343 Or. App. 244
Or. Ct. App.2025Background
- In 1908 a plat for Tolovana Park dedicated its streets and avenues “to the public for its use as thoroughfares forever,” including Nenana Avenue (an undeveloped pedestrian path on a steep hillside).
- Haystack Rock, LLC (plaintiff) now owns multiple lots abutting Nenana Avenue (lots 14–15 and others); Rebecca and Stanley Roberts (defendants) own lot 13 immediately adjacent.
- The City of Cannon Beach owns an abutting lot across Nenana Avenue and is considering granting the Robertses a perpetual, nonexclusive private driveway easement across the western portion of Nenana Avenue to reach Hemlock Street.
- Plaintiff sued for declaratory relief, arguing the City lacks authority to grant a private easement because the 1908 plat dedication did not convey fee title to the City.
- The trial court granted summary judgment to the Robertses, concluding (relying on Landis/RealVest principles) the 1908 dedication conveyed fee to the City and therefore the City could grant an easement so long as it did not interfere with public use.
- The Court of Appeals reversed: it held the 1908 plat created a public easement but did not transfer fee to the City (abutting owners hold fee to the center of the avenue), and the City lacks authority under the municipal code or ORS 271.310 to grant the requested private easement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who holds fee title to Nenana Avenue (did the 1908 plat transfer fee to the City)? | Plat dedication created only a public easement; fee remained with the dedicator and successors (abutting owners). | Under Landis/RealVest, instruments dedicating or conveying public ways to a public body can transfer fee when language indicates intent to convey. Trial court: 1908 plat transferred fee to City. | Reversed: plat dedication created a public easement; fee remained with abutting owners (each owns to the center of the street subject to the public easement). |
| Can the City rely on Cannon Beach Municipal Code §12.36.014 to grant a private easement over Nenana Avenue? | N/A | CBMC §12.36.014 grants jurisdiction and regulatory control over rights-of-way, implying power to permit easements. | No: the code recognizes regulatory authority and trusteeship but does not itself transfer property interests or authorize the City to convey easements over privately held fee. |
| Does ORS 271.310(1) authorize the City to sell/convey an interest in Nenana Avenue to a private party? | N/A | ORS 271.310(1) allows political subdivisions to sell/lease real property not needed for public use, which could support an easement conveyance. | No: statute is inapposite here; the City does not possess a fee interest in the portion at issue that would permit conveyance under ORS 271.310. |
| Was the proposed driveway easement consistent with Nenana Avenue’s dedicated public thoroughfare use? | N/A | Trial court: terms of proposed easement protected public use and therefore were consistent. | Court did not reach merits because City lacks authority to grant the easement; the consistency question is unresolved on appeal. |
Key Cases Cited
- Landis v. Limbaugh, 282 Or App 284 (2016) (construed a recorded dedication deed as transferring fee to the county based on deed language; distinguished here).
- RealVest Corp. v. Lane County, 196 Or App 109 (2004) (construed a conveyance to a public body as conveying fee despite use of the phrase “right-of-way” where deed language showed intent to transfer).
- Carter v. City of Portland, 4 Or 339 (1873) (common-law rule: dedication creates a public easement while fee remains in the dedicator until transferred).
- Miller v. Roy W. Heinrich & Co., 257 Or 155 (1970) (when lots abutting a dedicated street are sold, the abutting owner holds fee to the center of the street subject to the public easement).
- Douglas County v. Umpqua Valley Grange, 45 Or App 739 (1980) (public acceptance of a plat dedication is implied when lots are sold with reference to the plat; governing body is trustee to assure dedicated land is used for dedicated purposes).