Harrell v. Tilley

• Decision Date: 08 September 2005
• Docket Number: 02C-14354; A123832.
• Citation: 201 Or. App. 464,119 P.3d 251
• Parties: Lisa HARRELL and John T. Harrell, Appellants, v. Glen TILLEY, individually; Glen Tilley, trustee of the Gladys E. McKheen Family Trust; and Keith Tilley, Respondents, and John Doe and Jane Doe, claiming by and through the heirs and assigns of J.L. Jones; also other persons or parties unknown claiming any right, title, lien, or interest in the property described in the Complaint herein, Defendants.
• Court: Oregon Supreme Court

119 P.3d 251

201 Or. App. 464

Lisa HARRELL and John T. Harrell, Appellants, v. Glen TILLEY, individually; Glen Tilley, trustee of the Gladys E. McKheen Family Trust; and Keith Tilley, Respondents, and John Doe and Jane Doe, claiming by and through the heirs and assigns of J.L. Jones; also other persons or parties unknown claiming any right, title, lien, or interest in the property described in the Complaint herein, Defendants.

02C-14354; A123832.

Court of Appeals of Oregon.

Argued and Submitted April 7, 2005.

Decided September 8, 2005.

COPYRIGHT MATERIAL OMITTED

Edward F. Schultz, Albany, argued the cause for appellants. With him on the briefs were Andrew J. Bean and Weatherford, Thompson, Cowgill, Black & Schultz, P.C.

Michael J. Martinis argued the cause for respondents. With him on the brief was Webb, Martinis & Hill.

Before HASELTON, Presiding Judge, and LINDER, Judge, and BREITHAUPT, Judge pro tempore.

HASELTON, P.J.

In this action to quiet title to a strip of land lying between plaintiffs' and defendants' deeded lots, plaintiffs appeal from a judgment awarding both parties joint ownership of the disputed strip.¹ Plaintiffs contend that they are entitled to sole ownership by virtue of their predecessor's adverse possession of the strip or, alternatively, by virtue of quitclaim deeds that they subsequently acquired from the heirs of one of the record title holders. Plaintiffs also contend that Oregon law does not recognize a cause of action for "mutual adverse possession" — as pleaded in defendants' counterclaim and recognized by the trial court — and that, even if such a claim were cognizable in the abstract, the circumstances of this case do not warrant such an award. As explained below, we conclude that (1) the trial court's finding of mutual adverse possession and its consequent award of joint ownership were improper; (2) plaintiffs were not entitled to prevail on their claims of sole ownership by virtue of adverse possession; and (3) due to its erroneous "mutual adverse possession" determination, the trial court failed to fully address plaintiffs' quiet title claim. Accordingly, we reverse and remand.

On de novo review, Clark v. Ranchero Acres Water Co., 198 Or.App. 73, 75, 108 P.3d 31 (2005), we find that the testimony and exhibits submitted at trial establish the following facts:

Plaintiffs and defendants own adjacent parcels of land near Jefferson in Marion County. A strip of land approximately 27 feet wide and 1,666 feet long lies between the eastern edge of defendants' property (Parcel 1) and the western edge of plaintiffs' property (Parcel 2). The parties uniformly refer to that strip — which encompasses roughly one acre — as "the Gap." An irrigation well, powered by an electrical line running across Parcel 1, is located near the center of the Gap.

The Gap was created when the original common owner of the two parcels, J.L. Jones, transferred Parcel 1 to G.W. Burres in 1910 and Parcel 2 to William Kerr in 1911. For reasons unknown (or, at least, undisclosed in the appellate record), Jones, in creating and conveying the two parcels, did not convey all of his property. Rather, he left a strip of land between the two titles — the strip at issue here and now known as the Gap — to which Jones retained title. There is no evidence as to whether either Burres or Kerr was aware that there was any property between Parcels 1 and 2. In any event, as described below, their respective successors-in-interest did not become aware of the Gap until decades later.

E.O. Kerr acquired Parcel 2 from William Kerr in 1938. From that date until approximately 1959, E.O. Kerr used the Gap as a driveway to gain access to his residence — located on the southern portion of Parcel 2 — from a county road that runs along the north edge of both parcels. Kerr rented the arable acreage of Parcel 2 to various tenant farmers. Darlene Jacobson testified that her father rented and farmed both Parcel 1 and Parcel 2 when she was a child, and that between 1938 and 1956 her father also used the "hard-packed dirt" road through the Gap to gain access to Parcel 2. There is no evidence in the record as to who built the road, when it was built, or for what purpose it was built. Jacobson testified that she rode her bike on the Gap road, despite the fact that her father "didn't like me to be there" because "it was Mr. Kerr's driveway, back to his house."

In 1952, Kerr paid to have a well drilled on the east side of the Gap road to provide irrigation for Parcel 2 and registered that well in his name. Since at least 1958, a power line running across Parcel 1 has provided power to operate the Gap well. Owners and lessees of the two parcels have both used water from the well for irrigation purposes.

In the mid-1950s, defendant Glen Tilley's father, Roy Tilley, began leasing Parcel 1 from its then-owner, August Hines. In 1956 and 1957, Roy Tilley also rented Parcel 2 from Kerr and farmed that land. In 1958, Roy Tilly purchased Parcel 1 from Hines. According to Glen Tilley's testimony, the Tilley family became aware at that time that there was a gap of title ownership between the two parcels.²

Glen Tilley also testified that his family began using the road running through the Gap when they started farming "the fields in that area"; that the Tilleys "used it all the time after that" for access to Parcel 1; and that the road "was used as a farm road by every farmer that farmed, whether it was Kerr's, ours or before us."

That apparently cooperative and mutually nonexclusive use of the Gap by the owners of Parcels 1 and 2 continued for the rest of the twentieth century. After E.O. Kerr died, his estate sold Parcel 2 to D.H. and Elsie D. Edwards in 1963, who then sold it to Vernon McKheen in 1964. McKheen was married to Roy Tilley's sister and continued the practice of leasing Parcel 2 to various farmers, including the Tilleys. According to McKheen, while the Tilleys were leasing and farming Parcel 2, they used the well and the Gap road to irrigate and access Parcel 2.

In contrast to the Tilleys, who were somehow aware (at least from 1958 on) of the existence of the Gap, the record does not establish such knowledge by Kerr or his successors. In particular, although there is evidence that Kerr and his tenants used the Gap road, there is no evidence that Kerr knew he did not own the property underlying that road. If Kerr did, in fact, have such knowledge, he did not transmit it to his successors in interest: McKheen testified that he first became aware of the Gap in 1972, when he had Parcel 2 surveyed in connection with a sale of a portion of his property to his stepson. That survey revealed the existence of the Gap between the two properties as described in their respective deeds. McKheen never claimed ownership of the Gap. In fact, when McKheen sold Parcel 2 to Lowell Johnson in 1991, it was with the express understanding that the sale did not include the Gap.

In 1988, McKheen and the defendants each rented their respective parcels to Thomas Creek Farms, which used the Gap road for access to both parcels and also used water from the well to irrigate both parcels. In 1990, the road was plowed under to allow Thomas Creek Farms to "farm [both lots] as one." From that time until the plaintiffs bought Parcel 2 in 2001, both parcels and the Gap were farmed as one field by the various lessees of both parcels.

Shortly after plaintiffs purchased Parcel 2, they converted Parcel 2 to pasture, parked a motor home in the northern portion of the Gap, and began constructing a fence along the west edge of the Gap. Defendants objected to the plaintiffs' fence and attempted to put up their own fence along the east edge of the Gap. In response, plaintiffs filed this lawsuit.

Plaintiffs alleged a number of claims against defendants and the Jones heirs, seeking, inter alia, (1) title to the Gap on the basis of adverse possession and (2) a prescriptive easement across Parcel 1 for the power line to the well. Defendants' answer contained three counterclaims, each styled as both a counterclaim against plaintiffs and a "crossclaim against * * * the heirs and assigns of J.L. Jones."³ The first counterclaim alleged adverse possession of the Gap and well by virtue of "the mutual use of the gap and well by the Defendants Tilley and Plaintiffs," with the result that "J.L. Jones and his successors do not have any rights in the gap or well." The second and third counterclaims sought a declaration and award — to both plaintiffs and defendants — of an "undivided one-half interest in the gap and the well" based on a theory of "non-exclusive, mutual use."⁴

At trial, defendants clarified their position as being based on the theory that, although neither defendants nor plaintiffs could prove exclusive use of the property, "both have adverse[ly] possessed against the heirs of J.L. Jones" and that, as a result of that "mutual use * * * both parcel owners have the right to use the gap [and] the well." Plaintiffs, on the other hand, continued to assert their right to sole ownership of the Gap by virtue of adverse possession.

Initially, the trial court was unpersuaded that either plaintiffs or defendants were entitled to ownership of the Gap, either individually or jointly. Rather, the court concluded that ownership of the Gap had remained in J.L. Jones, and, based on the court's and the parties' belief that Jones had died "without any known heirs," the court determined that "neither Party can make claim to the property because with the death of Jones, the property escheated to the State and no adverse claim can be made against State property."

That determination, as presented in the trial court's first letter opinion, rested on a mistaken premise. After the court's letter opinion, but before entry of judgment, the state informed the court that escheat was impossible because Jones did, in fact, have heirs among whom his intestate estate had been distributed in probate....