Sander v. Nicholson, 473 P.3d 1113

Background

In 1994 plaintiffs and Monosoff recorded a reciprocal, nonexclusive 25-foot-wide easement along the eastern boundary of both parcels for "ingress and egress" and underground utilities, with a potential future dedication to the city.
A county road (Prather Street) runs parallel to the southern portion of the easement on what became defendants’ property; that road existed when the easement was granted.
Monosoff sold the southern parcel (containing the easement) to defendants, who installed a domestic well, rock walls, trees, fencing, and landscaping within the southern portion of the easement, rendering that portion unusable for vehicular access.
Plaintiffs sued asserting interference with the easement, declaratory relief, trespass, breach of contract and breach of the implied covenant of good faith and fair dealing, fraud, negligent misrepresentation, and nuisance; defendants counterclaimed.
The trial court declared plaintiffs have the full 25-foot easement along defendants’ eastern boundary, found defendants interfered, ordered removal of obstructions and enjoined future obstructions, directed a verdict for plaintiffs on contract liability but dismissed contract damages without prejudice as unripe, and denied plaintiffs’ attorney fees while awarding reduced costs.
On appeal the court affirmed the easement/declaratory judgment and most rulings but reversed and remanded to dismiss with prejudice plaintiffs’ breach of contract and breach of implied covenant claims for procedural/pleading reasons; the cross-appeal denying fees and awarding reduced costs was affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs are entitled to use the full 25-foot easement along defendants’ eastern boundary and whether defendants’ improvements interfere	Easement grant covers entire length/width; defendants’ obstructions deny plaintiffs use and thus interfere	Alternate vehicular access via Prather Street (combined with northern easement) supplies reasonable ingress/egress so southern portion need not be available	Affirmed: express easement not extinguished by alternate route; defendants’ obstructions substantially interfered with plaintiffs’ easement rights
Whether defendants could limit plaintiffs’ use to an alternate route such that obstruction of the southern section is permissible	Plaintiffs bargained for use of the southern section; alternate access doesn’t extinguish an express easement	Existence of Prather Street fulfills easement purpose, so blocking southern section is reasonable	Affirmed: prior precedents (Cotsifas/Abbott) foreclose extinguishing part of an express easement because an alternate route exists
Whether plaintiffs properly pleaded and proved breach of contract and breach of implied covenant such that directed verdict for plaintiffs on liability was proper	Easement agreement is a contract/servitude binding successors; defendants breached it by blocking access	Easement is an encumbrance, not a personal contract; plaintiffs’ contract pleading was inadequate	Reversed: trial court erred—plaintiffs pleaded ordinary contract claims (not an equitable servitude enforcement) so directed verdict on contract liability was improper; contract claims dismissed with prejudice on remand
Whether plaintiffs were entitled to attorney fees and full costs	Fees and full costs warranted because defendants’ positions were objectively unreasonable	Plaintiffs failed to plead a statutory or rule basis for fees; fee request therefore properly denied; costs reduced	Affirmed: denial of attorney fees affirmed for failure to plead basis; reduced costs award affirmed

Key Cases Cited

Cotsifas v. Conrad, 137 Or App 468 (1996) (express easement not terminated by availability of alternate route; lack of necessity does not extinguish express easement)
Abbott v. Thompson, 56 Or App 311 (1982) (existence of another ingress/egress route does not defeat an express easement not limited to necessity)
Clark v. Kuhn, 171 Or App 29 (2000) (scope of easement use limited to what is reasonably necessary; not all widening/paving is essential)
Craft v. Weakland, 174 Or App 185 (2001) (minor obstructions not necessarily a substantial interference given easement scope)
Landauer v. Steelman, 275 Or 135 (1976) (tort damages available for substantial interference with easement)
Fitzstephens v. Watson, 218 Or 185 (1959) (equitable enforcement of covenant/servitude that runs with the land)
Marsh v. Pullen, 50 Or App 405 (1981) (blocking easement with parked cars interfered with free and unrestricted use)