Oregon Makes It Harder to Claim Title by Use of Someone Else’s Property

In all states, there is a principle of law called adverse possession, by which a person who uses another person’s property long enough for the statute of limitations to expire can claim title to the property he or she used. To some extent, this is based on the fact that there are statutes of limitations, and to some extent, it seeks to ensure confidence in the possessor that his or her efforts will not go to waste. To a large extent, the modern application of the rule is to resolve boundary disputes and mistakes in transfers instead of taking over otherwise unused land. The exact details of how the rule applies varies from state to state, and a new case from Oregon clarifies that the use in question has to be clearly distinct from the general public and clearly continuous, making Oregon’s already strict interpretation of adverse possession even stricter.

The case is unusual because of the disputed property: a lot of beach land in a small delta near the mouth of the Nehalem River that accumulated over more than 80 years. Before 1911, the river flowed through the southern of two channels, eroding the land that formerly sat on where the disputed land would later accumulate. Between 1911 and 1926, the Army Corps of Engineers built two jetties to confine the river to its northern channel. The southern river then slowly declined to a minor creek flowing northward to the northern channel instead of to the ocean. At that time, two lots bordered the ocean and creek. Sand began to accumulate, first against the southern lot as it extended west of the creek and the western border of the northern lot. Eventually the accumulation filled the corner between the two lots.

Meanwhile, in 1981, Loren Parks, the well-known millionaire, bought a beach house on the other side of the creek, west of the accumulation. He and his family regularly used the beach house, sometimes crossing the accumulation by foot and sometimes walking on the jetty. They also used the trails on the accumulation for recreation, cut firewood from the accumulation, cleared branches from a road on the accumulation for truck access to remove firewood, had several picnics against the jetty over the years, and would fish from the jetty. Members of the general public also camped on the accumulation, sometimes crossing in trailers, and walked on the trails.

In 1989, Parks bought the northern property and continued to use the accumulation as he had before. Because of a mistake by his realtor and the county tax assessor, he paid taxes on the accumulation and believed that it was part of the northern parcel. He granted an easement to the City of Rockaway for two wells and a waterline on the accumulation and to a utility district for an underground line. In 1998, he also entered into an agreement with the Port of Nehalem allowing it to remove brush from the accumulation so that the Port could maintain sight lines to the end of the jetty.

In 2001 or 2002, Parks moved to Nevada for business reasons, but he continued to use the beach house and accumulation.

Sea River Properties bought the southern parcel in 2005, and in 2006, it sued Parks for a determination of who owned the accumulation. The arguments covered three issues: who had title to what according to the deeds; who gets accumulations (or, as the technical term calls it, “accretions”) generally; and whether Parks or Sea River’s predecessors might have taken over the accumulation by adverse passion.

After reading a complicated set of deeds, the Oregon Supreme Court decided that nothing in the deeds indicated who owned the accumulation. Parks had argued that one of the deeds to a prior owner of the northern lot included “tidelands,” but the court decided that did not mean the later eroded land abutting the northern lot.

Next, the court discussed the law applying to accretions, and decided that it would continue to apply the usual rule, which is that accretions which reach the surface attached to land (instead of emerging as islands) are owned by the owner of whichever land they connect to first. In this case, that was the southern lot. (I am omitting some of the arguments discussed on this question because they don’t apply to the main point of this article.)

That left the question of whether Parks had adversely possessed the accumulation between 1989 and the time of the suit in 2006. Oregon already makes adverse possession difficult. The statute of limitations is ten years, and the claimant has to prove that he or she used the property exclusively, openly, with some notoriety in the area, continuously for the ten years, adversely to the interests of the owner, and based on a mistaken belief of ownership. Nobody disputed that Parks reasonably believed he owned the accumulation, or that his use was open, notorious, and hostile to Sea River’s claims. The court decided, however, that the use was not exclusive to the rights of others and that Parks had not make a clear case as to which ten years he had continuously used the accumulation.

In making this ruling, the court effectively tightened the requirement that the use be exclusive to the claimant. Because the general public was using the accumulation the same way as Parks, the owners couldn’t distinguish his use as referring to his claim to the property – even though he was paying the taxes. In addition, the granting of easements was a relinquishment of any title Parks might have, so Parks couldn’t rely on the use by the City or the utility district. He might have been able to rely on use by the Port in removing brush, but there wasn’t enough evidence that the Port actually did remove brush often enough to be continuous use, and it only lasted eight years before Sea River sued.

By reading the evidence narrowly and the requirements for adverse possession strictly, the court made clear that it does not think adverse possession claims should succeed very often in Oregon. Generally, mistakes as to boundary lines are the most common situation where a claim will succeed.

If you think someone is trying to take your property by adverse possession, it is usually advisable to stop the use by suit – or by giving permission – as soon as possible. Consulting a lawyer with the known facts will help predict whether the user may already have completed ten years of sufficient use and what strategy is best to respond with. If you discover that property you have been using is not yours, and you thought it was, you may want to consult a lawyer about whether you can prove that your use is sufficient and whether you should try to work things out with the record owner, go to court, drop the issue, or possibly make a claim against whoever provided led you to believe that you were the rightful owner.

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