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FILED: March 2, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

ERIC HALPERIN
and BEATRICE H. MICHEL,

Plaintiffs-Respondents,

v.

RAY PITTS
and JOYCE PITTS,

Defendants-Appellants.

RAY PITTS
and JOYCE PITTS,

Counterclaim Plaintiffs,

v.

ERIC HALPERIN
and BEATRICE H. MICHEL,

Counterclaim Defendants.

Washington County Circuit Court
C064436CV
A139639

Keith B. Rogers, Judge.

Argued and submitted on March 19, 2010.

Michael J. Morris argued the cause for appellants. With him on the briefs was Bennett, Hartman, Morris & Kaplan, LLP.

Peggy Hennessy argued the cause for respondents. With her on the brief was Reeves, Kahn & Hennessy.

Before Haselton, Presiding Judge, and Armstrong, Judge, and Duncan, Judge.

ARMSTRONG, J.

Dismissal of defendants' counterclaim for trespass reversed and remanded; otherwise affirmed.

ARMSTRONG, J.

Defendants appeal a judgment quieting title to a disputed strip of land in plaintiffs and dismissing defendants' trespass counterclaim, raising five assignments of error. We write to address only one of defendants' assignments of error--viz., that the trial court erred in dismissing defendants' counterclaim for trespass against plaintiff Michel on the ground that her intrusion onto defendants' land was so trivial that she could not be liable for trespass--and reject the others without discussion. We agree with defendants that the trial court erred in dismissing defendants' counterclaim for trespass. Accordingly, we reverse the dismissal of that counterclaim and otherwise affirm.

The relevant facts are not in dispute. Plaintiffs and defendants own adjacent parcels of land in Washington County. In 2001, after a surveyor hired by plaintiffs had staked what he believed to be the line between the properties--on which plaintiffs had hoped to plant a hedge for privacy--plaintiffs and defendants began to dispute the actual location of the property line. Because of the dispute, defendants posted "No Trespassing" signs on their land near the staked line. Fearing that the surveyor might have incorrectly determined the property line, plaintiffs planted their hedge about five to seven feet inside of the stakes on their land. In 2003, Michel walked up a roadway on defendants' property, intruding five to six feet beyond the stakes placed in 2001, while pointing at the hedge and speaking to plaintiff Halperin, who remained on plaintiffs' land. Then, in 2006, after the property line dispute had subsided for two years, plaintiffs discovered that defendants had built a fence on plaintiffs' side of the staked line.

Plaintiffs sued defendants for trespass in response to the fence and for quiet title to resolve the dispute over the proper dividing line between the properties. Defendants asserted counterclaims for quiet title and for trespass based on Michel's intrusion in 2003, requesting, as a result of the trespass, damages and their attorney fees under ORS 20.080 (2007).(1) Following a bench trial, the court ruled:

"The defendant[s] ha[ve] raised an issue about whether * * * Michel walked on the dirt at one point five years ago for a few minutes or less.

"I would note [that] one of the cases [defendants] cited, Rhodes v. Harwood, [273 Or 903, 544 P2d 147 (1975),] does say that * * * the law infers some damage if nothing were treading down but grass, but, quite frankly, I am finding that neither side has proved by a preponderance of the evidence that there has been a trespass by the other that has allowed for any nominal damages. And I am finding * * * that those claims have not been proved."(2)

The court entered a judgment quieting title to the disputed strip of land in plaintiffs and dismissing both plaintiffs' trespass claim and defendants' trespass counterclaim with prejudice.

On appeal, defendants argue that Michel's physical entry onto their land establishes her liability for trespass, regardless of whether that entry was trivial or trifling. In response, Michel contends that her one-time entry onto defendants' roadway to view her own plants in 2003 did not sufficiently invade defendants' possessory interests in the land so as to support liability for trespass. We agree with defendants.

An actionable interference with a possessor's interest in exclusive possession of land is a trespass. Martin et ux v. Reynolds Metals Co., 221 Or 86, 90, 342 P2d 790 (1959), cert den, 362 US 918 (1960). Any physical intrusion by a person onto another's land necessarily interferes with the possessor's right to exclusive use of the land. Consistently with that principle, Prosser and Keeton on Torts