247
Argued and submitted January 9, 2020, affirmed on appeal and cross-appeal
March 16, 2022
Dean W. DEVLIN
and Lawnna K. Devlin,
Plaintiffs-Appellants
Cross-Respondents,
v.
William L. BANKS
and Recycling Depot Incorporated,
Defendants-Respondents
Cross-Appellants.
Linn County Circuit Court
15CV30056; A167179
508 P3d 1
This action centers on a dispute about the location of the property line dividing properties owned by plaintiffs and defendants. The trial court granted, in
part, defendants’ claims for adverse possession and for a prescriptive easement
over portions of plaintiffs’ property along the boundary between the two properties. The court also dismissed plaintiffs’ claim for timber trespass. On appeal,
plaintiffs challenge each of the trial court’s conclusions. Defendants cross-appeal, primarily arguing that the trial court should have granted their claims
in total, rather than in part. Held: (1) The parties were not entitled to a reversal
based on their claim that the trial court illegally parceled the properties, because
any error was invited by the parties. (2) The parties did not provide a legal path
to reversing the trial court’s conclusions with respect to defendants’ claims for
adverse possession and a prescriptive easement. (3) The trial court did not err in
dismissing plaintiffs’ claim for timber trespass at the close of plaintiffs’ evidence.
Affirmed on appeal and cross-appeal.
Daniel R. Murphy, Judge.
William H. Sherlock argued the cause for appellantscross-respondents. Also on the briefs was Hutchinson Cox.
Shallon Halttunen argued the cause for respondents-cross-appellants. Also on the briefs was Weatherford Thompson,
P.C.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
ORTEGA, P. J.
Affirmed on appeal and cross-appeal.
248 Devlin v. Banks
ORTEGA, P. J.
This action centers on a dispute about the location
of the property line dividing properties owned by plaintiffs
and defendants. Plaintiffs appeal from a limited judgment
entered for defendants which ordered defendants to prepare
surveys of the property line based on findings set forth in
the trial court’s letter opinion. On appeal, plaintiffs assert
five assignments of error, challenging some of the court’s
rulings contained in that letter opinion. Defendants cross-appeal, asserting four assignments of error and challenging
additional rulings of the trial court. We conclude that the
trial court did not err and, accordingly, affirm.
I. BACKGROUND
Defendant Banks is the president of defendant
Recycling Depot, Inc. (RDI), which owns one of the parcels
at issue and operates a recycling facility on that property.
Plaintiffs own and reside on the property that borders defendants’ property to the south. Defendants acquired the property in 1993, and plaintiffs acquired their property in 2014.
This case centers on a dispute about the exact location of the
boundary between the two properties, whether defendants’
concrete wall and certain outbuildings cross the boundary
into plaintiffs’ property, and whether Banks removed trees
from plaintiffs’ property.
In 2015, plaintiffs filed a complaint against defendants, asserting claims for ejectment, breach of contract,
and timber trespass. They alleged that, from 2002 to 2004,
defendants and plaintiffs’ predecessor-in-interest, Munson,
had a dispute about the location of the property line, which
they resolved by Munson granting and recording an easement to defendants (the 2004 easement). Plaintiffs further
alleged that, after recording the easement, defendants built
a concrete wall, well house, concrete slab and outbuilding,
and driveway that encroached on Munson’s property and
was outside the easement area and, as a result, Munson
recorded a declaration of encroachment and trespass. After
plaintiffs acquired the property in 2014, they alleged that
defendants or their agents entered plaintiffs’ property and
cut down about 25 trees. Plaintiffs sought damages and to
Cite as 318 Or App 247 (2022) 249
eject RDI from their property, claimed that RDI and Banks
breached the 2004 easement, and sought statutory triple or
double damages for Banks’ removal of the trees.
In response to plaintiffs’ complaint, defendants
asserted affirmative defenses of adverse possession, invalid
contract, termination of easement, a right to cut brush and
trees for repair and maintenance of the concrete wall, and
that the statute of limitations had run for the ejectment and
breach of contract claims. Defendants also asserted counterclaims for quiet title, based on adverse possession, of an
approximately 16-foot wide strip of land on plaintiffs’ property that runs along the entire border of the two properties
and, in the alternative, for a prescriptive easement in the
same area “allowing [the] use of the land that [d]efendants
have made as part of the operation of a recycling depot.” In
reply to those counterclaims, plaintiffs denied each allegation pleaded by defendants, but did not assert any affirmative defenses.
Plaintiffs moved for summary judgment on defendants’ claim for adverse possession, arguing that defendants
waived any claim to the disputed property in the 2004 easement. Defendants cross-moved for summary judgment on
their adverse possession claim and also moved for summary
judgment on plaintiffs’ claims for ejectment and breach of
contract as barred by the statutes of limitation or repose.
On defendants’ adverse possession claim, the court determined that “there remains significant and genuine issues
of fact concerning the property in question, its boundaries,
its use and the impact if any of the easement” and denied
summary judgment. However, the trial court granted defendants’ motion for summary judgment on plaintiffs’ claims
for ejectment and breach of contract and entered a limited
judgment dismissing those claims with prejudice. Plaintiffs
did not appeal that limited judgment.
The remainder of the case—plaintiffs’ claim for timber trespass and defendants’ claim for adverse possession
and, alternatively, a prescriptive easement—proceeded to a
bench trial. At the end of plaintiffs’ case, defendants moved
for dismissal of plaintiffs’ timber trespass claim based on
plaintiffs’ failure to put on sufficient evidence that Banks
250 Devlin v. Banks
removed the trees that plaintiffs’ expert had valued, which
the trial court granted.
Ultimately the trial court granted, in part, defendants’ claims for adverse possession and for a prescriptive
easement, setting forth its findings and conclusions in a letter opinion:
“1. [Plaintiff] Dean Devlin … has lived [at the subject
property] since 2014.
“a. He farms the 12 acres he lives on; his home [sits] on
the property; he raised hay and 7 cattle.
“b. Devlin testified that his cattle grazed on the disputed portion of land (roughly between an old wire fence
attached in part to trees and a concrete wall erected by
Banks) though there was no evidence as to when they
grazed, for how long, or whether or not it was continuous.
“2. Banks purchased the wrecking yard property in 1993.
“3. When Banks bought the property he characterized
the property fence line as a mess.
“4. It appears from all of the evidence that there were
a series of fences and walls made of wire, metal panels,
wooden panels and possibly other materials between the
properties over the years. Though the exact location of
those various fences and walls is not possible to determine
today with accuracy for the most part they followed, more
or less, the Donation Land Claim (DLC) line and are [sic]
now occupied by the concrete wall. There was also an irregular wire fence south of the wall and the DLC line and part
of that wire fence remains; it is attached to posts and trees
and is not a straight line.
“5. Several witnesses testified about what the fence line
looked like over the years. Gordon Wallace testified that
during the 1940s and into the 1970s the fence line ran
along the DLC line or just inside that line. He did not specify whether ‘inside’ meant north of or south of. Over all [sic]
the testimony by witnesses to the state of the property line
and fence line over the period from 1942-2004 was inconsistent, unclear or otherwise not compelling.
“6. At least one building (pump house) encroached over
the DLC line and especially the roof line of that building
protruded over the line and drained over the line.
Cite as 318 Or App 247 (2022) 251
“7. In 2004 the former owner of [plaintiffs’] property,
Munson, came into conflict with [defendant] Banks.
Threats of law suits [sic] were made and at one point
Munson call[ed] the sheriff in.
“8. In January 2004 the parties signed an easement
agreement to resolve this dispute. Paragraph 5 of that
agreement was intended to preclude the very litigation now
before the court.
“9. In 2005 Banks was granted a zero-foot set back
allowance by Linn County which suggests that the county
believed that the wall was built on or very near the property line.
“10. Banks testified that Munson gave him permission to
install the culvert, driveway and wall. This again suggests
that the parties believed that the concrete wall [w]as built
on or near the property line.
“11. Banks built a ‘drain line’ south of the concrete wall
site and then erected the concrete wall more or less along
the Donation Land Claim line. The evidence did not inform
the court of how wide the drain line was. In some testimony
it was called a ‘drain field’. Eventually the drain line or
field was trampled by [plaintiffs’] cattle—leading the court
to conclude the line was not buried deeply.
“12. In 2015 Banks cut brush on the south side of his wall
and cut down small trees as well. (Banks denied cutting
trees; the court does not find his denial persuasive and it
is contradicted by the other evidence.) This act led to the
current litigation.”
Based on those findings of fact, the court concluded
that the legal property line between the properties is the
DLC line and that that line “runs, more or less, along the
current concrete wall.” The court identified the disputed
area as the area between the concrete wall and the old wire
fence line and stated that both parties conduct some activity in that area, but that “in both cases that use was more
or less inconsistent, intermittent and not continuous.” The
court then concluded that, under ORS 105.620, the adverse
possession statute, defendants “[d]id not maintain an actual,
open, notorious, exclusive, hostile and continuous possession
of the disputed property for ten years or more during any
period prior to the filing of this suit except as specifically
252 Devlin v. Banks
found below,” and Banks “[d]id not prove that he had an honest belief that the disputed property was his; and in fact had
sought and received permission from a previous owner of
[plaintiffs’] property to conduct activity on the disputed land
and signed an easement to resolve the property dispute in
2004 except as found below.”
With respect to the 2004 easement, the court stated
that it “was not properly drafted,” that the property description “is incomplete and inaccurate,” and that “[i]t may not be
enforceable though this action was not brought to enforce it.”
However, the court determined that the easement was “clear
and compelling evidence that both parties understood and
acknowledged in 2004 that [plaintiffs’ predecessor] owned
the disputed property and could grant an[ ] easement over
that property” and defendants so agreed. The court concluded that “[t]his defeats any suggestion that [defendants]
held any good faith belief that [they] owned or exercised
adverse possession over the disputed property.”
The court then addressed the area inside of defendants’ concrete wall:
“The legal property line remains the DLC line. [Defendants]
ha[ve] exercised control over the land on the south side
of that line occupied by the concrete wall to [the] extent
that said wall is over the line to the south. This should
be easy enough to establish based on the survey markers
already set. Likewise, to the extent if any, that any building on [defendants’] property encroaches over the DLC line
onto [plaintiffs’] property it has done so for over ten years
and otherwise meets the requirements for a prescriptive
easement.”
The court then summed up its conclusions:
“Therefore the court finds that the lawful property line
between the properties is the DLC line and that [defendants] ha[ve] a prescriptive easement to the extent that
any of [the] permanent buildings encroach over that line
and ha[ve] established a successful adverse possession
claim to the extent that the concrete wall extends over the
DLC line to the south.
“No claim for either adverse possession or prescriptive
easement has been proven for that portion of the disputed
Cite as 318 Or App 247 (2022) 253
land between the concrete wall and the partial wire fence to
the south of said wall[;] that remains [plaintiffs’] property.”
The court also provided a breakdown claim by claim
which provided that defendants’ adverse possession claim
was “allowed only to the extent the concrete wall encroaches
over the DLC line” and that the prescriptive easement claim
was “allowed only to the extent that any building on [defendants’] property encroaches over the DLC line.”
Following issuance of the letter opinion, defendants
moved for clarification as to whether defendants’ drainage
line was or was not included in the area of adverse possession or prescriptive easement. The court issued a letter opinion in response, clarifying that it did not grant adverse possession or prescriptive easement for the drain pipe or drain
field “because the evidence was insufficient to support such
a finding.”
Defendants then moved again for clarification,
because the parties could not agree on the meaning of the
court’s opinion. In that motion, defendants sought clarification on the area to be included in the adversely possessed
area, asking, “Did the [c]ourt intend to extend the finding
of adverse possession from the [DLC] Line South, to include
the property up to and including the property to the South
([plaintiffs’]) side of the concrete wall or fence? Or, did the
[c]ourt intend to keep the [DLC] Line as the property line
and define only the strip of property directly under the concrete wall as the adversely possessed property?” The court
responded:
“The court found that the property line is, more or less, the
[DLC] line. To the extent that the concrete wall or any other
permanent structure or part of a structure encroaches over
the DLC line there is a granting of [an] easement for that
encroachment. Another way of saying that is that Banks
owns the land the wall sits on by virtue of the adverse possession and Devlin owns all land south of the wall.”
The court then entered a limited judgment that, as
explained below, is somewhat inconsistent with its earlier
determinations. Defendants drafted the limited judgment
and plaintiffs agreed that it correctly reduced the court’s
earlier rulings to judgment. The limited judgment dismissed
254 Devlin v. Banks
plaintiffs’ claims, granted defendants’ claim for quiet title
“only to the extent of the width of the concrete wall; the
DLC line remains the property line,” granted defendants’
claim for prescriptive easement “only to the extent that any
existing building on [d]efendants’ property encroaches over
the DLC line,” and directed defendants to obtain a survey
to prepare legal descriptions of the footprint of the concrete
wall, the DLC line plus any permanent structure of defendants’ that encroaches over it, and “the resulting [plaintiffs’]
property south of the concrete wall,” and of plaintiffs’ property “north of the concrete wall.” The limited judgment also
provided that a general judgment would be entered that
includes the legal descriptions. The parties cross-appeal that
limited judgment.
II. ANALYSIS
A. Claimed Illegal Parceling of Property
We begin by addressing and rejecting a claim of
error that both plaintiffs and defendants raise on appeal
and cross-appeal. The parties assert that the limited judgment results in an illegal parceling of land, because it splits
plaintiffs’ property into property on the south side of the
concrete wall and property on the north side of the concrete
wall, with defendants owning a new parcel of property that
only lies underneath the concrete wall. We reject the parties’ assignments of error, because any error that appears in
the limited judgment is entirely of the parties’ own making
and does not provide a basis for us to reverse that limited
judgment on appeal.
The trial court clearly set out in its original letter
opinion that the property line was the DLC line and that the
concrete wall more or less followed the DLC line, but that,
to the extent that the concrete wall crossed over that line
into plaintiffs’ property, defendant adversely possessed that
property; the court stated that the adverse possession claim
was “allowed only to the extent the concrete wall encroaches
over the DLC line,” which by any reasonable reading means
that the adversely possessed property is between the DLC
line and the southern edge of the wall. On defendants’ second motion for clarification, the court again explained that
Cite as 318 Or App 247 (2022) 255
it had found that the concrete wall, more or less, followed
the DLC line and that “Banks owns the land the wall sits
on by virtue of the adverse possession and Devlin owns
all land south of the wall.” That is, the court again stated
that defendants owned, by adverse possession, the land the
concrete wall sits on and the land to the north of the wall,
because plaintiffs own “land south of the wall.” Despite the
court’s opinion and clarification, defendants prepared, and
plaintiffs agreed to, a limited judgment that parceled out
the property such that plaintiffs would own land both north
and south of the concrete wall. It was only the parties’ insistence that the court could, and did, parcel out the properties in that manner that caused the court to enter a limited
judgment that purported to create those parcels.
The parties now claim on appeal that the trial court
illegally parceled their property—something that the trial
court never suggested that it intended to do and did not do
until the parties asked it to by presenting the limited judgment for the court to sign. At no time did the parties suggest
to the trial court that, by doing what the parties asked it
to do, it would create illegal parcels of property. As such,
the parties’ actions caused the now-alleged error in the limited judgment and, as a result, they are not entitled to the
relief they seek on appeal. See, e.g., State v. Ferguson, 201 Or
App 261, 269,
119 P3d 794 (2005), rev den,
340 Or 34 (2006)
(The invited error doctrine “provides that, if an appellant
‘was actively instrumental in bringing about’ the error, then
the appellant ‘cannot be heard to complain, and the case
ought not to be reversed because of it.’ ” (Quoting Anderson
v. Oregon Railroad Co.,
45 Or 211, 216-17,
77 P 119 (1904).));
see also Ferguson,
201 Or App at 270 (“The point of the doctrine is to ensure that parties do not ‘blame the court’ for
their intentional or strategic trial choices that later prove
unwise and then, to the trial court’s surprise, use the error
that they invited to obtain a new trial.”). Any relief from
illegal parceling of their properties that both parties invited
the trial court to make must be sought from the trial court
in the first instance, because the claimed error does not provide a basis for us to reverse on appeal. We thus reject plaintiffs’ fourth assignment of error on appeal and defendants’
second assignment of error on cross-appeal.
256 Devlin v. Banks
B. Effect of the 2004 Easement on Defendants’ Claims
We next turn to plaintiffs’ first assignment of error,
in which they argue that the trial court erred in granting a
prescriptive easement and adverse possession over a portion
of plaintiffs’ property in light of paragraph 5 of the 2004
easement between defendants and Munson, plaintiffs’ predecessor in interest. That paragraph of the 2004 easement
provides:
“Each party hereto expressly warrants to the other that
the party is the sole and exclusive owner of the entire parcels described as the Munson property and/or the Banks
property and that neither shall make a claim of ownership
to either property. The provisions of this sub-paragraph
shall be binding on the heirs, successors and assigns of the
respective parties hereto regardless of termination of this
easement.”
Specifically, plaintiffs argue that the trial court erred by
finding that plaintiffs did not seek to enforce the 2004
easement and by failing to make findings that addressed
whether paragraph 5 foreclosed defendants’ claims for prescriptive easement and adverse possession.
We reject plaintiffs’ assignment of error. They do
not articulate any legal theory on which it is based and
do not cite any legal authority to support their argument
in the opening brief. We can conceive of only two ways—
neither pled by plaintiffs—in which the 2004 easement could
foreclose defendants’ claims in the manner plaintiffs now
assert: through enforcement of the 2004 easement against
defendants through specific performance or through the
affirmative defenses of waiver or estoppel. Plaintiff did bring
a claim for breach of the 2004 easement against defendants,
but sought damages and termination of the agreement, not
specific performance. In any event, the trial court dismissed
plaintiffs’ breach of contract claim with prejudice by a limited judgment which plaintiffs did not appeal. Additionally,
waiver and estoppel are affirmative defenses, ORCP 19 B,
but plaintiffs did not plead any affirmative defenses to defendants’ claims. Plaintiffs have not pointed us to anywhere in
the record establishing that the parties tried either defense
by consent. See ORCP 23 B (“When issues not raised by the
Cite as 318 Or App 247 (2022) 257
pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings.”). And, finally, even if the defense
had been tried by consent, plaintiffs have not provided us
with any argument on appeal based on the legal requirements for waiver or estoppel.
In short, plaintiffs have not explained any legal
path on appeal that could provide a basis for us to grant the
relief that plaintiffs seek in their first assignment of error.
We therefore reject it.
C. Adverse Possession
We next address and reject plaintiffs’ third assignment of error and defendants’ first assignment of error, both
of which relate to the court’s conclusions on defendants’
adverse possession claim. Plaintiffs argue that the trial
court erred in quieting title, through statutory adverse possession, to any property south of the DLC line. Defendants
argue that the trial court erred in not granting its claim for
either common-law or statutory adverse possession all the
way to the old wire fence.1
For their statutory adverse possession claim, under
ORS 105.620, defendants had to show, by clear and convincing evidence, that their possession of the disputed property
was “ ‘actual, open, notorious, exclusive, hostile and continuous’ for a period of 10 years, that [defendants] had an ‘honest
belief’ that [they] w[ere] the actual owner[s] of the property
through the vesting period, and that that belief was objective and reasonable under the circumstances.” Hammond v.
Hammond, 296 Or App 321, 328,
438 P3d 408 (2019) (quoting ORS 105.620). Common-law adverse possession applies
if the claim vested before January 1, 1990. Case v. Burton,
250 Or App 14, 23,
279 P3d 259 (2012) (citing Or Laws 1991,
ch 109, § 3). The elements of common-law adverse possession
1
Defendants also argue that the court erred in not, at a minimum, granting their claim of adverse possession up to and including the concrete wall. As
explained elsewhere, the trial court did grant defendants’ claim of adverse possession up to and including the concrete wall. To the extent the limited judgment
does not reflect that ruling, which was in the court’s letter opinion, it was error
explicitly invited by the parties and needs to be addressed with the trial court in
the first instance.
258 Devlin v. Banks
are the same, except that the “honest belief” element is not
required. Id. at 22-23.
Because defendants’ adverse possession claim is in
equity, we have discretion to review the trial court’s findings
of fact de novo, ORS 19.415(3)(b), as defendants ask us to do.
However, this is not an exceptional case warranting such
review. ORAP 5.40(8)(c). As a result, “we accept the trial
court’s findings of fact that are supported by the evidence
and review for legal error whether those facts establish the
elements of [defendants’] claims.” Hammond, 296 Or App at
324.
As explained above, the trial court found that the
concrete wall, more or less, followed the legal boundary of
the properties (the DLC line), and quieted title to defendants
to the extent the concrete wall veered south of that line, ruling that “[defendants] ha[ve] exercised control over the land
on the south side of that line occupied by the concrete wall
to the extent that said wall is over the line to the south.”
On appeal, plaintiffs argue that the trial court
legally erred, because that conclusion is contradicted by the
court’s other findings with respect to defendants’ adverse
possession claim, particularly its finding that Banks did not
hold a good faith belief that “he owned or exercised adverse
possession over the disputed property.” Plaintiffs also argue
that the trial court erred because it did not address all the
adverse possession elements with respect to the portion of
property to which the court quieted title in defendants and
did not specify the 10-year period of adverse possession.
On cross-appeal, defendants argue that the evidence established both their statutory and common-law adverse possession claim all the way to the old wire fence.
First, we reject plaintiffs’ assertions that the trial
court made inconsistent or irreconcilable findings. Plaintiffs’
argument ignores the trial court’s findings that the “disputed
property” was the property between the concrete wall and the
old wire fence further south. That is, the disputed property,
as defined by the trial court, did not include any property
north of the concrete wall. Thus, the court’s findings and conclusions that defendants had not established the elements of
adverse possession to the disputed property, including the
Cite as 318 Or App 247 (2022) 259
good faith element, did not apply to property about which
the court concluded defendants had proved their claim—the
property between the DLC line and the concrete wall. The
court also expressly excepted the adversely possessed property from its conclusions that defendants had not proved their
adverse possession claim for the disputed property.
Second, we reject plaintiffs’ assertion that the trial
court was required to walk through each adverse possession
element with respect to the property which the court concluded defendants had adversely possessed. Plaintiffs do not
point to any law that required the court to do that, and, on
appeal, we presume that the court resolved factual disputes
in a manner consistent with its ultimate conclusions. Ball v.
Gladden, 250 Or 485, 487,
443 P2d 621 (1968) (“If findings
are not made on all such facts, and there is evidence from
which such facts could be decided more than one way, we will
presume that the facts were decided in a manner consistent
with the ultimate conclusion … made by the trial court[.]”).
With respect to that property, the court found that “[defendants] ha[ve] exercised control over the land on the south
side of that [DLC] line occupied by the concrete wall to that
extent the said wall is over the line to the south.” It is undisputed that defendants completed the concrete wall by early
2005, 10 years before this lawsuit, and the court found that
the wall, more or less, followed the legal property boundary. From those explicit findings, we can presume that the
court resolved the factual disputes in this case in a manner
sufficient to conclude that defendants proved by clear and
convincing evidence a statutory claim for adverse possession
of any property between the DLC line and the southern edge
of that concrete wall, including that defendants had a good
faith belief that they owned that property.2 Plaintiffs do not
explain how the court legally erred with respect to any of
2
We reject plaintiffs’ argument that the 2004 easement necessarily defeats
defendants’ honest belief about the concrete wall being located on their property. The 2004 easement between defendants and Munson granted to defendants
an easement in a strip along the property boundary for the limited purposes of
maintenance of a fence and uses associated with defendants’ business conducted
on their property; that is, it was not for the purpose of locating the concrete wall.
There was evidence that defendants could have both signed the easement and
held an honest belief that the concrete wall enclosed their property. That was
a question of fact for the trial court, which the trial court implicitly resolved in
defendants’ favor.
260 Devlin v. Banks
the adverse possession elements based on the facts as found
by the court; instead, plaintiffs argue about the historical
facts, pointing to the perceived inconsistencies in the court’s
letter opinion. Thus, we reject plaintiffs’ third assignment of
error.
Finally, we reject defendants’ first assignment of
error on cross-appeal. In making their argument, defendants
recite the evidence they put on during the trial, but do not
engage with the factual findings made by the trial court or
explain how the trial court legally erred in concluding that
they had not shown by clear and convincing evidence that
they met any of the elements for adverse possession with
respect to the disputed property. Because we decline to take
de novo review, we are bound by the trial court’s findings if
they are supported by the evidence. Here, we conclude that
the relevant factual findings of the trial court are supported
by the evidence and that those findings support the court’s
legal conclusions that defendants did not prove their case for
statutory or common-law adverse possession to the disputed
property between the concrete wall and the wire fence. See,
e.g., Thompson v. Scott, 270 Or 542, 548,
528 P2d 509 (1974)
(“We have frequently said that prescription or adverse possession cannot be established by vague and general testimony purporting to describe the claimant’s use.”). Thus, we
reject defendants’ first assignment of error on cross-appeal.
D. Prescriptive Easement
We next address and reject plaintiffs’ fifth assignment of error on appeal and defendants’ third assignment
of error on cross-appeal, both of which relate to the court’s
conclusions on defendants’ prescriptive easement claim.
Plaintiffs argue that the trial court erred in granting a prescriptive easement to defendants for the portions of their
buildings that cross south of the DLC line. Defendants
argue that the trial court erred in not granting their claim
for prescriptive easement all the way to the old wire fence.3
3
As they did in their adverse possession arguments, defendants also argue
that the court erred in not, at a minimum, granting them a prescriptive easement
over the property up to the concrete wall. As explained elsewhere, up to the point
when defendants incorrectly drafted the limited judgment, the trial court had
granted defendants’ claim of adverse possession up to and including the concrete
wall. Thus, we do not address that part of defendants’ argument.
Cite as 318 Or App 247 (2022) 261
“An easement is a nonpossessory interest in another’s
land that entitles the holder of the easement to use the
burdened property for some particular purpose.” Hisey v.
Patrick, 309 Or App 625, 632,
484 P3d 377, rev den,
368 Or
347 (2021). “A prescriptive easement arises when a [party]
demonstrates—by clear and convincing evidence—open,
notorious, and adverse use of another’s property for a continuous and uninterrupted period of at least 10 years.”
Id. at
633 (citing Thompson,
270 Or at 546-47). Prescriptive easements are not favored in the law.
Id. “In reviewing a trial
court’s decision to grant a prescriptive easement, we uphold
the court’s express and implied findings of fact if there is any
evidence in the record to support them.”
Id. at 627. Whether
a party has met the elements of a prescriptive easement “is
ordinarily a question of fact.”
Id. at 632. “Thus, assuming a
trial court has applied the correct legal standards, we will
uphold its findings of historical fact if there is any evidence
to support them.”
Id. (internal quotation marks omitted).
Here, the trial court found that “[a]t least one building (pump house) encroached over the DLC line and especially the roof line of that building protruded over the line
and drained over the line.” The court concluded that “to the
extent if any, that any building on [defendants’] property
encroaches over the DLC line onto [plaintiffs’] property
it has done so for over ten years and otherwise meets the
requirement for a prescriptive easement.” On defendants’
motion for clarification with respect to defendants’ drainage line, the court clarified that “the court granted a prescriptive easement for structures (buildings) that currently
encroach over the wall and/or the [DLC] line but did not
grant a prescriptive easement concerning the drain pipe or
the drain field because the evidence was insufficient to support such a finding.”
On appeal, plaintiffs argue that the court legally
erred, because an easement is a nonpossessory interest,
and, as such, the trial court could not grant a prescriptive
easement to defendants for the footprint of any of defendants’ structures. Plaintiffs also assert, as they did with
defendants’ adverse possession claim, that the trial court’s
findings with respect to the “disputed property” contradict
262 Devlin v. Banks
the court’s grant of a prescriptive easement for defendants’
structures.
We reject plaintiffs’ second argument for the same
reasons we rejected it with respect to defendants’ adverse
possession claim—the trial court’s findings with respect to
the disputed property expressly excepted those areas north
of the concrete wall, as not part of the disputed property,
and those areas where defendants’ buildings encroached
south of the DLC line. Those findings are not inherently
inconsistent.
We also reject plaintiffs’ first argument. Although
the nature of an easement is a nonpossessory interest, in
that the owner of the property retains an interest in the
land, whether a permanent structure may be placed within
an easement is determined by the scope of the easement
given, and not by its inherent nonpossessory nature. See
Tooker v. Feinstein, 131 Or App 684, 687,
886 P2d 1051
(1994), adh’d to as modified on recons,
133 Or App 107,
889
P2d 1356, rev den,
321 Or 94 (1995) (“An easement owner is
limited to those uses of the easement that are reasonably
necessary for the easement’s intended purpose.”); id. at 688
(defendants could place and maintain a retaining wall in an
access easement over property owner’s objection, because it
was “the only reasonable way to provide lateral support for
a driveway”). That is, there is nothing about the nature of a
prescriptive easement that necessarily prevents a claimant
from proving a prescriptive easement based on the placement of a structure. Cf. Zerr v. Heceta Lodge No. 111,
269 Or
174, 187,
523 P2d 1018 (1974) (where it would be inequitable
to require removal of a building encroachment in action for
ejectment, “ ‘defendant, on payment of damages, acquires
either a fee or an easement in the land on which the structure encroaches, but, if the plaintiff wishes, the interest
should be limited to an easement so that the plaintiff can
recover the land should the encroachments be removed’ ”
(quoting Dobbs on Remedies 356 § 5.6 (1973)). Plaintiffs
do not provide us with law to the contrary. Thus, we reject
plaintiffs’ fifth assignment of error.4
4
We note that it appears that the trial court did not grant defendants a
prescriptive easement for building footprints, as a factual matter, although it is
Cite as 318 Or App 247 (2022) 263
Next, we reject defendants’ third assignment of
error on cross-appeal. Like their argument with respect to
adverse possession, defendants recite the evidence they put
on during the trial, but do not engage with the factual findings made by the trial court or explain how the trial court
legally erred. Because we decline to take de novo review, we
are bound by the trial court’s findings if they are supported
by the evidence. Here, we conclude that there is evidence to
support the relevant factual findings of the trial court and
those findings support the court’s legal conclusions. To the
extent defendants’ argument focuses on their longstanding
use of their driveway, which may cross over the DLC line
onto plaintiffs’ property, we note that defendants did not
seek a prescriptive easement for use of their driveway; they
sought a prescriptive easement for a 16-foot wide strip of
land across their entire boundary with plaintiffs. The trial
court did not err in rejecting that claim. Thus, we reject
defendants’ third assignment of error on cross-appeal.
E. Timber Trespass
Finally, we address the parties’ assignments of error
related to plaintiffs’ timber trespass claim. Plaintiffs argue
in their second assignment of error that the trial court erred
in dismissing their claim for timber trespass at the close
of plaintiffs’ case. Defendants raise a fourth assignment of
error on cross-appeal, arguing that, if we conclude that the
trial court erred as asserted by plaintiffs, we should nonetheless affirm, because the trial court erred in allowing the
valuation of the timber submitted by plaintiffs through their
expert arborist, Wiggins. We conclude that the trial court
did not err in dismissing plaintiffs’ claim and, thus, we do
not address defendants’ conditional assignment of error on
cross-appeal.
not clear. As explained, the trial court granted defendants’ claim for adverse possession to the concrete wall. The evidence in the record is that defendants’ buildings sit to the north of the concrete wall. However, as found by the trial court,
the roof line of at least one of defendants’ buildings extends over the concrete
wall and drains onto plaintiffs’ property. As such, it appears that the trial court
only granted a prescriptive easement to defendants for those encroachments of
defendants’ buildings that extend past the area of adverse possession—that is,
past the south edge of the concrete wall, such as the roof line of at least one
building.
264 Devlin v. Banks
Because the case was tried to the court, defendants’
motion to dismiss is a motion under ORCP 54 B(2).5 Under
that rule, the trial court can grant a motion to dismiss “on
either of two grounds: (1) The plaintiff has failed to present a
prima facie case (the ‘directed verdict’ standard); or (2) even
if the plaintiff has presented a prima facie case, the court,
as trier of fact, is unpersuaded by the plaintiff’s evidence.”
Venture Properties, Inc. v. Parker, 223 Or App 321, 336,
195
P3d 470 (2008) (emphases in original). Here, the trial court
purported to apply the directed verdict standard when it
dismissed plaintiffs’ claim with prejudice. “The determination of whether the essential elements of a claim have been
established—in other words, whether a prima facie case
was made—is a question of law.” Clark and Clark,
171 Or
App 205, 210,
14 P3d 667 (2000). However, we are bound by
findings the court made, if there is any evidence to support
them. Case,
250 Or App at 17.
Here, the evidence presented by plaintiffs was that,
in September 2015, Devlin discovered cut brush and small
trees south of the concrete wall, which he hauled out into
his hay field. He then took pictures of the cut brush and
trees. Devlin testified that what he hauled into his field
was not stacked between the concrete wall and wire fence,
but was south of the wire fence. He admitted that all of the
cut vegetation was growing next to the concrete wall under
the crown of the tall oak trees. Plaintiffs’ valuation expert,
Wiggins, testified that what was in Devlin’s pictures were
smaller trees or parts of trees, which had no commercial
value. For his valuation, which was completed in February
2017, Wiggins had located stumps and sprouts that he identified as ash and willow, as the cut brush and debris had
been removed by that time. Wiggins found 10 stump cuts
5
ORCP 54 B(2) provides:
“After the plaintiff in an action tried by the court without a jury has
completed the presentation of plaintiff’s evidence, the defendant, without
waiving the right to offer evidence in the event the motion is not granted,
may move for a judgment of dismissal on the ground that upon the facts and
the law the plaintiff has shown no right to relief. The court as trier of the
facts may then determine them and render judgment of dismissal against
the plaintiff or may decline to render any judgment until the close of all the
evidence. If the court renders judgment of dismissal with prejudice against
the plaintiff, the court shall make findings as provided in Rule 62.”
Cite as 318 Or App 247 (2022) 265
that were large enough to value.6 Plaintiffs did not present
evidence of how Wiggins selected those stumps, where along
the concrete fence those stumps were located, or any evidence that otherwise connected the stumps that Wiggins
found to the trees plaintiffs claimed were cut in September
2015.
Plaintiffs also called Banks to testify. Banks testified that he had gone onto the property south of the concrete wall, which he claimed was his property, to cut brush
and tree branches—including poison oak and filbert tree
branches—that were growing through and over the concrete wall, blocking his driveway. Banks denied cutting any
trees. Upon being shown a picture taken by Devlin, Banks
admitted to having cut some of the brush in the picture but
denied cutting any of the trees. He also testified that he and
a friend had piled what he cut between the concrete fence
and the old wire fence. Banks admitted to using a small
chainsaw to do the brush cutting.
At the close of plaintiffs’ case, defendants moved
for dismissal of plaintiffs’ timber trespass claim, arguing
that “there is inadequate proof that what [defendants] cut
is what the arborist valued,” because the testimony was, at
best, that defendants cut some brush and what the arborist was valuing were trees that were at least two inches in
diameter. The court granted defendants’ motion, concluding
that there was not “sufficient evidence by a preponderance,
more likely than not, that [defendants] cut the trees, and
particularly in light of the fact that the only evidence—the
only evidence as to who cut the trees is [Banks’] adamant
denial on the stand under oath that he cut them.” However,
in its letter opinion, the court made the finding that, “[i]n
2015 Banks cut brush on the south side of his wall and cut
down small trees as well. (Banks denied cutting trees; the
6
Wiggins used two methods together to provide a value for the trees, which
he identified as six willow trees, ranging in size from two to four and one-half
inches in diameter, and four ash trees, ranging in size from four to six inches
in diameter. Wiggins used the “trunk formula method” to place a valuation on
the 10 trees, for a total lost value of $52. He then also added replacement value,
which included the cost to replace and plant the trees, the cost to protect the new
trees from livestock, and a yearly check on the trees for three years, for a total
damage value of $1,698.66. He did not assign any value to cut brush, branches, or
anything smaller than two inches in diameter.
266 Devlin v. Banks
court does not find his denial persuasive and it is contradicted by the other evidence.),” while also reciting that the
court had dismissed the timber trespass claim “for failure
to prove by a preponderance of evidence that defendants cut
down trees.”
On appeal, plaintiffs argue that they did present a
prima facie claim for timber trespass under ORS 105.810.
Plaintiffs assert that their position is supported by the trial
court’s finding that defendants did cut trees and brush on
their property and that Banks was not credible. Defendants
respond that plaintiffs did not present a prima facie case
for timber trespass, because plaintiffs did not present any
evidence that Banks had cut the trees that Wiggins had
valued.
We agree with defendants. The motion that defendants made, and that the trial court granted, was based on
plaintiffs’ failure to put on any evidence that what Banks
cut was what Wiggins had valued. Although there is some
evidence to support the trial court’s finding in its letter
opinion that Banks cut down brush and small trees, based
on the trial court’s ultimate credibility finding at the end of
trial, the court did not find that what Banks cut down were
the 10 trees valued by Wiggins, and it would have been mere
speculation for the court to so find. Plaintiffs did not put on
any evidence of the location of the stumps valued by Wiggins
connecting those stumps to the trees plaintiffs had dragged
into the field that Devlin testified were located south of
the wire fence, or connecting those stumps to what Banks
admitted to cutting and stacking between the concrete wall
and wire fence. Damages is an element of timber trespass,
and without any evidence connecting the claimed damage to
the trespass committed by Banks, plaintiffs failed to make
out a prima facie case. Cf. Harshbarger v. Klamath County,
294 Or App 631, 637,
432 P3d 363 (2018), rev den,
364 Or 535
(2019) (reversing trial court’s denial of defendant’s directed
verdict motion, because plaintiff’s only evidence of damage
was based on an improper valuation). Thus, we affirm the
trial court’s dismissal of plaintiffs’ timber trespass claim.
Affirmed on appeal and cross-appeal.
