by the Section on Real Estate and Land Use, Oregon State Bar, Vol. 25, No. 4 • August 2003
■ THE NUTS AND BOLTS OF ADVERSE POSSESSION
Gilinsky v. Sether, 187 Or App 152, 66 P3d 584 (2003), provides a helpful example of a very typical adverse possession claim. The case may serve as a basic reference whenever adverse possession is in issue. In Gilinsky, the court determined that each of four defendants established title to property through adverse possession by demonstrating clear and convincing evidence of actual, open, notorious, exclusive, continuous, and hostile possession of the plaintiff’s property.
The plaintiff, Robert Gilinsky, purchased a parcel of undeveloped land in 1998. Soon after acquiring the property, Gilinsky surveyed the land. The survey indicated indicated that existing fence lines of four adjoining properties, each owned by different defendants (Sether, Groves, Hess, and Bucan), encroached on Gilinsky’s land. Gilinsky filed suit for trespass and ejectment in order to gain control over the property described in his deed. The trial court ruled in favor of each defendant and Gilinsky appealed.
The court of appeals reviewed the case de novo and affirmed the trial court’s decision. Applying Hoffman v. Freeman Land and Timber, LLC, 329 Or 554, 559, 994 P2d 106 (1999), the court determined that each defendant had demonstrated by clear and convincing evidence actual, open, notorious, exclusive, continuous, and hostile possession of the disputed property.
First, the court found that all of the defendants had “actually” used the disputed property as part of their own backyards. The court held, in accordance with Nooteboom v. Bulson, 153 Or App 361, 364, 956 P2d 1042, rev den, 327 Or 431 (1998), that each defendant had used the disputed property as a typical owner would. Sether mowed and took care of his property. Bucan gardened, mowed, planted trees, and stored lumber on his property. Hess did not acquire his property until 1989. However, the court held that the actions by the previous owner of Hess’s property, Dolmage, established actual use. Dolmage installed a septic system, used the area above the underground septic tank as a turn-around and parking spot, and built a shed on the property. The court also noted that Hess continued to treat the property as his own. Similarly, the court held that while Bobbe Groves had not acquired the disputed property until 1985, actual use was demonstrated by the previous owner, Groves’s father, who had cut firewood, constructed a temporary children’s playhouse, and constructed and used a paved lane on the disputed property. Each of the above uses demonstrated actual possession.
Next, the court addressed open and notorious use of the land, holding that open and notorious use had been demonstrated by the defendants’ use of the property for gardening, storage space, parking, and recreation. The court questioned whether an underground septic system on Hess’s property could establish open and notorious use; however, Hess’s use of the property for parking and turning cars around satisfied this requirement. Additionally, the court found that the developed condition of the defendants’ property compared to the property on Gilinsky’s side of the fences added weight to the open and notorious nature of the use. Thus, the court had “no difficulty” in finding each defendants’ use to be open and notorious. 187 Or App at 159.
The court then determined that each defendant had demonstrated continuous use of the disputed property. Adverse possession required the defendants to show that their open and notorious possession of the land had continued for at least ten years prior to 1990. Sether, who acquired the disputed property in 1995, satisfied this requirement by producing a former owner, James Hendricks, as a witness. Hendricks owned the Sether property from 1972 until 1976, and testified that he believed the fence marked the boundary, he had cared for and used the property in much the same way as Sether, and the condition of the Sether property and the Gilinsky property had not changed since the time he lived there. Bucan met the continuous requirement by testifying that he had owned the property since early 1980, always believed that the fence marked the boundary, and treated the property accordingly. Additionally, Bucan offered the testimonies of Sam and Bobbe Groves, neighbors who had observed the use of the Bucan property for more than forty years. The Groveses testified that there had been neither an interruption in the use of the land nor a change in the manner of use for the past forty years.
The court held that Bucan’s testimony accompanied by the Groveses’ testimony established the ten-year continuous element. Similarly, the court found that the Groveses had satisfied the ten-year continuous requirement by testifying that the use of their property had been the same for more than fifty years preceding the trial. Finally, the court held that Hess had met the continuous requirement by providing evidence that the property has been used for parking and as a turnaround spot since 1970.
Finally, the court addressed the hostility element, holding that “a claimant must show that he or she ‘possessed the property intending to be its owner and not in subordination to the true owner.’” 187 Or App at 160 (quoting Faulconer v. Williams, 327 Or 381, 389, 964 P2d 246 (1998)). The court also cited Mid-Valley Resources, Inc. v. Engleson, 170 Or App 255, 260, 13 P3d 118 (2000), rev den, 332 Or 137 (2001), for the proposition that “‘possession [of property] under a purely mistaken belief of ownership’ satisfies the hostility requirement,” which includes mistakenly occupying property believed to be included in a deed. 187 Or App at 160 (quoting Mid-Valley Resources, 170 Or App at 260). Each defendant was able to prove hostile use through pure mistake. The court also noted that the defendants and their predecessors had universally believed the fences to be boundary fences and that the fences run parallel to the actual property lines. Additionally, the owners used the property as their own. Thus, the evidence established the element of hostility.
After determining that the defendants had satisfied the elements of adverse possession, the court addressed the question whether a person may convey his interest in property acquired through adverse possession. Both Bucan and Groves had received the disputed property from previous owners who adversely possessed it. The court cited Evans v. Hogue, 296 Or 745, 756, 681 P2d 1133 (1984), in holding that an “owner who acquires title to property by adverse possession may transfer that title to third parties.” 187 Or App at 161. Furthermore, the court held that the intent to transfer the disputed property was evidenced by the owners’ beliefs that the fences marked the boundary.
Gilinsky v. Sether, 187 Or App 152, 66 P3d 584 (2003).