532 P.2d 14 | Or. | 1975
This is a suit in equity in which plaintiffs sought to enjoin interference with their use of defendants’ land. After a trial, the circuit court entered a decree declaring that plaintiffs own an easement across defendants’ land, ordering removal of portions of defendants’ fence within the easement, and enjoining future interference with plaintiffs’ use. Defendants appeal.
The parties own adjacent parcels of real property in Mt. Angel, Oregon. Plaintiffs have their home and operate a restaurant on their property. Defendants own and operate an auto repair garage on theirs. The dispute between them concerns their respective rights in a strip of defendants’ land which lies adjacent to plaintiffs’ restaurant. (See diagram.)
Plaintiffs base their prayer for removal of the fence and gate and for an injunction against further interference upon a 1963 decree entered in a suit between prior owners of the two parcels involved here. The 1963 decree
“[t]hat said right of use of said property shall have the same effect as an easement running with the land, provided, however, that the defendants [Havlik] may make no additional improvements thereon and * * * ,”
the rights cease upon abandonment by defendants.
Plaintiffs’ complaint alleges the establishment of their rights under the 1963 decree and the interference with those rights by defendants. The trial court heard evidence as to the nature and identity of the improvements and the use made of them in 1963 after which it entered a decree establishing an easement in plaintiffs and ordering removal of the fence and gate.
The issue presented on this appeal is whether
The record reveals that plaintiffs interpret the 1963 decree as giving them the right to use delivery vehicles over the strip in question to reach the rear or western end of the restaurant. And although not precisely asserted, plaintiffs appear also to claim the right to park automobiles in the “easement” and the right to perform maintenance work on the portion of the restaurant within defendants’ gate. The record reveals no evidence of interference with any right of plaintiffs.
The 1963 decree does not purport to grant plaintiffs an easement of right of way. It merely allows plaintiffs to maintain and use unspecified improvements which encroach upon defendants’ land, which right is characterized as having the same effect as an easement. If it was intended that an easement of right of way was to be created, it would seem that the decree would expressly so provide. In this connection, it should be noted that the decree expressly provides for an easement of right of way in Dawson, defendants’ predecessor in title.
Plaintiffs’ alternative contention that the 1963 decree created an easement for parking also is groundless. The 1963 decree explicitly allowed defendants’ predecessor a right of ingress and egress over the improvements to their unencumbered land. Parking automobiles alongside the restaurant would be inconsistent with this right of passage. Moreover, there is little if any evidence that the area now within the fence was ever used for parking in connection with the restaurant.
The decree of the trial court is reversed.
“JUDGMENT ORDER AND DECREE
“This matter having come on regularly for trial on the 27th day of March, 1963, and the plaintiff [Dawson] appearing in person and by Richard F. May and Asa L. Lewelling, her attorneys, and the defendants [Havlik] appearing in person and by Otto R. Skopil, Jr., their attorney, and the Court having heard the evidence and arguments of counsel and the Court being fully advised in the premises finds:
“(1) That the plaintiff is the legal owner by adverse possession, of the real property described in her complaint and designated as Parcel A;
“(2) That the plaintiff is the legal owner, by deed conveyance, of the real property described in her complaint and designated as Parcel B;
“(3) That the defendants have caused to be constructed on portions of Parcel A and Parcel B certain improvements which
“(4) That because of the investment which defendants have in said improvements, defendants will not be required to remove the improvements;
“(5) That plaintiff is entitled to money damages.
“NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
“(1) That the plaintiff is the owner of the real property described in her complaint and designated as Parcels A and B, subject to the defendants right to the use of portions thereof as hereinafter set out:
“(2) That the defendants shall be permitted to leave upon said property the improvements heretofore constructed by them;
“(3) That the defendants, their heirs, assigns, executors and administrators, shall have the right to use the improvements, which they caused to be constructed upon the plaintiff’s property, and that said right shall be exclusive provided, however, that the plaintiff, her heirs, executors, administrators and assigns, shall have the right to use said improvement for purposes of ingress and egress to the portions of Parcel A and Parcel B in which defendants have no rights, subject to defendants prior right to use as herein set forth. This provision is not to be construed as authorizing the plaintiff to make any alterations in the retaining wall constructed by defendants on portions of Parcels A and B of plaintiff’s property.
“(4) That said right of use of said property shall have the same effect as an easement running with the land, provided, however, that the defendants may make no additional improvements thereon and that said easement and the right of use herein decreed shall cease to exist and all of defendants’ rights adjudged herein shall revert to the plaintiff, her heirs, assigns, executors and administrators, in the event the defendants or their successors in interest abandon the improvements herein referred to.
“(5) That the plaintiff shall be required to maintain lateral support for said improvements.
“DATED AND ENTERED at Salem, Oregon this 30 day of Sept., 1963.”
Contributing to the lack of precision in identifying the nature of plaintiffs’ claim is the failure of plaintiffs to file a respondents’ brief.
See diagram, supra.
See Powers v. Coos Bay Lumber Co., 200 Or 329, 398, 263 P2d 913 (1954).
The retaining wall mentioned in the 1963 decree was buried a iew years later when defendants brought their property up to the level of plaintiffs’ land. Thus, access to the retaining wall and maintenance of lateral support have no place in this appeal.