Evans v. Hogue ( 1984 )

ROBERTS, J.

This appeal is from an action to quiet title. The trial court awarded title to plaintiffs. The Court of Appeals also found for plaintiffs by concluding that plaintiffs had adversely possessed against their predecessors for the requisite period. We affirm but on different grounds.

The disputed land consists of approximately two and one-half acres and is located as shown on the diagram.

[[Image here]]

In 1905 a survey established the boundary between the two parcels of land as shown on the diagram at the fence line. The Halls were the owners of the easterly parcel for which plaintiffs Evans have title. The Halls built the fence. In 1935 the Halls conveyed their record title to W.N. Hall. After several conveyances Sampsons became owners of the property in 1948. Sampsons conveyed to Luckeys in September, 1970 and Luckeys conveyed to plaintiffs in separate transactions in 1974 and 1975. The original deed from the Halls did not contain a description of the disputed tract nor did any subsequent deed by grantors of plaintiffs’ tract. Deeds to defendants’ land, however, always included the disputed strip in their description.

The evidence presented at trial indicated that during the time Sampsons owned the land all the requirements for adverse possession were met. However, when Sampsons sold to Luckeys, and the Luckeys to plaintiffs, the deed did not contain a description which included the strip. In May, 1981, after the commencement of this action but before trial Sampsons conveyed, by way of quitclaim deed, their interest in the tract to Mary Wall,¹ the common grantor of the defendants.

The question here involves how interests in property acquired by adverse possession can be transferred to subsequent purchasers.

The trial court found that the interest of plaintiffs’ predecessors in the adversely possessed strip was transferred to plaintiffs. The method of this transfer is not explained.

The Court of Appeals affirmed the trial court. It first rejected plaintiffs’ argument that they could acquire title to the property by tacking their period of occupation and the Luckeys’ period of occupation onto Sampsons’ successful adverse possession to claim adverse possession against defendants. The court held that Sampsons had acquired legal title to the property and their interest could be conveyed only by operation of law or by deed. The Court of Appeals decided this case in plaintiffs’ favor, however, by concluding that plaintiffs, by tacking their possession with Luckeys’ possession, had held adversely against Sampsons for the requisite number of years. At the time plaintiffs filed this action they were four months short of the 10 years. The Court of Appeals nonetheless concluded that the 10 years continued to accrue after plaintiffs filed suit and up to the time the Sampsons conveyed their interest to defendants. We agree with the dissent below that this is an erroneous application of the statute of limitation, ORS 12.050.

At the trial, plaintiffs proceeded on the theory of uninterrupted continuous adverse use and defendants defended with their record title and claims that plaintiffs were estopped by delay to raise their own or their predecessors’ interest in the land. Defendants cited Duval v. Miller, 208 Or 176, 300 P2d 416 (1956) for the first time and relied on it exclusively in the Court of Appeals. Although the Court of Appeals distinguished that case in a footnote, it seems to apply. Duval held that the doctrine of tacking applies only when one person in adverse possession for less than the prescriptive period and another in privity with him continue the adverse possession for a time sufficient to complete the 10 year prescriptive period; the doctrine cannot be applied where a predecessor has already acquired title by adverse possession prior to conveying the property. We take the opportunity to address the case here.

There were two DuVal cases involving the same parties and the same disputed property. In the first, DuVal v. Miller, 183 Or 287, 192 P2d 249, 192 P2d 992 (1948), plaintiffs in possession sued to quiet title to a strip of land separating their property from defendant’s. Plaintiffs asserted that their predecessors, the Duncans, held the property adversely for more than 10 years. Defendant defended with her record title. Though plaintiffs were able to produce evidence that the Duncans adversely possessed the strip from 1929 to 1941, they failed to allege how the Duncans’ interest might have accrued to themselves. On rehearing the court pointed out plaintiffs’ mistake. Plaintiffs had failed to allege or prove their privity with Duncans. The court stated that it had no intention to detract from Vance v. Wood, 22 Or 77, 29 P 73 (1892), or West v. Edwards, 41 Or 609, 69 P 992 (1902), cases which DuVal summarized as permitting “an adverse possessor to tack his possession on to that of a previous adverse possessor, if privity existed between the two,” 183 Or at 294, but plaintiffs had simply made no attempt to establish their continuity of adverse use after the Duncans. The court observed, “we are satisfied that shortly after [plaintiffs] received their deed, [defendant] asserted title to the disputed strip and the right to its possession,” 183 Or at 295. Defendant’s acts of dominion over the property, of course, destroyed any claim plaintiffs could make to continued exclusive possession of the land, a prerequisite to privity. “[I]f the possession of the Duncans was of the character required by the rules which give effect to adverse possession, the [plaintiffs’] possession did not come up to that standard. It was not exclusive.” 183 Or at 296.

In the second case, 208 Or 177, 300 P2d 416 (1956), the same plaintiffs sued for ejectment after defendant dispossessed them from the disputed strip. The trial court found continuity of use sufficient to establish plaintiffs’ privity with Duncans and held that plaintiffs could tack their period of possession onto their predecessors’. This court applied a theory new to Oregon, that a possessor cannot tack a predecessor’s period of possession if the predecessor already adversely possessed for the statutory period. The court limited the doctrine of tacking to those situations where it was necessary “to establish continuous possession for the statutory period.” 208 Or at 183.

The court cited prior cases as authority for its limited application of the tacking doctrine, but none provides any actual support. Anderson v. Richards, 100 Or 641, 198 P 570 (1921); Clark v. Bundy, 29 Or 190, 44 P 282 (1896); and Vance v. Wood, supra; Rowland v. Williams, 23 Or 515, 32 P 402 (1893); applied the doctrine of tacking in factual settings where a claimant’s predecessors’ possessory period happened not to exceed the statutory period. There is no indication that the application of the doctrine would differ had a predecessor, or a series of predecessors, already achieved continuous adverse possession for the statutory period. In fact, Quinn v. Willamette Pulp & Paper Co., 62 Or 549, 126 P 1 (1912), also relied on in DuVal, allowed plaintiffs to tack their period of possession onto their predecessor’s even though the predecessor had established his possessory rights for the full 10 year period. The Quinn court rejected defendant’s claim of record title stating:

“There had been time for the statute of limitation to have run three times before the defendant ever had anything to do with the land in dispute; and the title of Pacquet, plaintiffs grantor, was perfected before that time. Since then there has been nothing to divest him or his grantee of such title.” 62 Or at 555.

Low v. Schaffer, 24 Or 239, 33 P 678 (1893), the case DuVal cites as primary authority for its limitation on tacking, does not espouse such a rule. The case involved tacking of possessory rights to land and water use gained by prior, continuous use and appropriation. The total period during which defendants’ predecessors held the rights adversely to the first appropriator exceeded 10 years. Defendant was able to demonstrate his privity with his immediate predecessor but could not show privity between the next two grantors up the line, Huffman and Hindeman. The lack of privity had nothing to do with one or the other having adversely possessed in his own right for the statutory period. Huffman did not convey his possessory interest to Hindeman; Hindeman contested Huffman’s ownership and was awarded a patent for the land after an adjudication, a situation that defeated privity between them. The court restated the principle that possessory interests in land may be transferred by oral agreement, 24 Or at 242. Neither the facts of the case nor the generality with which the principle of tacking is set forth supports the DuVal decision.

In a later case, Rohner v. Neville, 230 Or 31, 365 P2d 614, 368 P2d 391 (1962), we were faced with a fact situation very similar to that in DuVal. In Rohner plaintiffs’ predecessor adversely possessed property adjacent to the property described in his deed. The parcel was not included in the deed when he sold the property to plaintiffs. The defendants in Rohner, like the defendants here, cited the DuVal cases for the proposition that the plaintiffs could not avail themselves of the rights of their predecessors without a description of the disputed land in their deed. Rohner acknowledged DuVal and even applied some of the rationale from the cases: “In one respect the case at bar resembles the DuVal cases, * * *, in that the instant case does not involve tacking. [Plaintiffs’ predecessors] obtained title to the land by adverse possession. Their title was good against all the world.” 230 Or at 41. But the court rejected the rest of the analysis and found that plaintiffs should prevail in the quiet title action because they had “an equitable claim derived from the possessory rights of their predecessors * * 230 Or at 38.

Like DuVal, Rohner suffers from a lack of supporting authority. The nature of plaintiffs’ “equitable claim” is scantily described. It appears to arise from the possibility that plaintiffs could have sought reformation of their deed against their grantor and received title to the adversely possessed parcel through written conveyance. In supplemental briefs on this point the parties in the instant case seem to agree that this was the derivation of the “equitable claim.” Plaintiffs suggest that the “equitable claim” may also represent notions of estoppel of the predecessors to claim their possessory rights in light of evidence that both grantor and grantees believed the disputed parcel was included within the deed description. Yet whatever claims plaintiffs theoretically may have asserted against their grantors, Rohner does not explain to our satisfaction how these claims enhance or detract from plaintiffs’ rights against the titled property owners. The evidence upon which Rohner relied to find an “equitable claim” is nothing more than such as would support a claim of privity between successive property owners for purposes of tacking possessory interests in land.

The instant case presents us for the third time with the question how a possessory interest in property is transferred through many years of adverse use.

The principle of property ownership upon which DuVal is premised is certainly valid: one who has adversely possessed land for the requisite number of years gains ownership rights to the land of a status equal to deeded title. However, applying the principle in cases where the adverse possessor has never asserted his or her acquired ownership rights, either while in possession, at the time of transfer of possession, or within 10 years after he was “possessed of the premises,” ORS 12.050, is not free from difficulty. The single case we found applying DuVal provides an illustration. In Meyer v. Ellis, 411 P2d 338 (Wyo 1966), plaintiff sued for a declaration of his rights to a tract of land adjacent to his farm and for an injunction to prevent defendants, the record title holders, from entering the property. Plaintiff based his claim on adverse possession. Defendants countered with a quiet title action relying on their deed. The evidence showed that plaintiffs grandfather had adversely possessed the tract for many years before he conveyed the farm to plaintiff. Both grantor and grantee had assumed that the tract was included in the deed description. The court rejected plaintiffs reliance on tacking:

“As we view the record in the instant case the doctrine has no application. The doctrine was engrafted upon the general principles of the law of adverse possession for the purpose of meeting the requirement of ‘continuous’ possession for the statutory period. Du Val v. Miller, 208 Or 176, 300 P.2d 416, 419, 420; Rohner v. Neville, 230 Or 31, 365 P.2d 614, 618, rehearing denied 368 P.2d 391; El Cerrito, Inc. v. Ryndak, 60 Wash.2d 847, 376 P.2d 528, 533. If, as the trial court found, the grandfather long prior to the year 1960 acquired title to the disputed tract by adverse possession, such title became vested and was good against the world, including the predecessors of the defendants. * * * ‘Tacking’ could not aid or detract from that title and such title could be divested only by a conveyance, by descent or by operation of law. Du Val v. Miller, supra; El Cerrito, Inc. v. Ryndak, supra.” (Citations omitted.) 411 P2d at 340.²

On the other hand, the court found that defendants had no interest in the property at all, having lost it by adverse possession. They were enjoined from interfering with plaintiffs use of the land. The result was no doubt unsatisfactory from everyone’s point of view: plaintiff was left with pos-sessory rights but no legal interest in the tract. Defendants had neither. And grandfather, the only one who might have offered assistance by conveying his interest in a written instrument, was dead.

An analysis that results in such uncertainty in property ownership strikes us as unsatisfactory. In Meyer, for example, as in DuVal, it appears that the plaintiffs’ rights would remain unsettled until plaintiffs adversely possessed against their predecessors for the statutory period. It even appears possible that the predecessors’ heirs could initiate an ejectment action against plaintiffs to recover the property. And we are dissatisfied with the sparse analysis and lack of precedent in Rohner. For the reasons developed in this opinion, we reject the limitation DuVal and Rohner place on conveying an interest in property adversely possessed. We are left with a consideration of the statute upon which actions on real property are brought.

Plaintiffs in this case, as persons in possession of the disputed strip, may resolve their property interests in a suit to quiet title. ORS 105.605.³ Defendants in this case, as title holders and nonpossessors of the property, assert their rights in an ejectment action. ORS 105.005.⁴ The limitation period is found in ORS 12.050, which provides:

“An action for the recovery of real property, or for the recovery of the possession thereof, shall be commenced within 10 years. No action shall be maintained for such recovery unless it appear that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within 10 years before the commencement of the action.”

A party asserting his rights to the property must show that he or she was “seized or possessed of the premises” within 10 years before the commencement of the action. “Seized” denotes a right to possession under legal title. 1 H. Tiffany Real Property § 20, at 26 (3d ed 1975). “The requirement of seisin is satisfied where the party opposing an adverse claimant is the holder of the legal title.” (Footnote omitted.) 4 H. Tiffany Real Property § 1133, at 694 (3d ed 1975).

Adverse possession is a method of transferring “ownership of land through nonassertion of title thereto, coupled with unauthorized possession thereof by one lacking good title * * *.” Id, § 1132, at 691. As a general rule, title holders have no obligation to assert their right to possession, Ryburn v. Marshall, 265 Or 30, 507 P2d 1142 (1973), and transfer of interest in land does not occur by mere lapse of the statutory period alone. See Note, A Reevaluation of Adverse Possession as Applied in Boundary Dispute Litigation, 3 Rut-Cam LJ 293, 294 (1971). However, if the land is in the possession of another and if the possessors’ occupation of the land meets the requirements for adverse possession, that is, if the occupiers’ possession is sufficiently conspicious so that the true owner should have asserted his rights, the title holders’ nonassertion of rights will result in eliminating his interest in the property and transferring that interest to the possessor.⁵ The adverse possessor then acquires “perfect title” to the land. Spath v. Sales, 70 Or 269, 273, 141 P 160 (1914).

The period of possession may be completed by one possessor for the full statutory period or by a series of possessors in privity with each other under the doctrine of tacking. Vance v. Wood, supra; West v. Edwards, supra.

“Where the same claim of title has been consistently asserted for the statutory period by persons in privity with each other, there is the same reason to quiet and establish the title as where one person has held. The same flag has been kept flying for the whole period. It is the same ouster and disseisin. If the statute runs, it quiets a title which has been consistently asserted and exercised as against the true owner, and the possession of the prior holder justly enures to the benefit of the last.” Ballantine; Title By Adverse Possession, 32 Harv L Rev 135, 158 (1918).

Tacking is the doctrine recognizing that possessory interests in property may be passed through a series of possessors if they are in privity with each other. Privity exists if successive possessions are connected by an understanding that the rights of the possessor will be transferred, and if a transfer of possession in fact occurs. West v. Edwards, 41 Or at 614. It is the law in this state that:

“In order to create the privity requisite to enable a subsequent occupant to tack to his possession that of a prior occupant, it is not necessary that there should be a conveyance in writing. It is sufficient if it be shown that the prior occupant transferred his possession to him, even though by parol.” Vance v. Wood, 22 Or at 88.

Where the circumstance's show an intent to transfer the grantor’s interest in the property not included in the deed, we have recognized a transfer of the grantor’s interest in those cases in which the grantor’s adverse use of the property has been less than 10 years. We see no reason why a predecessor’s interest in the property attained by possessing the property for the full statutory period cannot be transferred in the same way, so long as there is a similar intent between grantor and grantee. We now hold that where there is evidence of intent between grantor and grantee to transfer the grantor’s interest in property, the grantee may acquire the grantor’s interest, vested and complete, in those situations in which the grantor has adversely possessed for the statutory period.

Plaintiffs in the instant case presented evidence of each predecessor’s intent to convey possessory rights to the land not included in the deed description. The fence, which serves to contain the cattle that graze on plaintiffs’ side, has divided the properties since approximately 1920. It is at the fence that the use of the land changes. Plaintiffs’ side has always been used for farming and cattle grazing. Defendants’ side has always been in timber. The real estate agent who sold the property for the Sampsons testified that the property had been described to him as encompassing all the land up to the fence. The same agent sold the land to plaintiffs. He testified that he and Evans walked the entire fence line and it was their understanding that the fence was the boundary. During Sampsons’ ownership and until the present time, plaintiffs’ property has supported cattle and they grazed the entire parcel up to the fence.

It is apparent from this testimony that Sampsons intended to sell, and their grantees the Luckeys thought they had bought, the property up to the fence line.⁶ Similarly, the evidence supports the conclusion that Luckeys intended to convey possession of the strip to plaintiffs. There is sufficient evidence to find privity among these possessors. We conclude that Sampsons’ interest in the disputed strip was conveyed to subsequent grantees.

After conveyance of the property, Sampsons no longer had an interest in the strip. Their transfer by quitclaim deed to defendants shortly before trial has no effect on plaintiffs’ interest in the property.

The Court of Appeals is affirmed.

1 The common grantor appears in the record as Mary Wall Baker. The opinions throughout this case refer to the same person as Mary Wall and Mary Baker Wall.

2 El Cerrito, Inc. v. Ryndak, 60 Wash 2d 847, 376 P2d 528 (1963) provides no support for the Wyoming decision. In fact, El Cerrito, Inc. illustrates Washington’s very different application of the tacking doctrine. Under Washington law, there is no limitation on tacking when a predecessor has already adversely possessed for the statutory period. The only prerequisite to a transfer of the interest is privity. El Cerrito states the Washington rule that “one who did not acquire title by adverse possession must show his privity to the one who did so acquire title if he is basing his claim upon his predecessor’s title.” 60 Wash 2d at 855-56. As the case illustrates, privity may be established by intent of the parties or by a conveyance of the interest in a written instrument. See also Heriot v. Lewis, 35 Wash App 496, 668 P2d 589 (1983); Howard v. Kunto, 3 Wash App 393, 477 P2d 210 (1970).

3 ORS 105.605 provides:

“Any person claiming an interest or estate in real property not in the actual possession of another may maintain a suit in equity against another who claims an adverse interest or estate therein for the purpose of determining such conflicting or adverse claims, interests or estates. * *

4 ORS 105.005 provides:

“Any person who has a legal estate in real property and a present right to the possession thereof, may recover possession of the property, with damages for withholding possession, by an action at law. The action shall be commenced against the person in the actual possession of the property at the time, or if the property is not in the actual possession of anyone, then against the person acting as the owner.thereof.”

5 Tiffany explains the operation of statutes of limitation as follows:

“Ordinarily at least, the statutes of limitation with reference to land in terms impose no requirement upon the person in wrongful possession as to the character of his possession necessary to make the bar effective, and it is merely by reason of the endeavor of the courts adequately to protect the interests of the rightful owner that certain requirements in this regard have become established. The most important of these requirements is that to the effect that the possession must be hostile or ‘adverse’ to the true owner, and so generally has this requirement been recognized, and so important has it been regarded, that the expression ‘adverse possession’ has come to be generally applied to describe that branch of the law which has to do with the construction and application of the statutes of limitation in reference to land. The emphasis thus laid upon the character of the wrongful possession has the unfortunate effect of obscuring the theory on which, as above stated, these statutes appear properly to operate, that is, that, like other statutes of limitation, they bar the remedy of the person rightfully entitled not by reason of any merit in the wrongdoer, but by reason of the demerit of the person who, having a remedy, fails to exercise it within the time named in the statute.” (Footnote omitted.) 4 H. Tiffany, Real Property § 1135, at 699 (3d ed 1975).

6 We pause here to point out that the dissent by Justice Campbell arbitrarily has determined that a bundle of sticks is made up of ten. It also contends, without authority, that when Sampsons conveyed to Luckeys, Sampsons retained 9.5 of those sticks, a figure representing Sampsons’ “whole title less the oral rights of possession,” and Luckeys, even with rights of possession, gained only 0.5 of the sticks. We have found authority, albeit somewhat out of date and admittedly unshepardized, for a different division of sticks. That authority states: “Possession is eleven points of the law and they say there are but twelve.” Ray, Proverbs (1678), quoted in McNamara, 2,000 Famous Legal Quotations 451 (1967). The dissent by Justice Campbell is wrong. Clearly, there are twelve sticks in a bundle; Luckeys had eleven and Sampsons had one.