Lenn v. Bottem, 120509806.

• Decision Date: 23 July 2008
• Docket Number: A133691.,120509806.
• Citation: 221 Or. App. 241,190 P.3d 399
• Parties: Ronald LENN and Kathleen Lenn, Plaintiffs-Appellants, v. Dennis BOTTEM and Julia Bottem, Defendants-Respondents.
• Court: Oregon Court of Appeals

190 P.3d 399

221 Or. App. 241

Ronald LENN and Kathleen Lenn, Plaintiffs-Appellants, v. Dennis BOTTEM and Julia Bottem, Defendants-Respondents.

120509806.

A133691.

Court of Appeals of Oregon.

Argued and Submitted December 14, 2007.

Decided July 23, 2008.

George W. Kelly, Eugene, argued the cause and filed the briefs for appellants.

Rohn M. Roberts, Eugene, argued the cause for respondents. With him on the brief was Arnold Gallagher Saydack Percell Roberts & Potter, P.C.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

LANDAU, P.J.

Plaintiffs initiated this action to obtain title to a strip of defendants' land by way of adverse possession or boundary by agreement. The trial court rejected their claims and ruled for defendants. Defendants then sought an award of attorney fees under ORS 20.105(1) and an enhanced prevailing party fee under ORS 20.190(3), arguing that there was no objectively reasonable basis for either of plaintiffs' claims, given the existence of certain documents of which plaintiffs were aware that conclusively defeated their claims. The trial court agreed and awarded the attorney fees and an enhanced prevailing party fee of $5,000. Plaintiffs appeal. Their sole contention is that the trial court erred in awarding attorney fees and an enhanced prevailing party fee. We conclude that the trial court correctly determined that there was no objectively reasonable basis for plaintiffs' claims and that, as a result, the court did not err in awarding attorney fees and an enhanced prevailing party fee.

The following facts, unless otherwise noted, are undisputed. Plaintiffs and defendants own adjacent parcels of rural property that were once held as a single parcel by Murry. A roadway crossed the middle of the property from the southeast corner, running in a northwesterly direction. Sometime during his ownership of the property, Murry dug an elongated pond located to the west of the road, roughly in the middle of the parcel, curving from the southwestern corner to the northeast. He also planted some trees in the area immediately south of the pond. It is this area located directly to the south of the pond, that is the subject of dispute in this case, and is depicted in the following not-to-scale diagram:

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

In the 1970s, Murry partitioned his property into two parcels. The pond was located on the northern parcel, although the actual partition map does not mark the location of the pond in relation to the boundary. In 1977, defendants—Murry's sister and brother-in-law—purchased the northern parcel.

In 1990, plaintiffs purchased the southern parcel. The parcel had been advertised as "bordered by a pond," although nothing in the partition map indicated that the southern parcel actually bordered the pond. During the negotiations for the purchase of the property, Murry insisted that plaintiffs grant defendants a right of first refusal in the event that plaintiffs later sold their parcel and an easement for the roadway across the middle of plaintiffs' parcel as depicted on the partition map. Plaintiffs did not agree with the proposed location of that easement, and the parties agreed that plaintiffs would propose a revised document.

Plaintiffs' revision included the right of first refusal, but the location of the easement was changed. Instead of running across plaintiffs' parcel, the revised easement tracks a segment of the property line between the parcels. The document provided that "the sole purpose of [the easement] is to provide access to [defendants'] pond and pump house and to provide for the periodic loading of cattle." Both parties signed the revised document, and the purchase was completed.

In late December 1994, plaintiffs decided to construct a pond of their own, which would flow into the pond located on defendants' property. They submitted an application for a permit to do so with the state's Water Resources Department. That application included a three-page form, which plaintiffs completed, and several attachments, all of which were stamped as received by the department on January 4, 1995. One of the attachments, "Exhibit B," is a drawing of the pond that plaintiff Kathleen Lenn made by hand showing the location of defendants' pond, the proposed new pond, and the boundary between plaintiffs' and defendants' properties. The drawing clearly shows the location of defendants' pond to the north of the property line, completely on defendants' land. The application materials also included an aerial photograph of the properties in which defendants' pond is clearly visible. Also visible are survey calls and thick dark lines to delineate the property lines. Those property lines correspond to the property lines designated on the partition map. They also correspond to the property line that was hand-drawn on Exhibit B. In short, the photograph clearly shows that defendants' pond is located completely on defendants' property.

In 1997, an issue arose between the parties about whether plaintiffs could use the disputed property for grazing cattle. Defendants eventually personally delivered a letter granting permission to plaintiff Ronald Lenn to use the property. Lenn later denied ever having received the letter.

In 1998, plaintiffs staked the area where they proposed to locate the new pond and hired a surveyor to survey the area. The surveyor found that the proposed pond encroached onto defendants' property and delivered to Ronald Lenn a copy of his survey to that effect. Lenn later denied ever receiving such a survey.

Sometime after that, the parties disputed the location of the property line in relation to defendants' pond. Plaintiffs asserted that their property actually extended to the southern shore of the pond, including the land directly to the south of the pond's curve where Murry had planted the trees. Defendants asserted that the property line was located where it has always been shown by surveys and partition maps—well to the south of the pond.

In November 2004, defendants hired a surveyor to mark the deed line. The surveyor placed flags along the property line on the south side of the pond. In May 2005, plaintiffs filed this lawsuit against defendants, claiming ownership to the property on their side of the pond all the way up to the pond's edge. They asserted adverse possession and boundary by agreement claims, and also a claim for trespass for defendants' entry onto the disputed property for purposes of the 2004 survey. Defendants answered and counterclaimed to quiet title.

At trial, plaintiffs testified that they honestly believed that the disputed property was their property—and not defendants'—until the 2004 survey. They maintained that they had always thought that their property line was the edge of defendants' pond and that they owned "waterfront" property.

Defendants contended that plaintiffs could not reasonably maintain such a belief in the face of, among other things, their own 1994 application to construct a second pond, Exhibit B of which plainly located the property line well to the south of defendants' pond. Defendants further noted that plaintiffs' claims were contradicted by the 1997 permission letter and by the 1998 survey. When questioned about Exhibit B to their water permit application, plaintiff Kathleen Lenn testified that she simply "slapped down" the property line and did not intend to approximate the boundary between the parcels. As for the permission letter and the survey, plaintiffs simply denied ever receiving them.

The trial court rejected all of plaintiffs' claims in a written opinion. The court determined that plaintiffs were aware of the true location of the property line from at least 1990, as evidenced by the partition map, as well as Exhibit B to their water permit application, and later surveys. The court entered a judgment in favor of defendants, declaring defendants to be the owners in fee simple of the disputed property.

Defendants then requested costs, attorney fees, and an enhanced prevailing party fee. They requested attorney fees pursuant to ORS 20.105(1), because they had prevailed in the proceeding and plaintiffs had "no objectively reasonable basis" for their claims. They also requested an enhanced prevailing party fee under ORS 20.190(3), asserting that the factors to be considered under that statute, including whether plaintiffs' claims were objectively unreasonable, weighed in favor of awarding an enhanced prevailing party fee. Over plaintiffs' objection, the trial court entered a supplemental judgment awarding defendants their requested costs and attorney fees, as well as a $5,000 enhanced prevailing party fee.

On appeal, plaintiffs challenge the award of attorney fees and the enhanced prevailing party fee. Plaintiffs do not dispute that defendants were the prevailing parties. Instead plaintiffs contend that the trial court erred in determining that their claims were objectively unreasonable.

Defendants respond that the trial court correctly determined that plaintiffs' claims were objectively unreasonable. With regard to plaintiffs' adverse possession claim, defendants contend that plaintiffs had actual knowledge, at least by the time that they filed their water permit application in late December 1994, that their property did not extend to the pond's edge. Because plaintiffs must have believed that they owned the disputed property throughout the 10-year vesting period to prevail on their claim, defendants argue that plaintiffs' claim was not objectively reasonable. Defendants also argue that plaintiffs did not produce evidence to support each element of their boundary by agreement claim. In particular, defendants assert that there is no evidence that either plaintiffs or defendants were ever uncertain as to the true property line. Furthermore, according to defendants, plaintiffs produced no evidence that the parties ever agreed that the...