BREWER, J.
Plaintiffs appeal from a general judgment dismissing their common-law and statutory adverse possession claims against defendants.
We begin by setting out the standard for the grant of a motion for judgment of dismissal under ORCP 54 B(2), which provides:
ORCP 62 F, in turn, provides:
Venture Properties, Inc. v. Parker, 223 Or.App. 321, 340, 195 P.3d 470 (2008) (emphasis in original). "Rather, even if a plaintiff has presented a prima facie case, a trial court is free to assess the ultimate persuasiveness of the plaintiff's evidence * * * including resolving conflicts in that evidence * * * and, if it so chooses, to simply disbelieve the plaintiff's evidence." Id. (citations omitted); see also Riverside Homes, Inc. v. Murray, 230 Or.App. 292, 300-01, 214 P.3d 835 (2009) ("[A] trial court may grant a motion to dismiss under ORCP 54 B(2) if, viewing the evidence in the light most favorable to the plaintiff, the plaintiff failed to present a prima facie case, or, even if the plaintiff has presented a prima facie case, the court, as trier of fact, is unpersuaded by the plaintiff's evidence.").
Where a claim dismissed with prejudice under ORCP 54 B(2) is equitable in nature, this court's review is set out in ORS 19.415(3)(b), and we have discretion to review the case de novo, Or. Laws 2009, ch. 231, § 3. We decline to do so. ORAP 5.40(8)(c). Accordingly, we review the trial court's legal conclusions for errors of law, and we are bound by the trial court's findings of fact if any evidence supports them. Jones v. Emerald Pacific Homes, Inc., 188 Or.App. 471, 481, 71 P.3d 574, rev. den., 336 Or. 125, 79 P.3d 882 (2003) ("We will not reject a trial court's finding [under ORCP 62 F] if any evidence in the record supports it."); Neff v. Sandtrax, Inc., 243 Or.App. 485, 487, 259 P.3d 985, rev. den., 350 Or. 716, 260 P.3d 493 (2011) (applying "any evidence" standard of review to equitable claims where notice of appeal was filed after the effective date of the 2009 amendments to ORS 19.415(3)).
We state the pertinent facts consistently with the trial court's findings under ORCP 62.
Plaintiffs argued to the trial court that the western border of the strip was a fence that had been built on tax lot 500 by defendants'
To establish ownership of the disputed strip by adverse possession, William Case testified that he, and his father before him, had continuously farmed the strip from 1944 to 2007, when defendants purchased tax lot 500. According to Case, defendant's predecessor, Jones, had told Case and his father that the fence line was the "property line" dividing tax lot 500 from tax lot 700, and he and his father had always understood that the fence line was the property line.
Plaintiffs' witnesses, Hoefer and Chambers, were asked to look at the series of aerial photographs that plaintiff offered into evidence and identify where the farm road and fence line had been located. On cross-examination, both witnesses were equivocal with regard to the location of the fence line and the farm road, and their placement of the fence line and the farm road in relation to other landmarks visible from the air, such as trees and vegetation, changed from photograph to photograph. Plaintiffs also offered into evidence a perpetuation deposition of another witness, Keller, who had visited the Jones farm during the 1940s and 1950s. Keller had testified that, in 1950, the fence had been tied to a large tree near Dever-Connor Road at the northern end of the properties. When Keller was asked on cross-examination to identify that large tree on the 1948 aerial photograph, she was unable to do so. Keller also was cross-examined regarding the location of the fence line and the farm road on the aerial photographs, and she was unable to consistently locate them by reference to other landmarks shown on the photographs, such as a line of large fir trees across Dever-Connor road to the north of the strip and a large tree at the southern end of the strip. In addition, William Case testified that the farm road had continuously been in one place and that it had been located adjacent to the fence line. On cross-examination, Case was confronted with his prior deposition testimony that the farm road had at times been tilled under, and he admitted that there had been times when portions of the road had been completely erased.
Case also testified that in approximately 1985 or 1986 he had installed a large irrigation pivot on his property. Although the center of the pivot is on plaintiffs' property, the pivot's arm extends past the eastern deed line of tax lot 500 during its rotation. Case testified that he had positioned the pivot so that it would only water crops on his property. Case further testified that crops planted on tax lot 500 had always been planted in rows running north to south whereas crops planted on his property had always been planted in rows running east to west. On cross-examination, Case was shown an aerial photograph taken while the pivot was in operation showing it watering a section of crops planted in rows running north to south. Case replied that the water must have been blown by the wind.
In considering defendants' motion under ORCP 54 B(2), the trial court found that the aerial photographs and the testimony of William Case and plaintiffs' other witnesses regarding the location of the farm road were equivocal and that no witness was able to fix the location of the road with sufficient certainty to allow the court to determine that plaintiffs had adversely possessed any specific portion of tax lot 500 for the requisite 10-year period. The court explained:
In response, plaintiffs urged the trial court to look at the evidence of the location of the irrigation pivot that William Case had installed in "1995 or 1996" because "there is no evidence that it was other than being on the land that was being possessed, and you couple that with where the crop lines are, I mean, there is clear and convincing evidence that that land was being possessed beyond the surveyed line."
Plaintiffs remonstrated that the court had "a number of choices here," including the conclusion that Case's father had perfected a claim for adverse possession of the strip by farming it between 1944 and 1957. In response, the trial court further explained:
Plaintiffs renew their arguments on appeal, asserting that they are the owners of the disputed strip based on either commonlaw adverse possession by virtue of William Case's father's use of the strip from 1944 to 1957, or by Case's own use of the strip from 1957 to 2007. Plaintiffs also claim title by statutory adverse possession, arguing that aerial photographs of the location of one of their irrigation pivots, and the extension of that pivot's rotating arm and water spray into a portion of the disputed strip from roughly 1985 to 2007, proved that they had adversely possessed the entire strip. Plaintiffs also argue that William Case held an "honest belief" that he was the actual owner of the strip because of Jones's representation that the fence line was the property line, and because both Case and his father had farmed the disputed strip consistently with that belief.
Defendants reply that there is evidence in the record to support the trial court's finding that plaintiffs failed to prove the location of the fence line and farm road and, further, that an adverse claimant must present clear and convincing evidence identifying the boundaries of the disputed property and that plaintiffs failed to do so. We agree with defendants.
In Oregon, adverse possession is governed by both common-law and statutory principles. To succeed on a claim of commonlaw adverse possession, a claimant must prove by clear and convincing evidence that he or she or a predecessor in interest made use of the property that was actual, open, notorious, exclusive, continuous, and hostile for a 10-year period. Lieberfreund v. Gregory, 206 Or.App. 484, 490, 136 P.3d 1207 (2006). Proof that a predecessor in interest adversely possessed the property for the statutory period is sufficient if there is evidence that the predecessor intended to transfer whatever adverse possessory rights he or she may have acquired. Id. at 490 n. 5, 136 P.3d 1207 (citing Timber Service Co. v. Ellis, 163 Or.App. 349, 353-54, 988 P.2d 396 (1999)).
All the elements necessary to establish adverse possession must be proved by
Id. at 98-99, 396 P.2d 570. The trial court found that the defendant had failed to identify the property she claimed by adverse possession, and the Supreme Court, reviewing the case de novo, agreed, holding that the defendant did not establish adverse possession because her "evidence locating the area of adverse use is not so specific and compelling that the trial court's findings to the contrary should be disregarded." Id. at 99, 396 P.2d 570.
Here, the trial court found that plaintiffs had failed to establish the location of the fence line and the farm road, and that the evidence showed instead "that the line almost certainly moved." There is evidence in the record to support that finding, and we are bound by it. Thus, plaintiffs failed to sufficiently identify the area of asserted adverse use. That failure is fatal to their claims for adverse possession under both the common law and ORS 105.620.
Affirmed.