Ramos v. Potkowski

                                      686

 Argued and submitted January 5, reversed and remanded November 16, 2022


                       Donaciano J. RAMOS
                        and Kelli A. Ramos,
                       Plaintiffs-Appellants,
                                  v.
                      Phillip K. POTKOWSKI
                    and Sydney Rae Potkowski,
                      Defendants-Respondents.
                  Clackamas County Circuit Court
                       19CV18589; A174275
                                   

    In a boundary dispute between neighbors, plaintiffs appeal from a general
judgment that dismissed their claims for trespass and ejectment. The trial court
ruled in favor of defendants on their counterclaims utilizing defendants’ boundary-by-agreement defense. Plaintiffs contend that the trial court erred in concluding that there was an oral boundary agreement because there was no mutual
uncertainty about the true location of the boundary, the boundary was readily
ascertainable, and there was no agreement to a specific boundary. Held: The trial
court erred in concluding that there was an oral boundary agreement. A shared
mistake in locating a boundary is neither mutual uncertainty nor mutual agreement on a new boundary where the alleged uncertainty is merely about location
and the parties’ predecessors referred to the true boundary in their subsequent
conveyances to the present parties.
    Reversed and remanded.



    Katherine E. Weber, Judge.
   Richard E. Davis, Jr. argued the cause for appellants.
Also on the briefs was Clark Law & Associates, LLC.
   Jonathan W. Henderson argued the cause for respondents. Also on the brief were Christopher M. Parker, and
Davis Rothwell Earle & Xóchihua, P.C.
  Before Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.*
    MOONEY, P. J.
    Reversed and remanded.
______________
   * Pagán, J., vice DeHoog, J. pro tempore.
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           MOONEY, P. J.
         In this boundary dispute between neighbors, plaintiffs appeal from a general judgment dismissing their claims
for trespass and ejectment, finding in favor of defendants
on defendants’ counterclaims by declaring defendants to be
the owners of the disputed property, and ordering reformation of the boundary line in accordance with the boundary
agreement established under defendants’ first affirmative
defense. Plaintiffs assign error to the trial court’s ruling
that there was an oral boundary agreement.1 We agree with
plaintiffs that the trial court erred. Thus, we reverse and
remand.
         We decline plaintiffs’ request to conduct de novo
review because this is not an exceptional case as that term
is used in ORAP 5.40(8)(c). We review the court’s legal conclusions for errors of law, being bound by its factual findings
so long as there is evidence in the record to support them.
Hammond v. Hammond, 

, 

(2011).
         The relevant facts are largely undisputed. The
parties are neighbors. They own adjacent parcels of land
in a West Linn subdivision known as Marylhurst Heights.
Defendants’ predecessors Shannon and Casey Bernard conveyed Lots 5, 6, and 14 of Marylhurst Heights block 6 to
defendants on or about December 13, 2016.2 Plaintiffs’ predecessors Shane and Linda Dyer conveyed Lot 7 of Marylhurst
Heights block 6 to plaintiffs on or about April 20, 2017.
Plaintiffs’ property abuts defendants’ property on two sides.

     1
       Plaintiffs raise four assignments of error, each challenging various aspects
of the trial court’s ruling on defendants’ affirmative defense of boundary by
agreement. Those assignments amount to separate arguments in support of a
single assignment of error. ORAP 5.45(3) (“Each assignment of error must identify precisely the legal, procedural, factual or other ruling that is being challenged.”); see, e.g., Marc Nelson Oil Products, Inc. v. Grim Logging Co., 

, 75 n 1, 

, adh’d to as modified on recons, 

, 

 (2005) (“[A]ssignments of error … are to be directed against rulings by the
trial court, not against components of the trial court’s reasoning or analysis that
underlie that ruling.”). We nevertheless proceeded with our review because it was
not impeded by the errant recitation of assignments.
     2
       The Bernards conveyed additional land in Marylhurst Heights to defendants that is not relevant to this case.
688                                     Ramos v. Potkowski

The relationship of the parties’ respective lots to each other
is represented schematically in the following illustration:
                          Figure 1




        The Dyers purchased what is now plaintiffs’ property (Lot 7) in 1993. Mr. Dyer testified that, in 1993, he
spoke with Bob Kramer, a nearby neighbor and owner of
unrelated property who lived behind the property now
owned by defendants (Lots 5, 6, and 14). They spoke about
the location of the east boundary to Lot 7. Kramer showed
Dyer what Kramer believed was the location of the boundary. From that day forward, Dyer generally understood his
property to be the triangular area illustrated below:
                          Figure 2
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 (2022)                              689

         The Bernards acquired what is now defendants’
property (Lots 5, 6, and 14) in 2014. Mr. Bernard testified
that, in July 2015, he met with Dyer and Kramer to discuss
the location of the boundary lines between Lot 7 and Lots
6 and 14. Dyer showed Bernard the line that Kramer had
showed him in 1993:
  “[BERNARD]: The three of us, before I put the shop in,
  had a meeting together, because I wasn’t clear on where the
  property line was.
     “And [Kramer] showed us where the corner property
  lines, my wife and I, [Kramer] and [Dyer]. And he showed
  us where—where there were two stakes or two points. And
  then [Dyer] showed us where he and [Kramer] understood
  that the property line was.
  “…
  “[DEFENSE COUNSEL]: After this meeting you
  described, did you feel that you had an understanding with
  [Dyer] that that would be the boundary line?
  “[BERNARD]: Yes.”
At trial, Bernard indicated that he and Dyer had reached
an understanding that the boundary lines between Lots 6
and 7 were as shown below by lines A and B:
                          Figure 3
690                                      Ramos v. Potkowski

Dyer confirmed that he had had a “vague discussion” with
Bernard and Kramer about the location of the boundary.
But he testified that he did not make a boundary agreement; he simply relied on Kramer’s indication of its location.
         After that discussion, Bernard made various
improvements to the area east of the B-line and northeast
of the A-line, including installing a shed, creating a dirt
road, and constructing a gate. Sometime later, defendants
installed a chicken coop next to the shed.
         In 2016 when the Bernards conveyed Lots 6 and 14
to defendants, the Bernards’ disclosure statement to defendants declared that there were no boundary agreements,
boundary disputes, or recent boundary changes. Likewise,
in 2017 when the Dyers conveyed Lot 7 to plaintiffs, the
Dyers’ disclosure statement to plaintiffs declared that there
were no boundary agreements, boundary disputes, or recent
boundary changes. In both sets of conveyances to the parties, their respective properties were conveyed to them with
the legal description provided and created by the 1947 plat,
showing plaintiffs’ Lot 7 with four sides (figure 1), rather
than a perfect triangle (figure 2) or an irregular quadrilateral figure with lines A and B (figure 3).
         When defendants purchased the Bernard property,
they believed that the area on which the shed and road
existed was on their side of the boundary line. Likewise,
plaintiffs initially did not believe that the area on which the
shed and chicken coop existed was on their side of the boundary line. The parties’ predecessors Dyer and Bernard had
the same understanding, based on the same misinformation
from neighbor Kramer about where the true boundary lay.
Despite that common source, the predecessors had different
ideas about what Kramer had told them. Thus, plaintiffs
were under the initial impression that the boundary line
between the lots was as illustrated in figure 2 (making a
perfect triangle), while defendants were under the impression that the boundary was lines A and B in figure 3 (making an irregular quadrilateral figure).
        Plaintiffs considered building an accessory dwelling
unit (ADU) on their property and contacted the county to
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discuss the boundaries of their lot. Plaintiffs learned that
the 1947 plat of the neighborhood placed the boundary line
further north and northeast than they had thought, and
that the shed and some of the other improvements made
by defendants or the Bernards were actually on plaintiffs’
property. Plaintiffs subsequently hired a land surveyor who
confirmed that the disputed parcel of land was located on
plaintiffs’ lot. The surveyor located the northeast corner
of plaintiffs’ Lot 7, bordering defendant’s Lot 6, finding an
existing stake or monument under asphalt from defendants’
Lot 14.

        Plaintiffs filed this ejectment action against defendants alleging trespass (Count 1) and a right to possession
(Count 2). They sought economic, noneconomic, and treble
damages.

         Defendants admitted that the parties owned adjacent lots, “but subject to the boundary line dispute at issue in
this case.” Defendants also raised a number of defenses and
counterclaims, including an affirmative defense based on
a boundary-by-agreement theory. Defendants argued that
the parties’ respective predecessors in interest, the Dyers
and the Bernards, entered into an oral boundary agreement
during their conversation in July 2015.

         Following trial, the court found in favor of defendants on plaintiffs’ claims, specifically utilizing defendants’
boundary-by-agreement defense. The trial court found that
the Dyers and the Bernards were uncertain as to the true
location of their adjoining properties, and that they entered
into an oral agreement to set the boundary lines in July
2015.

         Plaintiffs appeal. They contend that the trial court
erred by concluding that there was a boundary by agreement. Among other things, they argue that the evidence did
not support the legal conclusion of mutual uncertainty; that
there was, at best, unilateral uncertainty about the location
of the true boundary; that the true boundary was readily
ascertainable; and that the parties failed to agree on a “particular line” for an agreed boundary.
692                                     Ramos v. Potkowski

        In Oregon, boundary-by-agreement is a common-law
doctrine with three elements:
      1. There must have been an initial and mutual uncertainty or dispute about the true location of the
         boundary;
      2. There must have been a mutual resolution of the
         uncertainty or dispute by an express or implied
         agreement to permanently recognize a particular
         line as the boundary; and
      3. There must be evidence of the agreement by subsequent activities (for example, recording a written
         agreement or occupying the property up to the border line in the case of an express oral agreement).
Powers Ranch Company v. Plum Creek Marketing, 

, 

, rev den, 

 (2011);
Gibbons v. Lettow, 

, 

 (2002).
         Juxtaposed against those seemingly simple elements are limitations that qualify their meaning. Principal
among those limitations is that evidence that establishes
only that the parties labored under a mutual mistake as to
the true location of their boundary does not establish the
location of their boundary. Ross v. DeLorenzo, 

, 

 (1983), rev den, 

 (1984)
(rejecting claim of boundary by agreement). As to that point,
we have explained:
   “It bears some emphasis that boundary by agreement may
   not be established by placing a fence where both parties
   think the actual boundary lies; the agreed-upon boundary
   must represent an attempt to resolve the parties’ uncertainty as to the true location of the boundary.”
Gibbons, 

 (rejecting claim for boundary by
agreement); see also Wright v. Wells, 

,

 (2009) (sustaining claim of boundary by agreement where the parties had no idea where the boundary
should be and agreed to resolve the location with a fence).
         That limitation explains the enigmatic qualification often expressed along with the second element. That is,
the mutual agreement must settle an existing uncertainty,
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but “an attempt to locate the ‘true’ line cannot change the
boundary described in the deed.” Powers Ranch Company,

. In plain language, a mutually mistaken
location of a true boundary is not the resolution of a bona
fide uncertainty about the true boundary. See Gibbons, 

 (“there must be an initial uncertainty or
dispute as to the ‘true’ location of the boundary”); Gibbons,

 (no boundary agreement where the parties merely think they have located the true boundary); see
also Blaisdell v. Nelsen, 

, 515 n 3, 

 (1984) (if the parties had erected the fence where they
merely thought they knew where the boundary was, then
those facts would have been insufficient to make a claim by
boundary by agreement).

        One indication that the parties continued to rely
on the boundary described in a deed or plat as their true
boundary is their subsequent reference to the deed or plat
as establishing the boundary. See Markovich v. Chambers,

, 

 (1993) (a party’s use of a
1981 survey in a lot line adjustment was contrary to a claim
of boundary by agreement); see also Brunswick v. Rundell,

, 

 (1994) (a party’s grazing
lease and easement referred to the deeded boundary rather
than a new fence).

        On this record, it is undisputed that the parties and
their respective predecessors all relied on a single source
of misinformation—another neighbor, Kramer—who merely
thought he was locating the boundary between Lots 6 and
7 according to the respective deeds that referred to the true
boundary created by the 1947 plat. For his part, plaintiffs’
predecessor Dyer just did not know where the true line was
located on the ground and did not have an opinion of his
own. And defendants’ predecessor Bernard testified that he
agreed with Dyer that the line was as Kramer described it.
Shortly after the 2015 discussion among Dyer, Bernard, and
Kramer, both the Bernards and the Dyers conveyed their
properties to the present parties as the properties shown as
Lots 6 and 7 according to the 1947 plat; and they went on in
disclosure statements to declare expressly that there were
no boundary agreements that modified the true boundaries.
694                                                  Ramos v. Potkowski

Taken together, the record reflects a mutual mistake in
locating an otherwise agreed true boundary as described in
the deeds and as shown on the plat.
         Mutual mistake in location is not mutual uncertainty about the true boundary, which the parties tried to
locate and to which they continue to agree. See Ross, 

; Gibbons, 

. Therefore, the trial
court erred as a matter of law in concluding on this record
that there originally had been the requisite “initial uncertainty” that was settled in a mutually agreed new boundary
by agreement.3
           Reversed and remanded.




    3
      Because we find the record insufficient to establish the requisite uncertainty as a predicate to an agreement, we do not need to reach the final argument
whether the parties’ predecessors failed to agree on a “particular line,” whether
one or two lines, forming the boundary between Lots 6 and 7.