442 P.3d 218
Or. Ct. App.2019Background
- Midstate Electric is a nonprofit electric cooperative with an exclusively serviced territory allocated by the PUC in 1962; Midstate obtained a USFS special use permit to construct and operate power lines on USFS land at Sugar Pine Butte.
- Western Radio (plaintiff) was a Midstate member; in 1992 Western requested power to its radio tower on Sugar Pine Butte; Midstate estimated construction costs and offered two payment options (financing with an Electric Service Agreement that expressly stated Midstate ownership, or an up‑front payment Option Two reflected in a letter of agreement that did not state ownership).
- Western chose Option Two and paid the contribution in aid of construction; Midstate obtained the USFS permit for the line, which conditioned permit continuity on Midstate’s continued ownership of equipment.
- Western later leased tower space to Verizon; Western’s USFS permit expired and federal litigation resulted in a judgment and injunction requiring Western to remove its equipment from USFS land; the federal court awarded the property to the government.
- Midstate continued to supply Verizon but disconnected Western; Western sued Midstate and Verizon asserting ownership of the buried power cable and seeking damages, injunction, and declaratory relief; defendants moved for summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Western owns the buried power line such that defendants committed trespass to chattels/conversion | The parties orally and by the 1992 letter intended Option Two to confer ownership of the line to Western (per Overdorfer affidavit) | No evidence of ownership; Midstate’s Electric Service Agreement and policies, USFS permit conditions, and regulatory scheme show Midstate owns and controls the line | Court: No; plaintiff failed to produce evidence creating a material fact issue—summary judgment for defendants upheld |
| Whether Overdorfer’s affidavit raises a factual dispute on ownership | Affidavit reflects Western’s understanding that Option Two made the line Western’s property | Even if believed, objective record and regulatory/permit constraints make it unreasonable that parties intended transfer of ownership | Court: Affidavit insufficient to create triable issue given regulatory context and permit language |
| Whether Western’s claim is properly characterized as trespass to land vs trespass to chattels/conversion | Pleaded as trespass but claims rest on ownership of chattel (the cable) | Defendants: trespass to land cannot be supported; any claim must be chattel/conversion, requiring proof of ownership | Court: Trespass to real property not plausible; claim must be chattel/conversion and Western failed to show ownership |
| Whether declaratory judgment claims should have been dismissed | Western sought declarations voiding contracts and prohibiting Midstate’s agreement with Verizon | Defendants argued no justiciable controversy absent a viable ownership/trespass claim | Court: Trial court erred to dismiss declaratory claims outright — judgment vacated and remanded for a declaration consistent with this opinion |
Key Cases Cited
- Bell v. City of Hood River, 283 Or. App. 13 (2016) (remand for declaration when dismissal of declaratory relief is error)
- Goodwin v. Kingsmen Plastering, Inc., 359 Or. 694 (2016) (distinguishing trespass to land from other torts; elements of possessory invasion)
- Mustola v. Toddy, 253 Or. 658 (1969) (conversion requires ownership and right to control chattel)
- Two Two v. Fujitec America, Inc., 355 Or. 319 (2014) (summary judgment burden on nonmoving party to produce evidence creating material fact issue)
- Schroeder v. Clackamas County Bank, 291 Or. App. 16 (2018) (error to dismiss declaratory relief when a justiciable controversy exists)
- Woodroffe v. State of Oregon, 292 Or. App. 21 (2018) (summary judgment evidence must be viewed in the light most favorable to nonmoving party)