Mid-Valley Resources, Inc. v. Foxglove Properties, LLPMid-Valley Resources, Inc. v. Foxglove Properties, LLP
This appeal arises from an action under the Uniform Declaratory Judgments Act, ORS 28.010 to 28.160, to resolve a property dispute between neighboring land owners. Foxglove Properties, LLP, and Mid-Valley Resources, Inc., own adjoining parcels of land in rural Yamhill County. The trial court issued a limited and then a general judgment declaring that Foxglove’s property is subject to both a 40-foot-wide public right-of-way and an adjacent 24-foot-wide private easement across which Mid-Valley can build a road. Foxglove appeals from both judgments, challenging the trial court’s rulings on summary judgment that the original owner of both parcels dedicated a 40-foot-wide public roadway through Foxglove’s property and that any private easement owned by Mid-Valley has not been extinguished by adverse possession. Mid-Valley cross-appeals from the general judgment, challenging the trial court’s refusal to declare that the 24-foot-wide strip is part of the public right-of-way, rather than only a private easement. We conclude that the trial court erred in declaring that there is a public right-of-way across Foxglove’s property, but correctly ruled that the 24-foot-wide roadway is not a public-right-of-way. We also conclude that genuine issues of material fact preclude summary judgment on the question of adverse possession. Accordingly, we reverse and remand the judgment on Foxglove’s appeal and affirm on Mid-Valley’s cross-appeal.
BACKGROUND 1 — 4
Mid-Valley owns the northern half, and Foxglove the southern half, of what was once a single parcel Ten own as Breyman Orchards. The 1909 plat of Breyman Orchards divided the property into 83 numbered lots drawn with solid lines to show the lot boundaries, although Breyman Orchards was never developed as a subdivision, and the lots were never sold off individually. In addition to the solid lot lines, the plat is marked with dashed lines that run inside the perimeter of, and across, the plat. The dashed lines are drawn parallel to lot lines, in some places bracketing the lot lines with double dashed lines.
Based on “scaling” the distance between each dashed line and the adjacent, parallel lot line is approximately 20 feet, making the space between the double-dashed lines approximately 40 feet.
At the southern end of the plat — now the Foxglove property at issue in this case — lots 42 and 43, and lots 52 and 53, are drawn as divided by a meandering north-south border with a single dashed line running alongside of that border. The space between the meandering border and dashed line is the strip that Mid-Valley claims to be a 40-foot-wide public right-of-way across Foxglove’s property (“the purported 40-foot road”).
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In 1936, the northern portion of the property was conveyed in a deed that also conveyed a “24-ft. roadway” running through the southern parcel (“the 24-foot easement”). In language that has significance to Mid-Valley’s public dedication claim, the deed describes the easement as running “parallel to and 12 ft. from the easterly margin of that certain roadway laid out and designated on the map of Breyman Orchards as running between lots 42 & 43, 52 & 53.”
The 24-foot easement and the purported 40-foot road running through those lots meet the southern boundary of the property at Breyman Orchards Road. Beginning in the late 1960⅛, a gravel road also ran from Breyman Orchards Road onto the property through the area at issue. The southern property was owned by the Timmons family at that time, and the gravel road connected Breyman Orchards Road to a rock quarry on the property. The quarry was initially operated
Mid-Valley sought a declaration that the dashed lines crossing the 1909 plat of Breyman Orchards were intended to represent dedications of public rights-of-way for roads, including a 40-foot public right-of-way across Foxglove’s property. It also sought a declaration that the 1936 deed created an additional 24-foot public right-of-way to widen the 40-foot public right-of-way across Foxglove’s property or, in the alternative, that the 24-foot easement created by the 1936 deed remained enforceable. Foxglove responded by seeking a declaration that there are no public rights-of-way through its property and that Foxglove’s predecessor extinguished through adverse possession any private easements across Foxglove’s property. Both parties filed motions for summary judgment to resolve the dispute.
The trial court granted both summary judgment motions in part and denied both motions in part, concluding that the 1909 plat dedicated a 40-foot-wide public-right-of-way through Foxglove’s property. The court reasoned in part that Foxglove should be judicially estopped from denying that the 1909 plat created a public right-of-way claim in light of a position Foxglove took in a 2004 hearing. The court also declared that the 1936 deed created a private easement that has not been extinguished through adverse possession.
II. ANALYSIS
Because the parties appeal from judgments that address cross-motions for summary judgment and have assigned error to the court’s rulings on both motions, both rulings are subject to review. Adair Homes, Inc. v. Dunn Carney,
A. Dedication for Public Roads
Before we explain why we are not persuaded that the dashed lines on the 1909 plat represent the dedication of public streets, we briefly describe the doctrine of common law dedication
“A ‘dedication’ is ‘an appropriation of land by the owner for a public use.’” Dayton v. Jordan,
“the public and individuals * * * proceed as if in fact there had been a dedication and acquire rights which would be lost if the owner were allowed to reclaim the land, then the law would not permit him to assert that there was no intent to dedicate no matter what may have been his secret intent.”
Muzzy v. Wilson,
A dedication may be express, “as when the intention to dedicate is expressly manifested by a deed or an explicit oral or written declaration of the owner, or some other explicit manifestation of his purpose to devote the land to public use.” Muzzy,
Mid-Valley’s public dedication argument turns on whether the 1909 plat implies an intention to dedicate public streets, but Mid-Valley also contends that Foxglove should be judicially estopped from denying that the plat dedicated public roads. We disagree with both propositions
1. Judicial estoppel
Judicial estoppel is a common law equitable principle by which a party may be barred from taking a position in one judicial proceeding that is inconsistent with a position the same party successfully asserted in a different judicial proceeding. Hampton Tree Farms, Inc. v. Jewett,
As the Supreme Court has explained, judicial estop-pel “has no single, uniform formulation in the several jurisdictions in which it has been recognized.” Hampton Tree Farms,
The facts pertinent to the estoppel issue are undisputed. Before it acquired the property subject to the dispute in this case, Foxglove and a related entity, Domaine Serene Vineyards, owned other property located within the 1909 plat. In 2002, a neighbor, relying on the dashed lines in the Breyman Orchards plat, sought to build a road through Foxglove’s property. Yamhill County took the position that the dashed lines represented the dedication of public rights-of-way, and issued a permit to Foxglove’s neighbor to improve a section of the asserted public right-of-way. Upon learning of the county’s position, Foxglove sought to vacate any public rights-of-way through its property.
In its application to vacate the roadway, Foxglove described the property to be vacated as “certain platted public roads in the Breyman Orchards subdivision!.]” During a hearing before the county, Foxglove’s counsel explained that, although Foxglove did not concede that there was a public right-of-way through its property, it sought to vacate any public right-of-way that the county believed existed. The Yamhill County Commission approved the requested road vacation.
The premise of Mid-Valley’s argument for judicial estoppel is that, by seeking to vacate public rights-of-way on its other Breyman Orchards property in 2004, Foxglove necessarily took the position that the 1909 plat identified and dedicated public rights-of-way, a position that would be inconsistent with Foxglove’s argument in the present action. As noted, the doctrine of judicial estoppel prevents a party, in some circumstances, from taking inconsistent positions in different judicial proceedings.
According to the facts that Mid-Valley describes as undisputed, in the 2004 proceeding, the county had already granted a right-of-way permit over one section of Foxglove’s property, which prompted Foxglove to initiate the road vacation proceeding to prevent the county from issuing additional permits. In order to do that, Foxglove necessarily had to describe the rights-of-way to be vacated. But that did not amount to an affirmative assertion, or an admission, that the plat had, in fact, dedicated public rights-of-way. Rather, Foxglove’s position in the earlier proceeding can be described as an alternative position — that assuming rights-of-way exist, they should be vacated. That position is not inconsistent with Foxglove’s position in the present action that there are no public rights-of-way through the property. Thus, Foxglove is not estopped from challenging Mid-Valley’s interpretation of the 1909 plat.
2. The 40-foot-wide roadway
Mid-Valley’s claim of dedication, here, is based on a theory of implied dedication. It contends that the undisputed facts establish that Breyman impliedly dedicated public rights-of-way with the Breyman Orchards plat. The burden to establish an implied common law dedication is a heavy one, however, and Mid-Valley’s evidence does not meet its burden.
To prevail on a claim of implied public dedication, the proponent must prove that the grantor intended “‘to devote his property to a public use, and this intention must be clearly and unequivocally manifested by his acts! ” Muzzy,
In determining whether Breyman intended to create a dedication of roads for public use, the plat and documents of conveyance are to be interpreted “as any other writing would be,” and “construed as a whole in order that the intention of the dedicator may be ascertained; and every part of the instrument given effect.” Security & Invest. Co.,
Here, as noted, the plat makes no express reference to streets or a dedication of streets, and the dashed-line strips are not labeled. The trial court, nevertheless, concluded that, in light of the design of the planned subdivision and the locations of the dashed lines through and connecting the lots, there was only one plausible explanation for the dashed lines: the laying out of a system of public streets for access to and between the lots. Foxglove contends that there are other plausible explanations, and we agree.
Foxglove argues that Breyman could have intended the dashed lines to suggest a variety of private uses if the lots were ever developed, including the location of future easements for private roads, alleys, or utilities. Those purposes are not equivalent to an intention to dedicate the land for public use. See Muzzy,
Foxglove also points to undisputed evidence that the same surveyor who prepared the 1909 Breyman Orchards plat had, earlier the same year, prepared a subdivision plat for another land owner on which the surveyor used a different, and explicit, marking system to designate land between the private lots that the owners intended to dedicate as roadways for public use. Although, as Mid-Valley emphasizes, it is the intent of the dedicator — i.e., not of the surveyor — that determines a dedication, see McCoy,
Mid-Valley asserts that the record on summary judgment, nonetheless, supports the trial court’s rulings, because there is evidence that subsequent owners “acknowledged” the existence of a public road when transferring portions of the property. We do not share Mid-Valley’s understanding that the language of subsequent deeds “acknowledged” a public dedication.
Mid-Valley argues that a dedication is established by the 1936 deed with which Richardson conveyed the north portion of Breyman
Mid-Valley also points to language that the Timmonses used in the 1969 and 1973 deeds, which referred to some of the land as “a platted area with certain dedicated but unopened roadways,” and provided that Timmons “anticipate [d] vacating” the roadways and “therefore reserve [d] the right to vacate said roadways.” But that language does not clearly express the intention to dedicate public roadways across the land. Indeed, the language in the 1969 and 1973 Timmons deeds clearly states that any roadways are not, and will not, be opened to the public.
We, therefore, conclude that the trial court erred in granting summary judgment to Mid-Valley on its claim that there is a dedicated 40-foot public roadway across Foxglove’s property. In addition, because there is no evidence from which it can be determined that Breyman or any subsequent owners in the chain of title demonstrated a clear and unequivocal intention to dedicate public roadways, the trial court also erred in denying Foxglove’s motion for summary judgment. See ORCP 47C (summary judgment).
3. The 24-foot roadway
Mid-Valley contends on cross-appeal that the trial court erred in declaring that there was never a dedication of a 24-foot public roadway across Foxglove’s property.
At the outset, we reject Mid-Valley’s argument that the 1936 deed must be construed as creating a public dedication of the “24-ft. roadway,” because it describes the roadway location with reference to “that certain roadway laid out and designated on the map of Breyman Orchards.” According to Mid-Valley, the easement must have dedicated a public right-of-way because it was meant to run adjacent to, and expand the width of, what Mid-Valley presumes was an existing public right-of-way on the Breyman Orchards map. Having rejected Mid-Valley’s premise that the dashed lines on the Breyman Orchards map indicate a public right-of-way, we also reject Mid-Valley’s conclusion that the easement must have dedicated an extra width of public roadway.
In addition, applying the standard for establishing a public dedication that we have described above, we conclude that the language of the conveyance in the Namitz deed cannot be construed as clearly and unequivocally establishing a public dedication. In fact, the deed conveyed the roadway to the Namitzes and “their heirs and assigns forever.” That language is not a clear and unequivocal intention to dedicate a public right-of-way.
Moreover, we reject Mid-Valley’s contention that reference to the 24-foot strip as a “roadway” in the conveyance expressed the unequivocal intention to dedicate a public roadway. Our cases demonstrate that private easements are commonly described as “roads” or “roadways.” Howe v. Greenleaf,
B. Adverse Possession
Finally, we address Foxglove’s contention — raised as both an affirmative defense and in its counterclaim for declaratory relief
1. Mid-Valley’s motion for summary judgment
The party seeking to establish adverse possession of an easement must demonstrate by clear and convincing evidence that the “use of the property was actual, open, notorious, exclusive, continuous, and hostile for a 10-year period, and that the use was inconsistent with the use of the easement by the owners of the dominant estate.”
We begin by considering Mid-Valley’s motion for summary judgment, viewing the record in the light most favorable to Foxglove — the party opposing the motion. Adair Homes, Inc.,
In Mid-Valley’s brief on appeal, it primarily challenges Foxglove’s ability to establish the duration of the allegedly adverse possession (that the identified adverse use did not continue for 10 years). For the period prior to 1994, Mid-Valley asserts that “[t]he undisputed evidence in the record demonstrates that it was the tenant mining company, not the Timmonses, who installed the chain and gate and kept it locked to protect its mining equipment,” and argues that the act of a tenant cannot establish adverse possession. After that period, Mid-Valley points to evidence that the Timmonses regularly left the entrance gate open.
We, thus, focus on Mid-Valley’s challenge to the element of “continuous” use and then briefly address each of the other elements of adverse possession. With respect to the element of “continuous” use, contrary to Mid-Valley’s contention, it makes no difference that the access was blocked by the Timmonses’ tenants as opposed to directly by the Timmonses. A tenant’s adverse use of an easement “inures to the benefit of [the] landlord in establishing” adverse possession. Feldman v. Knapp,
Moreover, evidence of different use after 1994 is irrelevant, because, once an easement is extinguished, it is gone forever unless it is recreated de novo. Faulconer,
The evidence permits a reasonable inference that the other elements of adverse possession are satisfied as well. First, the evidence permits a finding that the Timmonses used the property in a manner that satisfies the elements of “actual” and “exclusive” use. Both elements focus on whether the use of the land is consistent with that of an owner of that land. Slak v. Porter,
The record also permits a finding that the use of the easement was “open” and “notorious.” Use of land that is open and notorious for purposes of adverse possession need not openly declare an intention to block use of the easement; it is enough that the manner of use gives constructive notice that the person is asserting ownership. Slak,
Finally, the record permits a finding that the element of “hostility” is met from the evidence that the Timmonses intended to completely control who could enter the roadway at the area of the easement. That evidence of intent establishes “hostility” whether the Timmonses knew the land was subject to an easement or mistakenly believed it was not. See Faulconer,
Thus, the evidence in the record would permit a reasonable factfinder to determine that the 24-foot roadway easement, as well as any easement for an adjacent 40-foot private roadway, were extinguished by adverse possession. This means that the trial court erred in granting Mid-Valley’s motion for summary judgment on the question of adverse possession.
2. Foxglove’s motion for summary judgment
Although we have concluded that the record permits a factfinder to rule in favor of Foxglove on the issue of adverse possession, the record also permits a factfinder to rule against Foxglove. In reviewing Foxglove’s motion for summary judgment on adverse possession, we must shift our perspective and view the evidence in the light most favorable to Mid-Valley, the party that opposed the motion. ORCP 47 C. Moreover, we must view the record in light of the rule that Mid-Valley bore no burden on summary judgment to produce evidence to controvert the elements of adverse possession because Mid-Valley
Viewing the record through the lens required by ORCP 47 C, we are persuaded that genuine issues of material fact preclude Foxglove from prevailing as a matter of law on the issue of adverse possession. Specifically, the evidence does not compel a finding that the gate was placed at a location that blocked access to the easement or that it was consistently used in a manner that manifested an intention to prevent the easement holder from using the easement for roadway purposes. Thus, the record permits a reasonable factfinder to find that Foxglove has not proven by clear and convincing evidence that it extinguished the easement by adverse possession. See Faulconer,
III. CONCLUSION
For the reasons detailed above, the trial court correctly declared that there is no public 24-foot roadway across Foxglove’s property but erred in declaring that there is a 40-foot-wide public roadway across Foxglove’s property. The trial court further erred in ruling that, as a matter of law, the easement or easements on Foxglove’s property were not extinguished by adverse possession.
Reversed and remanded on appeal; affirmed on cross-appeal.
Notes
Foxglove submitted evidence that “[s]caling confirms” some variations, with the distance between dashed lines and the perimeter as narrow as 18 feet and the distance between some dashed line pairs as wide as 45 feet. For purposes of this appeal, we accept Mid-Valley’s estimate of the distances as exactly 20 feet and 40 feet because we ultimately conclude that, even viewed in the light most favorable to Mid-Valley, Foxglove is entitled to prevail on its motion for summary judgment regarding the public right-of-way.
Oregon also provides a statutory process for dedicating a public street right-of-way. See ORS 92.175 (describing methods by which “[I]and for property dedicated for public purposes may be provided to the city or county having jurisdiction over the land”); Fallon v. Humes,
We note that Oregon case law is mostly illustrative of when Oregon courts will not apply the doctrine of judicial estoppel. Although many cases have considered whether the doctrine was applicable, only a few have actually applied it. See, e. g., Hallberg,
Mid-Valley argues that a discussion of scholarly opinions in Oregon City v. Or & Cal. R. Co.,
For purposes of this opinion, we accept Mid-Valley’s premise that deeds from subsequent owners can create a public dedication of roadways. See Muzzy,
There is no contention that the 1936 deed conveyed to Namitzes fee title to the roadway. The possibilities presented by Mid-Valley were either a private easement or a public dedication.
In 1989, the legislature enacted ORS 105.620, which codified the common law of adverse possession and added a requirement that a party seeking to acquire fee simple title to real property by adverse possession must have had an “honest belief of actual ownership” when he or she first entered into possession of the property. Or Laws 1989, ch 1069, § 1. That statute, however, “does not apply to adverse possession claims whereby the owner of fee simple title to real property seeks to extinguish an easement on that property.” Uhl v. Krupsky,
On appeal, Mid-Valley argues that “Foxglove never offered any proof that the mining company’s road and gate was over the easement.” However, to oppose the motion for summary judgment, Foxglove bore the burden to produce evidence only on issues “raised in the motion as to which the adverse party would have the burden of persuasion at trial.” ORCP 47 C.