302 P.3d 812
Or. Ct. App.2013Background
- Hopkinses and Busbys executed an IPA in March 1999 granting Hopkinses a non-exclusive right to service and maintain an underground irrigation pipeline that runs through Tax Lots 400 and 500 (Busby property) to Parcel 1 (Hopkinses’ property).
- The IPA provides a 15-foot, non-exclusive easement for access through Tax Lots 400 and 500.
- Parcel 1 of Land Partition 1998-0103 was deeded to Hopkinses in November 1998; pipeline historically served Hopkinses’ parcel.
- In April 1999, Busbys deeded Parcel 2 to Miller and Millsap and granted them an easement over Busby property; Busbys later sold Tax Lots 400 and 500 to Jones (2005).
- Hopkinses later sold Parcel 1 to Worths in May 2006; dispute arose whether IPA creates an appurtenant easement for Worths to use the pipeline on Jones’s property.
- Trial court held the IPA creates an appurtenant easement to use, service, and maintain the pipeline; defendant appeals arguing it creates only a license and, even if an easement, not appurtenant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IPA creates an express easement | Worth argues IPA uses 'easement' language showing grant of rights. | Jones asserts IPA only grants a personal license. | IPA unambiguously creates an express easement. |
| Whether the easement is appurtenant | Easement runs with dominant estate Parcel 1 (Hopkinses’ property). | No appurtenant language; easement may be personal. | Easement is appurtenant; transfers with the dominant estate. |
| Whether the easement transfers to plaintiffs as successors | Since IPA creates an appurtenant easement, it passes to Worths. | No transfer unless explicitly stated. | Easement transfers to plaintiffs as successors. |
Key Cases Cited
- Bloomfield v. Weakland, 224 Or App 433, 199 P.3d 318 (Or App 2009) (express easement may be created by writing showing grantor’s intent to create a right in the nature of an easement)
- German Savings & Loan Soc. v. Gordon, 54 Or 147, 102 P 736 (Or 1909) (early authority on easements and rights in land)
- Hall v. Meyer, 270 Or 335, 527 P2d 722 (Or 1974) (strong preference for appurtenant easements when dominant estate identified)
- Verzeano v. Carpenter, 108 Or App 258, 815 P2d 1275 (Or App 1991) (easement appurtenant where language shows intended dominant estate)
- Hunnell v. Roseburg Resources Co., 183 Or App 228, 51 P3d 680 (Or App 2002) (distinguishes limited-term easement from indefinite conveyance to successors)
- Connall v. Felton, 225 Or App 266, 201 P3d 219 (Or App 2009) (an instrument’s intention governs interpretation; context considered)