exclusive, and continuous requirements.4
This case involves a statutory claim for adverse possession. See Stiles v. Godsey, 233 Or App 119, 124-25, 225 P3d 81 (2009) (explaining that, in 1989, the legislature enacted
We have described the various elements of adverse possession as follows:
- Actual. “The element of actual use is satisfied if a claimant establishes a use of the land that would be made by an owner of the same type of land, taking into account the uses for which the land is suited.” Stiles, 233 Or App at 126 (internal quotation marks omitted).
- Open and notorious. “To establish a use that is open and notorious, plaintiffs must prove that their possession is of such a character as to afford the owner the means of knowing it, and of the claim.” Id. (internal quotation marks omitted).
- Exclusive. “The exclusivity of the use also depends on how a reasonable owner would or would not share the property with others in like circumstances.” Id.
- Hostile. “A person maintains ‘hostile possession’ of property if the possession is under claim of right or with color of title.”
ORS 105.620(2)(a) .- “Claim of right” requires either “hostility in fact” or a “pure mistake.” Sholl v. Anderson, 182 Or App 659, 665, 50 P3d 1248 (2002). “Hostility in fact” means the claimant has “a subjective intent to possess the property as its true owner” and uses the land in a way that is “inherently inconsistent with [the true owner‘s] rights.” Id. at 666 (internal quotation marks omitted). A “pure mistake” means the claimant possesses the property “under the mistaken belief of ownership” as to which the claimant has no “conscious doubt.” Id. at 665 (internal quotation marks omitted). Being “aware of the possibility” that someone else owns the property is a conscious doubt. Id. (internal quotation marks omitted).
- “‘Color of title’ means the adverse possessor claims under a written conveyance of the property or by operation of law from one claiming under a written conveyance.” Id.
- Continuous. “A use is continuous if it is constant and not intermittent.” Stiles, 233 Or App at 126 (internal quotation marks omitted). “The required constancy of use, again, is determined by the kind of use that would be expected of such land.” Id. (internal quotation marks omitted).
- Honest belief. The claimant must prove that, when they or their predecessors first entered into possession of the property, they did so having the honest belief that they were its actual owner. That belief must have continued through the vesting period, had an objective basis, and been reasonable under the particular circumstances.
ORS 105.620(1)(b) .
Given the undisputed circumstances that existed from 1996 until at least 2017, we conclude that, as a matter of law, plaintiff‘s predecessors’ basic maintenance of 18 inches of grass alongside lot 98‘s driveway, in conjunction with maintaining their own lawn, did not constitute open and notorious possession of the kind required for adverse possession. To be open and notorious, the possession must be “of such a character” as to afford defendants’ predecessors “the means of knowing it, and of the claim.” Stiles, 233 Or App at 126 (internal quotation marks omitted). Limited use of property can qualify as open and notorious possession, “but only if it is significant enough to put an owner on notice that his or her title is being challenged.” Hoffman v. Freeman Land and Timber, LLC, 329 Or 554, 560, 994 P2d 106 (1999); see, e.g., Reeves et al. v. Porta, 173 Or 147, 153, 144 P2d 493 (1944) (occasional pasturing of cows in “a piece of brushy wilderness” was insufficient “to put an owner on notice that his title is being challenged by adverse possession“). Importantly, the question is not whether plaintiff‘s predecessors did anything to hide their mistaken belief regarding the location of the property line. The question is whether they did enough to put the true owner on notice of a competing claim of ownership. Whether a non-owner‘s use of property was of such a character as to put the true owner on notice of a title challenge ultimately must be judged from the perspective of the true owner.
So viewed, the evidence here was legally insufficient to prove the open and notorious element, at least as to the grassy portion of the disputed strip, because it was insufficient to put defendants’ predecessors on notice of a title challenge. That is, it was insufficient to put the Josephs on notice that plaintiff‘s predecessors were asserting ownership of the strip, rather than simply being neighborly, or mowing without regard to the property line because no one cared where it was and the area at issue was more visually significant to the house on lot 97. It bears emphasis that this case involves adjacent residential lots in a suburban neighborhood and that no one used the disputed strip for anything other than its aesthetic value, except the neighborhood children, who were allowed to play freely on both properties’ front lawns and driveways. Although the parties’ predecessors universal lack of interest in the exact location of the property line does not defeat the hostility element, given the pure mistake doctrine (as the trial court correctly recognized), it is relevant to other elements and, here, is especially significant to the open and notorious element. On this record, plaintiff‘s predecessors’ mowing and basic maintenance of the grass in the disputed strip in conjunction with mowing and maintaining their own lawn was legally insufficient to prove open and notorious possession of the type required for transfer of title by adverse possession.
Our ruling in that regard is consistent with case law from other jurisdictions. Neither the parties nor we have found any published decision in Oregon or elsewhere in which maintenance of existing grass near the property line in a residential neighborhood alone has been deemed sufficient to prove open and notorious possession for adverse possession purposes. The non-Oregon cases that we have found involving mowing all involved other, more intrusive activities as well. See, e.g., Anderson v. Poirier, 121 Conn App 748, 754, 997 A2d 604, 609 (2010) (the plaintiffs “clearly demonstrated their open and notorious use of the claimed property” where they not only mowed the grass but “conducted various activities on the disputed strip throughout the
The only remaining question, in our view, is whether the Lehnans’ grass removal and bark dust placement in the lower portion of the disputed strip in late 2006 or early 2007 affects the disposition in any way. We conclude that it does not. The complaint identifies the “subject property” as the entire disputed strip along defendants’ driveway, and plaintiff has never suggested that her predecessors might have adversely possessed a small portion of the strip near the street even if they did not adversely possess the entire strip. The case was litigated accordingly, with the parties focusing almost entirely on plaintiff‘s predecessors mowing and grass maintenance, both in the trial court and on appeal. The portion of the strip affected by the bark dust was never clearly defined. The trial court estimated from photographs that bark dust was present in 10 feet of the strip, but it is unclear how much grass the Lehnans actually removed, and it is also unclear whether the amount of bark dust changed over time. See Case v. Burton, 250 Or App 14, 23, 279 P3d 259 (2012) (noting that an adverse possession claimant must identify “‘the property adversely used‘” by clear and convincing evidence (quoting Winthers v. Bertrand, 239 Or 97, 99, 396 P2d 570 (1964))). Even assuming arguendo that the evidence might have been sufficient to prove adverse possession of a small portion of the strip, it was insufficient to prove ownership of the entire strip, which was the issue presented by the complaint, plaintiff‘s arguments at trial, and the motion to dismiss.
Accordingly, we conclude that the trial court erred in denying defendants’ motion to dismiss for insufficient evidence under
Reversed and remanded.