No. 723 August 13, 2025 569
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Joseph POWERS
and Adrienne G. Powers, aka Adienne G. Powers,
husband and wife,
Plaintiffs-Respondents,
v.
G. Patrick DAGUE
and Barbara Lezynski, individually and as administrators
of the 1339 Crissey Circle Family Trust;
and COASTAL CLIFFS, LLC,
an Oregon limited liability company,
Defendants-Appellants.
Curry County Circuit Court
20CV15542; A178375
Jesse C. Margolis, Judge.
Argued and submitted July 27, 2023.
Melisa Button argued the cause for appellants. Also on
the briefs was Hornecker Cowling LLP.
David B. Paradis argued the cause for respondents. Also
on the brief were Mark R. Weaver and Brophy Schmor LLP.
Before Joyce, Presiding Judge, Jacquot, Judge, and
Armstrong, Senior Judge.
ARMSTRONG, S. J.
Reversed and remanded for entry of judgment for
defendants on adverse possession counterclaim; otherwise
affirmed.
570 Powers v. Dague
Cite as 342 Or App 569 (2025) 571
ARMSTRONG, S. J.
This appeal concerns defendants’ claims to an
interest in a cliffside portion of plaintiffs’ land. Plaintiffs
and defendants own adjoining real property on a bluff in
Brookings, Oregon, overlooking the Pacific Ocean. A stairway leads from defendants’ property down the face of the
bluff to the beach, crossing plaintiffs’ property as well as
property owned by a third party, Linda Voyles. Plaintiffs
learned of the intrusion of defendants’ stairway on their
property in 2019 from an email that they received from a
friend of Voyles, who, in turn, had learned of the intrusion
of the stairway on her and plaintiffs’ property from a survey obtained by a neighbor. After the parties were unable to
resolve disputes that arose among them over the ownership
and use of the stairway on their respective properties, plaintiffs and Voyles filed separate actions against defendants.
Voyles dismissed her action after reaching a settlement
with defendants, but plaintiffs and defendants were unable
to settle their dispute.
Plaintiffs’ original complaint in their action alleged
claims against defendants for trespass and nuisance and
for declaratory and injunctive relief. In their answer, defendants asserted counterclaims against plaintiffs for adverse
possession, various types of easements, quiet title, and
declaratory relief. The court bifurcated trial and tried defendants’ counterclaims first. After trial of the counterclaims,
the court issued a letter opinion denying all of defendants’
counterclaims.
The court’s letter opinion focused principally on
defendants’ claims for adverse possession and a prescriptive
easement. The court rejected the claim for adverse possession on three grounds: (1) that the use of the stairway on
plaintiffs’ land was not open and notorious because, due to
brush and topography, the stairway was not visible from any
portion of plaintiffs’ property on which people might safely
go, nor from any publicly accessible area other than the
beach below the property; (2) defendants failed to prove a
sufficient period of hostile possession of the disputed portion
of plaintiffs’ property; and (3) that defendants had failed to
prove that they and the relevant predecessors in interest
572 Powers v. Dague
had an honest belief, under ORS 105.620, that they were
the actual owners of the disputed portion of plaintiffs’ property. The court rejected defendants’ prescriptive easement
claim for the same failure to prove an open and notorious
use on which the court rejected defendants’ adverse possession claim and on the further ground that defendants failed
to prove adversity for a sufficient time period.
The court subsequently entered a limited judgment
dismissing defendants’ counterclaims; the parties filed
a stipulated motion abating the trial of plaintiffs’ claims
pending resolution of an expected appeal by defendants of
the limited judgment; and defendants appealed the limited
judgment. Defendants now raise assignments of error on
appeal challenging the trial court’s denial of their claims.
We conclude that the court erred in its understanding of the open and notorious elements of adverse possession
and, hence, erred in concluding that defendants had failed to
prove those elements. We also conclude that, on this record,
no reasonable factfinder could fail to find that defendants
had proven the element of hostility and that, for more than a
10-year period, the immediately preceding owners of defendants’ property, the Lausmanns, had an honest belief that
they owned the stairway and the land, including plaintiffs’
land, over which the stairway ran to the beach. Hence, we
conclude that the court erred in denying defendants relief
on their counterclaim for adverse possession. In light of that
conclusion, we do not reach the assigned errors on defendants’ prescriptive and implied easement claims.
“In a bench trial, to preserve for appeal a contention that one was entitled to prevail as a matter of law on a
particular claim, the party who does not bear the burden of
persuasion on that claim must move for directed verdict (or
the like), whereas the party with the burden of persuasion
need not make such a motion.” Farnsworth v. Meadowland
Ranches, Inc., 321 Or App 814, 820,
519 P3d 153 (2022).
Here, defendants had the burden of persuasion on their own
adverse possession counterclaim, so they did not need to
make a motion at trial to preserve for appeal their claim
that they were entitled to prevail on adverse possession as
a matter of law. Our standard of review is the same as for
Cite as
342 Or App 569 (2025) 573
a directed verdict, however. Directed verdict “is appropriate
only when a [party] is entitled to judgment as a matter of
law. … Our task is not to weigh the evidence or to assess
witness credibility. Rather, we view the evidence in the
light most favorable to … the nonmoving party, affording
him every reasonable inference that can be drawn from it.”
Kelley v. Washington County,
303 Or App 20, 21,
463 P3d 36
(2020) (citations omitted); see also Tiedemann v. Radiation
Therapy Consultants, P.C.,
299 Or 238, 244-45,
701 P2d 440
(1985) (“A directed verdict for a defendant results when a
plaintiff fails to meet its burden of proof on an issue of fact.
A directed verdict for a plaintiff results when a plaintiff has
met its burden of proof on an issue and the defendant is
unable to rebut that evidence.”). Our review is thus for legal
error. Kelley,
303 Or App at 21.
We state the undisputed facts from the record in
the light most favorable to the plaintiffs. Defendants’ property is located at 1339 Crissey Circle in Brookings (1339
Crissey). Plaintiffs’ property is immediately north of defendants’ property and is located at 1347 Chetco Avenue (1347
Chetco). Before 1957, both properties were part of a large
parcel. At that time, a trail to the beach originated at what
is now 1339 Crissey and crossed over what is now 1347
Chetco.
Importantly, Kelly Sievers acquired 1339 Crissey in
1992, and the property was later titled in his and his wife
Michelle Sievers’ names. As the trial court found, Mr. Sievers
made substantial improvements to the property, including
the construction of an elevated stairway that originated on
the 1339 Crissey property, was attached to the deck of the
house, and followed the path of the original trail down to the
beach. The court focused in its letter opinion on Mr. Sievers’
background as an engineer and fixed-wing and helicopter pilot and his role in managing the construction of the
improvements to conclude that it “is likely that Mr. Sievers
either had a conscious doubt as to whether the trail and
stairs were completely on his property, or he knew that
[the] trail/stairs were not completely on 1339 Crissey,” and
that “it is highly unlikely that a person with his education
and experience with the property would not be aware of the
574 Powers v. Dague
general location of the boundary lines.” However, the court
also noted, and the record shows that “Mrs. Sievers never
thought about the boundary lines of the property or where
the stairs were in relation to a boundary line. She believed
the stairs were hers.” After Mr. Sievers’ death, Mrs. Sievers
sold 1339 Crissey to Jerry and Donnis Lausmann in 2003.
The listing information for the property identified the stairway to the beach as a feature of the property, which was consistent with Mrs. Sievers’ understanding of her ownership of
the property.
Mrs. Lausmann made little to no use of the stairway to the beach because of her age and the condition of the
stairway. Mr. Lausmann relied on a wheelchair for mobility,
and he made no use of the stairway. The Lausmanns’ family
and guests did use the stairway for access to the beach, and
the Lausmanns hired people to maintain the property and
the stairway during their ownership.
Warren and Janet Krick acquired 1347 Chetco in
1995. They did not move there immediately because they
were continuing to work in another state. After a number of
years, Mrs. Krick moved onto the property while Mr. Krick
was winding up his medical practice in Colorado. After both
had moved to the property, they walked to the beach below
their property from a nearby park, Harris Beach State
Park, to look at their property from the beach and saw the
stairway running from 1339 Crissey to the beach.
The Lausmanns gave the Kricks permission to use
the stairway from 1339 Crissey to the beach. The Kricks
thereafter used the stairway to get to the beach until
February 2008, when the Lausmanns told them that, based
on the advice of their attorney, who had sent them a letter
describing their liability risk for injuries sustained by permissive users of the stairway, they would no longer allow the
Kricks or others living in the area to use the stairway. The
Kricks accepted that decision and made no further use of
the stairway.
Defendants acquired 1339 Crissey in 2019 from a
trust established by the Lausmanns. The listing information and marketing materials for the property identified the
Cite as 342 Or App 569 (2025) 575
stairway to the beach as a feature of the property, which
was consistent with the Lausmanns’ understanding of their
ownership of the property.
Plaintiffs acquired 1347 Chetco from the Kricks in
2015. As noted earlier, plaintiffs learned of the stairway and
its location on their property and on Voyles’ property to the
north in 2019 when they received an email from a friend of
their neighbor Voyles.
Allowing parties to acquire ownership of real property by adverse possession serves a number of policy purposes, such as “encouraging and rewarding the productive
use of land,” “discouraging the abandonment of land,” and
promoting the “certainty of land ownership.” Glenn v. Glenn,
310 Or App 661, 667 n 6,
487 P3d 856 (2021). ORS 105.620
codified the common law of adverse possession. Lieberfreund
v. Gregory,
206 Or App 484, 490,
136 P3d 1207 (2006). A
claimant must show that the claimant and their predecessors in interest “have maintained actual, open, notorious,
exclusive, hostile, and continuous possession of the property
for a period of 10 years.” ORS 105.620(1)(a). In addition, a
claimant must show that, throughout the vesting period,
they and their predecessors in interest had the honest belief
that they owned the property that had an objective basis
and was reasonable under the circumstances. ORS 105.620
(1)(b). The claimant must prove each element by clear and
convincing evidence. ORS 105.620(1)(c).
To establish that the use of the property is open and
notorious, claimants must prove that their own possession of
the disputed property “is of such a character” that an owner
has “the means of knowing it, and of the claim.” Hoffman
v. Freeman Land and Timber, LLC, 329 Or 554, 560,
994
P2d 106 (1999) (internal quotation marks omitted); see
id.
(“[L]imited activity may satisfy the requirement of open and
notorious use … if it is significant enough to put an owner
on notice that his or her title is being challenged.”). The focus
of the inquiry is therefore on the nature of the claimant’s
conduct, that is, whether it was significant enough to afford
the title holder a reasonable opportunity to learn of the use
during the 10-year vesting period, and not whether the title
holder in fact had notice of that conduct. See Reeves v. Porta,
576 Powers v. Dague
173 Or 147, 155,
144 P2d 493 (1944) (“the acts of the alleged
occupant must be so open and exclusive as to leave no inquiry
as to his intention, so notorious that the owner may be presumed to have knowledge that the occupancy is adverse”
(internal quotation marks omitted)); see also Hammond v.
Hammond,
296 Or App 321, 335,
438 P3d 408 (2019) (“the
law requires an adverse possessor to ‘keep his flag flying’ on
the land in such an open, notorious, and hostile manner that
knowledge of the adverse possessor’s claim to the land can be
imputed to the landowner” (emphasis added)).
Here, as the trial court recognized, the stairway
is readily visible from the beach below the parties’ properties, which is readily accessible from a nearby state park.
Both plaintiffs’ predecessors and plaintiffs were able to see
the stairway from the beach when they went to the beach
below their property. Various exhibits admitted at trial
confirm that the stairs are readily visible from the beach.
That plaintiffs and their predecessors could not find a safe
location on their property from which to see the stairway
and could not safely go down the bluff to the beach from
their property to see it is of no moment. Contrary to the
trial court’s understanding, the likelihood that plaintiffs or
their predecessors would visit the public beach below their
property, or the extent to which the public uses the public
beach below plaintiffs’ property, does not bear on whether
the stairway and its use constituted an open and notorious
use of plaintiffs’ property.1 Plaintiffs and their predecessors
had a reasonable opportunity to learn of the use of the stairway on their property by looking at their property from the
public beach, which was accessible by them and the public
1
Plaintiffs rely on Olson v. Williams, 266 Or 592,
514 P2d 552 (1973), in support of their contention that the elevated stairway that crossed over their property
did not establish the “open and notorious” element because it was impossible to see
the stairs crossing the Chetco property cliffside from the top of the property. But
Olson is of no help here. The plaintiffs in Olson relied on the fact that they had
planted 22 ornamental trees along the disputed strip to show that their possession was open and notorious.
Id. at 593. Those trees, however, could not serve to
provide notice of the plaintiffs’ claim to the land when they were “indistinguishable from the surrounding natural growth” until they were sufficiently mature,
and, until they were sufficiently mature, it would have been “extremely difficult to
discern” the asserted boundary line.
Id. at 594. No such difficulty is present here,
as plaintiffs could clearly see, from the public beach, the stairs themselves and
their encroachment over the disputed land.
Cite as
342 Or App 569 (2025) 577
from a nearby state park. The law of adverse possession
requires no more.
As for the other elements on which the court
rejected defendants’ adverse possession counterclaim, the
court’s error arises from its failure to address whether the
record establishes that defendants’ immediate predecessors,
the Lausmanns, satisfied the common law and statutory elements for adverse possession for at least a 10-year period
during their ownership of the property between 2003 and
2019. It does.
The court’s letter opinion placed great emphasis on
the actions of Mr. Sievers, who owned 1339 Crissey before
the Lausmanns, and his role in improving the stairway in
the mid-1990s, which led the court to conclude that he knew
or reasonably should have known that the stairway crossed
1347 Chetco on its path to the beach. Notably, however, that
focus fails to grapple with the role of Mrs. Sievers, who is
the person who sold 1339 Crissey to the Lausmanns in 2003
under a listing that identified the stairway to the beach as a
feature of the property. As the court found, Mrs. Sievers did
not think “about the boundary lines of the property or where
the stairs were in relation to a boundary line” and believed
that the stairs were hers. That understanding of her ownership was conveyed to the Lausmanns through the marketing
materials for the property, and nothing in the record suggests that the Lausmanns had—or had reason to have—a
different understanding of their ownership of the stairway.
Further, as a result of the letter that the
Lausmanns received from their attorney in February 2008,
the Lausmanns revoked the permission that they had given
the Kricks and others to use their stairway to the beach, a
revocation to which the Kricks acceded. The very limited
personal use of the stairway by the Lausmanns, as distinguished from the maintenance of the stairway by people
employed by them and the use made of the stairway by the
Lausmanns’ family and other guests also provided no basis
for them to question their ownership of the stairway. As it
is, the fact that the stairway crossed plaintiffs’ and Voyles’
property became known only as a result of a 2019 survey
obtained by Voyles’ neighbor.
578 Powers v. Dague
With a proper focus on the Lausmanns’ ownership
of 1339 Crissey from 2003 to 2019, it is evident that their
ownership satisfied those elements of adverse possession—
hostility and honest belief—that the trial court found to be
lacking. As for the element of hostility, the physical encroachment of the stairway onto 1347 Chetco, the fact that the
stairway originates on the private deck of the Crissey home,
the revocation by the Lausmanns of the permission given by
them to the Kricks and others to the use the stairway, and
the presence of a wall and gate blocking access to the top of
the stairs, indisputably satisfies that element. See Stiles v.
Godsey, 233 Or App 119, 130,
225 P3d 81 (2009) (the claimants’ possession of the disputed land under mistaken belief
of ownership resulting from representations concerning the
property made at the time of sale that were consistent with
encroachments of physical structures on the land satisfies
the requirement of hostile use).
As to the “honest belief” element, ORS 105.620(1)(b)
provides:
“At the time the person claiming by adverse possession or
the person’s predecessors in interest, first entered into possession of the property, the person entering into possession
had the honest belief that the person was the actual owner
of the property and that belief:
“(A) By the person and the person’s predecessor in interest, continued throughout the vesting period;
“(B) Had an objective basis; and
“(C) Was reasonable under the particular circumstances.”
The statute is clear regarding whose honest belief is relevant:
the person claiming adverse possession (here, defendants) or
their predecessors in interest (here, the Lausmanns). And,
the statute circumscribes the pendency of that honest belief:
from when those persons first entered into possession of the
property and continuing throughout the vesting period.2
2
And, as we have observed, “proof of the requisite ‘honest belief’ will normally establish hostile possession under claim of right, by application of the
pure-mistake doctrine.” Wood v. Taylor, 307 Or App 688, 699,
479 P3d 560 (2020)
(where the defendants claim an honest but mistaken belief of ownership, the honest belief and hostility elements may be analyzed together).
Cite as
342 Or App 569 (2025) 579
As to whether the Lausmanns, defendants’ predecessors in interest, had an honest belief that they actually
owned the property on which the stairway was located,
including the portion crossing 1347 Chetco, the record compels a finding under the applicable clear and convincing evidence standard that they had that belief when they acquired
1339 Crissey and throughout the 16-year period that they
owned it, that their belief had an objective basis, and that
their belief was reasonable under the circumstances.3
The court erred in concluding otherwise and in denying
defendants’ counterclaim for adverse possession.4 Cf. Lopez
v. Oregon State Hospital, 342 Or App 190, 197-98, ___ P3d
___ (2025) (no reasonable factfinder could conclude that the
defendant was in contempt when the uncontradicted facts in
the record conclusively established the defendant’s affirmative defense); In re Oregon State Hospital,
342 Or App 185,
188-89, ___ P3d ___ (2025) (same).
In light of our conclusion on defendants’ counterclaim for adverse possession, we do not reach defendants’
assigned errors that challenge the dismissal of their counterclaims for prescriptive and implied easements over plaintiffs’ land. Accordingly, we reverse the limited judgment and
remand to the trial court to enter a judgment in defendants’
favor on their counterclaim for adverse possession.
Reversed and remanded for entry of judgment for
defendants on adverse possession counterclaim; otherwise
affirmed.
3
The trial court’s analysis of the honest-belief element was erroneously
predicated on its understanding of Mr. Sievers’ conduct while he was building
the stairs, many years before Mrs. Sievers sold the property to the Lausmanns.
4
Plaintiffs make additional arguments about other elements of adverse possession that we reject without discussion.
