Evans v. Hogue

• Decision Date: 17 April 1984
• Docket Number: No. 41-025,41-025
• Citation: 296 Or. 745,681 P.2d 1133
• Parties: Walter EVANS and Julie Evans, husband and wife, Respondents on Review, v. Harry E. HOGUE and Betty J. Hogue, husband and wife, and Jeannette K. Mundt, Petitioners on Review. Harry E. HOGUE and Betty J. Hogue, husband and wife, Defendants and Third-Party Plaintiffs, v. Mary M. WALL, Third-Party Defendant. ; CA A22210; SC 29674.
• Court: Oregon Supreme Court

Page 1133

681 P.2d 1133

296 Or. 745

Walter EVANS and Julie Evans, husband and wife, Respondents on Review, v. Harry E. HOGUE and Betty J. Hogue, husband and wife, and Jeannette K. Mundt, Petitioners on Review.

Harry E. HOGUE and Betty J. Hogue, husband and wife, Defendants and Third-Party Plaintiffs, v. Mary M. WALL, Third-Party Defendant.

No. 41-025; CA A22210; SC 29674.

Supreme Court of Oregon In Banc.

Argued and Submitted Oct. 3, 1983.

Decided April 17, 1984.

Donald J. Morgan, Portland, argued the cause for petitioner on review Jeannette K. Mundt. With him on the briefs was Wood, Tatum, Mosser, Brooke & Holden, Portland.

Andrew Rich, Hillsboro, argued the cause for respondents on review. With him on the brief was Huffman & Zenger, P.C., Hillsboro.

ROBERTS, Justice.

This appeal is from an action to quiet title. The trial court awarded title to plaintiffs. The Court of Appeals also found for plaintiffs by concluding that plaintiffs had adversely possessed against their predecessors for the requisite period. We affirm but on different grounds.

The disputed land consists of approximately two and one-half acres and is located as shown on the diagram.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1905 a survey established the boundary between the two parcels of land as shown on the diagram at the fence line. The Halls were the owners of the easterly parcel for which plaintiffs Evans have title. The Halls built the fence. In 1935 the Halls conveyed their record title to W.N. Hall. After several conveyances Sampsons became owners of the property in 1948. Sampsons conveyed to Luckeys in September, 1970 and Luckeys conveyed to plaintiffs in separate transactions in 1974 and 1975. The original deed from the Halls did not contain a description of the disputed tract nor did any subsequent deed by grantors of plaintiffs' tract. Deeds to defendants' land, however, always included the disputed strip in their description.

The evidence presented at trial indicated that during the time Sampsons owned the land all the requirements for adverse possession were met. However, when Sampsons sold to Luckeys, and the Luckeys to plaintiffs, the deed did not contain a description which included the strip. In May, 1981, after the commencement of this action but before trial Sampsons conveyed, by way of quitclaim deed, their interest in the tract to Mary Wall, ¹ the common grantor of the defendants.

The question here involves how interests in property acquired by adverse possession can be transferred to subsequent purchasers.

The trial court found that the interest of plaintiffs' predecessors in the adversely possessed strip was transferred to plaintiffs. The method of this transfer is not explained.

The Court of Appeals affirmed the trial court. It first rejected plaintiffs' argument that they could acquire title to the property by tacking their period of occupation and the Luckeys' period of occupation onto Sampsons' successful adverse possession to claim adverse possession against defendants. The court held that Sampsons had acquired legal title to the property and their interest could be conveyed only by operation of law or by deed. The Court of Appeals decided this case in plaintiffs' favor, however, by concluding that plaintiffs, by tacking their possession with Luckeys' possession, had held adversely against Sampsons for the requisite number of years. At the time plaintiffs filed this action they were four months short of the 10 years. The Court of Appeals nonetheless concluded that the 10 years continued to accrue after plaintiffs filed suit and up to the time the Sampsons conveyed their interest to defendants. We agree with the dissent below that this is an erroneous application of the statute of limitation, ORS 12.050.

At the trial, plaintiffs proceeded on the theory of uninterrupted continuous adverse use and defendants defended with their record title and claims that plaintiffs were estopped by delay to raise their own or their predecessors' interest in the land. Defendants cited Duval v. Miller, 208 Or. 176, 300 P.2d 416 (1956) for the first time and relied on it exclusively in the Court of Appeals. Although the Court of Appeals distinguished that case in a footnote, it seems to apply. Duval held that the doctrine of tacking applies only when one person in adverse possession for less than the prescriptive period and another in privity with him continue the adverse possession for a time sufficient to complete the 10 year prescriptive period; the doctrine cannot be applied where a predecessor has already acquired title by adverse possession prior to conveying the property. We take the opportunity to address the case here.

There were two DuVal cases involving the same parties and the same disputed property. In the first, DuVal v. Miller, 183 Or. 287, 192 P.2d 249, 192 P.2d 992 (1948), plaintiffs in possession sued to quiet title to a strip of land separating their property from defendant's. Plaintiffs asserted that their predecessors, the Duncans, held the property adversely for more than 10 years. Defendant defended with her record title. Though plaintiffs were able to produce evidence that the Duncans adversely possessed the strip from 1929 to 1941, they failed to allege how the Duncans' interest might have accrued to themselves. On rehearing the court pointed out plaintiffs' mistake. Plaintiffs had failed to allege or prove their privity with Duncans. The court stated that it had no intention to detract from Vance v. Wood, 22 Or. 77, 29 P. 73 (1892), or West v. Edwards, 41 Or. 609, 69 P. 992 (1902), cases which DuVal summarized as permitting "an adverse possessor to tack his possession on to that of a previous adverse possessor, if privity existed between the two," 183 Or. at 294, 192 P.2d 249, but plaintiffs had simply made no attempt to establish their continuity of adverse use after the Duncans. The court observed, "we are satisfied that shortly after [plaintiffs] received their deed, [defendant] asserted title to the disputed strip and the right to its possession," 183 Or. at 295, 192 P.2d 249. Defendant's acts of dominion over the property, of course, destroyed any claim plaintiffs could make to continued exclusive possession of the land, a prerequisite to privity. "[I]f the possession of the Duncans was of the character required by the rules which give effect to adverse possession, the [plaintiffs'] possession did not come up to that standard. It was not exclusive." 183 Or. at 296, 192 P.2d 249.

In the second case, 208 Or. 177, 300 P.2d 416 (1956), the same plaintiffs sued for ejectment after defendant dispossessed them from the disputed strip. The trial court found continuity of use sufficient to establish plaintiffs' privity with Duncans and held that plaintiffs could tack their period of possession onto their predecessors'. This court applied a theory new to Oregon, that a possessor cannot tack a predecessor's period of possession if the predecessor already adversely possessed for the statutory period. The court limited the doctrine of tacking to those situations where it was necessary "to establish continuous possession for the statutory period." 208 Or. at 183, 300 P.2d 416.

The court cited prior cases as authority for its limited application of the tacking doctrine, but none provides any actual support. Anderson v. Richards, 100 Or. 641, 198 P. 570 (1921); Clark v. Bundy, 29 Or. 190, 44 P. 282 (1896); and Vance v. Wood, supra; Rowland v. Williams, 23 Or. 515, 32 P. 402 (1893); applied the doctrine of tacking in factual settings where a claimant's predecessors' possessory period happened not to exceed the statutory period. There is no indication that the application of the doctrine would differ had a predecessor, or a series of predecessors, already achieved continuous adverse possession for the statutory period. In fact, Quinn v. Willamette Pulp & Paper Co., 62 Or. 549 126 P. 1 (1912), also relied on in DuVal, allowed plaintiffs to tack their period of possession onto their predecessor's even though the predecessor had established his possessory rights for the full 10 year period. The Quinn court rejected defendant's claim of record title stating:

"There had been time for the statute of limitation to have run three times before the defendant ever had anything to do with the land in dispute; and the title of Pacquet, plaintiff's grantor, was perfected before that time. Since then there has been nothing to divest him or his grantee of such title." 62 Or. at 555, 126 P. 1.

Low v. Schaffer, 24 Or. 239, 33 P. 678 (1893), the case DuVal cites as primary authority for its limitation on tacking, does not espouse such a rule. The case involved tacking of possessory rights to land and water use gained by prior, continuous use and appropriation. The total period during which defendants' predecessors held the rights adversely to the first appropriator exceeded 10 years. Defendant was able to demonstrate his privity with his immediate predecessor but could not show privity between the next two grantors up the line, Huffman and Hindeman. The lack of privity had nothing to do with one or the other having adversely possessed in his own right for the statutory period. Huffman did not convey his possessory interest to Hindeman; Hindeman contested Huffman's ownership and was awarded a patent for the land after an adjudication, a situation that defeated privity between them. The court restated the principle that possessory interests in land may be transferred by oral agreement, 24 Or. at 242, 33 P. 678. Neither the facts of the case nor the generality with which the principle of tacking is set forth supports the DuVal decision.

In a later case, Rohner v. Neville, 230 Or. 31, 365 P.2d 614, 368 P.2d 391 (1962), we were faced with a fact situation very similar to that in DuVal. In Rohner plaintiffs' predecessor adversely possessed property adjacent to the property described in his...