Faulconer v. Williams

Citation964 P.2d 246,327 Or. 381
CourtSupreme Court of Oregon
Decision Date24 July 1998
PartiesJay FAULCONER and Sheila Faulconer, husband and wife, Respondents on Review, v. Billie J. WILLIAMS, Defendant-Respondent, and John C. Mackey and Jeanne L. Mackey, Petitioners on Review, and Robert D. Webb and Carolyn L. Webb; Randy L. Bahler and Donna J. Bahler; Kenneth J. Stevenson and Joanne Stevenson; Jerry L. Lasater and Dawn Lasater; Elmer C. Williams and Marie E. Williams, Defendants-Respondents, and Michael A. Revelle and Sandra A. Revelle, Petitioners on Review. CC 95-10169; CA A93542; SC S44308.

Hilary E. Berkman, Corvallis, argued the cause and filed the brief for Petitioners on Review.

George B. Heilig, of Cable, Huston, Benedict & Haagensen, LLP, Corvallis, argued the cause and filed the brief for Respondents on Review.


GILLETTE, Justice.

The issue in this real property dispute is whether an express easement over plaintiffs' property was extinguished through adverse possession, although deeds to the property given after the claimed period of adverse possession continued to refer to the easement. The trial court held that the easement continues to exist. The Court of Appeals reversed, holding that the easement was extinguished by adverse possession during the period of ownership of one of plaintiffs' predecessors in interest and that reference to the extinguished easement in later deeds did not operate to recreate the easement. Faulconer v. Williams, 147 Or.App. 389, 936 P.2d 999 (1997). We allowed review and now affirm the decision of the Court of Appeals.

The Court of Appeals reviewed the judgment of the trial court de novo, ORS 19.415(3). 1 We accept the facts as found by the Court of Appeals and limit our review to questions of law. ORS 19.415(4). The following facts are taken from the Court of Appeals' decision and from other undisputed facts in the record.

The land in dispute is located in rural Benton County. 2


In the 1950s, that land and much of the surrounding area was owned by Lewis and Nellie Passon. The Passons lived in a house on what is known as Tax Lot 300 (the servient estate). Tax Lot 300, now owned by plaintiffs, is located on the east side of Mountain View Drive, a north-south county road. The Passons began to sell off parcels of their holdings and, in 1957, they sold Tax Lot 100 (the dominant estate), which is located immediately to the east of Tax Lot 300, to Elmer and Billie Jean Williams. As part of that transaction, the Passons conveyed to the Williams an express, 20-foot-wide, east-west easement over Tax Lot 300 for a right of way to allow the Williams access to Mountain View Drive. The easement was described in metes and bounds in the Williams' deed and lies over the north 20 feet of Tax Lot 300. Tax Lot 100 in turn was subject to a similar easement for the benefit of other property then owned by the Passons.

At the time of the conveyance, there was no physical access to Mountain View Drive from Tax Lot 100, and a road had to be built. A wire fence, remnants of which still stand today, ran east-west between Mountain View Drive and Tax Lot 100. That fence, which was north of the Passons' house, ran along the northern boundary of the Williams' property. Lewis Passon directed that a private road be constructed immediately south of the fence, and he and Elmer Williams together cleared trees and brush and built the road.

The road that Passon and Williams built lies over the north 20 feet of the Williams' property (Tax Lot 100), but, in fact, does not cross Tax Lot 300 at all. Instead, the road lies north of Tax Lot 300 and crosses property never owned by the Passons. 3 That is, the northern boundary of Tax Lot 300 does not, as both the Passons and the Williams believed, extend directly west from the corner of Tax Lot 100. The northern boundary to Tax Lot 300 is parallel to, but to the south of, the northern boundary of Tax Lot 100, and the true southern boundary of a 20-foot easement strip that runs along the northern side of Tax Lot 300 lies within seven feet of the Passons' (now plaintiffs') house. Despite the metes and bounds description in the deeds, neither the Passons nor the Williams actually were aware of the discrepancy in the northern property lines of Tax Lots 100 and 300.

After the private road was constructed, Lewis Passon built a retaining wall and fence just to the south of the roadway, along the actual northern boundary of his property. He planted trees and shrubs in the fenced area and maintained it as part of his yard.

In 1959, the Passons sold Tax Lot 300 to the Williams. The deed conveying that property did not include reference to the easement, but the Williams clearly knew of its existence, because they owned one of the properties that benefited from the easement and Elmer Williams had helped to build the roadway. The Williams conveyed Tax Lot 300 to the Fryers in 1964. The Fryers sold that lot to the Hendricksons in 1982, and the Hendricksons sold it to plaintiffs in 1989. All those conveyances provided that they were "subject to" or were conveyed "except for" an easement described by reference to the 1957 deed conveying Tax Lot 100 from the Passons to the Williams.

Notwithstanding the reference to the easement in their deeds, all the subsequent owners of Tax Lot 300 believed that the wire fence to the north of the private road lay along their true northern property line. All treated the disputed strip as their own. The Fryers extended the fence that Lewis Passon had built so that it joined another fence running north-south along the eastern boundary of the property, making east-west travel through the actual easement impossible. Within the easement strip, they also planted a grape arbor and fir trees that have grown quite large. The Hendricksons used the property in the same way and plaintiffs, too, believed that the easement ran along the existing roadway. Plaintiffs maintained the wall and fence between the private road and their yard.

Defendants are all successors in interest of other Passon grantees and are the owners of the dominant estates in whose favor the 1959 easement was created. Most of the defendants believed, as did plaintiffs, that the existing private road lay within the easement.

After a 1995 survey disclosed the mistake as to the location of the easement, plaintiffs sued to quiet title. They asserted that they or their predecessors had acquired title to the disputed 20-foot strip through either adverse possession or abandonment. The trial court disagreed. With respect to the abandonment question, the court ruled that plaintiffs had not demonstrated that defendants ever took any action indicating their intent to abandon their right to use the easement over plaintiffs' property. Turning to the adverse possession claim, the trial court held that, although plaintiffs, along with their predecessors in interest, used the property for the requisite 10-year period and that use was open, exclusive, and continuous, they had not shown that the use was "hostile," inasmuch as they had not shown that the use was adverse to defendants' interest in the easement. Finally, the court concluded that, even if the Fryers' activities extinguished the easement by adverse possession, they and, in turn, the Hendricksons, had recreated the easement when they transferred Tax Lot 300 "subject to" or "except for" the easement.

Plaintiffs appealed, assigning error to each of the trial court's rulings. As noted, the Court of Appeals reversed on the grounds that the easement was extinguished by adverse possession during the 18-year period of the Fryers' ownership and that the reference to the extinguished easement in subsequent deeds was insufficient to recreate the easement in favor of defendants. For the reasons that follow, we agree.

An express easement may be extinguished by adverse possession. Simpson v. Fowles, 272 Or. 342, 344, 536 P.2d 499 (1975). For that to occur, all the elements of adverse possession must be shown by clear and convincing evidence. See Thompson v. Scott, 270 Or. 542, 546-47, 528 P.2d 509 (1974) (clear and convincing evidence of all elements is necessary for acquisition of easement by adverse possession). 4 That means that plaintiffs must establish by clear and convincing evidence that their use of the land subject to the easement was actual, open, notorious, exclusive, continuous, and hostile for the full statutory period of ten years. 5 Scott v. Elliott, 253 Or. 168, 178, 451 P.2d 474 (1969). Failure to meet even one of those elements will destroy a claim of adverse possession.

We begin with the element of hostility or adversity, because defendants' primary argument is that plaintiffs have failed to prove that element.

In the context of adverse possession, the term "hostile" means that the claimant possessed the property intending to be its owner and not in subordination to the true owner. Mascall v. Murray, 76 Or. 637, 643-44, 149 P. 517 (1915); see also Sertic v. Roberts, 171 Or. 121, 134, 136 P.2d 248 (1943) ("Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to all the world."). Additionally, when the claim is for adverse possession of an easement, the claimant generally must show that his or her use of the property is inconsistent with the existence of the easement. Horecny v. Raichl, 280 Or. 405, 408, 571 P.2d 495 (1977); see also Tucker v. Nuding, 92 Or. 319, 328-29, 180 P. 903 (1919) (use adverse to the enjoyment of an easement for a period sufficient to create a prescriptive easement will destroy that easement).

The Court of Appeals found that this was a case in which a party possesses land under the mistaken belief of ownership. Faulconer, 147 Or.App. at 394-95,...

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