DO WE DETECT SOME HOSTILITY HERE?
We all know the mantra of adverse possession — in order to establish that a party has obtained title to land pursuant to adverse possession, a party has to show that its possession of the land has been open, notorious, exclusive and hostile continuously for a period set by statute (from five to 21 years, depending on state law).
We all have notions of what “hostile” means, and often real life isn’t like that. In today’s case, a small cemetery association had been using a gravel road it had gotten the right to by a poorly-drafted easement in an 1880 deed (the year James Garfield became president). The people who remembered the easement was there were still nearby, although about 6 feet deeper in the ground than they had been back when it was first written.
The cemetery association had been dumping dirt on the land next to the easement, but it stopped when next-door landowner Calvin Coyer asked them to, because they wanted to be “good neighbors.” No hostility there. But they still parked cars next to the gravel road, even while giving Cal permission to graze his herds there. But when the Association was finally compelled to sue to quiet title under the doctrine adverse possession, Cal argued that nice guys finish last.
Because the Association always thought it owned the property, Mr. Coyer argued, it couldn’t have possibly possessed the land with any hostility. Not so, the Court of Appeals said. The “hostility” element of the doctrine of adverse possession is satisfied where the possessor thinks he or she owns it, or where he or she knows someone else owns it but intends to possess it anyway.
Thus, Malcolm Forbes was right! “Contrary to the cliché, genuinely nice guys most often finish first or very near it.”
Union Cemetery Ass’n of Crawfordsville v. Coyer, 162 P.3d 1072 (Court of Appeals of Oregon, 2007). The Union Cemetery Association operated a 3.69-acre cemetery surrounded by Calvin Coyer’s 81 acres of grazing land. Coyer’s land connects the cemetery to a 28-foot wide roadway that, in turn, connects to a public road by means of a 14-foot wide gravel road.
The 100-year old gravel road provides the only access from the public road to the cemetery. The Association received a deed in 1880 for a “right of way for a wagon road” as to a portion of the gravel road in 1880 and to another parcel of property. In the final sentence of the deed, the grantors stated that they “hereby relinquish and quitclaim all our right, title and interest in said premises.” However, the sentence did not specify whether the described “premises” included the “right of way” which became the gravel road or whether the “premises” consisted solely of the other property conveyed under the deed.
Before Coyer acquired the land in 1991, the Association piled dirt on the lot. Coyer asked the Association to stop doing so, and the Association complied, even posting a sign that prohibited dumping. Association members believed the Association owned the subject property and, as a good neighbor, the Association gave Coyer permission to corral cattle and park farm equipment on the property in a way that did not conflict with the use of the road by cemetery traffic.
Inevitably, a dispute arose, and the Association filed an action for quiet title, seeking a declaration that it owned the entire subject property in fee simple based on either a conveyance or adverse possession. After trial, the court found that, by virtue of the 1880 deed, the Association held title to an 18-foot roadway, and owned the remaining 22-foot width of the subject property by adverse possession or, in the alternative, that plaintiff had established an easement by prescription over the entire subject property. Coyer appealed, challenging the conclusion that the Association’s possession of the land was hostile.
Held: The Association owned the land by adverse possession. The Court noted that in an adverse possession action, a party seeking to establish ownership by adverse possession must prove by clear and convincing evidence that, for a 10-year period, it or its predecessors maintained actual, open, notorious, exclusive, hostile, and continuous possession of the property.
The requirement for actual use is satisfied if the plaintiff establishes a use of the land that would be made by an owner of the same type of land, taking into account the uses for which the land is suited. A use is “open and notorious” if it is of such character as to afford the owner the means of knowing of the use and the adverse claim. A use is “hostile” if the plaintiff demonstrates a subjective intent to possess the property, intending to be its owner and not in subordination to the true owner.
To establish hostility, an adverse possession claimant must show either that its possession of the disputed property was under an honest but mistaken belief of ownership, or that the possessor subjectively intended to possess the property intending to be its owner. Here, the Court ruled, the testimony of the Association’s board members that they believed the Association owned the 40-foot strip of land, but as a good neighbor, gave Coyer permission to corral his cattle and park farm equipment on the strip in a way that didn’t conflict with the Association’s use of the road for cemetery traffic, was sufficient to show that the Association believed — even if mistakenly — that it owned the property. That established hostility for purposes of the adverse possession claim.