Adverse possession in Oregon: the belief-in-ownership requirement.

In 1989, the Oregon legislature added a stringent belief-in-ownership requirement to adverse possession law. This Comment examines the relevancy of an adverse claimant's belief in ownership. The intended beneficiaries of the statute are large rural landowners who cannot keep close watch on encroaching neighbors. However, the statute will have the greatest impact on adverse claimants who had been in some sort of legal relationship with the true owner--an impact the legislature did not intend. Also, the belief-in-ownership requirement does not comport with the idea that adverse possession is designed to assure the landowner's diligence. Finally, the new requirement places too much burden on an adverse claimant who makes lasting investments on the property.

I. INTRODUCTION

Adverse possession law allows wrongful and unpermissive possession to become title ownership through the passage of time, acts of the claimant, and inaction of the landowner. A claimant gains title because she has justifiably relied on the true owner's failure to eject her while she made obvious and lasting investments. The wrongfulness of her conduct diminishes in light of the titleholder's complete failure to act.

The wrongful occupant's possession must be open, notorious, hostile, continuous, exclusive, and, in Oregon, under a "claim of right" for ten years.(1) Claim of right is the intent to possess as an owner without recognizing the record owner's rights.(2) A claimant generally establishes such intent through objective acts of ownership.(3) The majority of states disregard the claimant's actual belief in ownership.(4) A claimant's good faith belief in ownership is irrelevant to the underlying policies of adverse possession--"assuring maximum utilization of land, encouraging the rejection of stale claims and, most importantly, quieting titles."(5) Further, there is no need to establish a claimant's belief in ownership when a successful claimant's actions must be so open and notorious as to give ample notice to a record owner, thereby avoiding any possibility of fraud.(6) Because adverse possession law focuses on the adequacy of notice of an adverse claim given to the record owner and her subsequent inaction, an inquiry into a claimant's belief in ownership is immaterial.

Despite this strong current in adverse possession law, the Oregon legislature has decided to row upstream. In 1989, the legislature added a stringent and detailed belief-in-ownership element to the law.(7) Of the few states that require good faith claims, Oregon now enforces the most rigorous of standards. Not surprisingly, no adverse possession claim filed after the statute's effective date, January 1, 1990, has proceeded to the appellate courts. Oregon's belief-in-ownership requirement goes beyond mere absence of fraud.(8) The statute demands that the belief exist at entry and continue through the statutory period.(9) The belief must have an "objective basis" and be "reasonable under the circumstances."(10)

In this great departure from established adverse possession law, the motivation of the Oregon legislature seems clear. The legislature believed the time had come to "restore" a good faith element that had been "interpreted away" by the courts.(11) However, the statute's promoters misunderstood Oregon adverse possession law. The advocates sought to end the possibility of mere "squatters" obtaining title to land. They wanted to protect the "friendly neighbor" and the "honest landowner" from wrongful incursions.(12) Adverse possession cases involving knowing encroachments, however, are so rare in Oregon that it is difficult to understand the concern. This Comment illustrates how the ultimate effect of the legislature's good intentions may be felt in areas never considered.

The new statute places a higher burden of proof on the adverse claimant. Traditionally, the courts required the landowner to disprove the claimant's requisite hostility once the claimant proved objective acts of ownership.(13) Under the new statute, however, the claimant must prove by clear and convincing evidence that she actually believed she owned the land she possessed.(14)

Some components of the belief-in-ownership requirement are facially troubling but may be toned down by the courts with reasonable interpretation. Other components portend inevitably harsh results for claimants. The drafters and promoters of the 1989 statute failed to consider how it might apply to situations besides that of the bullying neighbor who knowingly occupies property belonging to an adjoining landowner.

It might have been impossible for the legislature to frame a good and fair belief-in-ownership element. Perhaps, however, the concept is simply inappropriate because it places too much emphasis on what the potential adverse possessor is thinking and not enough emphasis on what the landowner is doing. Section II explores the merits of good faith belief in ownership as debated by courts, theorists, and the Oregon legislature. Section III surveys the role belief has played in adverse possession cases prior to the statute. Section IV analyzes the statute's components and underlying presumptions, and suggests how the courts may interpret them. Section V then explains why Oregon's belief in ownership requirement is unwarranted, ineffective, and unfair.

II. THE PROS AND CONS OF A GOOD FAITH REQUIREMENT

Essentially, the debate over a belief-in-ownership requirement centers on what should be the goals of adverse possession. If the goals are to clear land titles and bar untimely claims of landowners who sit on their rights, good faith is irrelevant. If the goal is to reward with title those who work the land, perhaps only good faith possessors warrant reward. One Oregon Representative asserted that with changing concepts of land use and better surveying techniques, the emphasis in determining ownership is no longer occupancy but rather the surveyed line.(15) Why good faith should play a role in this evolution is debatable. The Oregon legislature believed that a good faith requirement better reflected the realities of what goes on between friendly neighbors. But given the notice requirements of adverse possession and the ease by which a landowner can establish a permissive relationship, the good faith argument misses the mark, ignoring the landowner who is derelict in her duties to look after her property.

States whose adverse possession statutes require good faith do not have a uniform definition of good faith. Some define good faith as merely lacking a design to defraud the true owner.(16) Others go further and insist that the claimant have an affirmative belief in ownership of the property.(17) Because Oregon has adopted the belief-in-ownership definition, this analysis will use that definition in weighing the strengths and weaknesses of a good faith requirement. This Section analyzes the merits of a belief-in-ownership element in adverse possession law in terms of relevancy to the purposes of the law, fairness, the difficulty a belief element poses for courts, and changing concepts of land use.

A. Relevancy to the Purposes of Adverse Possession Law

Opponents of a belief requirement argue that such an assessment is irrelevant because adverse possession results simply from the running of the statute of limitation for ejectment.(18) An inquiry into a claimant's belief seems moot where the goals of the law are to free the courts from stale claims and prevent a negligent landowner from unsettling the status quo.

However, adverse possession does more than end stale claims. By conferring title to the claimant, adverse possession rewards one who makes use of land.(19) Therefore, an inquiry into a claimant's belief is relevant to prevent the rewarding of one who knows the property belongs to another.

Thus, the debate over relevancy of the belief requirement is really a debate over how the law should weigh the goals of adverse possession. Subsections B through D delve more into these value judgments. In response to the proponents' concern over rewarding wrongdoers," however, opponents might assert that adverse possession is not the only means of rewarding an appropriator through the running of a statute. Conversion, for example, effectively gives title to a possessor of personal property after six years, regardless of her state of mind.(20)

B. Passing Title to a "Squatter"

A few cases from the good faith states hold that without a belief-in-ownership requirement, courts would be rewarding the mere squatter.(21) These courts fail to realize that squatters, by definition, could never acquire property through adverse possession because they lack a claim of right. A squatter occupies property in recognition of another's title with no intention of claiming title to it, whereas a successful adverse possessor must intend to claim title against the whole world, including the true owner.(22)

Of course, these courts use the term squatter to assert that one who knows title rests with someone else should not benefit from adverse possession. They never make clear, however, why the interests of an absent and negligent landowner should outweigh the interests of a claimant whose actual, open, notorious, and continuous possession has lasted for more than the statutory period. In Carpenter v. Ruperto, the Iowa Supreme Court held that to rule in favor of a squatter "would put a premium on dishonesty."(23) "Dishonesty," however, is another empty term chosen to prejudice the claimant. Certainly, dishonesty plays no part when a claimant gives notice to the record owner of her adverse claim through open and notorious acts of possession.(24)

The Iowa court does not explain its underlying policy for favoring a careless landowner over an adverse claimant who knew she was not the titleholder. An explanation is warranted because one who knowingly appropriates another's land, after a sufficient period of time, comes to rely on the lack of assertions of title in making lasting investments on the property.(25) Third parties rely on this status quo as well.(26) The court should make clear why mere knowledge of another's title should preempt a claimant whose open and notorious possession gave ample notice to an derelict landowner.

Professor R.H. Helmholz has argued for a belief-in-ownership requirement because courts and juries have increasingly insisted on it on grounds of "ethical norms" and "morality."(27) His assessment of the current direction of adverse possession law may be flawed because he often confuses a court's claim of right inquiry with the inquiry into a claimant's good faith.(28) Even if he is correct, his analysis fails to explain the moral basis for this alleged trend. The question remains: What is morally upsetting about a claimant who openly and notoriously, continuously, and hostilely uses another's land for an extended period of time with knowledge of the other's title? Helmholz concedes that "bad faith" has no necessary connection to hardness of heart or design to appropriate wrongfully"; nor does "good faith" necessarily connote "purity of heart."(29) Given this, it is difficult to imagine what a regular inquiry into claimants' beliefs would reveal about their moral standing to acquire land.

One scenario the Oregon legislature found to be particularly egregious is the case of the "friendly neighbor" who loses property after passively assenting to a neighbor's use of the property without giving formal permission.(30) The legislature believed it would be unjust to punish a landowner who is well aware of another's use of her property but hesitates to create animosity with her neighbor. The law should not reward a claimant who takes advantage of owners who are "just trying to be nice."(31)

Although the legislature intended to encourage the friendly neighbor,(32) the new law only encourages the foolish landowner and, ultimately, prejudices her interests more than it benefits them. A landowner may be neighborly by not contesting a neighbor's use of a tract of land; but if the landowner, through silence, fails to establish a permissive relationship which would trump the neighbor's later claim, the landowner also fails to determine the neighbor's belief as to ownership of the tract in question. By assuming another occupant knows the true title and thinking the law will protect him against an adverse claim, a silent landowner will be unpleasantly surprised to learn of the occupant's mistaken belief in ownership.

The friendly neighbor argument takes a slightly different form by focusing on the neighborliness of the claimant rather than the owner.(33) A claimant's occupation of property which she knows belongs to another might best be described as neighborly, or permissive, therefore lacking the requisite claim of right. This argument assumes all knowing incursions to be presumptively neighborly. Therefore, the law discourages any potential claimant from asserting ownership.

This argument asserts that a belief-in-ownership inquiry is valuable to show whether the claimant intended to occupy permissively, as a friendly neighbor, or mistakenly under a claim of right. The traditional means of establishing permissive use, however, are adequate to protect the landowner without relying on the friendly neighbor myth. Once the claimant proves the objective elements of actual, open, notorious, exclusive and continuous possession by clear and convincing proof,(34) the burden shifts, in most adjoining landowner cases, to the titleholder to prove a lack of requisite hostility by establishing that possession was permissive.(35) Yet, overcoming the presumption of hostility does not impose a great burden upon the landowner. Often, tacit permission suffices to preempt a claimant's stake.(36)

Further, in many cases the burden stays with the claimant to prove hostility, making her claim even more difficult. For example, the claimant has the burden of proof where a possession began as permissive, either because the two parties were initially in some sort of legal relationship,(37) such as vendor and vendee, or because a landowner initially accommodated a neighbor by permitting her to enclose part of her land.(38) The burden of proving hostility properly stays with the adverse claimant because she must overcome the original permissive character of the possession through more overt acts of ownership.

The Oregon legislature's fear that a kindhearted landowner might lose property to an opportunistic neighbor is unfounded given the ease of rebutting hostility in cases where the burden shifts to the landowner and the difficulty of overcoming permissiveness when the burden stays with the claimant. Requiring an owner to inspect her property once every ten years and make minimal assertions of ownership to whomever might have encroached is not particularly onerous.(39)

C. The Court's Dilemma: The Burden of Proving Belief

Although a belief-in-ownership requirement forces courts to directly consider a mental state which may lie hidden from a factual inquiry,(40) such an inquiry into a claimant's state of mind often occurs anyway because courts consider the claimant's intent in deciding whether the claim had the requisite adversity.(41) Intent and belief, however, pose different problems. Courts find the necessary intent to hold property as a landowner when the claimant has either orally expressed such an intent or possessed the property as would any other landowner.(42) A claimant's intent is more "susceptible to an effective factual inquiry"(43) and is determined by objective acts.(44) Belief, on the other hand, cannot be presumed from acts of ownership. Surely a claimant may intend to appropriate land as an owner without a belief that she actually has title to it.

Nevertheless, courts in states requiring a belief in ownership do engage in the fiction that one who acts like a landowner presumably believes the land to be hers.(45) In Halpern v. Lacy Investment Corp.,(46) the Georgia Supreme Court held that "a rebuttable presumption of a good faith claim of right may arise out of the dominion one exercises over the property."(47) However, the dominion a person exercises over property says little about her belief in ownership. By making lasting improvements on property, a claimant may establish her intent to claim as an owner, but these actions do not thereby establish her belief in ownership.

Of course, this rebuttable presumption facilitates a judicial decision when the claimant has made no statements evincing a belief in ownership. In such cases, allocation of the burden of proof to the titleholder removes the difficulty of establishing belief, and effectively replaces good faith with a "bad faith" requirement. If the titleholder cannot rebut the presumption, the court may ultimately rule in favor of the claimant without affirmatively finding that she had any belief in ownership.

D. Changing Concepts of Land Use; Occupancy v. The Surveyed Line

In 1989, the Oregon legislature determined a good faith standard was necessary to reflect changing values in land use.(48) Belief in ownership may have been irrelevant when settlement of the land was a high priority. Today, available nonfederal land is largely settled. In the past, when surveying techniques were crude and inconvenient, occupancy was the best way of asserting ownership. Surveying techniques have since improved so that landowners are more certain of the bounds of their fair acre. Finally, land does not generate society's capital to the degree it once had. Because land use has dropped in value, good faith seems appropriate and timely.(49)

The good faith proponents in the Oregon legislature looked at two closely related developments having a bearing on adverse possession law--the surveyed line and changing land use.(50) The proponents wanted to create a presumption of ownership of property within the surveyed line that could be rebutted only if the claimant, in good faith, believed that land beyond the surveyed line belonged to her. Thus, courts should presume permissiveness to be rebutted only by the claimant's good faith claim of right. But even assuming the appropriateness of emphasizing the surveyed line, the role of good faith is unclear. In the past, claimants were perhaps justified in possessing apparently unclaimed land because they had no practical means of determining their legal holdings. The modern claimant is better equipped to know the boundary; therefore, she should possess only what she in good faith believes to be hers. However, these new circumstances argue against good faith as well. If the modern claimant is chargeable with knowledge, then the owner ought to be as well. The owner should know her boundaries and push back those who encroach.

The good faith requirement makes a little more sense in regard to changing values of land use. If adverse possession law aims to reward the appropriator of land for putting the land to productive use, perhaps a good faith standard is needed now that land appropriation is less important. Good faith was once subsumed to the greater good of development. Now that development no longer needs empty, unclaimed land, good faith seems a relevant consideration.

However, adverse possession has been more than a vehicle for Manifest Destiny. In fact, theorists most often express the purposes of adverse possession law in terms of settling stale claims,(51) of punishing negligent landowners,(52) and rarely in terms of rewarding the appropriator of land.(53) Similarly, courts speak of extinguishing claims to title, barring claims of negligent landowners,(54) and allowing a claimant security in her possession,(55) but rarely of rewarding her efforts. The doctrine of adverse possession discourages passivity more than it confers a benefit. It encourages landowners to be diligent, and it clears and defines title. In light of these goals, good faith remains irrelevant. A claimant gains title because she justifiably relied on the true owner's failure to eject her while she made obvious and lasting investments. The claimant's "wrongfulness" diminishes in the face of the titleholder's complete failure to act.

Good faith in adverse possession law, then, plays only a limited role in society's changing conception of land use. Land occupancy was never the highest goal of adverse possession; it was merely the easiest means of determining land ownership. Advanced surveying techniques may well offer a better means of determining ownership, but the deeper goals of adverse possession--extinguishing stale claims and clearing title--remain, thereby mooting the new science.

III. THE RELEVANCY OF A CLAIMANT'S BELIEF PRIOR TO THE 1989 STATUTE

Although a good faith belief in ownership is irrelevant in most states, courts have discussed a claimant's belief in ownership. Prior to the 1989 statute, Oregon courts held that a claimant may succeed in an adverse possession claim in spite of a mistaken belief in ownership. In contrast, current law makes a mistaken belief a prerequisite to a successful claim.

Prior to the 1989 adverse possession statute, an adverse claimant could establish the requisite claim of right to the property in one of two ways. An adverse claimant could intend to possess land as her own, "to the exclusion of all others, irrespective of any semblance or shadow of right."(56) If a claimant established this intent, her belief as to ownership would be irrelevant.(57) Alternatively, a claimant could establish claim of right through a mistaken belief in ownership.(58) Taking this route, a claimant did not need to show she intended to wrongfully deny the record owner's rights; instead, she only needed to show she reasonably believed her title included the disputed tract.

Thus, belief in ownership was not completely irrelevant in prior Oregon adverse possession law. In the mistaken belief cases, the courts merely ensured that one who holds land under a mistaken belief in ownership should prevail in an adverse possession claim just as one who intentionally disregards the record owner's rights. An inquiry into a claimant's belief was not an inquiry into the claimant's good faith. A mistaken claimant may not have affirmatively intended to take away the record owner's land, but she did treat the land as her own, and for purposes of establishing claim of right, that was sufficient.

Almost invariably, claimants take the mistaken belief route in the cases that pit adjoining landowners against each other in a boundary dispute.(59) Rarely, if ever, has a claimant knowingly and intentionally disregarded a true boundary to possess another's land. On the other hand, in cases where adverse parties were in some sort of legal relationship at some time prior to the dispute, claimants always argue claim of right based on an overt denial of the record owner's rights. The distinction is useful because, as Section IV(E) of this Comment illustrates, the 1989 statute affects the relationship-type cases more than the boundary-type cases, contrary to the legislature's purpose. Most committee discussions centered on concern for the landowner in boundary-type cases.(60) This concern seems misplaced, given the lack of knowing incursions and abundance of pure mistake cases in Oregon. The 1989 statute does not affect pure mistake cases because, after all, only a purely mistaken claimant can now succeed. The impact on relationship-type cases, on the other hand, is be considerable because the belief-in-ownership requirement effectively eliminates that entire line of cases.(61)

A. Boundary-type Cases

While Oregon boundary-type cases rarely involve knowing incursions, not all successful adverse possession claims are based on a pure mistaken belief in ownership. Where the boundaries are uncertain, a claimant may succeed by possessing under a claim of right up to a fence, or some other physical divider, regardless of the true boundary.(62) The claimant's uncertainty may have existed from the beginning of her possession,(63) or it may have arisen after one party conducted a survey.(64) The successful claimant essentially resolves the uncertainty by staking a claim to a given marker and treating the land as a landowner. These are not pure mistake cases because the claimant had no belief that her title actually described the enclosed land. Nor are they knowing incursions because the claimant was not disregarding a known boundary. Cases like this are rare in Oregon, but this may be the only line of boundary-type cases that the 1989 statute affects. If a claimant resolves uncertainty as to the boundary's location by possessing as a true owner, her claim nonetheless fails under the statute because she lacks belief in ownership.

The vast majority of boundary-type cases involve claimants trying to prove claim of right through a mistaken belief in ownership.(65) Claimants failing to prove a claim of right often did not have a mistaken belief but rather a conscious doubt as to ownership. If a court finds that the claimant had doubts as to the boundary and possessed up to a line pending the discovery of the true boundary, the court may find the claimant's possession was not under a claim of right but was held in subordination.(66) The courts do not assert that one who knows of the possibility of another's ownership should not gain title; instead, they assert that one who uses land without any intention of claiming as an owner should not be regarded as an owner in a later adverse possession claim.

Thus, prior to the 1989 statute, belief was relevant only in determining whether a claimant held property under a mistaken belief in ownership--in which case, the court would find the requisite claim of right--or with a conscious doubt as to ownership--in which case the claimant would lose for lack of a claim of right. An inquiry into belief did not signify a concern for a good faith belief in ownership; rather, it was an alternative method of establishing the necessary intent to hold property as a true owner.

B. Relationship-type Cases

Oregon cases in the relationship-type category send the clearest message that good faith was not required prior to the 1989 statute. Gardner v. Wright(67) the most explicit assertion of good faith's irrelevancy. There, the Oregon Supreme Court ruled that "title by adverse possession may be acquired regardless of the good faith of the claimant, if accompanied by even a pretense, commonly known as claim of title."(68) The defendant had conveyed a tract of land to the plaintiffs predecessors. The deed included exclusive rights to a stream passing through the defendant's retained tract and continuing through plaintiff's property. Despite this conveyance, the defendant began to divert water for his homestead.(69) The court ruled that, irrespective of defendant's knowledge of plaintiffs exclusive right to the water, the statute began to run when the defendant posted notices of his diversion and began irrigating his crops.(70) Although a grantor's continued possession of conveyed property is presumptively subservient to the grantee's title, the court ruled that this presumption could be rebutted by unequivocal acts of ownership.(71) The grantor wishing to reclaim the deeded land or water must "clearly show that there was a change in the relation of the parties with reference to the rights involved . . ."(72) The grantor must, through "actual or constructive" notice, demonstrate to the grantee that the grantor considers the subservient relation to have changed.(73) The Gardner court held that the defendant satisfied this notice requirement by his acts, thereby overcoming the presumption of permissiveness.(74)

Because of the presumption of permissiveness in relationship-type cases, the notice requirements seem more burdensome than in boundary-type cases.(75) In boundary-type cases, a claimant must show acts of ownership comparable to those of any owner of a similar piece of land.(76) In relationship-type cases, however, merely acting as an owner may not give adequate notice. Many relationship-type cases, because they are permissive, involve persons possessing as true owners. An adverse possessor must do something more to show the true owner had an intent to claim as an owner. According to one commentator:

one who uses land with the consent of the owner may affect an

ouster for purposes of adverse possession by unqualified and definite

renunciation of subordination to the owner, even though the

character of the use to which he puts the property after renunciation

may be identical to that contemplated by the parties upon

entry.(77)

Despite the notice problem in relationship-type cases, the claimant's undeniable knowledge of the true owner's interest has no bearing on the outcome. Interestingly, Gardner, a 1907 case, is the only non-color-of-title case(78) in Oregon to mention good faith. Other relationship-type cases have examined a claimant's belief in ownership merely to determine if the lack of such belief affects the requisite intent. In Nedry v. Morgan,(79) for example, the court held that knowledge of an outstanding interest in property is relevant only if it evidences that the claimant lacked the claim of right.(80) In Nedry, a cotenant transferred a tract of land to the defendants without notifying the second cotenant who later sued for partition. The defendants proved adverse possession to the tract despite their knowledge of the plaintiff's interest.(81) The defendants' knowledge did not disprove their intent to claim.

In relationship-type cases, such as Nedry and Gardner, Oregon courts have made clear that a good faith belief in ownership is not required in adverse possession cases. Certainly, this rule would have also applied to boundary-type cases before the 1989 statute, even though the issue never arose in that context. Knowing incursions across boundaries have rarely occurred in Oregon. On the other hand, relationship-type cases, almost by definition, occur with the possessor knowing of another's title. Therefore, the 1989 statute most significantly affects these types of cases. This circumstance suggests that the committee discussion concerning adjoining landowners who steal each other's land was off-target.

IV. THE 1989 STATUTE

A. The Committee Discussion

A brief consideration of the adverse possession bill the 1989 legislature enacted is a necessary prerequisite to an analysis of the belief-in-ownership requirement. Unfortunately, the bill's chief promoter, Eugene Grant, Chair of the Real Estate and Land Use Section of the Oregon State Bar, misrepresented the status of the good faith requirement in Oregon and other states to the committees considering the legislation. He claimed that Oregon had somehow fallen behind the majority of the states in not mandating a good faith standard.(82) Clearly, however, very few states had a good faith standard like that of the proposed bill. Only Georgia, Iowa, and Indiana had a mandatory belief-in-ownership rule.(83) In promoting the Oregon bill, Grant cited a Washington case, Slater v. Murphy,(84) Which cited a belief requirement.(85) That case, however, had been overruled five years prior to Grant's testimony by Chaplin v. Sanders.(86) Chaplin reversed a long trend in Washington law by ruling that subjective intent and belief are irrelevant.(87) Thus, only three states define and require the good faith of which Grant spoke.

Grant also asserted that Oregon courts have "interpreted away" a good faith requirement and that the statute would "restore the concepts of equity and good faith."(88) But Oregon courts have never considered an adverse possessor's good faith in claim of right cases. If anything, some early cases put a premium on bad faith.(89)

The bill's unquestioned and easy passage through both houses of the legislature may explain some of its deficiencies. Good faith seemed like such a good idea to the legislators that no one really stopped to ask if it was needed(90) or how it might work.

B. Wrestling with the Statute

The 1989 statute is perhaps the most detailed statute on adverse possession in the country, setting the highest standard of good faith. Its strict elements apply to both claim-of-right and color-of-title cases.(91) Requiring a claimant to have "the honest belief that [he or she] was the actual owner of the property"(92) forces Oregon courts to define good faith as more than just absence of fraud.(93) By insisting that the belief in ownership exist at entry and continue throughout the vesting period,(94) the new legislation cuts off an adverse claimant who discovers a mistake in boundary or fault in title sometime after an honest entry. Also, the belief in ownership must have an objective basis and be "reasonable under the particular circumstances."(95)

These and other aspects of the statute pose significant problems for the practice of adverse possession law in Oregon. The courts must engage in extensive interpretative work before the impacts of the statute are clear. Some elements of the law have the potential of causing great hardship for claimants. This subsection analyzes the components of Oregon's good faith requirement and how the courts should deal with some of the more troublesome ones.

1. Burden of Proof

As mentioned in Section II (C), states with a good faith requirement presume that a claimant possesses with a good faith belief in ownership. The record owner has the burden of showing bad faith.(96) This rule reflects the policy of shifting the burden of proof to the landowner to prove lack of hostility once the claimant has proven actual, open, notorious, and continuous possession.(97) the Oregon statute places the burden on the claimant by including a belief-in-ownership element. Under the new statute, the claimant must prove "each of the elements set out in this section(98) by clear and convincing evidence."(99) This proof issue could put an unnecessary burden on a court charged with determining a claimant's belief.

Of course, the court's task may be simple if the landowner and claimant have previously exchanged words concerning the tract, thereby establishing a permissive relationship or establishing that both had made the same mistake as to the boundary location. If no words were exchanged, however, an adverse possessor has no basis for proving her belief other than to say, "Look how I've used it." Whether Oregon courts will accept a claimant's objective acts of ownership as clear and convincing proof of her subjective belief in ownership remains an open question. Courts in the past have accepted objective acts of ownership as proof of an intent to possess as an owner,(100) and, therefore, Oregon courts will probably accept the same evidence as proof of belief. But in doing so, courts must engage in the assumption that people always act according to their beliefs. Such an assumption is misplaced in adverse possession cases where often people act as owners without the slightest belief in their right of title.

2. "Reasonable" and "Objective" Belief in Ownership

The requirement that a claimant have a reasonable belief in ownership(101) poses no new difficulty for the Oregon courts. In mistaken boundary cases, courts have often considered whether a mistake was reasonable.(102) Claimants usually base their belief on the existence of a fence, a row of trees, a hedge, a road, a stream, or other physical boundary. Reasonableness depends on how well these markers stand out and how well they have been maintained. While the Oregon legislature has continued to require a reasonable belief in ownership, it is unclear why the legislature added the requirement that the belief have an objective basis.(103) Requiring a reasonable belief to have an "objective basis" seems a redundancy.

3. Continuance of the Belief

The 1989 statute, as amended in 1991, requires that the claimant and the claimant's predecessor in interest continue the belief in ownership through the vesting period.(104) The continuance provision upends the whole concept of good faith and creates the possibility of great hardship for adverse possessors.

The committee discussion of 1989 evidenced an intent to prevent mere squatters from gaining title. Squatters, as defined by Oregon legislature through this continuance clause include not only those who enter in bad faith but also those who continue to possess after learning of a defect in title.(105) Good policy reasons recommend different treatment for these two types of claimants. Certainly, the moral implications are much stronger in the case of a claimant who knows from the start that she has no title to a tract of land. Because of this knowledge, any investments or improvements on the land are made with the informed risk of losing a suit for title. A claimant who enters in good faith, however, is unaware of any risks she takes by working the land. She simply acts under a pure belief in ownership. Under the new Oregon statute, however, courts must rule that such a claimant--as soon as she obtains knowledge of a defect in title--immediately becomes a bad faith possessor who must now relinquish her good faith investments.

Such a scenario seems all the more unfair given the fact that, in most cases, a claimant learns of a defect in title at the same time the true owner does. Often, the true owner informs the claimant of the defect. Sometimes, a governmental entity will discover the error and inform both parties. In such cases, where the record owner is within the ten year statue of limitations she can either sue for ejectment or establish a permissive relationship. If she does neither, she fails to adequately look after her property, giving the claimant more reason for continuing to assert her ownership. Nonetheless, the Oregon legislature has decided that the landowner should prevail in such a situation because the statute would stop running once the adverse possessor learns of the true boundary. But the legislature ignored one of the fundamental policies of adverse possession law-barring untimely claims by title-holders who sit on their rights while others rely on the use and possession of a claimant.

This legislative choice creates great uncertainty for the claimant who discovers the mistake during the vesting period. Of course, if the true owner sues for ejectment at this point, the claimant would have no chance for success regardless of the continuance clause because the statutory period would not have run. But if the true owner does not immediately sue, a claimant must make the difficult choice of either abandoning the property and all her investments, or taking the chance that the true owner never seeks to remove her.

4. Type of Cases the New Statute Will Impact the Most

The greatest impact of the statute is that the belief-in-ownership provision applies to an entire series of cases that the legislature probably had no intention of affecting: the relationship-type case(106) Even the states that define "good faith" as belief in ownership do not apply that definition to relationship-type cases. Apparently, this is because the entry was the result of an agreement, and therefore in good faith, and because permissiveness is a sufficient obstacle to a claimant's assertion of ownership.(107) The Iowa and Georgia courts find it unnecessary to apply a belief-in-ownership test in the relationship-type cases, where they may easily do so, perhaps because the higher notice standard offsets the need for good faith. If the claimant meets this high standard, courts feel justified in shifting the burden back to the titleholder to reassert her ownership. Perhaps these courts would say the claimant meets the good faith standard by meeting the notice standard; therefore, her belief in ownership is unnecessary.

Given these policy reasons for applying a belief-in-ownership test for boundary-type cases and not for relationship-type cases, the Oregon legislature should not have been so hasty in creating a statute that subjects all adverse claimants, regardless of the type of case, to the rigid test of belief in ownership. One might imagine a situation in which a claimant verbally and unequivocally asserts to the record owner that she no longer recognizes her title and that she claims the property as the owner. Despite flawless notice and despite the true owner's subsequent failure to reassert her title, a claimant in Oregon can never gain title to the property because she can never satisfy the necessary belief in ownership. She will always be subject to an ejectment. No other state has created such an absolute bar to claimants.

The Oregon legislature never discussed this type of case in passing the 1989 statute because it was more concerned for the landowner who loses land to a neighbor. The proponents probably never intended for a difficult belief-in-ownership test to apply to relationship-type cases. The statute actually makes adverse possession easier in cotenancy cases by eliminating the need for a cotenant to give actual notice of exclusive possession to non-occupying cotenants.(108) Previous law held that "mere possession of the property by one cotenant . . . is insufficient to establish title by adverse possession as against the other cotenants," and that the cotenant must give actual notice to the others of her intent to occupy exclusively.(109) The elements of adverse possession in cotenancy cases are now the same as any other adverse possession case,(110) except the statutory period extends to twenty years, and, of course, there is no belief-in-ownership requirement.

Cotenancy cases are unlike other relationship-type cases in that the claiming cotenant already has an ownership interest in the property before the statute begins to run. Yet, enough similarities exist to render the statute's across-the-board application of a belief-in-ownership requirement surprising in light of the leniency granted to adversely holding cotenants. In both cases, the absent title-holding party is secure, knowing that the other's occupancy can never ripen into absolute title without notice. In both cases, the occupier holds in subrogation, or at least in recognition of the other's interest prior to giving notice. When the legislature erased the notice requirement in cases involving cotenants, it recognized that possessing cotenants can claim fee simple title without a belief in ownership of such title. Had the legislature considered other types of relationship cases, perhaps it would have excluded them from the belief test as well, for the same reasons as the Iowa and Georgia courts have.(111)

Because the legislature did not consider this line of cases, the statute erects an absolute bar to successful adverse possession claims in relationship-type cases, contrary to what might well have been the drafters' intent. The courts have no means of interpreting around this bar. Every noncotenancy claim for adverse possession will face an immediate dismissal if the claimant did not have the honest belief that she was the "actual owner"(112) at entry--regardless of the relationship of the parties and regardless of the notice of a claim afforded the true owner.

V. CONCLUSION

The 1989 statute fails to incorporate the underlying policies of adverse possession law--clearing land titles, barring late claims of undutiful landowners, and giving permanence to those who have relied on the status quo. The traditional irrelevance of a claimant's belief should outweigh asserted changes in how society values land use. Even if we no longer value total appropriation of land, it is unclear why we should grant title to only the innocent, unknowing possessor. By enacting this statute, the Oregon legislature disregarded a stronger, more recognized policy of adverse possession--the extinguishing of stale claims of landowners who sit on their rights, in favor of those who act like true owners.

In practice, the statute presents even greater problems. The courts will have to indulge in some interpretative magic to overcome the drafting problems of the statute. Other problems run deeper. The requirement that belief in ownership continue throughout the claimant's possession creates the potential for great hardship for claimants. Also, the whole basis for the statute--the protection of the holder of large tracts of land--seems moot given the dearth of purposeful incursion cases. Finally, the statute will affect claimants who previously had been in some sort of permissive relationship with the true owners--a class of claimants the legislature did not intend to affect. (1.) Reeves v. Porta, 144 P.2d 493, 495 (Or. 1944); Or. Rev. Stat. Section 105.620 (1989). (2.) Nedry v. Morgan, 584 P.2d 1381, 1385-86 (Or. 1978). (3.) Anderson v. Richards, 198 P. 570, 573 (Or. 1921); see also Springer v. Durette, 342 P.2d 132 (Or. 1959). (4.) See 7 Richard R. Powell, Powell On Real Property [paragraph] 1012[3], at 91-11 to 91-12 (Patrick J. Rohan ed., 1992 revision, 1993). (5.) Chaplin v. Sanders, 676 P.2d 431, 435 (Wash. 1984) (citing 7 Powell, supra note 4, [paragraph] 1012[3]; Charles C. Callahan, Adverse Possesion 91-94 (1961)). (6.) Powell nicely ties the concept of good faith to the notice requirements of adverse possession: "[C]ourts will not allow the |theft' of the record owner's interest by the adverse possession unless the record owner had notice . . . ." 7 POWELL, supra note 4, [paragraph] 1012[3] at 91-12. (7.) Act of August 5, 1989, ch. 1069 Section 1, 1989 Or. Laws 2170 (codified at OR. Rev. STAT. Section 105.620 (1991)). (8.) Or. Rev. Stat. Section 105.620(1)(b) (1991). (9.) Id. Section 105.620(1)(b)(a). This subsection was amended by the Act of April 16, 1991, ch. 109 Section 2(1)(b)(a), 1991 Or. Laws 220, 221. (10.) Or. Rev. Stat. Section 105.620(1)(b)(B),(C). (11.) Hearings on H.R. 3195 Before the Subcomm. on Civil Law and Judicial Administration of the House Comm. on the Judiciary, 65th Or. Leg. (1989) [hereinafter House Hearings) (statement of Eugene Grant, chair of the Real Estate and Land Use Division of the Oregon State Bar) (audiotapes on file with Oregon State Archives). One Senator said the chief victims of the former law were farmers with large tracts who were unable to watch over remote boundaries. Hearings on H.B. 3195 Before the Senate Judiciary Comm., 65th Or. Leg. (1989) [hereinafter Senate Hearings] (audiotapes on file with Oregon State Archives) (statement of Sen. Springer). (12.) House Hearings, supra note 11. (13.) See infra notes 34-35 and accompanying text. (14.) Or. Rev. Stat. Section 105.620(1)(c). See infra notes 97-101 and accompanying text. (15.) House Hearings, supra note 11 (statement of Rep. Larry Campbell). (16.) See, e.g., Thurmond v. Espalin, 171 P.2d. 325, 329-31 (N.M. 1946). See also 3 Am. Jur. 2D Adverse Possession Section 134 at 219-220 (1986). (17.) Iowa, Georgia, and Indiana are the only states besides Oregon that have the belief mandate for non-color-of-title cases. See, e.g., Carpenter v. Ruperto, 315 N.W.2d 782 (Iowa 1982); Halpern v. Lacy Inv. Corp., 379 S.E.2d 519 (Ga. 1989); Pennington v. Flock, 93 Ind. 378 (1883). (18.) 3 Am. Law Of Property Section 15.2 (A. James Casner ed. 1952). (19.) 7 Powell, supra note 4, [paragraph] 1012[3]. (20.) See Or. Rev. Stat. Section 12.080(4) (1991). (21.) See Carpenter, 315 N.W.2d 782; Halpern, 379 S.E.2d 519. (22.) See 5 George W. Thompson, Thompson On Real Property Section 2542 at 594 (5th ed. 1979); 4 Herbert T. Tiffany, The Law Of Real Property Section 1149 at 805 (3rd ed. 1975). (23.) Carpenter v. Ruperto, 315 N.W.2d 782, 785 (Iowa 1982). (24.) Along these lines, the Oregon legislature did not make clear what it meant by "honest" belief in ownership. OR. REV. STAT. Section 105.620 (1)(b). (25.) Roger A. Cunningham Et Al., The Law Of Property Section 11.7 at 764 (1984). (26.) Id. (27.) R.H. Helmholz, More on Subjective Intent, 64 Wash. U. L.Q. 65, 103 (1986). (28.) See Roger A. Cunningham, Adverse Possession and Subjective Intent: A Reply to Professor Helmholz, 64 Wash. U. L.Q. 1, 59-60 (1986). (29.) Helmholz, supra note 27, at 70. In fact, Helmholz does not advocate a good faith requirement at all. Id. at 74. He is concerned, however, that theorists take account of those who decide these matters, judges and juries who "regularly prefer the claims of an honest man over those of a dishonest man." Helmholz, Adverse Possession and Subjective Intent, 61 WASH. U. L.Q. 331, 358 (1983). (30.) Senate Hearings, supra note 11. (31.) Id. (32.) See Cunningham, supra note 28, at 39-41. (33.) See Helmholz, supra note 27, at 89-90. (34.) Cf. Williams v. Harrsch, 681 P.2d 119, 122 (Or. 1984) (clear and convincing standard of proof for claimants of a prescriptive easement). (35.) See 4 Tiffany, supra note 22, Section 1144 at 765; Almond v. Anderegg, 557 P.2d 220 (Or. 1976); Knapp v. Daily, 772 P.2d 1363 (Or. App. 1989). (36.) See Cunningham, supra note 28, at 40 n.150; Shishilla v. Edmonson, 377 N.E.2d 1115 (Ill. App. Ct. 1978); Lundelius v. Thompson, 461 S.W.2d 153 (Tex. Civ. App. 1970). (37.) See, e.g., Reid v. Reid, 348 P.2d 29 (Or. 1959). See also 4 Tiffany, supra note 22, Section 1142. (38.) For Oregon "convenience fence" cases, see Whiteley v. Jacobs, 564 P.2d 1057 (Or. 1977); Gudelj v. Sundberg, 450 P.2d 756 (Or. 1969). See also 4 Tiffany, supra note 22, Section 1143. (39.) It would be onerous for the federal government, however, to prevent private encroachments on its vast public domain; perhaps for this reason, the Color of Title Act has a good faith requirement. 43 U.S.C. Section 1068 (1988). This federal statute allows the Secretary of the Interior to grant patents for not less than $1.25 per acre and for a tract not exceeding 160 acres if the claimant can prove cultivation or valuable improvements and possession for twenty years without knowledge of the government's ownership. (40.) See Armstrong v. Cities Serv. Gas Co., 502 P.2d 672, 680 (Kan. 1972) (quoting Kan. Civ. Proc. Code Ann. Section 60-503 (Gard 1970)); Thurmond v. Espalin, 171 P.2d 325, 331 (N.M. 1946). (41.) See Senate Hearings, supra note 11 (comment of Eugene Grant). (42.) See Armstrong, 502 P.2d at 680. (43.) Id. (quoting Kan. Civ. Proc. Code Ann. Section 60-503 (Gard 1970)). (44.) Anderson v. Richards, 198 P. 570, 573 (Or. 1921); see also Springer v. Durette, 342 P.2d 132, 135 (Or. 1959). (45.) This is true in the states that define good faith as lack of fraud, see, e.g., Thurmond v. Espalin, 171 P.2d 325, 329 (N.M. 1946), and that define good faith as belief in ownership, see, e.g., Halpern v. Lacy Inv. Corp., 379 S.E.2d 519, 520 (Ga. 1989). (46.) 379 S.E.2d 519 (Ga. 1989). (47.) Id. at 520. These rebuttable presumptions engage in some sort of necessary fiction, but the presumption of belief in ownership shown by acts of ownership is unwarranted given the volume of cases in which the adverse possessor claims property that she knows is not contained in her title. (48.) House Hearings, supra note 11 (comments of Eugene Grant). (49.) Id. (50.) Id. (51.) See, e.g., 4 Tiffany, supra note 22, Section 1134 at 698; 3 Am. Law Of Property, supra note 18, Section 15.2 at 759; and 7 Powell, supra note 4, [paragraph] 1012[3]. (52.) See, e.g., 4 Tiffany, supra note 22, Section 1134 at 698; 5 Thompson, supra note 22, Section 2544 at 611 (citing Superior Oil v. Harsh, 126 F.2d 572 (7th Cir. 1942)); 3 Am. Law Of Property, supra note 18, Section 15.2 at 759. (53.) Cunningham alludes to giving permanence to those who keep land productive. Cunningham Et Al., supra note 25, Section 11.7 at 764. (54.) See, e.g., Harris v. Southeast Portland Lumber Co., 262 P. 243, 244 (Or. 1927); Evans v. Hogue, 681 P.2d 1133, 1139 (Or. 1984). The Evans court explicitly adopted Tiffany's theory that a claimant's right in adverse possession cases arises from the landowner's "demerit" rather than the claimant's own merit in using the land. Id. at 1139 n.5. (55.) See, e.g, Harvey Aluminum v. School Dist. No. 9, Wasco County, 399 P.2d 149 (Or. 1965). (56.) Bessler v. Powder River Gold Dredging Co., 185 P. 753, 757 (Or. 1919); see also Nedry v. Morgan, 584 P.2d 1381, 1385-86 (Or. 1978). (57.) See Nedry, 584 P.2d at 1386. (58.) See Lee v. Hansen, 578 P.2d 784 (Or. 1978). (59.) See id.; Nelson v. Vandemarr, 573 P.2d 1232 (Or. 1978). (60.)See infra notes 106-12 and accompanying text. (61.) See infra notes 106-12 and accompanying text. In this same Act, the legislature repealed the notice requirements in adverse possession cases involving cotenants. Perhaps the legislature had no intention of effectively foreclosing any possibility of a successful adverse possession claim in other relationship-type cases. Act of August 5, 1989, ch. 1069 Section 3, 1989 Or. Laws 2169, 2170 (codified at Or. Rev. Stat. Section 105.615). (62.) See, e.g., Grimsted v. Dordan, 471 P.2d 778 (Or. 1970). (63.) Id. (64.) See, e.g., Jenkins v. Jenkins, 138 P.2d 904 (Or. 1943); Robinson v. Leverenz, 202 P.2d 517 (Or. 1949). (65.) See Lee v. Hansen, 578 P.2d 784 (Or. 1978); Nelson v. Vandemarr, 573 P.2d 1232 (Or. 1978); Rider v. Pottratz, 425 P.2d 766 (Or. 1967); Knapp v. Daily, 772 P.2d 1363 (Or. App. 1989). (66.) See, e.g., Nelson, 573 P.2d 1232. (67.) 91 P. 286 (Or. 1907). (68.) Id. at 293. (69.) Id. at 292. (70.) Id. at 293. (71.) Gardner v. Wright, 91 P. 286, 292 (Or. 1907). (72.) Id. (73.) Id. (74.) Id. (active diversion of water, posted notices, large agricultural use of land). (75.) See, e.g., Fehl v. Horst, 474 P.2d 525, 527 (Or. 1970) (where adverse parties are family members, a greater showing of hostility or adverseness is required). (76.) Lee v. Hansen, 578 P.2d 784, 787 (Or. 1978). (77.) See 4 Tiffany, supra note 22, Section 1142 at 743. (78.) In a color-of-title case, a claim is based on a document which seems to give title but, for some reason, does not. A typical example is a sheriff's deed for a tax sale voided because of improper sale procedures. Most states require that a claimant have a good faith belief in the document's validity. Cunningham et al., supra note 25, Section 11.7 at 759-60. (79.) 584 P.2d 1381 (Or. 1978). (80.) Id. at 1385. (81.) Id. at 1386. At the time of Nedry, the existence of a tougher notice standard was explicit in regard to cotenancy cases. A cotenant had to give actual notice to another cotenant if he wished to claim fee simple. Id. at 1384. A transferee, however, need not have given such notice in order to claim. Id. The 1989 Legislature, in the same act as the adverse possession amendments, repealed the actual notice element altogether, Or Rev. Stat. Section 105.615 (1991). See infra notes 114-18 and accompanying text. (82.) House Hearings, supra note 11. (83.) See supra note 17. However, the most recent Indiana decision to explicitly require good faith was in 1883. Kansas and Louisiana have unique bifurcated systems that allow for knowingly adverse claims satisfying a tougher standard. In Louisiana, a belief in ownership is relevant only for claims made after ten years, La. Civ. Code Ann. art. 3475 (West 1993), whereas belief is irrelevant on a 30-year claim, La. Civ. Code Ann. art. 3486 (West 1993). In Kansas, the statute mandates that a claimant must plead either claim of right under belief of ownership or as knowingly adverse. Kan. Stat. Ann. Section 60-503 (1983). Other states referring to good faith require only that the claimant did not deceive the true owner. See supra note 16. In New Mexico, a claimant must show possession "in good faith under color of title." N.M. Stat. Ann. Section 37-1-22 (Michie 1978 & 1992 Supp.). (84.) 339 P.2d 457, 460 (1959), opinion adhered to on reh'g, 351 P.2d 515 (Wash. 1960). (85.) House Hearings, supra note 11. (86.) 676 P.2d 431, 436 n.2 (Wash. 1984). (87.) Id. at 436. "Good faith" still remains in Washington's statute, WASH. REV. Code Section 7.28.070 (1992 & Supp. 1993), but it appears to mean no more than absence of fraud. (88.) House Hearings, supra note 11. (89.) See Caufield v. Clark, 21 P. 443 (Or. 1889); King v. Brigham, 31 P. 601 (Or. 1892). In both of these cases, claimants essentially lost because they testified they had only intended to possess to the boundary, never intending to claim anyone's land. These cases were overruled by Norgard v. Busher, 349 P.2d 490, 493-94 (Or. 1960) (finding the intent to hold as a true owner and not the intent to take someone's land is dispositive in adverse possession cases). (90.) Sen. Shoemaker wondered why adverse possession, a long standing common law concept, needed codification. His question was not answered on the record. Senate Hearings, supra note 11. (91.) Or. Rev. Stat. Section 105.620. (92.) Or. Rev. Stat. Section 105.620(1)(b). (93.) Compare id. with Thurmond v. Espalin, 171 P.2d 325, 329 (N.M. 1946) (defining good faith as freedom from design to defraud). See also 3 Am. Jur. 2D Adverse Possession Section 134 (1986). (94.) Act of Apr. 16, 1991, ch. 109 Section 2(1)(b)(A), 1991 Or. Laws 220, 221 (amending Or. Rev. Stat. Section 105.620). (95.) Or. Rev. Stat. Section 105.620(1)(b)(B),(C). Compare id. with Barfield v. Vickers, 36 S.E.2d 766, 768 (Ga. 1946) (good faith relates to actual state of mind "regardless of what it should be from given legal standards of law or reason"). Other good faith states, however, concur with Oregon that the belief must be reasonable. See, e.g., Armstrong v. Cities Serv. Gas Co., 502 P.2d 672, 681 (Kan. 1972). (96.) See, e.g., Halpern v. Lacy Inv. Corp., 379 S.E.2d 519 (Ga. 1989). (97.) See supra Section II(B). (98.) Subsection (1)(a) codifies the traditional judge-made elements of adverse possession: "actual, open, notorious, exclusive, hostile, and continuous possession of the property for a period of 10 years." Or. Rev. Stat. Section 105.620 (1)(a). "Hostility," according to subsection (2), is under "claim of right" or "color of title." "Claim of right," according to the Oregon legislature, House Hearings, supra note 11, must include a "belief in ownership" as set out in subsection (1)(b). (99.) Or. Rev. Stat. Section 105.620 (1)(c). Oregon has always required this high standard of proof in adverse possession cases. See, e.g., Lemon v. Madden, 340 P.2d 977 (Or. 1959). (100.) See supra note 44. (101.) Or. Rev. Stat. Section 105.620 (1)(b)(C). (102.) See, e.g., Lee v Hansen, 578 P.2d 784 (Or. 1978). (103.) Or. Rev. Stat. Section 105.620(1)(b)(B). The committee discussions made no mention of the significance of the subsection. (104.) Act of Apr. 16, 1991, ch. 109 Section 2(1)(b)(A), 1991 Or. Laws 220, 221 (amending Or. Rev. Stat. Section 105.620). (105.) See supra note 98. (106.) Section III refers to these cases as "relationship-type" because they involve parties who were previously in some sort of legal relationship, such as grantor-grantee, landlord-tenant, owner-permissive user. The common thread of these cases is that they involve a claimant whose possession began permissively and who must break that permissiveness by giving the true owner notice of the claimant's own assertion of ownership. (107.) See, e.g., Simonsen v. Todd, 154 N.W.2d 730 (Iowa 1967); Lawse v. Glaha, 114 N.W.2d 900, (Iowa 1962); Robinson v. Wright, 121 S.E.2d 640 (Ga. 1961); Gauker v. Eubanks, 199 S.E.2d 771 (Ga. 1973). In these types of cases, the courts generally hold that certain possessions are permissive or subservient. Implied in these cases, however, is the idea that the parties can end the permissiveness with notice to the other, and can begin the running of the statute. See, e.g., Gauker, 199 S.E.2d at 774-5; Robinson, 121 S.E.2d at 641. (108.) Or. Rev. Stat. Section 105.615. (109.) Nedry v. Morgan, 584 P.2d 1381, 1384 (Or. 1978). (110.) House Hearings, supra note 11. (111.) See supra note 107 and accompanying text. (112.) Or. Rev. Stat. Section 105.620 (1)(b).

Per C. Olson (*) (*) J.D. 1993, Northwestern School of Law of Lewis and Clark College.