Marlow v. City of Sisters

A landowner’s consent to trespass based on mutual mistake is valid, but a landowner’s consent to trespass based on mistake known by the trespasser or on the misrepresentation of the trespasser is invalid.

The City appealed the trial court’s denial of its motion to dismiss based on Plaintiffs’ consent to road improvements done on land they owned. In 2010, the City decided to construct sidewalks, curbs and paved parking along Main Street, and believed it either owned the land or had the right-of-way to proceed. During planning, Plaintiffs met with the City’s Public Works Director to discuss the proposed improvements and did not raise any concerns. After the improvements were complete, an architect told Plaintiffs that they may actually own the land in question, and Plaintiffs contacted the City to clarify the issue. The City responded that it owned the tract and included a copy of the title report on which it had relied. Plaintiffs then filed suit alleging trespass. During a bench trial, the City moved for a directed verdict arguing that Plaintiffs consented to construction of the improvements. The trial court disagreed, concluding Plaintiffs’ consent failed because of the mistaken belief held by all parties regarding ownership of the land. On appeal, the Court held the trial court erred because evidence of Plaintiffs’ consent to the City’s trespass prevented Plaintiffs from making out a prima facie case. The Court relied on the Restatement (Second) of Torts, section 892B(2), which provides that if consent is induced “by a substantial mistake . . . known to the other or [] induced by the other’s misrepresentation, the consent is not effective.” The comments to section 892B(2) clarify that the consent is not invalid when it is based on mutual mistake. The Court found that because the evidence on record showed the mistake was mutual, Plaintiffs’ consent to the City’s improvements was valid. Reversed and remanded as to Plaintiffs’ trespass claim.