464 P.3d 490
Or. Ct. App.2020Background
- Carl and Letha Klippel partitioned a large Deschutes County parcel in the 1960s–70s but retained a small tract containing an unfinished road; that tract was later conveyed to Klippel Water, Inc. in 1982.
- Plaintiffs are current owners of lots sold by the Klippels (most not direct purchasers) who for many years used the unfinished road as a connector between Buck Drive and Palla Lane.
- In 2014 Klippel Water erected a fence blocking access; plaintiffs sued for a declaratory judgment and injunction, claiming an easement by prescription or by implication.
- The trial court dismissed the complaint under ORCP 21 A(8) for failure to state a claim and awarded partial attorney fees to defendant under ORS 20.105(1).
- On appeal the court accepted plaintiffs’ well-pleaded facts as true but held plaintiffs failed to allege facts sufficient to establish either a prescriptive easement (no alleged adversity) or an implied easement (insufficient allegations about expectations at original severance).
- The appellate court reversed the fee award (claims were not entirely devoid of support), vacated in part, and remanded for the trial court to enter a declaration of the parties’ rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint sufficiently alleged a prescriptive easement to the preexisting road | Plaintiffs argued years of open use and defendant’s knowledge suffice to infer adversity or belief in a right to use the road | Defendant argued use of a preexisting road is presumed permissive absent clear, communicated adversity; plaintiffs failed to allege interference with owner’s use or communicated claim of right | Held: Dismissed — plaintiffs failed to allege facts showing adverse use or notice to owner as required by Wels |
| Whether complaint sufficiently alleged an implied easement from the original severances | Plaintiffs argued longstanding use and a recorded 1975 survey labeling a "road easement" support an expectation that buyers acquired an easement | Defendant argued plaintiffs failed to allege historical facts about the original conveyances or what purchasers knew or expected at severance | Held: Dismissed — allegations lack the historical detail (Cheney factors) needed to show reasonable expectation at severance |
| Whether trial court properly awarded attorney fees under ORS 20.105(1) for objectively unreasonable claims | Plaintiffs argued claims had factual support (survey, long use) and thus were not entirely devoid of reason | Defendant argued plaintiffs’ claims were objectively unreasonable and lacked merit | Held: Reversed — complaint contained some factual support (survey, long use) so claims were not entirely devoid of legal/factual basis |
| Proper procedure for disposing of a declaratory judgment action via dismissal under ORCP 21 A(8) | Plaintiffs implicitly argued dismissal was improper for a declaratory judgment complaint | Defendant proceeded by motion to dismiss rather than answering | Held: Trial court erred to dismiss rather than enter a declaration; appellate court reviewed merits and remanded for entry of a judgment declaring parties’ rights |
Key Cases Cited
- Wels v. Hippe, 360 Or 569 (Or. 2016) (clarifying that for preexisting roads a claimant must show adverse use that gave the owner reason to know of the claim)
- Thompson v. Scott, 270 Or 542 (Or. 1974) (elements of prescriptive easement: open, notorious, adverse, continuous for statutory period)
- Dressler v. Isaacs, 217 Or 586 (Or. 1959) (implied easements are disfavored)
- Cheney v. Mueller, 259 Or 108 (Or. 1971) (factors to consider when inferring an implied easement at severance)
- Manusos v. Skeels, 263 Or App 721 (Or. Ct. App. 2014) (example applying implied-easement analysis to show reasonable expectation at purchase)
- Woods v. Hart, 254 Or 434 (Or. 1969) (use of a preexisting road is often presumed permissive among neighbors)
- Davis v. Gassner, 272 Or 166 (Or. 1975) (adversity can be shown by protests and acts asserting a claim of right)
- Williams v. Salem Women's Clinic, 245 Or App 476 (Or. Ct. App. 2011) (a claim lacks objective reasonableness only if entirely devoid of legal or factual support)