Thompson v. Marshall ( 2021 )

640
Argued and submitted August 29, 2019, affirmed March 10, 2021
Virginia THOMPSON,
Plaintiff-Appellant,
v.
Wade MARSHALL
and Cheryl Marshall, dba Marshall Logging;
Dale Thompson, dba Five Mountains Logging;
Chris Thompson, an individual; and
Tide Creek Logging and Construction, Inc.,
an Oregon corporation,
Defendants-Respondents.
Columbia County Circuit Court
14CV19632; A166528
484 P3d 336
In this complex timber trespass case, plaintiff alleged that defendants had
cut down trees on two of her lots, and on the northern half of a never-developed
county “road” that she claimed to own pursuant to ORS 93.310(4) because, she
asserted, it was the boundary between her lots and certain defendants’ property
to the south. Defendants argued that plaintiff either never owned the lots at issue
or that she had lost her rights to them through adverse possession, and that she
had no rights to the abutting road either. In a special verdict form, the jury found
that defendants did not cut down any trees on plaintiff’s property and, with-
out needing to reach any further questions, reached a defense verdict. Plaintiff
raises three assignments of error. First, she contends that the trial court erred in
directing a verdict for defendants and instructing the jury that she had no rights
to timber in the northern half of the road. Second, she contends that the court
erred in denying her motion for directed verdict against defendants’ adverse pos-
session defenses and counterclaim. Third, she contends that the court erred in
instructing the jury about the statutory damage multipliers that could apply if
the jury found for her. Held: Even assuming the trial court erred in granting
defendants’ motion for directed verdict and instructing the jury that plaintiff
had no right to the trees on the northern half of the road, any error was harm-
less on this record. The trial court did not err in denying plaintiff’s motion for
directed verdict against defendants’ adverse possession defenses and counter-
claim. Finally, even assuming that the trial court erred in informing the jury
about the existence of damage multipliers, any error was harmless in light of the
jury’s special verdict.
Affirmed.
Cathleen B. Callahan, Judge.
Michael E. Haglund argued the cause for appellant. Also
on the briefs were Matthew E. Malmsheimer and Haglund
Kelley LLP.
Cite as 309 Or App 640 (2021) 641
Leslie A. Kocher-Moar argued the cause for respondents.
Also on the joint brief were MacMillan, Scholz & Marks,
P.C., Stephen D. Petersen, and Stephen D. Petersen, LLC.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
SHORR, J.
Affirmed.
642 Thompson v. Marshall
SHORR, J.
This complex case concerns timber trespass claims.
Plaintiff filed her lawsuit alleging that defendants had inten-
tionally and negligently logged trees on her property. She
sought damages for the removed timber. Plaintiff claimed
that defendants cut down trees on two of her lots and on the
northern half of a never-developed county “road” that she
claimed to own because, she asserted, it was a boundary
road between her lots and certain defendants’ property to the
south. Defendants argued that plaintiff either never owned
the lots at issue or that she had lost her rights in those lots
through adverse possession. The trial court instructed the
jury that plaintiff had no ownership interest in the road and
could not recover for timber trespass for trees that defen-
dants felled on the northern half of the road. The court also
instructed the jury that it would double any damages that
the jury found for “casual” or “involuntary trespass” and
triple any damages for “willful” timber trespass. In a spe-
cial verdict form, the jury found that defendants did not cut
down any trees on plaintiff’s property and, without need-
ing to reach any further questions of liability or damages,
reached a defense verdict. Plaintiff now appeals.
Plaintiff raises three assignments of error. First,
she contends that the trial court erred in directing a verdict
for defendants and then instructing the jury that plaintiff
had no rights to timber in the northern half of the road that
abutted her property. Second, she contends that the court
erred in denying her motion for directed verdict against
defendants’ adverse possession defense. Third, she contends
that the court erred in instructing the jury that the court
would apply a two- or three-times multiplier to the damages
award if the jury found that defendants committed either
“casual” or “willful” timber trespass, respectively. For the
reasons discussed below, we reject each of plaintiff’s assign-
ments of error and, accordingly, affirm.
We begin with the important and undisputed
procedural facts before turning to the substantive facts.
Plaintiff filed her timber trespass claims against two sets of
defendants, the Marshalls (the landowner defendants) and
Chris Thompson, Dale Thompson, and Tide Creek Logging
Cite as 309 Or App 640 (2021) 643
and Construction, Inc. (collectively, the logger defendants).
Plaintiff alleged that she owned the rights to timber on for-
ested property she obtained by quitclaim deed in Columbia
County. On the first day of trial, the trial court allowed
plaintiff to amend her complaint to allege that she also
owned the timber rights “to the midpoint of” Beaver Valley
Road, a dedicated, but undeveloped, road that abuts her
claimed property along its southern edge. That requested
amendment was solely based on plaintiff’s legal contention
that, under Oregon law, an owner of property abutting a
dedicated road also owns the property to the midpoint of the
road. She further alleged that her neighbors immediately to
the south, the landowner defendants, hired the logger defen-
dants to clear cut trees on the landowner defendants’ prop-
erty. Lastly, as relevant here, she alleged that defendants
either negligently or intentionally logged trees that were on
plaintiff’s property, including trees on the northern half of
the road that divided plaintiff’s and the landowner defen-
dants’ properties. Those allegations form the primary bases
for plaintiff’s timber trespass claims.
Both sets of defendants generally denied the timber
trespass allegations. They also asserted as either affirma-
tive defenses or a counterclaim that the landowner defen-
dants adversely possessed the logged property claimed by
plaintiff. Additionally, at trial, one of defendants’ primary
defenses was that plaintiff did not obtain title to any of the
logged property through her quitclaim deeds.
The parties proceeded to trial on those allegations
and defenses. The trial court made three rulings at the end
of trial that are relevant on appeal. After the close of evi-
dence, both parties brought motions for directed verdict.
Defendants moved for a directed verdict against plain-
tiff’s claim that she had a right to the timber that was in
the Beaver Valley Road adjacent to her claimed property,
and, as such, that she could not assert a timber trespass
claim as to that timber. The court granted that motion and
instructed the jury that plaintiff was “not entitled * * * to
claim any rights to the timber on the northern half of the
Beaver Valley Road.” Plaintiff moved for a directed verdict
against defendants’ adverse possession defenses and coun-
terclaim, which the court denied. Finally, in addition to
644 Thompson v. Marshall
instructing the jury that plaintiff had no claim to trees that
were in Beaver Valley Road, the court instructed the jury
on how the court would compute the final damages—either
doubling or trebling the damages as required for a timber
trespass—if the jury found liability and damages.
With that general background complete, we turn
to some of the underlying substantive facts. On review of
motions for directed verdict, we must determine whether,
viewing the evidence in the light most favorable to the non-
moving party, a reasonable factfinder could only find in
favor of the moving party. See Kelley v. Washington County,
303 Or App 20, 21-22, 463 P3d 36 (2020). In this case, with
respect to the trial court’s grant of directed verdict to defen-
dants on ownership of Beaver Valley Road, that standard of
review requires that we view the evidence in the light most
favorable to plaintiff. However, with respect to the trial
court’s denial of plaintiff’s motion for directed verdict on
adverse possession, that standard requires that we view the
evidence in the light most favorable to defendants. In addi-
tion, because, as explained below, we ultimately determine
that the court’s grant of defendants’ motion for directed ver-
dict did not substantially affect plaintiff’s rights, we also
consider the record as a whole for that issue, and not viewed
in the light most favorably to plaintiff, which, in this case,
includes reciting evidence introduced by defendants on key
disputed factual issues. See Ossanna v. Nike, Inc., 290 Or
App 16, 19, 415 P3d 55 (2018), aff’d, 365 Or 196, 445 P3d
281 (2019) (“If, after review, we conclude that the trial court
has erred, we consider the record as a whole to determine
whether the error was nonetheless harmless.” (Emphasis
added.)); Piazza v. Dept. of Human Services, 261 Or App 425,
437, 323 P3d 444, rev den, 355 Or 879 (2014) (on review of
grant of directed verdict, stating that “we will only reverse
a trial court’s decision if the purported error substantially
affected the aggrieved party’s rights”). With those standards
in mind, we recite the key substantive facts, and make note
where a fact was in dispute.
Columbia County Investment Company was the
original owner and common grantor of the properties at
issue. The investment company platted a housing subdi-
vision called “Beaver Homes” in 1910 on a tract of land in
Cite as 309 Or App 640 (2021) 645
Columbia County. The plat included two of the lots at issue
in this case, lots 2 and 3, part of which were acquired
years later by the landowner defendants, Wade and Cheryl
Marshall. Lots 2 and 3 are located in the northwest quarter
of section 22 as drawn on the first page of the subdivision
plat, which is reproduced below:
Columbia County Investment Company did not own north
of section 22 and the Beaver Homes development did not
extend above section 22. Although the map does not show
this, section 15 lies immediately north of section 22 and is
outside the Beaver Homes plat.
One of the roads depicted on the plat is called
Beaver Valley Road. That road has never been constructed.
The company’s plat describes Beaver Valley Road as the
northern boundary of Beaver Homes. However, plaintiff
presented evidence that the road was not the actual bound-
ary of the development because the platted road undulated
south of the section line that divided section 22 (within the
Beaver Homes development) and section 15 to the north.
According to plaintiff, that undulation in the road left two
small and irregular slivers of property that lay north of the
platted lots 2 and 3 and lay north of Beaver Valley Road,
but still within the Beaver Homes development. Defendants
646 Thompson v. Marshall
put on evidence that those small, irregular lots were not, in
fact, created by the Beaver Homes plat. However, we refer to
those two irregular lots as tax lots 598 and 599 and discuss
them in more detail later. At this point, it is only significant
that, viewed in the light most favorable to plaintiff, plaintiff
is the owner of existing tax lots 598 and 599, and they sit
immediately north of the landowner defendants’ property
(the northern portions of lots 2 and 3 in the Beaver Homes
plat).
The 1910 plat describes the northern boundary of
Beaver Homes as going to the “center of County Road.” There
was disputed testimony presented by the parties about the
name, location, and extent of this road as it extended across
the entire development, particularly whether the disputed
road ran along, south of, or perhaps even north of the sec-
tion 22 line. However, as important for now, plaintiff pre-
sented evidence that the plat map depicts Beaver Valley
Road as the northern boundary of lots 2 and 3, relevant por-
tions of which were eventually purchased by the landowner
defendants. There is no dispute that this road was never
developed.
The 1910 plat also contained a dedication dedicat-
ing the identified roads in the plat map for public use. The
dedication provided that streets had been delineated on the
plat map and stated:
“Columbia County Investment Company does hereby dedi-
cate all said streets, avenues, alleys, roads and ways shown
and set out on said map and plat to the use of the public as
public highways for ever [sic][.]”
The plat, which included the dedication, included the sig-
natures of a Columbia County Judge and Columbia County
Commissioners.
The landowner defendants purchased their prop-
erty on contract in 1989, and it was deeded to them by war-
ranty deed in 1994. As relevant to this dispute, the war-
ranty deed described the property as two parcels that were
portions of lots 2 and 3 of the 1910 Beaver Homes plat map:
“Parcel 1: The North 10 acres of Lot 3, Beaver Homes,
Columbia [C]ounty, Oregon as per map of plat of same now
of record in the office of the county * * *.
Cite as 309 Or App 640 (2021) 647
“Parcel 2: That part of Tract No. 2, Beaver Homes,
Columgia [sic] County, Oregon, lying north of the county
road.”1
Thus, the landowner defendants’ deed relied on the 1910 plat
map of the Beaver Homes subdivision. For tax purposes, the
landowner defendants’ property is known as tax lot 500.
Plaintiff acquired tax lots 598 and 599 when she
and her now-deceased husband purchased the lots at a sher-
iff’s sale through a quitclaim deed from Columbia County in
1995. The county had created those tax lots in the 1970s with
an “unknown” owner, and then later acquired those slivers
of property in 1994 through foreclosure because, perhaps not
surprisingly, no one was ever identified as the owner of the
properties and no one had paid property taxes for the tax
lots. Plaintiff acquired the properties for $50. The quitclaim
deeds provided that the two tax lots were conveyed “AS-IS”
without covenants or warranties. The quitclaim deed for tax
lot 598 provided the following legal description:
“All that portion of the NW 1/4 N/W 1/4 of Section 22
* * * lying North of Beaver Valley County Road and within
the confines of the Northerly Extension of Tract 3, Beaver
Homes.”
The quitclaim deed for tax lot 599 somewhat similarly
provided:
“All that portion of the NW 1/4 of the NW 1/4 of Section
22 * * * lying Northerly of Beaver Valley County Road and
within the confines of the Northerly Extension of Tract 2,
Beaver Homes.”
Thus, plaintiff’s quitclaim deeds were also based on the
original plat for the Beaver Homes development. The deeds
identified her tax lots as lying north of the “Beaver Valley
County Road” or “Beaver Valley Road” as it was originally
designated on the plat map.
1
The parties agree that the “county road” referenced in this deed is another
road, the TS Whaley Road, whose location as a southern boundary of the Marshalls’
property has no effect on the dispute between the parties. Additionally, the later
deeds at issue sometimes use the terms “lot” and “tract” in ways that appear
interchangeable, even if those terms can have distinct meanings. The original
plat map referred to the divisions within the Beaver Home subdivision as lots.
The parties use the terms “lots” in their briefs. For the purpose of this opinion,
we do as well.
648 Thompson v. Marshall
Plaintiff presented the following survey at trial that
her surveyor claimed roughly depicts the disputed proper-
ties based on their tax lot numbers:
As illustrated above, plaintiff’s tax lots 598 and 599 are
the tiny slivers of land at the top of the map. Below that
is a depiction of the undeveloped Beaver Valley Road. And,
below that is the northern part of the landowner defendants’
property. As noted above, defendants presented evidence at
trial, including from their surveyor, that disputed that the
quitclaim deeds to plaintiff conveyed any actual property
contained within the Beaver Homes plat, contending that
the county erred in creating tax lots that did not, in fact,
exist.
Defendants also presented evidence at trial to sup-
port their adverse possession claim. Because the details
of that evidence are not necessary to our resolution of the
appeal, we summarily recite only the following. In 1989, the
landowner defendants erected a barbed-wire fence between
their property and the property owned to the north in sec-
tion 15, after discussing the fence location with that prop-
erty owner, so that they could graze cows on the property.
It is undisputed that that fence approximately follows the
section line between section 22 and section 15.
It was undisputed at trial that the landowner
defendants hired the logger defendants to cut trees on their
property. In doing so, it was also undisputed that the land-
owner defendants directed the logger defendants to cut the
trees to the fence line, which they did. Plaintiff alleged that,
as a result, defendants either negligently or intentionally
Cite as 309 Or App 640 (2021) 649
cut trees on plaintiff’s tax lots and in the northern half of
Beaver Valley Road, which plaintiff also claimed to own.
At the close of evidence, defendants moved for
directed verdict, contending that plaintiff could not claim
timber trespass for the trees located in the Beaver Valley
Road. Plaintiff opposed that motion, contending that, under
ORS 93.310(4), she owned the rights to the trees in the
northern half of Beaver Valley Road because the road was
the boundary between her two tax lots and the landowner
defendants’ property and was not held in title by anyone
else. Defendants disputed that the road was the boundary
between the properties. Defendants also contended that the
road was held in title by someone else. Defendants argued
three possibilities: (1) the road was owned by the landowner
defendants subject to an easement over the road in favor
of Columbia County, (2) the road was owned by Columbia
County, or (3) the road was owned, in part, by the original
developer Columbia County Investment Company.
The trial court granted defendants’ directed verdict
motion. It concluded that the road was not the dividing line
because it concluded that the southern part of plaintiff’s
property began just north of the road. Because no physical
road was ever constructed, the court envisioned a “curb” at
the northern edge of the road that defined the southern edge
of plaintiff’s property. It appeared to conclude that plaintiff’s
property began at that curb just north of the road, meaning
that the road was not the dividing line. The court’s ruling
regarding title to the road was not entirely clear. As we
understand it, the court may have concluded that the land-
owner defendants own the property to the south of plaintiff’s
property “subject to” an easement in favor of the county over
the road. The court also may have concluded that the land-
owner defendants generally own the area south of plaintiff’s
property with the one exception that the county owns title
to Beaver Valley Road. In either case, the court concluded
that plaintiff did not own any portion of the road because it
was held in title by another party. As a result of the directed
verdict, the court instructed the jury that plaintiff could not
seek timber trespass claims for any trees that defendants
logged in the northern half of Beaver Valley Road.
650 Thompson v. Marshall
At the same time as defendants’ directed verdict
motion, plaintiff moved for a directed verdict against defen-
dants’ adverse possession defenses and counterclaim. Plain-
tiff contended that, if the road was public property, the land-
owner defendants could not adversely possess either it or the
plaintiff’s property that was clearly on the north side of the
road. The landowner defendants argued that they owned the
underlying title to the road and did not need to adversely
possess that road and, in fact, did not claim to adversely
possess the road. Instead, they explained that their adverse
possession claim was directed solely at the plaintiff’s prop-
erty that was north of the road, and was based on the land-
owner defendants’ historic exclusive use of that property,
including their fencing on the section line. The trial court
denied plaintiff’s directed verdict motion, concluding that
the landowner defendants had “provided enough evidence
of their adverse possession of [plaintiff’s property]” to go to
the jury on the adverse possession affirmative defenses and
counterclaim.
In addition to instructing the jury that plaintiff had
no claim to trees that had been in Beaver Valley Road, the
trial court instructed the jury on how the court would com-
pute the final damages if the jury found liability and dam-
ages. The court instructed the jury that, if it found defen-
dants had committed casual or involuntary timber trespass,
the court would double any damages that the jury awarded.
The court instructed the jury that, if it found defendants
had committed willful timber trespass, the court would tri-
ple any damages awarded by the jury. Plaintiff objected and
took exception to that instruction.
The jury returned a verdict in favor of defendants.
The special verdict form’s first question asked whether
“defendants cut down trees on property owned by plaintiff[.]”
The jury answered “NO” to that question in a handwritten
response and, based on the instructions in the form, did not
answer any further questions. Thus, the jury did not reach
any of the subsequent questions, including the questions
regarding whether defendant “willfully” or “casually” and
“involuntarily” cut down trees on plaintiff’s property and
whether plaintiff sustained “any damages.”
Cite as 309 Or App 640 (2021) 651
On appeal plaintiff assigns error to the trial court’s
grant of defendants’ directed verdict motion, denial of plain-
tiff’s directed verdict motion, and jury instruction on how
the court would calculate damages.
Plaintiff first assigns error to the trial court’s grant
of defendants’ directed verdict motion, which, by exten-
sion, includes the resulting jury instruction that she had no
rights to timber in the northern half of Beaver Valley Road.
See Mead v. Legacy Health System, 231 Or App 451, 456
n 5, 220 P3d 118 (2009), aff’d in part, rev’d in part on other
grounds, 352 Or 267, 283 P3d 904 (2012) (treating a motion
for directed verdict as the same as a motion to withdraw an
issue from the jury by way of a peremptory instruction).2 A
decision to grant a motion for directed verdict is reviewed for
legal error and is only appropriate when a party is entitled
to it as a matter of law. Kelley, 303 Or App at 21. As noted
above, in determining if the trial court erred, we must view
the evidence in the light most favorable to plaintiff, which,
in this case, means we must assume that plaintiff in fact
owns property that abuts Beaver Valley Road. Assuming
that fact, the parties’ dispute about title to the road is solely
based on the 1910 plat map and the relevant deeds, the con-
struction of which presents purely a legal issue. See Fossi
v. Myers, 271 Or 611, 615, 533 P2d 337 (1975) (stating that,
“when the evidence of the conveying party’s intention is the
language in the conveyance, the party’s intention is not to
be decided as a question of fact”); Landis v. Limbaugh, 282
Or App 284, 297, 385 P3d 1139 (2016), rev dismissed, 361 Or
351 (2017) (observing that, if there is no ambiguity in the
text, context, and extrinsic evidence relating to the convey-
ance, our analysis ends); Howe v. Greenleaf, 260 Or App 692,
700, 320 P3d 641 (2014) (noting that, if the evidence of the
grantor’s intention in conveying property comes solely from
the conveyances, the issue is one of law).
On appeal, plaintiff reprises the essential argu-
ments that she made in the trial court in opposition to
2
As Mead notes, the proper procedure in this circumstance is not a motion
for directed verdict, but a motion to withdraw an issue from the jury by way of a
peremptory instruction; however, we treat the motions the same and analyze the
issue under a directed-verdict standard of review. 231 Or App at 456 n 5.
652 Thompson v. Marshall
defendants’ directed verdict motion, relying on a legal pre-
sumption set forth in ORS 93.310, which provides, in part:
“The following are the rules for construing the descrip-
tive part of a conveyance of real property, when the con-
struction is doubtful, and there are no other sufficient cir-
cumstances to determine it:
“* * * * *
“(4) When a road * * * is the boundary, the rights of
the grantor to the middle of the road * * * are included in
the conveyance, except where the road * * * is held under
another title.”
See also Howe, 260 Or App at 701 (“[T]he presumption in ORS
93.310(4) applies whenever the conveyance describes prop-
erty that borders on a road, whether the property descrip-
tion expressly names the road as a boundary; whether the
property is described in metes and bounds, such that it bor-
ders the road but the road is not expressly named in the
conveyance; or whether the conveyance is by reference to a
map that shows the road as a boundary.”). That is, plain-
tiff’s argument on appeal is solely a legal one—because she
obtained property through the quitclaim deeds that abuts
Beaver Valley Road, she also obtained title to the midpoint
of Beaver Valley Road. We decline to address that argument
on its merits, however, because, even if the trial court erred
in concluding that plaintiff did not own property to the mid-
point of the road, it was not reversible error.
We will only reverse a trial court judgment if the
purported error substantially affected the rights of the
aggrieved party. Piazza, 261 Or App at 437; see also ORS
19.415(2) (“No judgment shall be reversed or modified except
for error substantially affecting the rights of a party.”). Here,
defendants argue that any error was harmless, because
the jury found, as fact, that plaintiff did not own any prop-
erty that abutted the Beaver Valley Road. We agree with
defendants.
We have explained
“that the erroneous grant of a directed verdict on a claim
does not categorically require reversal; if the verdict on
claims that were submitted to the jury demonstrates
that the jury necessarily would have rejected one or more
Cite as 309 Or App 640 (2021) 653
elements of the claim that was taken away from it, then
we will not deem the erroneous grant of a directed verdict
to have substantially affected the plaintiff’s rights under
ORS 19.415(2).”
Yoshida’s Inc. v. Dunn Carney Allen Higgens & Tongue, 272
Or App 436, 458, 356 P3d 121 (2015), rev den, 358 Or 794(2016) (internal quotation marks and brackets omitted). In
Piazza, we similarly recognized that, “where a jury verdict
breaks the causal connection for a claim on which the court
granted a directed verdict, any error in granting the directed
verdict [is] harmless.” 261 Or App at 438-39 (citing A. G. v.
Guitron, 238 Or App 223, 234, 241 P3d 1188 (2010), aff’d,
351 Or 465, 268 P3d 589 (2011)). Plaintiff’s legal claim that
she owned property to the midpoint of Beaver Valley Road
is entirely dependent upon plaintiff’s factual claim that she
owned the property that abuts that road to the north. As
explained below, the jury necessarily found that plaintiff
did not own any property that abuts the road to the north,
which breaks the causal connection for plaintiff’s claim of
error on appeal, rendering any such error harmless.
Here, the jury answered “NO” to the question, “Did
the defendants cut down trees on property owned by plain-
tiff?” As set out above, it was undisputed at trial that defen-
dants did, in fact, cut down trees to the fence line, which
undisputedly lay north of the road and approximately ran
along the section line between sections 22 and 15. Thus, a
reasonable jury could only have answered “NO” to the posed
question if it concluded, as a factual matter, that plaintiff
did not own any of that logged property.
It is true that the jury was presented with two theo-
ries as to why plaintiff did not own that property: (1) plaintiff
did not in fact obtain ownership to property through their
quitclaim deeds or (2) the landowner defendants obtained
title to that property through adverse possession. The ver-
dict form did not specify what theory the jury relied upon.
However, that does not matter for our purposes, because,
under either theory, plaintiff could not, as a legal matter,
own any of the property in the Beaver Valley Road based on
the jury’s factual finding that plaintiff did not own any of
the logged property.
654 Thompson v. Marshall
Under the first theory, if the jury found that plain-
tiff did not actually obtain any property in the quitclaim
deeds, then plaintiff also did not obtain property to the road
midpoint under ORS 93.310(4) that could have been con-
veyed with that deeded property. Under the second theory,
the landowner defendants, by obtaining title to plaintiff’s
property abutting the road through adverse possession, also
obtained any right to half of the road, because that interest
would have transferred with the abutting property under
ORS 93.310(4). That is, plaintiff’s claimed interest in the
road is not a property interest that can be separated from
plaintiff’s claimed interest in the property abutting the
road, and, as such would have transferred to the landowner
defendants once they perfected title to the abutting property
through adverse possession. See Evans v. Hogue, 296 Or 745,
754-55, 681 P2d 1133 (1984) (“[I]f the land is in the posses-
sion of another and if the possessors’ occupation of the land
meets the requirements for adverse possession, that is, if the
occupiers’ possession is sufficiently conspicuous 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 pos-
sessor. The adverse possessor then acquires perfect title to
the land.” (Internal quotation marks and footnote omitted.)).
Thus, under either theory presented to the jury that could
have supported the jury’s factual finding that plaintiff did
not own any of the logged property, as a matter of law, also
requires the conclusion that plaintiff could not own any of
the Beaver Valley Road, as alleged by plaintiff. Because
the jury’s factual finding “breaks the causal connection” to
plaintiff’s legal claim on appeal to half of the road, even if
the trial court erred in granting defendants a directed ver-
dict on that issue, that error was harmless.
Plaintiff asserts that the error was not harmless,
because it allowed the logger defendants to minimize her
damages in closing arguments and to discredit testimony of
her surveyor about the size of her property that included half
of the road as part of plaintiff’s property. We have reviewed
the closing arguments and conclude that they do not render
any error by the trial court reversible, in light of the jury’s
finding that plaintiff did not own any of the logged property.
Cite as 309 Or App 640 (2021) 655
The first and most fundamental question the jury
had to answer was whether plaintiff owned any of the logged
property. That question was separate from whether plain-
tiff owned any of the road, because, as claimed by plaintiff,
that was solely a question of law based on the Beaver Homes
plat map, the parties’ respective deeds, and operation of law
under ORS 93.310(4); it was never a factual question for the
jury to decide. See Fossi, 271 Or at 615 (“[W]hen the evi-
dence of the conveying party’s intention is the language in
the conveyance, the party’s intention is not to be decided as
a question of fact.”). In that light, defendants’ closing argu-
ments, which did not rely on the trial court’s ruling to argue
that plaintiff did not own any of the logged property, but
rather discussed the evidence adduced at trial on that point
to argue that plaintiff had not met her burden to prove tim-
ber trespass, did not render any error by the court reversible.
Accordingly, we reject plaintiff’s first assignment of error.
We turn to plaintiff’s second assignment of error.
Plaintiff assigns error to the trial court’s denial of plain-
tiff’s motion for directed verdict against defendants’ adverse
possession defenses and counterclaim. As noted above,
defendants asserted as either affirmative defenses or a
counterclaim that the landowner defendants had adversely
possessed plaintiff’s property that was logged. Plaintiff
moved for directed verdict and argued that, as to the dis-
puted Beaver Valley Road, if the road was public property,
the landowner defendants could not adversely possess either
it or the plaintiff’s property that was clearly on the north
side of the road. The landowner defendants argued that
they owned the underlying title to the road, that they did
not need to adversely possess that road, and that they were
not claiming to have adversely possessed the road.3 Instead,
they claimed that their adverse possession claims were
directed solely at the plaintiff’s property that was north of
the road and south of the section line in the original Beaver
3
We note that defendants, in moving for directed verdict that the road was
not the boundary, argued that the landowner defendants’ ownership of the road
was one of several possibilities. In arguing against plaintiff’s directed verdict
motion, defendants more specifically argued that the landowner defendants
owned the road. Ultimately, the parties do not address the legal significance, if
any, of this possible inconsistency in that defense. We therefore assume that it
has no bearing on our analysis.
656 Thompson v. Marshall
Homes plat. The trial court denied plaintiff’s directed ver-
dict motion and further concluded that there was some evi-
dence that the landowner defendants had adversely pos-
sessed plaintiff’s two forested lots north of the road.
The parties essentially reprise their arguments
from the trial court. Plaintiff narrows her argument on
appeal to contend, more specifically, that the landowner
defendants could not adversely possess Beaver Valley Road
to the extent that it is public property owned by the county.
We reject plaintiff’s argument because we agree with defen-
dants’ characterization of the record before the trial court
at the time plaintiff moved for directed verdict. Plaintiff
moved for a directed verdict contending, in part, that the
landowner defendants could not adversely possess the road
if it was public property. Among other things, defendants
contended that they were only asserting an adverse posses-
sion defense against plaintiff’s property that was north of
the road and were not asking the jury to conclude that they
adversely possessed the road or any public property.
Defendants presented evidence in support of that
adverse possession defense and counterclaim. The trial
court did not err in denying plaintiff’s motion to direct a ver-
dict that defendants could not adversely possess the road,
because defendants did not seek adverse possession of the
road.4
We turn to plaintiff’s third and final assignment
of error. Plaintiff contends that the trial court erred in
instructing the jury that, if it found defendants committed
casual or involuntary trespass, the court would double any
4
Plaintiff argues that it would be inconsistent for the landowner defendants
to contend that they adversely possessed plaintiff’s land but not the county road,
because both plaintiff’s property and the road fell within the fence constructed
by the landowner defendants. We do not have to resolve that claimed inconsis-
tency. Defendants may define the extent of their adverse possession defenses or
counterclaim just as plaintiff may define the extent of her claim. See Hinchman
v. UC Market, LLC, 270 Or App 561, 570 n 5, 348 P3d 328 (2015) (stating, in
another context, that “[a] plaintiff is the master of her own claim”); Vukanovich v.
Kine, 268 Or App 623, 638, 342 P3d 1075, adh’d to as modified on recons, 271 Or
App 133, 349 P3d 567 (2015) (rejecting the defendant’s argument regarding the
plaintiff’s complaint because it was predicated on a claim that the plaintiff did
not pursue). Defendants did not seek to adversely possess the road or seek any
adverse possession rights against the county, which was not even a party to the
litigation.
Cite as 309 Or App 640 (2021) 657
damages that the jury awarded. Similarly, plaintiff con-
tends that the court erred when it instructed the jury that,
if it found defendants committed willful trespass, the court
would triple any damages awarded by the jury. Plaintiff
contends that the jury’s role is only to decide the facts, and
that it was irrelevant and prejudicial for the court to inform
the jury of the additional legal consequences of their fac-
tual findings, namely the application of statutes multiplying
damages in timber trespass claims. Thus, plaintiff does not
contend that the instruction to the jury was an incorrect
statement of law, but that it was an unnecessary and prej-
udicial one. See ORS 105.815(1) (providing that, in cases of
casual or involuntary trespass, the “judgment shall be given
for double damages”); ORS 105.810(1) (providing, in cases of
willful trespass, the judgment “shall be given for treble the
amount of damages claimed, or assessed for the trespass”).
Plaintiff does not cite any Oregon case law that
addresses whether a trial court errs in instructing a jury
regarding so-called damage multipliers provided by statute.
Instead, plaintiff relies on case law from other jurisdictions
primarily involving antitrust disputes. Defendants contend
that there was no error, and that, if there was any error, it
was harmless.
We conclude that, even assuming that the trial
court erred in informing the jury about the damage multi-
pliers that could be applied in a timber trespass claim, any
such error was harmless under the particular facts of this
case. We may not reverse a judgment unless the trial court’s
error substantially affected plaintiff’s rights. See ORS
19.415(2) (stating that “[n]o judgment shall be reversed or
modified except for error substantially affecting the rights
of a party”). To require reversal under ORS 19.415(2), “an
error must—in an important or essential manner—have
materially or detrimentally influenced a party’s rights; it is
insufficient to speculate that the error might have changed
the outcome of the case.” Purdy v. Deere and Company, 355
Or 204, 225, 324 P3d 455 (2014). Further, plaintiff, as the
party claiming error, bears the burden to “demonstrate that
the error had the required prejudicial effect.” Id. We con-
clude that plaintiff has not met her burden to show, based
on this particular record, that any error materially and
658 Thompson v. Marshall
detrimentally influenced her rights. In other words, it would
require too much speculation to conclude that any error
might have changed the outcome of this case.
The landowner defendants’ closing argument was
based on their contention that, to the extent that the jury
even found that plaintiff had purchased the slivers of lots just
north of the landowner defendants’ property, those defen-
dants had adversely possessed the property. Defendants
asked the jury to find that defendants did not cut any trees
on plaintiff’s land and, on that basis, issue a defense ver-
dict. As noted above, the jury answered only the first fact
question in the special verdict form, which was, “Did the
defendants cut down trees on property owned by plaintiff?”
The jury answered “NO.” The jury then followed the sub-
sequent instruction that it was not to answer any further
questions because its verdict was for the defense. The jury
did not reach any additional questions regarding liability
in the verdict form, such as whether defendants “willfully”
or “casually or involuntarily” cut down trees on plaintiff’s
property, or whether plaintiff suffered any damages as a
result. The jury decided the case based solely on the fac-
tual proposition that defendants never cut down any trees
on plaintiff’s property. On this record, we cannot conclude
that the jury’s knowledge of the potential for a damage mul-
tiplier substantially affected its factual decision that defen-
dants had not cut down trees that were located on plaintiff’s
property. To conclude otherwise would require too much
speculation.5
In sum, we reject plaintiff’s first assignment of
error and conclude that, even assuming the trial court erred
in granting defendants’ motion for directed verdict and
instructing the jury that plaintiff had no right to the trees
on the northern half of the road, any error was harmless on
this record. We reject plaintiff’s second assignment of error
5
We acknowledge that there may be cases where this type of instruction
may cause jurors to pause to consider whether their decision on liability or, more
likely, damages could lead, despite the requirements of the law, to a “windfall”
recovery for a plaintiff if a damages multiplier is later applied by the court. That
could unfairly affect a plaintiff’s case. However, here, plaintiff has not met her
burden to show by more than speculation that the jury instruction substantially
affected her rights when the jury specifically found that defendants never even
cut trees on plaintiff’s property.
Cite as 309 Or App 640 (2021) 659
and conclude that the trial court did not err in denying plain-
tiff’s motion for directed verdict against defendants’ adverse
possession defenses and counterclaim because defendants
did not seek to adversely possess the disputed road. We also
reject plaintiff’s third assignment of error and conclude
that, even assuming that the trial court erred in inform-
ing the jury about the existence of damage multipliers, any
error was harmless in light of the jury’s special verdict.
Affirmed.