Timber Service Co. v. Ellis

Citations: 163 Or. App. 349; 988 P.2d 396; 1999 Ore. App. LEXIS 1705Docket: 95-2198; CA A98287

Court: Court of Appeals of Oregon; October 13, 1999; Oregon; State Appellate Court

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Plaintiff filed a lawsuit to quiet title and seek damages for timber trespass regarding a disputed five-acre parcel in rural Linn County. Defendant counterclaimed for adverse possession of the same parcel. The trial court dismissed the counterclaim and ruled in favor of the plaintiff, awarding damages and attorney fees. Defendant appealed, claiming the trial court incorrectly rejected his counterclaim and wrongly awarded attorney fees.

Plaintiff acquired the property in 1957 and managed it as timber land, while the northeast corner bordered land historically owned by the Ellises since the 1930s, who fenced and utilized the disputed parcel. In 1976, the Ellises transferred the ranch to defendant, but the conveyance did not include the disputed parcel, and there was no evidence of intent to transfer it. Defendant mistakenly believed his grandparents intended to include the parcel in the 1976 transfer and subsequently cut down 12 trees on it, leading to this lawsuit.

Plaintiff’s complaint sought a declaration of ownership for the disputed parcel, claiming entitlement to treble damages under ORS 105.810 but only seeking $4,000 plus costs and attorney fees under ORS 20.080. In response, defendant alleged ownership through his grandparents' adverse possession. At trial, plaintiff moved for dismissal of the counterclaim, arguing a lack of supporting evidence, which the court granted. The court then quieted title in favor of plaintiff and awarded damages of $3,606, along with attorney fees, despite defendant's objections regarding the applicability of ORS 20.080. On appeal, the court reviewed whether defendant presented a prima facie case for his adverse possession claim.

To succeed in an adverse possession claim, a party must demonstrate actual, open, notorious, exclusive, continuous, and hostile possession of the property for a period of ten years. In this case, the defendant failed to provide evidence of having used the disputed parcel for the required duration and does not contest this point. Instead, the defendant claims that his grandparents met the criteria for adverse possession before conveying the ranch to him, intending to include the disputed parcel. However, the plaintiff argues that the grandparents only transferred the ranch without mentioning the disputed parcel, creating no privity between the defendant and his grandparents regarding the disputed property.

The doctrine of "tacking" allows a subsequent possessor to combine their possession with that of a prior possessor if privity exists between them. Privity is established when there is an understanding that the rights to the property will be transferred. While a written conveyance is not required, evidence of an intent to transfer is necessary. The court has recognized that a grantor’s adverse use of property for less than ten years can still lead to a transfer of interest if there is intent.

In this situation, the critical issue is whether the Ellises intended to transfer any rights they may have gained through adverse possession of the disputed property to the defendant. The record shows no evidence of such intent; the deed transferring the ranch makes no mention of the disputed parcel, and there are no documented discussions indicating an intention to transfer any rights related to it. Consequently, there is no privity regarding the disputed parcel, and the defendant cannot claim any adverse possession based on his grandparents' prior use.

Defendant claims that his grandparents adversely possessed the disputed land by the 1950s, prior to the plaintiff's acquisition, asserting that the Ellises should be recognized as the rightful owners. However, since the grandparents are not parties in this case, the court cannot determine their rights. The court upholds the trial court's decision to dismiss the defendant's adverse possession counterclaim, as it found the defendant's interest insufficient. Consequently, the court rejects the defendant's subsequent claims that the trial court erred in quieting title for the plaintiff and awarding damages for timber trespass, as these claims hinge on the success of the adverse possession argument. 

Additionally, the defendant challenges the award of attorney fees, arguing that the $4,000 cap under ORS 20.080 has been exceeded. Plaintiff contends that the statute only caps the amount of damages pleaded, not attorney fees or costs. The court interprets ORS 20.080, affirming that the "amount pleaded" refers solely to damages, which aligns with the statute's language and legislative context. Historical interpretations of similar statutes support this reading, indicating that costs and attorney fees are not included in jurisdictional calculations. The court concludes that the trial court did not err in awarding attorney fees under ORS 20.080. The decision is affirmed.