Sullivan v. Johnson

964 P.2d 270, 155 Or. App. 183, 1998 Ore. App. LEXIS 1233
CourtCourt of Appeals of Oregon
DecidedJuly 15, 1998
DocketCCV9510466; CA A96454
StatusPublished
Cited by1 cases

This text of 964 P.2d 270 (Sullivan v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sullivan v. Johnson, 964 P.2d 270, 155 Or. App. 183, 1998 Ore. App. LEXIS 1233 (Or. Ct. App. 1998).

Opinion

HASELTON, J.

Plaintiff appeals from a judgment in which the trial court partially granted plaintiffs claim for adverse possession, denied plaintiffs request to establish a boundary pursuant to ORS 105.705, and awarded defendants damages for trespass. We affirm in part, reverse in part, and remand.

The parties dispute ownership of an area of land that extends in some places more than 10 feet west of the boundary described in their deeds. Plaintiff asserts that she and her predecessor in interest adversely possessed the disputed land. Defendants contend that plaintiff has not satisfied the elements of adverse possession and counterclaim for trespass and ejectment.

On de novo review, ORS 19.415(3); see, e.g., Davis v. Parke, 135 Or App 283, 285, 898 P2d 804, rev den 321 Or 560 (1995), we find the following facts: Plaintiff, Barbara Sullivan, and defendants, Robert and Annette Johnson, own contiguous pieces of property on Autumn Lane in the Broadview Annex subdivision on Mt. Hood. Plaintiffs property is directly west of defendants’ property. Between 1972 and 1974, defendants built their house on lot 1700 of Broadview Annex. From 1974 to 1984, defendants used the house recreationally, for weekends and longer visits during some summers. Since 1984 defendants have used the property exclusively as a rental, although they visit the property from time to time.

In 1973, plaintiffs predecessor in interest, Wendell Mason, built a house on lot 1800 of Broadview Annex. As built, the house had a garage attached to its east end (“old garage”). Sometime before 1975, Mason added a concrete parking pad in front of the old garage. In 1974 and 1975, Mason added a woodshed (“old shed”) to his property. The old shed had as its west wall the old garage. As originally built, the old shed was open in front and behind. Its roof was corrugated plastic, and its east side was covered with plastic sheeting. Mason used the old shed to store wood. At undetermined times between 1975 and 1985 the east side of the old shed was improved: first the plastic sheeting was replaced with corrugated plastic, then later with T-lll siding. Also at [186]*186some time during that decade, T-lll siding was added to the front of the old shed. At some time after plaintiff purchased the house in 1985, she replaced the T-lll siding on the front of the old shed with a garage door.

Within a year of building the old shed, Mason put down gravel in front of the old shed. He did so because his visitors would park there and sometimes would get stuck in the mud when the weather was bad. Several witnesses had parked on the gravel in front of the old shed. In particular, Mason’s sister, Nadene Duffield, who visited Mason regularly and took care of the house between his death in 1982 and the sale of the house to plaintiff in 1985, nearly always parked her car on the gravel. She parked her entire car on the gravel, not part on the gravel and part on the concrete pad. Another witness—who frequently visited Mason, and later Duffield, for the weekend—and her husband treated the gravel parking area in front of the old shed as “their spot.” There was sufficient room for this couple’s entire Chevrolet Blazer on the gravel. When getting out of the Blazer on the passenger side, there was sufficient additional room to walk on the gravel. That witness estimated that the gravel extended eight to 10 feet east of the concrete parking pad. Plaintiff, her family members and guests have regularly used the gravel area in front of the old shed for parking. Often one car would be parked on the concrete pad while another car would be parked alongside it on the gravel in front of the old shed.

This dispute arose in 1993, when plaintiff added a “new shed” onto the east side of the old shed. In October 1993, defendants informed plaintiff that they believed that not only part of the new shed, but also part of the old shed, encroached onto their property. That was plaintiffs first notice that she might be using property not described in her deed.

In October 1995, plaintiff filed a complaint to establish a boundary between her property and defendants’ pursuant to ORS 105.705.1 In March 1996, she amended her [187]*187complaint to include a claim for adverse possession. In her amended complaint, plaintiff alleged that she and Mason had adversely possessed2 a strip of land bounded on the west by the actual boundary and on the east by a parallel line 10 feet from the actual boundary. Defendants counterclaimed for trespass, seeking damages of $5,000 for plaintiffs alleged encroachment on the disputed area, and ejectment, seeking a judgment of ejectment of plaintiffs allegedly encroaching structures.

On October 29 and 30,1996, the case was tried to the court. At the close of plaintiffs evidence, plaintiff moved to amend the complaint to conform to the evidence. Under the resulting second amended complaint, plaintiff modified the description of the allegedly adversely possessed area. The modified area was a triangular piece of land. The first leg of the triangle ran from the southeast corner of lot 1800, on Autumn Lane, to the northeast corner of lot 1800, on the Sandy River. The second leg of the triangle ran from the northeast corner of lot 1800 to a point on Autumn Lane, intersecting a point 10 feet east of the southeast corner of the old shed and continuing south to Autumn Lane. The base of the triangle ran from the southeast corner of lot 1800 to where the second leg intersected Autumn Lane.

The following map generally illustrates the disputed area, with reference to the parties’ contentions and the trial court’s ultimate disposition:

[188]*188On January 30, 1997, the trial court entered a judgment:

“1. The encroachment of the [old shed] establishes adverse possession of that portion of the defendants’ property together with an easement to enter onto defendants’ property to maintain the woodshed.[3]
“2. The use of the parking area in front of the [old shed] establishes adverse possession of that portion of defendants’ property from the southeast corner of the woodshed parallel to the boundary line of Lots 17[00] and 18[00], Broadview Annex, to its intersection with Autumn Lane. Plaintiff shall obtain a survey of the new property boundary line between Lot 17[00] and Lot 18[00] at plaintiffs expense and in accordance with the new boundary line as defined herein. The parties may enter a Supplemental Judgment to include the actual surveyed legal description of the new boundary line * * *.
“3. The gravel drive and landscaping brickwork placed on defendants’ property in 1993 shall be removed by the plaintiff at her expense and the property restored to its natural state.
[189]*189“4. Plaintiffs request to establish a boundary under ORS 105.705 is denied.
“5. Defendants are awarded nominal damages in the amount of $1,000 together with their costs and disbursements.”

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Cite This Page — Counsel Stack

Bluebook (online)
964 P.2d 270, 155 Or. App. 183, 1998 Ore. App. LEXIS 1233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-johnson-orctapp-1998.