Sertic v. Roberts

• Decision Date: 20 April 1943
• Citation: 136 P.2d 248,171 Or. 121
• Parties: SERTIC <I>v.</I> ROBERTS
• Court: Oregon Supreme Court

171 Or. 121

136 P.2d 248

SERTICv.

ROBERTS

Supreme Court of Oregon.

Argued April 7, 1943.

Reversed April 20, 1943.

Adverse possession

1. In action to recover realty, attempted plea of title by adverse possession in defendant was insufficient, where defendant's possession was not alleged to have been exclusive.

Adverse possession

2. Exclusive possession is an essential element of adverse possession.

Adverse possession

3. There must be actual occupancy of such a character as to indicate exclusive ownership in occupant to form basis for claim of title by adverse possession.

Landlord and Tenant

4. A tenant cannot acquire title by adverse possession unless, with knowledge of true owner, he openly and explicitly disclaims any holding under his former landlord and unreservedly asserts that he is the owner of the true title.

Estoppel

5. In action to recover realty, defendant's attempted plea of "estoppel" was fatally defective where there was no statement that defendant relied on course alleged to have been taken by plaintiff and there was no fact stated in complaint which defendant alleged the plaintiff ought not to be permitted to show.

Ejectment

6. In action to recover realty, defendant's attempt to procure a leasehold interest by paying future rent was not supported by such certainty or definiteness of facts alleged as to entitle him to relief sought.

Adverse possession

7. A lessee of a third party, claiming right of occupancy by virtue of his lease from such third party, may not originate "adverse possession" without direction or knowledge or consent of his lessor against the owner of premises mistakenly believed by such lessee to be owned by his lessor.

Adverse possession

8. "Adverse possession" depends on intent of occupant to claim and hold real property in opposition to all the world.

Adverse possession

9. If, at time one enters, or afterward, he does not claim title himself, but acknowledges title of another, his possession must be taken as an entry or holding in subordination to the title of the person whose right he acknowledges.

Adverse possession

10. Adverse possession for the statutory period not only bars remedy of holder of paper title, but also extinguishes his title and vests title in fee in the adverse occupant.

Contracts

11. Where memorandum of agreement between plaintiff and defendant was prepared by counsel for defendant at defendant's instance, the agreement, if ambiguous, must be construed strictly against defendant.

Landlord and tenant

12. Where during term of memorandum of leasing which ended on July 21, 1934, owner could not have maintained an action to recover premises without showing that in some manner the agreement had been breached, abandoned, or otherwise terminated by lessee, and nothing of that kind appeared in record in action instituted in May, 1941, to recover realty, the lessee had not acquired ownership by adverse possession.

Ejectment

13. In action to recover realty, a mere possessory right to the occupancy of the realty may be pleaded defensively.

Adverse possession

14. An undetermined interest for an uncertain term cannot be acquired by adverse possession since a claim merely of such an interest by implication admits that others have a superior title thereto.

Ejectment

15. In action to recover realty and damages for wrongfully withholding possession, evidence established that eight dollars per year was reasonable value for use of the four-tenths of an acre involved.

                  See 1 Am. Jur. 875
                  2 C.J.S., Adverse Possession, § 47
                

Before BAILEY, Chief Justice, and ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Lane County.

G.F. SKIPWORTH, Judge.

Action by Paul Sertic against Neal Roberts to recover real property. Defendant pleads title to an undetermined fee for possession for an uncertain time of part of the premises in suit by adverse possession and estoppel in pais. From a judgment upholding defendant's prescriptive title, plaintiff appeals.

REVERSED.

Windsor Calkins, of Eugene (Calkins & Calkins, of Eugene, on the brief), for appellant.

Whitten Swafford, of Eugene, for respondent.

Action to recover real property. Defendant pleads title to an undetermined fee for possession for an uncertain time of part of the premises in suit by adverse possession and estoppel in pais. From a judgment upholding defendant's prescriptive title, plaintiff appeals.

KELLY, J.

In his complaint filed May 22, 1941, plaintiff Paul Sertic alleges that he is the owner in fee simple and entitled to the possession of lot 4 in section 35, township 17, south range 6 west of the Willamette Meridian in Lane county, Oregon. Plaintiff also alleges that defendant wrongfully withholds said real property from the plaintiff to plaintiff's damage in the sum of $600.00.

Defendant's answer was filed on September 12, 1941. The allegations in defendant's further and separate answers will be stated here, because of the statutory provisions to the effect that in a case of this kind, the defendant shall not be allowed to give evidence of any estate in himself or another in the property or of any license or right to the possession thereof, unless the same be pleaded in his answer; and, if so pleaded, the nature and duration of such estate, or license or right of the possession, shall be set forth with the certainty and particularity required in a complaint. Section 8-204, O.C.L.A. Vol. 1, p. 677.

Only by considering defendant's further and separate answers may we determine what the issues are.

The substance of paragraph I of defendant's first further and separate answer is that in the year 1924, defendant entered into possession of about a third of an acre of said lot 4 claimed by plaintiff, lying in the northwest corner thereof and northwesterly of the channel of the Long Tom River, and defendant makes no claim to any other portion of said premises.

Paragraph II of defendant's first further and separate answer is as follows:

"II

"That at said time said approximately one third of an acre was unimproved, unoccupied and adjoined a sawmill site held by defendant under lease, and since said time the defendant has occupied said premises and his actual occupancy has been complete, visible, notorious, continuous, distinct, hostile and inclusive against the plaintiff and the whole world, and same has been used as part of the mill yard of defendant and a small portion of the sawmill frame may extend across the line, but an exact survey has not been made. And the plaintiff made no claim thereto until about a year ago."

Paragraph III of defendant's first further and separate answer is as follows:

"III

"That the defendant by more than ten years possession and use as a part of the mill site claims an undetermined fee for possession for such length of time as the life of the sawmill operation now carried on partially thereon continues and not the absolute title in fee simple, to said approximately one third of an acre."

Concluding said first further and separate answer is the following sentence:

"Wherefore defendant says his rights should be so found and established and for his costs and disbursements herein."

In defendant's second further and separate answer, paragraphs I, II and III of his first further and separate answer are repeated as paragraphs I, II and III of said second further and separate answer.

We quote the remainder of said second further and separate answer:

"IV

"That after procuring said lease on the mill site as above set out the defendant has erected and maintained thereon a sawmill at a cost of more than $10,000.00 and has used the siding leased from the Southern Pacific Railway Company and said approximately a third of an acre has been used therewith for a refuse burner, part of mill yard and part of loading platforms, and things incident to the operation of said sawmill and as so constructed is necessary therefor.

V

"That at the time of the erection of said sawmill the plaintiff sought employment and was employed to help lay out and construct the mill frame and other work and had full knowledge of the location thereof and helped to place the mill frame timbers that probably extend over the west line of said lot 4 a few feet and did not at said time notify the defendant of his claim of ownership or make any claim to said third of an acre and in all things acquiesced in the location and erection of said sawmill and has never made any claim to said premises or objections thereto until about a year ago.

VI

"That to move said mill at this time would require an expense of estimated between three and five thousand dollars disrupt the labor organization built up over a period of years and close down production and would be an irreparable injury to the defendant, and by all the facts plaintiff should be held estopped.

VII

"Wherefore defendant says plaintiff should be estopped and held estopped and take nothing and defendant recover his costs and disbursements herein."

In defendant's third further and separate answer the first five paragraphs of said second further and separate answer are repeated; and the remainder of said third further and separate answer is as follows:

"VI

"That said approximate third of an acre is bound on the west by lands held under lease by the defendant from persons other than plaintiff and on the north by lands held under lease by defendant from the Southern Pacific Railway Company and otherwise by the Long Tom River with high banks and wholly inaccessible to the plaintiff without heavy expense of a bridge over the Long Tom River, or across lands under lease to defendant and its actual value probably at the rate of not more than a hundred dollars per acre and its rental value only nominal.

VII

"That for more than fifteen years the defendant has had, owned, planked and maintained a private roadway from said sawmill site north for three quarters of a mile to the Elmira-Noti Public road and the...