Dane
do you have the text of Woods vs Mandrilla?
Thanks Mark.
Interesting facts Mark.
So if in Oregon, the mistaken reliance on a mistake ripens into a bona fide right for hostility, what other elements are needed for adverse possession to fully ripen? Color of title, period of time for continuous occupation, continuity of occupation? In your opinion are such situations in Oregon easier to prove AP when a landowner relies on a blundered survey than other states you are familiar with?
Bona FideBelief sounds like "Pure Mistake"
Interesting. I must not understand the "hostility" definition. It seems to me that if I knowingly occupy someone else's land and I make it my own, it is hostile to the land line. But if I am mistaken and think I own it, I don't see how that qualifies. if I don't know and the owner doesn't know, it seems like it would resemble something more like "acquiescence".
Thanks for the information. Sometimes these legal definitions are very complicated to someone like me.
Bona FideBelief sounds like "Pure Mistake"
The idea rests on the universal requirement that the occupier treat the land as if it were his own.
A person who honestly believes that a piece of ground belongs to him would naturally do so. In fact, anything a person in such a state of mind does with a piece of occupied ground is, by definition, what an ordinary owner would do.
A person with a conscious doubt as to whether a piece of ground is his, or not, is going to treat it accordingly. That doubt enters his judgement.
The differences may not be readily apparent on the ground, but the court has so ruled.
There are also cases where the state of mind of the occupiers are not in evidence and other methods are employed to prove hostility.
These rules apply, in the main, to AP claims in Oregon in which title vested before 1989. In 1989 the legislature codified AP to include the requirement that the occupier prove, by clear and convincing evidence, that occupation was entered into with an "honest belief" as to ownership and that that belief had an "objective basis" and, further, that these conditions continue throughout the 10 year vesting period. This is, in essence, an upping of the ante on the "pure mistake" doctrine and raises the AP bar very high. Most successful AP cases in Oregon, right up to the present, involve titles that vested before 1989 and therefore are not required to clear the "honest belief" hurdle.
AP in Oregon
> In your opinion are such situations in Oregon easier to prove AP when a landowner relies on a blundered survey than other states you are familiar with?
All the usual things - actual, open, notorious, continuous, hostile, exclusive, under claim of right or color of title - apply in Oregon. The statutory period is 10 years. The devil is in how you prove each of these elements, and the hostility element is the one that is most open to interpretation.
In 1989 the legislature codified the requirements in ORS 105.620. The provision that occupier enter into his occupation with an "honest belief" that has an "objective basis" was added. Certainly a landowner who had a survey done by a PLS and relied on it, in ignorance of a blunder by the surveyor, would have an objective basis for his honest belief.
Bona FideBelief sounds like "Pure Mistake"
It may start to get confusing here with comparing adverse possession with bona fide rights or "bona fide beliefs". If there is no adverse possession against the Feds, how is this coming into the bona fide rights concept?
Keith
Bona FideBelief sounds like "Pure Mistake"
I have not yet had time to review the whole Hillstrom decision, but it seems to me that he unsuccessfully attempted to claim that his belief had a bearing on his rights. So, you are right, I think - the location of the section subdivision in not affected by the occupiers belief. Especially since the Hillstrom property is in Washington State.
On the other hand if the adjoining properties are in private hands, and in Oregon, and we are in state court arguing an AP claim, the results may be different. You might end up with a title line that differs from the section subdivision line.
But I was just presenting the Oregon Courts thinking on how someones state of mind affects his bona-fide rights generally.
Bona FideBelief sounds like "Pure Mistake"
I have not reviewed the Hillstrom decision yet either.
The whole concept of "thinking" that the landowner has bona fide rights is new to me and will have to "review" the concept.
Also the concept that if the subdivision of sections is not done exactly by the Manual, it is gross error, is new to me too.
Anyways, all good issues to discuss.
Keith
Thanks Doug
> That's my introduction to the phrase "bona fide belief".
Me too. I went to "Black's Law" to see if the term was in there. I didn't find it, but did find the following:
Bona fidei possessor A possessor in good faith. One who believes that no other person has a better right to the possession than himself.
(Bona fidei: In the civil law, of good faith; in good faith)
and
Bona Fide possessor. One who not only supposes himself to be the true proprietor of the land, but who is ignorant that his title is contested by some other person claiming a better right to it.
(Note the slight different words "fide" vs. adding the 'i' for fidei)
The above are from the Sixth edition for whatever that's worth. I also don't know how that really pertains to the discussion, but I think it might have something to do with the term "bona fide belief".
I am suspecting that "bona fide rights" are kind of federal laws protect a possessor of land in good faith without calling or adhering to 'adverse possession' or other private claimings of lands.
It just wouldn't seem right for the feds to grant someone 40 acres and have them occupy 40 acres and build improvements on it without correcting the error. I would hope a federal judge or an IBLA would err toward teh side of the land owner (or should I say bona fide possessor) when a case is not absolutely certain.
@doug-jacobson If a subsequently divided portion of an original homestead patent has a fence and occupational history in accordance with the GLO plat and field notes, should a surveyor consider it a bona fide right, rather than relying on nonoriginal corners from other surveys placed in the past that conflict??ÿ
Note that the last post before yours was over 10 years ago, Mr Jacobson has not poster for almost 8 years, several who posted in this thread are dead, and others not heard from in years.
@northernsurveyor Short answer, no. The outcome may be the same, but the terms are not interchangable. When you say an entryman has bonafide rights, the required fact pattern is governed by the federal rule. When you say it is Oregon AP, state law takes over. As we have seen the requirements differ.
@thebionicman How would a surveyor determine whether to go with bonafide rights or leave it up to AP??ÿ
If you are seeking an answer that can be applied to every situation you won't find one.
No definite set of rules can be laid down in advance. The solution to the problem must be found on the ground by the surveyor. It is his responsibility to resolve the question of good faith as to location.?ÿ
It may be held generally that the entryman has located his lands in good faith if such care was used in determining his boundaries as might be expected by the exercise of ordinary intelligence under existing conditions.
@curiouskat The key question is, "When was the boundary created?".
If the line in question was created and asserted by the entryman in good faith the assertion would relate to bona-fide rights. Later actions or lines created well after patent are matters of State law.