This case concerns the propriety of the trial court’s grant of summary judgment on plaintiff’s
The following facts are- undisputed. Plaintiff Penny and defendant Burch are purchasers of two adjoining tracts of land situated on the north side of Highway 140 in Klamath County. The southwest end of plaintiffs parcel borders the northeast end of defendant’s parcel. Each party purchased its parcel from plaintiffs parents, Robert (deceased) and Barbara Penny (the common grantors), who originally owned the proрerty as a single parcel.
Regarding the Penny parcel, in 1980 the common grantors transferred the property to Dudgeon (an intermediate holder of the property) by wаrranty deed while retaining the balance of the property at issue here. The deed contained an express grant of an easement over the east 30 feet of the retained property for the benefit of the property sold to Dudgeon. Dudgeon executed a bargain and sale deed reconveying the property to the grantors in 1988. The grantors then conveyed the parcel to the plaintiff here, their son, Pаtrick (deceased), and his wife, Roxanna, by way of a bargain and sale deed. That deed did not refer to any easement across the retained property. Plaintiff maintains her family home on the property.
In 1992, the grаntors conveyed the retained property to defendant by warranty deed. They did not expressly reserve an easement over the east 30 feet of the property in the conveyance to Burch. The deed to Burch did, however, provide that the property was “free from all encumbrances except those of record and those apparent upon the land, if any, as of the date of this deed.”
In May 1993, Burch bloсked access to plaintiffs claimed roadway easement by parking a school bus and a truck across it. Following that incident, plaintiff brought this action alleging, inter alia, that she was entitled to an easement across Burch’s рroperty and a permanent injunction enjoining him from interfering with or obstructing her access to it.
Before trial, plaintiff moved for partial summary judgment, claiming entitlement to an easement across Burch’s property under three theories. Under the theory of easement by implication, plaintiff argued that direct evidence of the grantors’ intent and the circumstances at the time of the conveyance of the parcel to her establish the creation of an implied easement as a matter of law. Burch countered that summary judgment was not appropriate because the circumstances at the time of the sale raise a genuine issue of material fact about whether the grantors intended to create an easement across his property. The trial court granted plaintiffs motion to recognize the easement after giving “greаt weight” to the manner in which the land was used before the conveyance and the extent to which the manner of prior use was or might have been known to the parties. Later, after a trial, the court granted plaintiffs rеquest for a permanent injunction against defendant and entered final judgment. This appeal followed.
On appeal, Burch assigns error to both rulings. We turn first to the propriety of the trial court’s grant of summary judgment.
An implied eаsement may arise when the owner of land held under one title conveys part of the land to another:
“If there was a previous apparent and permanent use of the land that is important for the enjoyment of the parcel that the common owner sold, the courts may imply that the purchaser received an easement, measured by the pre-existing use, over the parcel that the common owner retained. Although there are many factors to consider, the essential question is whether a reasonable purchaser would be justified in expecting the easement under the circumstances in which he or she purchasedthe lаnd. There must be a reason for assuming that a right to continue using the quasi-easement is part of the bargain.” Garrett v. Mueller, 144 Or App 330 , 341,927 P2d 612 (1996), rev den324 Or 560 (1997).
In Rose et ux v. Denn et ux,
Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp.,
The summary judgment record before us consists of the affidavits of Barbara and Roxanna Penny
First, plaintiffs deed does not provide an express reservation of an easement across the Burch parcel. In fact, of all of thе conveyances of the two properties, only the grantors’ conveyance to Dudgeon expressly includes “an easement over the East 30’ of [the Burch parcel].” It follows that the grantors knew how to resеrve an easement across the Burch property but did not do so in conveying the property to plaintiff.
Second, the record shows that plaintiffs parcel is accessible by alternate routes.
Third, as far as the record shows, the only evidence of the prior use of the claimed easement goes to the incident in which Burch blocked plaintiffs access to her property by parking a school bus in her path. All that evidence establishes is that plaintiff, at least to some extent, gained access to her property by crossing Burch’s propеrty. That evidence, however, does not materially aid our inquiry here. There is no evidence of any other use of the disputed area from the time of the conveyance to Dudgeon to the present.
Finally, the еvidence shows that the deed to Burch, although not expressly reserving an easement in favor of plaintiffs tract, does reserve those encumbrances “apparent upon the land” for the benefit of the plаintiffs tract. That language appears to have been added to a warranty deed form. The grantors may have thought something was apparent on the land. Whether or not the claimed easement was “apрarent upon the land” is
On this record, we conclude that there are material issues of fact about whether the disputed roadway easement was so open and apparent thаt a purchaser could reasonably assume that the bargain included an easement burdening the Burch tract with a servitude for the benefit of the plaintiffs property; the trial court erred in granting plaintiffs motion for summary judgment and, thus, in entering the judgment on appeal. In this light, we need not address Burch’s second assigned error. Accordingly, we reverse and remand.
Reversed and remanded.
Notes
There are two plaintiffs: Roxanna Penny in her individual capacity and as personal rеpresentative of her late husband Patrick’s estate. We refer to them in the opinion as “plaintiff.”
We repeat the admonition that the title “judgment order” is inherently contradictory and trial courts should not sign documents bеaring that title. Goeddertz v. Parchen,
In 1980, the property was partitioned into the two parcels we refer to here as the Penny and Burch parcels.
To the extent that plaintiffs affidavit and that of Barbara Penny state the grantors’ unexprеssed intent concerning the easement when they conveyed the plaintiffs parcel, those affidavits are irrelevant. We look only to the parties’ communications and overt acts and do not consider еvidence of one party’s undisclosed intent. See Kitzke v. Turnidge,
Burch’s testimony on that point is uncontroverted. In his affidavit in opposition to plaintiffs motion for partial summary judgment, Burch stated:
“In establishing an easement, there are a number of alternative routes. Access to [plaintiffs] property used to be from the west and the Godowa Springs Road. Access could also be across the Riddle property which is located to the east of my property and south of [plaintiffs] property.”