Summary of a Recent
Judicial Development in
Landowner Liability

Purchasers Acquire Title to Land
by Adverse Possession

Gaby R. Jabbour
National AgLaw Center Research Assistant

Summary of Decision

In Manderscheid v. Dutton, 88 P.3d 281 (Or. Ct. App. 2004), the Oregon Court of Appeals held that purchasers of land acquired title to land by adverse possession despite the fact that purchasers did not graze livestock without interruption on the disputed property. The court also held that the purchasers established that they or their predecessors occupied the property with a reasonable and honest belief that they owned the property. See id. at 284.

Background

In 1977, defendant Jan Dutton purchased a 40-acre parcel of land. See id. at 282. Dutton later divided the property into four smaller parcels and sold one of the parcels, tax lot 2000, which was approximately nine acres. See id. At the time of sale, tax lot 2000 contained a mobile home "that straddled the northern boundary of the property, so that half of the home lay on lot 2000 and half of it on . . . [Dutton's] property, lot 1900." Id. The new owners of tax lot 2000 erected a fence along a set of preexisting surveyor's stakes that encroached in several places on Dutton's property. See id. In 1988, tax lot 2000 was sold to a new couple (hereinafter the "Haags"). See id. The Haags assumed that the fence line represented the property's boundary line. See id. From 1989 through 1997 the Haags grazed goats, cows, and pigs on pasture areas located within the fence. See id. In 1997, the Haags decided not to keep goats and began boarding horses "which grazed on the entire property, including the pasture areas of the disputed parcel." Id. The horses grazed for most of the year, although there were some periods of time in which horses were not grazed on the property. See id.

On March 1, 2000, the Haags sold tax lot 2000 to plaintiffs Mark and Tami Manderscheid. See id. The Haags told the plaintiffs that the property consisted of the land enclosed within the fenced in area. See id. Shortly after, the plaintiffs discovered that the actual boundary was different from what was enclosed within the fence and brought an action against the defendant "to quiet title in the disputed parcel, alleging that they had acquired title to the parcel by adverse possession." Id. The trial court concluded that the plaintiffs "established all the elements of a statutory claim for adverse possession" in accordance with Oregon law and therefore entered judgment quieting title to the disputed parcel in favor of plaintiffs. Id. Dutton appealed the trial court's judgment to the Oregon Court of Appeals. See id.

Arguments

Dutton argued that the plaintiffs failed to establish the elements of adverse possession as provided in Or. Rev. Stat. § 105.620. See id. She first argued that the plaintiffs failed to establish their continuous use on the disputed parcel for ten years because there was a break of at least several months in the grazing. See id. at 283. Dutton also argued that "even if the grazing was continuous for 10 years, under . . . [§] 105.620(2)(b), it [was] insufficient to establish the required use of the disputed parcel." Id. Dutton further argued that the plaintiffs "failed to establish the additional statutory element that they or their predecessors in interest occupied the property with a reasonable and honest belief that the property was theirs. " Id. at 284.

Analysis and Holding

The court explained that § 105.620(1)(a) requires a person who seeks to acquire title by adverse possession to establish that "'[t]he person and the predecessors in interest of the person have maintained actual, open, notorious, exclusive, hostile and continuous possession of the property for a period of 10 years.'" Id. at 283 (quotation omitted). It also explained that § 105.620(2)(b) provides that "'[a]bsent additional supporting facts, the grazing of livestock is insufficient to satisfy the requirements of . . . [§ 105.620(1)(a)].'" Id. (quotation omitted). The court noted that in Hoffman v. Freeman Land and Timber, LLC, 994 P.2d 106 (Or. 1999) the Oregon supreme court stated that "'where continuous use is premised upon the grazing of livestock, the requisite continuity may be established by showing continuous use during the pasturing season.'" Id. (citation omitted). The court added that in Terry v. Timmons, 578 P.2d 405 (Or. 1978), it was "similarly explained that, where the hostile use involves grazing of livestock, 'continuity' may be satisfied by intermittent grazing that is consistent with the nature of the property." Id.

The court stated that "the disputed parcel is mostly dry and rocky, is not irrigated, and permits pasturing only a few horses or cows in the spring and winter." Id. It added that using the property "for grazing horses is thus consistent with the nature of the property, and the two- to three-month intervals during which there was a break in that use did not disturb the continuity of [the] plaintiffs' claim." Id. The court also stated that

[i]n this case, in addition to the grazing of livestock, there is evidence that the occupied the mobile home, used the septic tank, tended the garden . . . maintained the fences, and built a second home on the disputed parcel. This is not a case in which adverse possession is predicated on the grazing of livestock alone.

Id. at 283-84.

The court finally stated that the Haags "did not know that the home was located on the boundary, and there were no external indicators that the lot was something other than the area enclosed by the fence." Id. at 284. The court concluded that "[u]nder these circumstances, we cannot say that, as a matter of law, the parties' belief about the extent of the property that they purchased lacked an objective basis and was unreasonable." Id.

The case was decided on April 14, 2004; this summary was posted July 8, 2004.