Garrett v. Lundgren

*25LEE, J.

This is a suit in equity to quiet title to five ten-acre parcels adjacent to property owned by plaintiff. Defendants counterclaimed in trespass for the rental value of the parcels. The court rendered a decree in favor of plaintiff, finding that adverse possession had been established for the requisite ten-year period. Defendants contend that plaintiff’s possession was not under claim of right or color of title for the requisite period because (1) he knew others held title to the parcels and paid taxes on them, and (2) he had not "owned” the land for ten years and could not tack on his parents’ period of possession. We affirm.

The ten-acre parcels in dispute are situated within sections 35 and 36 in Township 39 South, Range 19 E.W.M., and section 5 in Township 40, South, Range 10 E.W.M. These three sections were divided by speculators into ten-acre tracts and sold to buyers all over the nation in the early 1900’s. The disputed parcels were never occupied by the owners in the chain of title but were used by those who acquired the intermingled property via homestead patents, inheritance, or purchase of state school sections.

Plaintiff was born on section 35 approximately 55 years ago and has lived there most of his life. Sections 35 and 36 were sage brush until plaintiff and his family cleared the land in the 1930’s.

In order to prove a title by adverse possession, plaintiff must establish by clear and positive proof that he and his predecessors have had actual,'open, notorious, exclusive, continuous and hostile possession for the full statutory period of ten years under claim of right or color of title. Beaver v. Davis, 275 Or 209, 211, 550 P2d 428 (1976); ORS 12.050. Defendants contend that plaintiff failed to act under claim of right or color of title because plaintiff knew that others had title and paid the taxes on the land he was farming. These factors are not necessarily determinative. In Nedry v. *26Morgan, 284 Or 65, 70, 584 P2d 1381 (1978), the Oregon Supreme Court discussed claim of right and the relevance of the transferee’s knowledge of outstanding interests in property, stating,

"Normally, one who realizes that another has legal title to property will not claim the property as his own. Nevertheless, knowledge of an outstanding interest in the property does not preclude the possessor from exercising the claim of right required for adverse possession. In Bessler v. Powder River Dold Dredg. Co., 95 Or 271, 185 P 753 (1919), reh. denied 187 P 621 (1920), this court stated the rule as follows:
" '* * * The terms "claim of right,” "claim of title” and "claim of ownership” when used in the books to express adverse intent mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual title or right.’
In other words, 'claim of right’simply means that the possession is not permissive and that the party in possession has not led the true owner to believe that the possessor recognizes the true owner’s rights. 3 American Law of Property 776, § 15.4 (Casner ed 1974); 4 Tiffany, Real Property, § 1142 (3d ed 1975); see also Norgard et al v. Busher et ux, 220 Or 297, 301, 349 P2d 490, 493, 80 ALR2d 1161 (1960). Cf., Smith et al v. Tremaine et ux, supra (recognition of legal title in cotenants); Sertic v. Roberts, 171 Or 121, 136 P2d 248 (1943) (acknowledgement of title in lessor); Oregon City v. Or. & Cal. R. Co., 44 Or 165, 74 P924 (1904) (request that the possessor be allowed to make certain use of the property). When it appears that the possessor is aware of the possibility that another party had an interest in the property, the court must examine the evidence to detemine whether or not the possessor nevertheless intended to claim the entire property as his own. Norgard et al v. Busher et ux, supra at 302.” (Emphasis supplied.)

In the instant case, the evidence shows that plaintiff took over operation of the family ranch in 1965 and used the ranch land, including the disputed parcels, for grass, grain and hay production, as well as *27grazing, for over ten years. Furthermore, all three sections containing the disputed parcels have been surrounded by fences and posted against trespassers for over ten years. Plaintiff also testified that he would have evicted defendants if they attempted to use the disputed land at any time. Finally, although the failure to pay taxes may turn the scales in a doubtful case, it is not conclusive. Reeves v. Porta, 173 Or 147, 156, 144 P2d 493 (1944). See also Terry v. Timmons, 282 Or 363, 367, 578 P2d 405 (1978). We conclude that the evidence establishes that plaintiff acted under a claim of right for the requisite period.

Defendants’ second contention is that plaintiff had not "owned” the land for ten years and could not tack his parents’ possession because their rights were not conveyed to him. The word "owned” is misleading in this context because plaintiff is relying upon possession under claim of right rather than color of title. Therefore, plaintiff need only prove that he has actually used the land openly, notoriously, exclusively and in a hostile manner for a continuous ten-year period. See Almond v. Anderegg, 276 Or 1041, 1045, 557 P2d 220, (1976).

As stated above, plaintiff has operated the ranch since his father died in 1965. At that time, he shared an undivided interest in the deeded property with his mother and his brothers and sisters. In 1969, his mother died and in 1972 he bought his brothers’ and sisters’ interests in the land. Plaintiff asserted possession of the disputed parcels on behalf of himself and his family when he assumed operation of the ranch in 1965, and there is no evidence of interruption since that time. Periods of possession of successive holders may be united to complete the prescriptive periods necessary for acquisition of title by adverse possession, provided that there are no abandonments or other interruptions automatically returning seizure to the owner. Du Val v. Miller, 208 Or 176, 181, 300 P2d 416 (1956). Plaintiff may tack the prior possession of his mother and his siblings.

*28Our examination of the evidence confirms that plaintiff acquired the disputed parcels by adverse possession.

Affirmed.