Devlin v. Banks

• Decision Date: 16 March 2022
• Docket Number: A167179
• Citation: 318 Or.App. 247,508 P.3d 1
• Parties: Dean W. DEVLIN and Lawnna K. Devlin, Plaintiffs-Appellants Cross-Respondents, v. William L. BANKS and Recycling Depot Incorporated, Defendants-Respondents Cross-Appellants.
• Court: Oregon Court of Appeals

318 Or.App. 247

508 P.3d 1

Dean W. DEVLIN and Lawnna K. Devlin, Plaintiffs-Appellants Cross-Respondents,

v.William L. BANKS and Recycling Depot Incorporated, Defendants-Respondents Cross-Appellants.

A167179

Court of Appeals of Oregon.

Argued and submitted January 9, 2020.

March 16, 2022

William H. Sherlock, Eugene, argued the cause for appellants-cross-respondents. Also on the briefs was Hutchinson Cox.

Shallon Halttunen, Albany, argued the cause for respondents-cross-appellants. Also on the briefs was Weatherford Thompson, P.C.

Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

ORTEGA, P. J.

This action centers on a dispute about the location of the property line dividing properties owned by plaintiffs and defendants. Plaintiffs appeal from a limited judgment entered for defendants which ordered defendants to prepare surveys of the property line based on findings set forth in the trial court's letter opinion. On appeal, plaintiffs assert five assignments of error, challenging some of the court's rulings contained in that letter opinion. Defendants cross-appeal, asserting four assignments of error and challenging additional rulings of the trial court. We conclude that the trial court did not err and, accordingly, affirm.

I. BACKGROUND

Defendant Banks is the president of defendant Recycling Depot, Inc. (RDI), which owns one of the parcels at issue and operates a recycling facility on that property. Plaintiffs own and reside on the property that borders defendants’ property to the south. Defendants acquired the property in 1993, and plaintiffs acquired their property in 2014. This case centers on a dispute about the exact location of the boundary between the two properties, whether defendants’ concrete wall and certain outbuildings cross the boundary into plaintiffs’ property, and whether Banks removed trees from plaintiffs’ property.

In 2015, plaintiffs filed a complaint against defendants, asserting claims for ejectment, breach of contract, and timber trespass. They alleged that, from 2002 to 2004, defendants and plaintiffs’ predecessor-in-interest, Munson, had a dispute about the location of the property line, which they resolved by Munson granting and recording an easement to defendants (the 2004 easement). Plaintiffs further alleged that, after recording the easement, defendants built a concrete wall, well house, concrete slab and outbuilding, and driveway that encroached on Munson's property and was outside the easement area and, as a result, Munson recorded a declaration of encroachment and trespass. After plaintiffs acquired the property in 2014, they alleged that defendants or their agents entered plaintiffs’ property and cut down about 25 trees. Plaintiffs sought damages and to eject RDI from their property, claimed that RDI and Banks breached the 2004 easement, and sought statutory triple or double damages for Banks’ removal of the trees.

In response to plaintiffs’ complaint, defendants asserted affirmative defenses of adverse possession, invalid contract, termination of easement, a right to cut brush and trees for repair and maintenance of the concrete wall, and that the statute of limitations had run for the ejectment and breach of contract claims. Defendants also asserted counterclaims for quiet title, based on adverse possession, of an approximately 16-foot wide strip of land on plaintiffs’ property that runs along the entire border of the two properties and, in the alternative, for a prescriptive easement in the same area "allowing [the] use of the land that [d]efendants have made as part of the operation of a recycling depot." In reply to those counterclaims, plaintiffs denied each allegation pleaded by defendants, but did not assert any affirmative defenses.

Plaintiffs moved for summary judgment on defendants’ claim for adverse possession, arguing that defendants waived any claim to the disputed property in the 2004 easement. Defendants cross-moved for summary judgment on their adverse possession claim and also moved for summary judgment on plaintiffs’ claims for ejectment and breach of contract as barred by the statutes of limitation or repose. On defendants’ adverse possession claim, the court determined that "there remains significant and genuine issues of fact concerning the property in question, its boundaries, its use and the impact if any of the easement" and denied summary judgment. However, the trial court granted defendants’ motion for summary judgment on plaintiffs’ claims for ejectment and breach of contract and entered a limited judgment dismissing those claims with prejudice. Plaintiffs did not appeal that limited judgment.

The remainder of the case—plaintiffs’ claim for timber trespass and defendants’ claim for adverse possession and, alternatively, a prescriptive easement—proceeded to a bench trial. At the end of plaintiffs’ case, defendants moved for dismissal of plaintiffs’ timber trespass claim based on plaintiffs’ failure to put on sufficient evidence that Banks removed the trees that plaintiffs’ expert had valued, which the trial court granted.

Ultimately the trial court granted, in part, defendants’ claims for adverse possession and for a prescriptive easement, setting forth its findings and conclusions in a letter opinion:

"1. [Plaintiff] Dean Devlin *** has lived [at the subject property] since 2014.

"a. He farms the 12 acres he lives on; his home [sits] on the property; he raised hay and 7 cattle.

"b. Devlin testified that his cattle grazed on the disputed portion of land (roughly between an old wire fence attached in part to trees and a concrete wall erected by Banks) though there was no evidence as to when they grazed, for how long, or whether or not it was continuous.

"2. Banks purchased the wrecking yard property in 1993.

"3. When Banks bought the property he characterized the property fence line as a mess.

"4. It appears from all of the evidence that there were a series of fences and walls made of wire, metal panels, wooden panels and possibly other materials between the properties over the years. Though the exact location of those various fences and walls is not possible to determine today with accuracy for the most part they followed, more or less, the Donation Land Claim (DLC) line and are [sic ] now occupied by the concrete wall. There was also an irregular wire fence south of the wall and the DLC line and part of that wire fence remains; it is attached to posts and trees and is not a straight line.

"5. Several witnesses testified about what the fence line looked like over the years. Gordon Wallace testified that during the 1940s and into the 1970s the fence line ran along the DLC line or just inside that line. He did not specify whether ‘inside’ meant north of or south of. Over all [sic ] the testimony by witnesses to the state of the property line and fence line over the period from 1942-2004 was inconsistent, unclear or otherwise not compelling.

"6. At least one building (pump house) encroached over the DLC line and especially the roof line of that building protruded over the line and drained over the line.

"7. In 2004 the former owner of [plaintiffs’] property, Munson, came into conflict with [defendant] Banks. Threats of law suits [sic ] were made and at one point Munson call[ed] the sheriff in.

"8. In January 2004 the parties signed an easement agreement to resolve this dispute. Paragraph 5 of that agreement was intended to preclude the very litigation now before the court.

"9. In 2005 Banks was granted a zero-foot set back allowance by Linn County which suggests that the county believed that the wall was built on or very near the property line.

"10. Banks testified that Munson gave him permission to install the culvert, driveway and wall. This again suggests that the parties believed that the concrete wall [w]as built on or near the property line.

"11. Banks built a ‘drain line’ south of the concrete wall site and then erected the concrete wall more or less along the Donation Land Claim line. The evidence did not inform the court of how wide the drain line was. In some testimony it was called a ‘drain field’. Eventually the drain line or field was trampled by [plaintiffs’] cattle—leading the court to conclude the line was not buried deeply.

"12. In 2015 Banks cut brush on the south side of his wall and cut down small trees as well. (Banks denied cutting trees; the court does not find his denial persuasive and it is contradicted by the other evidence.) This act led to the current litigation."

Based on those findings of fact, the court concluded that the legal property line between the properties is the DLC line and that that line "runs, more or less, along the current concrete wall." The court identified the disputed area as the area between the concrete wall and the old wire fence line and stated that both parties conduct some activity in that area, but that "in both cases that use was more or less inconsistent, intermittent and not continuous." The court then concluded that, under ORS 105.620, the adverse possession statute, defendants "[d]id not maintain an actual, open, notorious, exclusive, hostile and continuous possession of the disputed property for ten years or more during any period prior to the filing of this suit except as specifically found below," and Banks "[d]id not prove that he had an honest belief that the disputed property was his; and in fact had sought and received permission from a previous owner of [plaintiffs’] property to conduct activity on the disputed land and signed an easement to resolve the property dispute in 2004 except as found below."

With respect to the 2004 easement, the court stated that it "was not properly drafted," that the property description "is incomplete and inaccurate," and that "[i]t may not be enforceable though this action was not brought to enforce it." However, the court determined that the easement was "clear and compelling evidence that both parties understood and acknowledged in 2004 that [plaintiffs’...