266 P.3d 178
Or. Ct. App.2011Background
- Plaintiffs Betty Fischer (trustee) owns Tax Lot 500; Derek Walker owns Tax Lot 900; Tax Lot 600 lies west of 500 and northwest of 900.
- In 1961 the Thayers granted Lelands an easement to use a 20-foot dirt road across the Thayers’ land for the benefit of Tax Lot 600, described as appurtenant to Lot 600.
- Deeds to Tax Lot 500 (Fischers) in 1961 and Lot 900 (Sweos/Wake) in 1965 conveyed property with “free from encumbrances” language; the easement was not mentioned in Lot 500’s deed.
- The dirt road was the sole access to Tax Lot 500 until 1972 when S. Cox Road provided alternate access, but the easement road remained the primary route to the rear of Lot 500 until 2008.
- In 2008 the Fischers allege defendants obstructed the dirt road with a fence, vehicles, equipment, and a dirt pile, causing interference with the easement.
- Plaintiff sought injunction and damages, arguing the 1961 reservation created an easement benefiting Lot 500 and implied an easement by prior use; defendants moved for summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the 1961 reservation create an express easement for Lot 600 and burden the Thayers’ land? | Reservation created a new servitude benefiting Lot 600, conveyed to Fischers as appurtenant to Lot 500. | Reservation did not create a new servitude; it merely allowed Thayers to use the road as servient owners. | No express easement; language does not create a servitude for Thayers' land. |
| If not express, did an easement by implication arise at severance of Lot 500? | Prior known use and necessity imply an easement for Fischers to access Lot 500. | Plaintiff failed to plead facts showing necessity, prior use, or known circumstances supporting implied easement. | No implied easement; pleading deficiencies merited summary judgment for defendants. |
Key Cases Cited
- Bloomfield v. Weakland, 199 P.3d 318 (Or. App. 2008) (easement purpose and analysis of ambiguity in conveyances)
- Ploplys v. Bryson, 69 P.3d 1257 (Or. 2003) (reservation of right creating easement to benefit third parties)
- Knight v. Nyara, 248 P.3d 36 (Or. App. 2011) (interpretation of easement scope and purpose; use of context)
- Tipperman v. Tsiatsos, 964 P.2d 1015 (Or. 1998) (factors for implied easement by prior use)
- Garrett v. Mueller, 927 P.2d 612 (Or. App. 1996) (factors for implied easement by prior use)
- Penny v. Burch, 941 P.2d 1049 (Or. App. 1997) (factors for implied easement; prior use and necessity)
- Weihl v. Asbestos Corp., Ltd., 129 P.3d 748 (Or. 2006) (pleading requirements for summary-judgment stage treatment)
- Hurd v. Byrnes, 506 P.2d 686 (Or. 1973) (interpretation of deed terms and reservations)
- Oliver v. Johnson, 113 P.2d 430 (Or. 1941) (reservation versus exception in conveyances)