dissenting.
In this suit to quiet title, we review de novo. I do not agree that the plaintiff has established title by adverse possession 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.” (41 Or App at 25.)
First, it must be understood that plaintiff’s parents, from whom he acquired the property adjacent to (or surrounding) the ten acre parcels he now claims by adverse possession, did not claim title to those parcels in question by virtue of adverse possession, or otherwise. They were the ones,, however, who cultivated the land or grazed cattle on it, and fenced it. After his father’s death in 1965, plaintiff took over the operation of the ranch, and continued to do just as his parents had done, except that he contends that in continuing to cultivate all of the land within each of the sections in which the ten acre parcels in question are located, his intention was to claim title to those parcels.
The fact that the entire sections were fenced for over ten years, that is by plaintiff’s parents, not by him, indicates absolutely nothing. It was the most economic way to fence the property admittedly owned by plaintiff, the alternative being to fence out each of the ten acre parcels. Equally insignificant is the posting of "no trespassing” signs on the outer perimeter of the section lines; without question, plaintiff was entitled to keep trespassers off of the property which he admittedly owned.
*29The only evidence, then, as to the necessary elements to support adverse possession come from plaintiff’s testimony that he intended to claim title to each of the parcels in question against the world, even though neither his parents nor his brothers and sisters (from whom he acquired title to undivided interests in their parental property) had done so. As against that testimony plaintiff knew, as did his parents, that the record title to each of the parcels in question was in someone else and that the real property taxes were assessed and paid by the record owners. In Reeves et al. v. Porta, 173 Or 147, 156, 144 P2d 493 (1944), relied upon by the majority for the proposition that the failure of the claimant to pay taxes is not conclusive, the Supreme Court held that adverse possession had not been established. In doing so, it stated:
"During all the period of the alleged adverse possession by plaintiffs, taxes were levied regularly against the property, but they paid none of them. The record owners paid them. Failure to pay taxes is, in itself, evidence against the plaintiffs’ claims. Phipps v. Stancliff, 118 Or. 32, 245 P. 508; Looney v. Sears, 94 Or. 690, 185 P. 925, 186 P. 548; Holtzman v. Douglas, 168 U. S. 278, 18 S. Ct. 65, 42 L. Ed. 466; Todd v. Weed, 84 Minn. 4, 86 N. W. 756. It is held generally that such failure is not conclusive against one claiming title by adverse possession, and this is the rule in Oregon. In a doubtful case, however, it may turn the scales against the claimant. Looney v. Sears, supra. The owner of property is bound to know that such property is subject to assessment for its proportional share of the public burdens. 'Ordinarily, a person pays taxes on that which he claims to own.’ Phipps v. Stancliff, supra. The failure of one, claiming to hold land in adverse possession as against the legal owner, to have the land assessed to him and to pay the taxes thereon, particularly when he permits the legal owner to pay them, may be regarded as evidence of a furtive possession, or of a permissive one, or of a mere trespass. It is 'strong and forcible evidence that the possessor did not intend to claim title adversely to the owner’, (Todd v. Weed, supra) and in this case the trial judge so considered it.”
*30It seems to me that the most that can be said is that plaintiff continued doing what his parents had done, namely, use the islands of land surrounded by land owned by plaintiff’s parents, and later plaintiff, as a matter of convenience and because no one objected. I would hold, as the Court did in Reeves et al. v. Porta, supra, that the failure of plaintiff to have the land assessed to him and to pay the taxes thereon, and knowingly permitting the legal owners to pay them, is strong evidence of a "furtive possession” and "strong and forcible evidence that the possessor did not intend to claim title adversely to the owner.”
In each of the cases relied upon by the majority, except Reeves, the party claiming adverse possession at least thought, rightly or wrongly, that the property claimed was a part of his property.
For the foregoing reasons, I would reverse the judgment below, and therefore respectfully dissent.