Johnson v. State

423 P.2d 964, 418 P.2d 509, 245 Or. 618

• Court: Oregon Supreme Court
• Decided: February 15, 1967
• Status: Published

Opinions

SLOAN, J.

This is a suit to determine the title to 240 acres of timber land in Lañé county. The state claimed title to the land by virtue of a deed from Lane county following a tax foreclosure in 1943. The state also claimed by adverse possession. Plaintiffs alleged that the tax foreclosure proceedings were null and void because the required statutory notice of the proceedings were never given to plaintiffs as the true owners of the property and that the state, therefore, has no title to the property. They deny that the state can acquire title by adverse possession. The trial court concluded that the tax proceedings were valid. The court also found that the state had held adversely, but could not acquire title by that process because until 1959 no cause of action was available to plaintiffs by which the state could have been ousted. We think the state did and could acquire adversely and, therefore, we will not consider the foreclosure proceedings.

Before proceeding to state the reason for our decision, we call attention to the specific two year statute of limitation directed at tax foreclosure proceedings, Section 110-920 OCLA when this foreclosure was instituted, now ORS 312.230. Neither party has mentioned the statute and because of our decision we will not decide if that two year limitation applied to this case. Elliott v. Clement, 1944, 175 Or 44, 149 P2d 985, 151 P2d 739.

The authorities are uniform that the state can acquire title by adverse possession. 6 Powell, Real Property, 1965, § 1020, page 738; 5 Thompson, Real Property, 1957 Replacement, § 2555, page 586; 4 Tiffany, Real Property (3rd ed 1939) § 1154, page 456. A case note at 26 Wash L Rev 231, collects most of the cases.

The case most frequently cited is Stanley v. Schwalby, 1893, 147 US 508, 13 S Ct 418, 37 L ed 259. The Supreme Court, in that case, held that it was not necessary for the government to be amenable to suit in order for it to acquire title in this way. Some courts have held that unless the particular sovereign can be sued, adverse possession will not attach. This has not been taken to include, however, the eases in which a cause is allowed against an agent of the state. See reference to Tiffany, supra, § 1154. However, our own court in Stephenson v. Van Blokland, 1911, 60 Or 247, 255, 118 P 1026, specifically ruled that the state could acquire by prescriptive right. Salem Mills Co. v. Lord, 1902, 42 Or 82, 69 P 1033, 70 P 832, recognized the right of the state to acquire but, in that case, held that the state had not been notoriously in possession for the required time. The Salem Mills case, in an exceptionally fine analysis by Mr. Justice Wolverton, held “[That] if the state is absolutely without title, and the plaintiff can show that it has a good title, it is impossible that the state could rightfully or lawfully authorize the defendants to possess, control, or utilize the property involved, and their authority must therefore fail.”, and that a cause of action alleging such facts will, therefore, lie against agents of the state. 42 Or at pages 95 and 96.

Thus, plaintiffs present allegations, if true, would have sustained an action against the agents of the state claiming possession prior to the expiration of the 10 year statute of limitations: assuming that the limitation of Section 110-920 OCLA did not apply.

In the instant case we agree with the trial court that the state held the property in actual, open, notorious, hostile, continuous and exclusive possession in respect to the kind of property involved and for its uses. We think the record convinces that the state held property and occupied it “* * * as would the ordinary owner of the same type of land, taking into account the uses for which the land was suitable.” Norgard et al v. Busher et ux, 1960, 220 Or 297, 304, 349 P2d 490, 494, 80 ALR2d 1161, 1167. The state utilized the land as it did other forest lands to the same extent as any owner of large forest acreage would do. It was held in typical land management. And, for all needed purposes, the state was in complete control and possession, not challenged in any way by these plaintiffs and in the same manner as the state “* * * would evince a purpose to hold dominion over the land * * as it would over any of its other similar lands. 4 Tiffany, Real Property, supra, § 1142, at 425. The state has established its right to the property by adverse possession and for that reason the case is affirmed.