ROHNER ET UX v. Neville

ON PETITION FOR REHEARING

COODWIN, J.

In a petition for rehearing, the defendant contends that we erred in upholding the plaintiffs’ claim of *43 adverse possession because the disputed lands were registered under the Torrens system, and accordingly were not subject to adverse possession.

The transcript and exhibits reveal that the disputed lands were originally patented in 1864. The first conveyance was recorded in the Linn County deed records in 1872. Thereafter in 1908 a predecessor in title of the defendant registered certain lands under the then new Torrens system of registration, now described in ORS 94.005 to 94.990. The registration purported to include the lands presently in dispute.

ORS 94.220 provides that after land has been registered, no estate or interest therein may be acquired by adverse possession. The defendant contends that this statute automatically defeats the plaintiffs’ case without the necessity of considering the evidence.

The fatal weakness in the defendant’s present argument is that it was never presented in the trial court. There is nothing in the record from which we could make a finding that the disputed lands were not adversely possessed before 1908, in which case they would not have been subject to registration. For all the record shows, the lands presently in dispute could have been acquired by adverse possession at any time prior to 1908 by one of the plaintiffs’ predecessors in interest. In our original opinion, there was no need to carry adverse possession further back than the ten years immediately preceding the 1950 flood. There may have been many years of adverse possession prior to the flood.

The record leaves the various positions of the river channel, the possession of the disputed lands, and the geographical relationship thereof to other nearby lands in the realm of speculation. It is just as possible that the disputed lands were being farmed by landowners *44 on the west, or Benton Connty, bank of the river in 1908 as by landowners on the east, or Linn County bank. If such were the case, then the Torrens Act would have had no effect on the lands in dispute. The reason the record is in this uncertain condition is that no issue was ever presented to the trial court concerning the effect of OPS 94.220, and accordingly no evidence was taken on the various questions which might have been raised thereby.

The defendant met the plaintiffs’ assertion of adverse possession by a denial and by proof of the defendant’s paper title. The defendant also introduced evidence attempting to show that the possession by the plaintiffs’ predecessors was less than adverse, that it had not existed for the necessary period immediately preceding the filing of the suit, and that the defendant had paid taxes to Linn County. The trial proceeded along the lines indicated by the issues thus made up. It very well may have been possible for the plaintiff to have proved facts showing the geographic relationship of the disputed lands with other relevant lands in 1908 and the possession thereof at all relevant times if the defendant had mentioned his present theory in the trial court.

The defendant’s plight illustrates the necessity of presenting one’s theory of recovery or defense in the trial court. The failure to raise the Torrens title question below produced a record on appeal which is devoid of useful evidence upon which the statute could be said to be applicable or inapplicable.

We do not consider on appeal contentions which were not presented below. Broyles v. Northwest Portrait Finishers, 73 Adv Sh 1039, 229 Or 427 , 367 P2d 403 ; Warren et ux v. Parsons et ux, 224 Or 605, 609 , 356 P2d 953 ; Kuchta v. Western Oldsmobile, Inc., 224 Or *45 50, 56 , 355 P2d 458 ; Van Natta v. Nys and Erickson et al, 203 Or 204, 217 , 278 P2d 163 , 279 P2d 657 . A fortiori, a point raised for the first time in a petition for rehearing is not timely. In re Shepherd’s Estate, 152 Or 15, 45 , 41 P2d 444 , 49 P2d 448 .

The petition for rehearing is denied.