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Zambrotto v. Superior Lumber Co. - 167 Or. App. 204, 4 P.3d 62 (2000)

Rule:

In establishing a common-law claim of adverse possession, the requirement of actual use is satisfied if the party claiming possession establishes their 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.

Facts:

Plaintiff landowners and defendant lumber company both claimed ownership of a five acre parcel of land. Plaintiffs initiated the action to quiet title, arguing that they had acquired the parcel by common law and statutory adverse possession. The trial court found that the use of the property from 1928 to 1968 established all of the requisite elements of adverse possession and it entered judgment quieting title accordingly. Defendant appealed.

Issue:

Did the possession of the property for 20 years establish all the elements of adverse possession?

Answer:

No.

Conclusion:

The court reversed, finding that the evidence was insufficient to establish all the requisites of acquiring property by adverse possession. Given the nature of the property and the scant evidence of its use, the occasional maintenance of a partial fence by plaintiffs was insufficiently "open and notorious" to put defendant on notice that a title challenge was being mounted.

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