Chapter § 60.3 RESOLVING DISPUTES BY LITIGATION

• Jurisdiction: Oregon

§ 60.3 RESOLVING DISPUTES BY LITIGATION

§ 60.3-1 Remedies Briefly Listed

Oregon law provides several methods to resolve boundary disputes by judicial determination:

Suit to Quiet Title: This is often the most complete means to clear the title of the land affected by the disputed boundary. See O'Hara v. Brace, 258 Or 416, 482 P2d 726 (1971) (involving accuracy of survey); Norgard v. Busher, 220 Or 297, 349 P2d 490 (1960) (involving misplacement of fence); Kingsley v. Jacobs, 174 Or 514, 149 P2d 950 (1944) (involving change in riverbed); Reeves v. Porta, 173 Or 147, 144 P2d 493 (1944); Cooley v. Henderson, 112 Or 258, 228 P 923 (1924); McCully v. Heaverne, 82 Or 650, 160 P 1166 (1916), reh'g den, 162 P 863 (1917); Kitzerow v. Reinhardt, 74 Or App 582, 704 P2d 132 (1985) (adverse-possession claim based on planting timber); Wilt v. Endicott, 68 Or App 481, 684 P2d 595, rev den, 297 Or 824 (1984); Dick Felix, Inc. v. Gillette, 57 Or App 716, 646 P2d 629, rev den, 293 Or 483 (1982) (involving a fence). For further discussion of suit to quiet title, see chapter 61.

Suit Brought under ORS 105.705 to 105.725: This is a special statutory method of resolving boundary problems. See Purvine v. Hathaway, 238 Or 60, 393 P2d 181 (1964) (accretion of river); Jensen v. Westenskow, 225 Or 189, 357 P2d 383 (1960). See also § 60.3-3 to § 60.3-3(c). It includes a procedure for determining the location of public land survey corners in boundary actions that involve public land survey corner locations. The procedure requires the appointment of three disinterested professional land surveyors to serve as commissioners. ORS 105.718(1).

Ejectment: A disputed boundary line has often been the central issue in an action of ejectment. See Mekulich v. Liddycoat, 268 Or 160, 519 P2d 378 (1974); Comer v. Roberts, 252 Or 189, 448 P2d 543 (1968); Pubols v. Jacobsen, 91 Or 256, 177 P 629 (1919); Gallagher v. Kelliher, 58 Or 557, 114 P 943, reh'g den, 115 P 596 (1911) (involving unsubstantiated surveyor's opinion); Morse Bros., Inc. v. Wallace, 78 Or App 138, 714 P2d 1095, rev den, 301 Or 165 (1986) (change in riverbed). However, an ejectment action does not always lead to a clear determination of the title to the land. Compare Hoover v. King, 43 Or 281, 286, 72 P 880 (1903), with Comer, 252 Or at 190-91. If title to a disputed strip is adjudicated in an ejectment action, the judgment is conclusive of the title not only of the defendant but also of those claiming under the defendant by reason of any conveyance executed after that judgment. Carroll v. McLaren, 60 Or 233, 240, 118 P 1034 (1911). For further discussion of ejectment, see chapter 61.

Injunction: The early Oregon Supreme Court was reluctant to permit a suit to enjoin a trespass to metamorphose into a boundary-line dispute. See Hume v. Burns, 50 Or 124, 127-28, 90 P 1009 (1907). In Summers v. Holder, 254 Or 180, 185, 458 P2d 429 (1969), however, the court resolved the dispute by setting forth the principles on which the boundary lines should be adjusted and directed the lower court to establish the boundary accordingly. See Joy v. Palethorpe, 77 Or 552, 152 P 230 (1915); Crandall v. Mary, 67 Or 18, 135 P 188 (1913) (both suits to enjoin trespass and to quiet title in which court did not question its ability to settle disputed boundary line); see also Winthers v. Bertrand, 239 Or 97, 396 P2d 570 (1964) (plaintiff successfully sought decree that encroaching building caused by boundary dispute be removed).

Reformation of Deed: Either the plaintiff or the defendant may ask the court to reform a deed to resolve a boundary dispute. See Summers, 254 Or 180 (defendant); Clark v. Hindman, 46 Or 67, 79 P 56 (1905) (plaintiff); Thiessen v. Worthington, 41 Or 145, 68 P 424 (1902) (plaintiff). See chapter 66 for discussion of the principles of reformation.

Suit by Purchaser to Rescind or Cancel a Land Sale Contract or Earnest-Money Agreement: A disputed boundary line may render the title to the whole parcel unmarketable and, in appropriate cases, give the purchaser the right to rescind a land sale contract. See Garland v. Shrier, 155 Or 387, 391-92, 64 P2d 530 (1937). The seller's misrepresentation of the location of a boundary line, even when innocently made, can be the basis of a judgment rescinding a contract. Joss v. Shodle, 262 Or 431, 433, 498 P2d 787 (1972); West v. Georgi, 91 Or App 566, 570, 756 P2d 61, rev den, 306 Or 661 (1988). See Heverly v. Kirkendall, 257 Or 232, 234, 478 P2d 381 (1970) (seller's implied representation of the location of the boundary gave the purchaser the right to rescind an earnest-money agreement when the true location resulted in an encroachment).

Action for Damages: A boundary dispute may be settled as part of an action for damages. For example, the plaintiff sought damages for breach of warranty in a deed in Ogilvie v. Stackland, 92 Or 352, 353-55, 179 P 669 (1919). The plaintiff recovered double damages for ripped-out rose bushes in an ejectment action based on a boundary dispute in Mekulich, 268 Or at 165.

Determination by Declaratory Judgment: The Oregon Uniform Declaratory Judgments Act, ORS 28.010 to 28.160, provides the court with broad authority to review not only the issues in a boundary-line dispute but also collateral issues. See ORS 28.010, ORS 28.020. Attorneys should consider requesting a declaratory judgment if litigation is necessary to solve a dispute on the placement of a boundary line.

Although no reported Oregon case resolves a boundary-line dispute by means of declaratory judgment, it appears that ORS 28.010 gives the court extremely broad authority to deal with such disputes. Under ORS 28.060, however, the court also has broad discretion to refuse to enter a declaratory judgment if the judgment would not terminate the controversy between parties to the litigation.

Any request for a declaratory judgment requires a definite and concrete justiciable controversy touching the legal relations of the parties having adverse legal interests. The controversy must be real and substantial, allowing for specific relief by a judgment of conclusive character. Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982); Cummings Const. Co. v. Sch. Dist. No. 9, Coos Cnty., 242 Or 106, 110, 408 P2d 80 (1965).

The Oregon Uniform Declaratory Judgments Act is sufficiently broad in its scope and objectives to make adjudication of title to real or personal property an appropriate subject for a declaratory judgment. In re Dahl's Estate, 196 Or 249, 254, 248 P2d 700 (1952); see ORS 28.010.

Boundary disputes have been resolved as incidental to other relief, for example, to determine the true dimensions of a parcel for the purpose of awarding compensation in a condemnation proceeding. Port of Newport v. Haydon, 4 Or App 237, 478 P2d 445 (1970), rev den (1971).

§ 60.3-2 Bases for Judicial Resolution of Boundaries

In general, the court will sanction a boundary line other than that described in the conveyance, based on five doctrines: (1) adverse possession, (2) acquiescence, (3) estoppel, (4) practical construction or practical location by the parties to a deed, and (5) parol boundary agreement. In Oregon, claims establishing a boundary by agreement, by acquiescence, or by practical location are indistinguishable, while adverse possession is sharply distinguished. Oregon courts prefer the term boundary by agreement. Hammack v. Olds, 93 Or App 161, 165 n 4, 761 P2d 541 (1988), rev den, 307 Or 303 (1989); Blaisdell v. Nelsen, 66 Or App 511, 514, 674 P2d 1208 (1984).

For this reason, acquiescence, agreement, and practical location are discussed together in § 60.3-2(b), and adverse possession and a true estoppel by specific representation and reliance are considered separately in § 60.3-2(a) to § 60.3-2(a)(3), and § 60.3-2(d). For further discussion of adverse possession, see chapter 12.

CAVEAT: In Gibbons v. Lettow, 180 Or App 37, 42 P3d 925 (2002), the Oregon Court of Appeals corrected the comment it had made in Hammack that the theories of boundary by agreement and boundary by acquiescence are indistinguishable. The court noted that this comment in Hammack was "not quite correct." Gibbons, 180 Or App at 46 n 2. The court referred back to Blaisdell and noted that boundary by agreement and boundary by acquiescence are in fact different doctrines. As described in Ross v. DeLorenzo, 65 Or App 586, 591, 672 P2d 1338 (1983), rev den, 296 Or 411 (1984), boundary by acquiescence allows courts to recognize a boundary even when the requirements of boundary by agreement are not present.

§ 60.3-2(a) Adverse Possession

The ownership of property to a given line can be established by adverse possession. Stout v. Michelbook, 58 Or 372, 375, 114 P 929 (1911); Gist v. Doke, 42 Or 225, 229-30, 70 P 704 (1902); see Terry v. Timmons, 282 Or 363, 578 P2d 405 (1978); Knapp v. Daily, 96 Or App 327, 772 P2d 1363 (1989); Dick Felix, Inc. v. Gillette, 57 Or App 716, 646 P2d 629, rev den, 293 Or 483 (1982). The elements of adverse possession as applied to boundary-line disputes are the same as those applied to the principle of adverse possession in general, and are codified at ORS 105.620. See chapter 12. The adverse-possession statute applies to "all claims for recorded title or for the recovery of possession of real property for which the interest vested and for which the claim is filed after January 1, 1990." Or Laws 1989, ch 1069, § 4, as amended by Or Laws 1991, ch 109, § 3.

§ 60.3-2(a)(1) The Statute (ORS 105.620)

The adverse-possession statute, ORS 105.620, codifies the common-law elements of actual, open, notorious, exclusive, hostile, and continuous possession for 10 years of the real property claimed, but also requires that the person claiming adverse possession (including any necessary predecessors in interest) had the "honest belief" that he or she was the actual owner of the real property when first entering into possession of it. ORS 105.620(1)(a)-(b). Such honest belief must have...