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March 18, 2026 Get Citation Alerts Download PDF Add Note

Multnomah PNW Properties, LLC v. Fazio

Court of Appeals of Oregon

• Citations: 347 Or. App. 823
• Docket Number: A183679
• Precedential Status: Non-Precedential
• Judges: Lagesen

• Disposition: Reversed and remanded.

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

Reversed and remanded.

Combined Opinion

No. 205 March 18, 2026 823

This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

MULTNOMAH PNW PROPERTIES, LLC,
an Oregon limited liability company,
Plaintiff-Respondent,
v.
David FAZIO, JR.,
an individual, and Kristi Fazio, an individual,
Defendants-Appellants.
Multnomah County Circuit Court
21CV09139; A183679

Beth A. Allen, Judge.
Argued and submitted February 5, 2026.
Iván Resendiz Gutierrez argued the cause for appellants.
Also on the brief was Jacob A. Zahniser.
No appearance for respondent Multnomah PNW
Properties, LLC.
Before Shorr, Presiding Judge, Lagesen, Chief Judge,
and O’Connor, Judge.
LAGESEN, C. J.
Reversed and remanded.
824 Multnomah PNW Properties, LLC v. Fazio

LAGESEN, C. J.
Defendants appeal a general judgment that granted
plaintiff “all right, title, and interest” to a roadway located on
defendants’ property. The court entered that judgment after
determining that plaintiff and its predecessors “adversely
possessed” the roadway in dispute for a period of at least 10
years. Plaintiff has waived appearance on appeal. We reverse
and remand because the evidence is legally insufficient to
support a finding that plaintiff’s predecessors maintained
“exclusive” possession of the road in the manner required to
establish a claim of adverse possession.1 See ORS 105.620(1)
(a) (possession must be “exclusive,” among other things).
Although defendants request de novo review, we
decline that request. Accordingly, our review is to determine
whether the evidence presented is legally sufficient to sup-
port the trial court’s finding that plaintiff proved the ele-
ments of adverse possession. In this instance, the question is
whether the evidence is legally sufficient to support a finding
that plaintiff’s predecessors possessed the road in an “exclu-
sive” way. In so doing, we view the evidence in the light most
favorable to plaintiff and determine whether it is legally suf-
ficient to support their claim. Kelly v. Washington County,
303 Or App 20, 21, 463 P3d 36 (2020). Because claims of
adverse possession must be proved by clear-and-convincing
evidence, this means we must determine whether the evi-
dence is legally sufficient to permit a rational factfinder to
find that it is “highly probable” that plaintiff’s predecessors’
possession of the road was sufficiently exclusive to support
a determination that they adversely possessed the road. See
Hammond v. Hammond, 296 Or App 321, 328-29, 438 P3d
408 (2019) (explaining that a claim of adverse possession
must be proved by clear and convincing evidence that allows
for a finding that the truth of the facts asserted is highly
probable).
“Oregon’s law of adverse possession uniformly
requires a degree of exclusive possession characteristic of
that which an owner of the property would exercise.” Harrell
v. Tilley, 201 Or App 464, 477, 119 P3d 251 (2005). “[E]ven
1
We focus on plaintiff’s predecessors because plaintiff’s claim and the trial
court’s ruling rested on the evidence of their use of the road.
Nonprecedential Memo Op: 347 Or App 823 (2026) 825

when such use rises to the level of equal use by the [adverse
possession] claimant and others, the required exclusivity is
not satisfied.” Id. (citing Werner v. Brown, 44 Or App 319,
324-25, 605 P2d 1352, rev den, 289 Or 71 (1980). Here, the
evidence, viewed in the light most favorable to plaintiff, does
not permit a rational inference that it is highly probable that
plaintiff’s predecessors possessed the roadway with the nec-
essary exclusivity. The evidence of plaintiff’s predecessors’
use does not supply the level of detail that would allow the
rational inference that it is highly probable that their use
of the road was of the character that would displace defen-
dants’ ownership interest. Additionally, to the extent the
evidence does paint a picture of the use, it does not allow for
a rational inference that the use was anything other than
the type of mutual use that precludes a determination of
adverse possession.
For many years, plaintiff’s property was used pri-
marily for duck hunting. During that time, plaintiff’s pre-
decessors and defendants both used the road. Plaintiff’s
predecessors used it primarily for duck hunting purposes;
defendants used it for agricultural purposes. At one point,
defendants gave a Quonset hut to plaintiff’s predecessors.
Plaintiff’s predecessors placed it near the roadway and, for
a while, rented it to a tenant who graveled part of the road-
way. Plaintiff’s immediate predecessor, who inherited the
property from her parents, described the road as “an ease-
ment road” in an earlier stage of the case. When asked to
explain that earlier testimony at trial, she testified that she
meant “that the road has been there for [many] years. We’ve
used it. There’s never been a problem.” As was the case in
Harrell, that evidence of longstanding mutual use of the
road by defendants and plaintiff’s predecessors precludes
the rational inference that it is highly probable that the
use of the road by plaintiff’s predecessors was sufficiently
“exclusive * * * to wrest possession and ownership from the
record title holders.” Harrell, 201 Or App at 477. The trial
court therefore erred in determining that plaintiff was enti-
tled to take the roadway by adverse possession.
We therefore reverse the judgment that was entered
in favor of plaintiff on the claim for adverse possession and
826 Multnomah PNW Properties, LLC v. Fazio

remand for further proceedings. This disposition obviates
the need to address defendants’ third assignment of error,
which challenges the boundaries of the parcel to which the
trial court granted title to plaintiff. Although in their sec-
ond assignment of error defendants ask us to direct the
trial court to enter judgment in their favor on their equita-
ble counterclaims, the question of whether defendants are
entitled to prevail on their equitable counterclaims is best
resolved by the trial court in the first instance.
Reversed and remanded.