Background
Highlander Farms, LLC and Kimberly L. Savery own neighboring properties. Savery’s family had owned its property since 1956, when her grandmother purchased it and the family installed a fence after discussing the boundary with Highlander Farms’ predecessor. Evidence showed that the neighboring owners agreed the fence would mark the property line, although its irregular course enclosed part of the legally described Highlander Farms property on Savery’s family’s side.
For decades, Savery’s family treated the disputed strip as its own, using it for farm animals and children’s play and mowing and weeding up to the fence. Highlander Farms bought the neighboring property in 2013, and Savery acquired her family’s property in 2015. Highlander Farms sued in 2022 to eject Savery from the strip; after a bench trial, the circuit court rejected the ejectment claim and granted Savery’s adverse-possession counterclaim.
The Court’s Holding
The Oregon Court of Appeals affirmed, declining Highlander Farms’ request for de novo review and accepting trial-court findings supported by the evidence. It held that sufficient evidence supported a clear-and-convincing finding of hostile possession: the predecessors agreed that the fence marked the boundary, and Savery’s family exclusively maintained and used the enclosed land as its own for decades. The fence’s irregular shape did not legally foreclose a subjective claim of ownership, and the evidence did not compel a finding that the family’s use was merely permissive.
The court also upheld the findings of continuous possession and privity. The strip had been enclosed since the 1950s and used and maintained in a manner expected for that type of land, including evidence that a milk cow remained within it for 10 consecutive years. To the extent tacking was necessary, evidence showed that Savery acquired the property believing she was buying everything her grandmother had owned, including the land extending to the fence. Even if the claim vested after 1990, the evidence also supported an honest and objectively reasonable belief of ownership.
Key Takeaways
- An irregular fence may support adverse possession when the evidence shows that adjoining owners agreed it marked their boundary and treated it that way.
- Continuity depends on the use reasonably expected for the type of land; decades of enclosure, maintenance, and use for farm animals supported the finding here.
- Privity for tacking may be established by an understanding that possession of the disputed land transfers with the property, even without a specific conversation about the disputed strip.
Why It Matters
The decision illustrates how longstanding conduct surrounding a fence can outweigh a surveyed boundary in an adverse-possession dispute. Evidence about why a fence was built, how successive owners understood it, and how the enclosed land was actually used may establish hostility, continuity, and privity by clear and convincing evidence.
The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may not be cited except as permitted by ORAP 10.30(1).