Daily Development for Thursday, November 15, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ADVERSE POSSESSION; REQUIREMENT OF HOSTILITY; "PURE MISTAKE" DOCTRINE: For possession to qualify as hostile under the "pure mistake" doctrine, the possessor must have no conscious doubt about where the property line is actually located. Where such conscious doubt exists, merely using property for acts such as picnicking, berry picking and exercising dogs does not establish hostile possession.

Mid-Valley Resources, Inc. v. Engelson, 13 P.3d 118 (Or. 2000).

This case is an application of Hoffman v. Freeman Land and Water Co., 994 P2d 106 (Or. 1999), which the Editor considered for a DD, and then rejected because trying to figure out the case gave him a headache. Now here's the headache all over again.

In the instant case, A dispute arose between plaintiffs and defendants as to who owned a parcel of property located between their respective properties. Defendants claimed adverse possession based upon their use of the property for picking berries, apples, nuts and wildflowers, in addition to riding horses, running cattle, exercising dogs, riding motorcycles, gathering firewood, clearing paths and picnicking on the disputed parcel. Plaintiffs sued for a declaration that it was the owner of the disputed parcel. The trial court concluded that defendants had proved by clear and positive evidence that they had continuously occupied the disputed property for a ten year period, and that such use was actual, open, notorious, exclusive and continuos.

Plaintiffs appealed to the Court of Appeals of Oregon, arguing that defendants' possession was not hostile. The Court of Appeals reversed the trial court, citing Hoffman for the proposition that in order to establish that their possession was presumptively hostile, where there is no color of title, an adverse possession claimant must prove that it had possessed under "pure mistake," that claimant had no conscious doubt about where the property line was and believed unequivocally that the disputed parcel belonged to claimant. If there is no color of title and no "pure mistake," the court noted, Oregon law requires that the plaintiff demonstrate affirmatively that its possession was hostile and not permissive.

The Court pointed to testimony from the relevant member of defendants' family establishes that she did have a doubt about where the boundary to their property was located. This indicated that the claimants here could not claim "pure mistake." Without the ability to rely on the "pure mistake" doctrine, defendants were required to establish hostility by proving a subjective intent to possess the property as its true owner.

The court concluded that defendants' use of the disputed parcel did not rise to this level and denied the claim for adverse possession.

Comment 1: Hoffman, the root case, held that simple possession with express permission does not give rise to a presumption of hostility in Oregon. In Hoffman, the claimants had grazed cattle over the disputed parcel for a significant period of time. The court, disagreeing with the trial court on this issue, concluded that the grazing of cattle, although very intermittent and involving few animals, did constitute possession of the parcel, since it was consistent with the use that a true owner might make of property of this type. It also concluded that the possession was "open and notorious" and that there was no evidence of permission.

Nevertheless, the Oregon Supreme Court found that the Court of Appeals, which had found that adverse possession existed, inappropriately applied a presumption of hostility arising from unpermitted physical activity. This presumption, the court acknowledged, was present in Oregon case law dealing with prescriptive easements, but the court held that it ought not to apply to adverse possession.

Thus, Hoffman concluded, in the "standard" case, simple possession without permission is not enough. The claimant must show that it affirmatively intended to deprive the owner of title. But where the claimant believes itself to be the owner of the property by mistake, of holds under color of title, then its simply unpermitted possession does suffice.

Comment 2: One confusing thing about Hoffman, and therefore, about the instant case, is that the exceptions, in the real world, virtually swallow up what the court establishes as the "base rule." Most adverse possession cases involve a belief in ownership of the property possessed.

A presumption of hostility then arises. But where the subjective intent of the possessor is that it is uncertain as to the boundary, and doesn't intend to possess beyond its true boundary, the Oregon court draws an exception and saws that there is no hostility.

Comment 3: In a state that involves a lot of rural property where uncertain boundaries are the rule but adverse possession claims are not desired, the court's conservative approach certainly makes some theoretical sense. But the editor fears that the Oregon test will go the way of other judicial attempts to probe into the inner workings of the adverse possessor's mind. Clever claimants, advised by clever lawyers, will simply rework their testimony as to their understanding of the situation during the possession period. There usually won't be any evidence on the point other than the claimant's testimony. A rule that depends upon an individual's characterization of subjective intent is one that ultimately will deliver the court to the intended objective, but only deliver the law to the best liar.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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