stating that “one who has adversely possessed land for the requisite number of years gains ownership rights to the land of a status equal to deeded title”
How later courts described this case
- stating that “one who has adversely possessed land for the requisite number of years gains ownership rights to the land of a status equal to deeded title”
- subsequent possessors of property may tack on periods of prior possession by predecessors in interest if they are in privity with each other; privity exists if there is an understanding that the transfer includes particular property
- “[I]f the land is in the posses- sion of another and if the possessors’ occupation of the land meets the requirements for adverse possession, that is, if the occupiers’ possession is sufficiently conspicuous so that the true owner should have asserted his rights, the title holders’ nonassertion of rights will result in eliminating his interest in the property and transferring that interest to the pos- sessor. The adverse possessor then acquires perfect title to the land.” (Internal quotation marks and footnote omitted.)
- “The period of [adverse] possession may be completed by one possessor for the full statutory period or by a series of possessors in privity with each other under the doctrine of tacking.”
Written by the judges who cited it.
The opinion
LENT, J.,
dissenting.
I dissent from the decision made by the majority and some of the reasoning by which that decision was reached.
Before passing to the main thrust of my opinion, I should like to mention some aspects of this case that I do not believe have been adequately addressed.
On May 22,1980, plaintiffs filed a cause to quiet title, remove cloud and fix a boundary between their land and that of the defendants. Plaintiffs’ cause sounds in equity. 1
Defendants have denied plaintiffs’ claim for relief and have counterclaimed in ejectment, which sounds in law. Defendants did not assert a right to trial by jury on their cause. I can find no reply to the counterclaims in the trial court file. ORCP 13B provides:
“* * * There shall be a reply to a counterclaim denominated as such. * * *”
ORCP 19C provides:
“Allegations in a pleading to which a responsive pleading is required * * * are admitted when not denied in the responsive pleading. * * *”
ORCP 19B provides:
“In pleading to a preceding pleading, a party shall set forth affirmatively * * * statute of limitations * *
*758 ORCP 21G.(2) provides:
“A defense * * * that the action has not been commenced within the time limited by statute, is waived if it is neither made by motion under this rule nor included in a responsive pleading * * *.”
It appears to me that plaintiffs should have been required to reply to the counterclaims, and that if they desired to assert the statute of limitations against those counterclaims, they should have done so by either motion or reply. The failure to do so, it would seem, should entitle the defendants to prevail on their counterclaims to recover the real property or the possession thereof.
It appears, however, that the parties, the trial court, the Court of Appeals and this court have thus far treated the case as if issue had been joined on the counterclaims, and I shall do the same.
I turn first to defendants’ counterclaim. It presents an action for the recovery of real property or the possession thereof. ORS 12.050 provides:
“An action for the recovery of real property, or for the recovery of the possession thereof, shall be commenced within 10 years. No action shall be maintained for such recovery unless it appear that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within 10 years before the commencement of the action.” 2
If trial of the issues presented by the counterclaims was had as a cause at law, the findings of fact of the trial judge have the same effect as if found by a jury. An appellate court is bound by those findings unless the court can affirmatively say that there is no evidence to support them. Or Const Art VII (Amend), § 3. The trial judge found:
“The Defendants failed to prove by a preponderance of the evidence their affirmative defenses and counterclaims alleged against the Plaintiffs.”
This was a general finding and carries with it a resolution of all issues of fact in favor of plaintiffs on those defenses and *759 counterclaims. The general finding therefore includes a finding that defendants, their ancestor, predecessor or grantor were not seized or possessed of the premises within 10 years before the commencement of the action.
If the trial of the counterclaims was in the mode of a suit in equity, the trial court found, and I would find from the evidence, ORS 19.125(4), that the plaintiffs, their grantors and predecessors were in possession of the strip, to the exclusion of the defendants, their grantors and predecessors, for the 10 year period preceding commencement of this suit and the filing of the counterclaims.
In sum, either at law or in equity, the defendants have not established, as required by the second sentence of ORS 12.050, that they, their ancestor, predecessor or grantor was seized or possessed of the strip so as to maintain their causes for ejectment.
I now come to the plaintiffs’ cause. To plaintiffs’ complaint the defendants asserted separate affirmative defenses of laches and the statute of limitations, namely, ORS 12.050.
It appears to me that the proper starting point is ORS 12.040(1), which provides:
“A suit shall only be commenced within the time limited to commence an action as provided in this chapter; and a suit for the determination of any right or claim to or interest in real property shall be deemed within the limitations provided for actions for the recovery of the possession of real property.”
That section obviously implicates ORS 12.050 as a part of “this chapter.”
The text of ORS 12.050, as applicable to a suit to quiet title, is to me somewhat puzzling. The second sentence seems relatively easy. It requires that a plaintiff must make a certain showing to “maintain” the suit. The showing is possession by plaintiff, his ancestor, predecessor or grantor within 10 years before commencement of the cause. At common law a plaintiff, or someone holding under plaintifff, had to be in possession in order for plaintiff successfully to assert a suit to quiet title. By statute, ORS 105.605, a plaintiff may maintain a suit to quiet title if plaintiff is in possession or if the property is vacant. Comegys v. Hendricks, 55 Or 533 , 106 P *760 1016 (1910). No one contends that this disputed strip was vacant. The evidence is overwhelming that plaintiffs were in possession at the time of filing the suit and that plaintiffs and their grantors, Luckeys, and predecessors, Sampsons, were in possession for the entire 10 year period immediately preceding commencement.
The application of the first sentence of ORS 12.050 is more troublesome. By that sentence, taken together with ORS 12.040 and 12.010, 3 a plaintiff must commence a suit to quiet title within 10 years after the cause accrues. When does a cause of suit such as this accrue? These plaintiffs thought they were buying from Luckeys all of the property up to the fence line. Until something put them on notice that the disputed strip was not described in the deeds from Sampsons to Luckeys and from Luckeys to plaintiffs, they would have no reason to believe that they had a cause of suit and, therefore, to commence one. It seems that everyone involved in deciding this case has thus far been content with resolution of the limitations and laches issues upon the basis that defendants were not able to satisfy the second sentence of ORS 12.050, thereby losing on the counterclaims, and that plaintiff was able to satisfy the second sentence of ORS 12.050. In the circumstances, I shall spend no more time on this point.
I now come to my reasons for disagreeing with the majority.
At common law real actions were classified as either proprietary or possessory. In a proprietary action a plaintiff sued on his right of property if he had lost his right of possession. In a possessory action he sought to vindicate his right of possession, which might be independent of any proprietary right. Koffler and Reppy, Common Law Pleading 48.
“AT [sic] early Common Law a Complete Title to Real Estate included the ultimate right of property, the right of possession, and the actual present possession. As the right of property and the right of possession might be in different *761 persons while the actual possession was in a third person, actual possession was regarded as a right distinct from the right of property and the right of possession.
“If one having the Complete Title to land was dispossessed, he lost one of the constituent elements of his Title, that is, actual possession. This left remaining in him the right of possession and the right of property. As to all other persons except the person ousted, the disseisor became the owner of the Complete Title; as to the person ousted, he was the owner of the Complete Title, subject to be defeated by enforcement of the disseisee’s superior right of property or right of possession. If such rights were not enforced within certain periods of time fixed by the Common Law or by Statute, the disseisor’s Title became indefeasible as to all failing to show a superior right of property or right of possession.” (Footnote omitted; emphasis added.)
Koffler and Reppy, Common Law Pleading 48-49. ORS 12.040(1) and ORS 12.050 descend to us from the original Deady Code (except for the amendment from a 20 year period to a 10 year period), Deady, General Laws of Oregon, §§ 378 and 4. The early statutes spoke both to the time limited for bringing the proprietary action and the time limited for bringing the possessory action.
Under our early cases cited by the majority and by Justice Campbell, Sampsons’ title became indefeasible when the record owners (disseisees) failed for more than a period of 10 years of adverse possession by Sampsons (disseisors) to enforce the record owners’ right of property or possession. As the majority notes, citing Tiffany, Real Property § 1135 (3d Ed. 1955), the rationale flowing from a statute of limitations approach is that the disseisor does not prevail except by default of the disseisee in failing to assert his remedy within the statutory period.
Both the majority and Justice Campbell have reached their final results on the basis that Sampsons attained ownership of the strip by adverse possession at the completion of 10 years from Sampsons’ entry under their deed; completion was in 1958. This leaves out any inquiry as to whether anyone in the chain of conveyances and possession from the Halls, who built the fence, to Sampsons had earlier acquired ownership by adverse possession for the necessary 10 year period. I do not believe that if that occurred, it affects the *762 validity of the majority’s holding concerning the passing of ownership, but it might be important to Justice Campbell’s analysis. At any rate, the evidence in this suit does not permit determination of an earlier ownership than that of Sampsons, blossoming in 1958.
In 1958 Sampsons had obtained by adverse possession the “Complete Title.” They had the right of property, the right of possession and the actual possession. I would agree with the majority that Sampsons could transfer all, or any, of those constituent elements.
In this case there is no doubt that Sampsons transferred to Luckeys the actual possession. Likewise, Luckeys transferred actual possession to plaintiffs. The evidence is overwhelming that the actual possession of Sampsons commencing in 1948 and continuing through the actual possession of Luckeys and plaintiffs to May, 1980, when this suit was commenced, was open, notorious, hostile, exclusive and under claim of right.
I would hold that, as against these defendants, plaintiffs are entitled to tack that possession of Sampsons, Luckeys and themselves so as to prevail against these defendants upon the basis of adverse possession for the statutory term.
The majority goes further, however, and holds:
“[WJhere there is evidence of intent between grantor and grantee to transfer the grantor’s interest in property, the grantee may acquire the grantor’s interest, vested and complete, in those situations in which the grantor has adversely possessed for the statutory period.”
Based upon that holding, the majority decides that plaintiffs acquired a title good against the whole world. That occurs through the mechanism of affirming the Court of Appeals, which affirmed the trial court, which had so decreed.
My minor quarrel with the language of the majority’s holding is that it is predicated upon the existence of evidence of intent rather than the existence of intent itself. Perhaps this is merely a slip of the pen, for the majority goes on to discuss the evidence and to find from that evidence that Sampsons did intend to sell the property to the fence line and so did Luckeys.
*763 My major quarrel with the decision of the majority is that it is based on evidence developed without the participation of Sampsons and Luckeys. Those sellers and grantors have had no opportunity to litigate in this cause the existence of their intent with respect to parting with their ultimate right of property or right to possession thereof. We do not know what evidence they might have presented. For all we know, Sampsons, or Luckeys, might have presented evidence completely refuting that on which the majority relies for its result. At the time this suit was commenced, neither Sampsons nor Luckeys would have been barred by the statute of limitations from prosecuting an action to recover the disputed strip or the possession thereof. We have no way of knowing what evidence they might have marshalled in support of such an action.
Because of the failure of the plaintiffs to join Sampsons and Luckeys, or their successors if any, I would confine the decision in this case to decreeing that, as between these plaintiffs and these defendants, plaintiffs have the better title and that they are, therefore, entitled to have a decree that the defendants and anyone claiming under them are forever barred from asserting any interest in the disputed tract. 4 1 cannot agree to affirming a trial court decree that bars the Sampsons and Luckeys from asserting that plaintiffs acquired less than all of the constituent elements of “Complete Title” to the disputed strip.
On January 1, 1980, ORCP 2 became effective and provides:
“There shall be one form of action known as a civil action. All procedural distinctions between actions at law and suits in equity are hereby abolished, except for those distinctions specifically provided for by these rules, by statute, or by the Constitution of this state.”
Of course, for the purposes of defendants’ counterclaims, defendants here are the “plaintiff’ within the meaning of the statute.
ORS 12.010 provides:
“Actions shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where a different limitation is prescribed by statute.”
In this case I give defendants nothing that would flow from the quitclaim deed from Sampsons to defendants’ grantor and the possible passing of after acquired title to defendants from that grantor. The quitclaim deed was not given until after defendants filed their first answers and counterclaims. They each, as time went by, filed amended answers and counterclaims, but those related back to the original answers and counterclaims. No supplemental, as distinguished from amended, pleadings were filed to take advantage, if any there be, of the quitclaim deed.