*1 Argued 26; petition 13, 1949; October affirmed December rehearing January 24,1950 denied
ROSE DENN v. et et ux. ux. (2d)
212P. 1077 (2d) P. 810 [1] *2 Green, Jr., D. and William Thompson W. Avery filed a for appel- the cause and brief Roseburg, argued lants. Felker, the cause for M. Roseburg, argued
Carl him on the brief was Paul E. With respondents. Roseburg. Geddes, of
Before Lusk, Justice, Chief and Brand, Rossman, Hay Justices. Bailey, Page,
ROSSMAN, J. appeal from
This is defendants a decree plaintiffs held of the Circuit Court which that the “are of an the owners and users easement and *3 * * necessity, particularly more described as follows, *. they hereby The defendants and each of them and be perpetually enjoined are restrained and from in closing interfering manner use with the and travel way necessity plaintiffs of said easement and * * V’ The easement sustained challenged decree extends across tract of defendants-appellants, land which is owned Henry Denn, Denn and Nora husband and wife. The defendants-appellants other have an interest in property, Denns’ but the interest is immaterial to the appel- use issues this case. Our term “the defendants-appellants, lants” will hereafter mean the Henry Denn Nora Denn. All lands involved in this suit are 26 and 35, situated Sections Township Range 9 Willamette Me- South, West, Valley Douglas County. ridian, and are near Camas glance A following at the pre- sketch, which makes no accuracy, at tense will understanding facilitate an presently facts which we shall narrate.
5 ownership by respondents, hus- who are quarter band of the North- and Northeast wife, quarter being west of Section tract 40-acre 35, respondents which our sketch is conceded. The shows, plaintiffs were the in the Likewise Court. Circuit appellants conceded is the fact that the own the tracts our are: attributed them sketch. Their lands y2 (W quarter “The half of the West Southwest 14) quarter SW and the Southeast of the South- quarter (SE 14), west 25. SW Section quarter (4) “Lot No. Four and the of Southwest quarter (SW 14) the Southwest Section 26. SW14 strip “A of Lot No. Four of land 120 wide feet off the North end
(4) strip and a feet land 120 quarter wide off North end of the Southwest quarter (SW 14) of the Southeast Section 25. SE14 part Day “All that of the Adam Donation Claim No. 44 in 26, Section described as to-writ: follows, Beginning at the Southeast corner said Section running thence North 40 chains; thence West 56.50 chains to the Northeast corner of No. Lot in said Section 26; thence South 40 chains corner Southwest said Donation Claim No. 44; beginning. place thence East 56.36 chains to the being Township “All above land 29 South Bange of containing 9 West of the Willamette and Meridian, aggregate in the 396.82 acres more less.” appellant’s quote following:
From the brief, undisputed present roadway “It that at appellant’s prop- existence over across the erty including by Henry property acquired J. Denn from Denn, ancestor, Jacob in 1894 roadway easterly this in an extends northerly commencing direction about 50 feet west respondents’ prop- of the northeast corner of the erty.” *5 by conveyance quoted language a made The mentions Henry conveyee, Denn in The J. 1894. Jacob Denn conveyor Henry of and the son the Denn, J. was appellant, Henry It is conten the Denn. the father of conveyed respondents tract of that since the tion the lay public and tracts the road other between conveyor implication the owned, an arose that the conveyor way an easement or reserved thoroughfare conveyed The shown the lands. across county “public a our marked road” is on sketch and opened Thus, easement, the road which was 1874. imposed upon recognized by not decree, is conveyed property. upon The land, but retained quoted speaks “present” existence statement appellant, Henry but the mentions, of the road which road in use conceded that the witness, as a Denn, long ago “easement and as 1914. That road respondents by way necessity” and claimed quoted. part in the of the decree which we mentioned map. our trace it Here no effort to We made employ term, road”, “the after when we will necessity”; purported “easement mеan the in the which we is, the road described sentence just appellants’ brief. It will be observed took from the quoted the road from the statement which we ’ extremity respondents at its terminates western land. Its eastern end leads into tract of 40-acre shortly, southerly county course, in its road which Bay Highway. (easement) joins road The the Coos subject matter of same one which was Baum is the by 15, 1949. us November Denn, v. decided respondents’ tract contains stand of timber The unimproved. appellants’ improved land is dwelling farm house and structures. with The complaint alleges:
“That lands the de- plaintiffs fendants, as hereinabove described, were derainged by chains of title from common separate grantor, Denn, Jacob who owned all of said on or lands year about 1894. That at the lands time said Denn were owned Jacob there was a running along boundary east the lands now owned the defendants and then owned Jacob *6 Denn, and that said county road has ever since that a time and now is used the by general as public That there at
public highway. was not the time the was to the property conveyed plaintiffs’ pre- in decessors nor is interest there now any public can road which be used as to and ingress egress or from the hereinabove described lands of the plain- it necessary tiffs. That that the plaintiffs have to and ingress from their lands.” egress That averment by denied the answer, but the part deraignment of from a concerning title common source conceded, was as as established, well by at evidence the trial. The that complaint alleges January 10, 1945, the erected barrier appellants across the road and denied respondents the the it privilege using further.
The brief respondents’ claims that they obtained their to the use right road ways: following (1) “By implied right grant”; (2) to travel “right the same reason of the by way of necessity”; (3) “if, as the appellants contend, there is no implied right, then the and respondents their predecessors have acquired their rights same use, adverse shown both testimony appellants and respond- ents as many years that was roadway use and travel.” The appellants present the following contentions: “The (1) record does not show evidence acquired respondents easement described
that implied (2) by prescription”; ease- “the doctrine of (3) apply”; “the and doctrine ment does not apply.” not does Although parties express contentions their just they quoted, the issues to devoted the words during (1) major these: the trial were efforts their any public lead to the tract owned Does necessary respond- respondents? (2) appellants’ land in travel order ents to During public thoroughfare? re- the trial the reach public spondents no their that road reached contended lay appellants’ land between thoroughfare. appel- public respondents’ and the propositions. During the trial those lants controverted public they as the Amstein that a road known contended respondents’ Valley road touched the tract Camas as the road or another known Southwick available to them. Further, Holmes road was Creek predecessors they in interest of the that the contended going respondents, *7 land in from the now owned through respondents, by passing by so area did by appellants pasture.” “the back termed affirmatively alleges: The answer public as the “That a road known Valley laid viewed, Road was out, Amstein Camas by County surveyed, approved established, Douglas County, Oregon, said 1903, Court Douglas in the Road Records road recorded County, p. at volume 6 393. roadway public ais “That above described years by period over a
and has been used predecessors plaintiffs’ a means of in interest as premises.” egress ingress from their to and say: The affirmative averments of the answer also public is a “There road known as the Southwick Eoad or the Holmes Creek Eoad and described as * * following that said road has *; been and is plaintiffs now constant use herein and predecessors general pub- their lic and in intеrest, and the adjoining landowners and tenants.” applicable shall We now take notice of evidence to those contentions.
Jacob whom Denn, we have mentioned, received conveyed deed in 1893 which to him a thousand acres lying in Sections 26 and 25, 35, and which included all parties April land now owned to this suit. gave Henry 9, he to his son, Denn, J. father appellant, Henry conveyed Denn, deed which quarter himto the Southeast of Section 26. There was no gift. consideration for the deed; the transfer was a quarter The Southwest corner of that touches the Northeast corner the 40-aere tract now owned respondents. conveyance When that made, conveyor quarter owned land to the west section giving which he was to his son. Neither the retained conveyed quarter land nor the section bordered public or in other touched a road. Murray, respondents,
One Zack a witness for Yalley seventy who has lived Camas more than years, testified:
“I can remember that there was a road there as long as I can remember.”
By question. Going “a road” he meant the road in on, he said: seventy years. “That has been more than How- gates there
ever, been were across that road and it has changed place in a or two where he lives.” *8 Henry By appellant, “he” Denn. When meant the he road it ran between this witness first saw the occupied appellants a barn. house now its was altered so that turned to Later, course longer passed no to the lot and left it came barn where change through it. No other material in the road was Murray by any Mr. that the mentioned witness. swore seventy years.” for better than road “has been used also testified: He during period
“Q. this of time Was by wagon and travel, used buggies different means of automobiles? time, at that course, “A. Yes. road here, along they up on in even until the nineties were wagons, you they that know; and, however, used there; too, for they those homesteaders over automobiles of them that used that most homesteaders were through there. I know under ar- road rangements don’t what anything that, about but some pack pack some sacks them used horses and used they on and some had automobiles left their back George place. Moore I don’t who lives at the know place on now. ‘‘ Murray, Q. Mr. there other road getting back end of the Denn could be used ranch? time?
“A. At that
“Q. At that time. No,
“A. no.” following Upon cross-examination, occurred: you this actual “Q. Do know the location quarter? Bose yes. Oh, “A. He has Northeast Township Bange 20, 9. Northwest Section Murray, go Mr. Now, did this Denn road “Q. quarter? right this Bose into and connect with yes, Why, that was traveled then. “A. the road *9 by Doney, had the man the name he There was a quarter and I think of thе Southwest Southeast that now of Section 35 owns Fred Southwick forty right in that Mr. Rose crossed this road and came out at the south side and went off owns of his forty. “Q. [*] ft What was [*] the condition of this road you through property— spoke the Rose that went it a trail or road? was just a dirt road Oh, road; it was was *‘A. probably at that time.” most of the roads were like testimony, Murray’s if a belief true, warrants Mr. quarter gave long Denn his son the before Jacob quarter across the a road had been established section, egress from to and as a means of access used including quarter, tract the 40-acre land west of the by part respondents. of that road now owned county conveyed lay road and between part quarter latter. That afforded access to the Denn. crossed owned Jacob land twenty-six F. and one-half Frear, Mr. A. C. Douglas County. years, master of has been road a former road master that he worked under Prior to county surveyor. deputy He testi- and at time was one public crosses or affords touches, no fied that property. respondents’ access to the respondents, Nealy, for the who has a witness Bert Yalley, forty years in has been Camas familiar lived for during appellants’ land all of across the with the road testimony years. quote from his the fol- those We lowing : by wagon, the road been traveled
“Q. Has transporta- and other means of automobile horse, tion? valley. I have been in the “A. Ever since you quarter ground Do know the section of
“Q. controversy, property Mr. owned Rose? through good many “A. I have been there a place. across the times, Is there
“Q. other road can be used egress ingress forty as a means of from that any county road? “A. No.
hauling “Q. Was that road used # # his [*] grain? old Jacob Denn in
“A. Yes. “Q. In the back end of his market? only “A. I think so. The road that has been *10 I in there that know of in that time. That was only way getting Jacob Denn had of back to the property, I I don’t know how think; else he could get out.” Nealy, respondents, Anna another witness for the years began forty-five ago upon a course of residence immediately plain- the 40-acre tract to the east of the living upon tiffs’. While there she went in and out question. transportation, the road in Her means of as by Avagon her, described were “horseback and with ” in a once while. clear She made it that the road over long ago forty-five years which she traveled as question, by saying: was the road “The same road they using only change through by are now, that went explained, Mr. Denn’s house barn.” As we have stages in its earlier the road went between the house previous year, the barn. In some unmentioned changed the course of witness, the road was so that it went to the rear of the barn. The Avitnessex- county plained alleged that the road into which the necessity empties extremity of at its eastern “has ’’ years longer my there than been time. brief, testimony synopsis foregoing a The given respondents’ The some witnesses.- challenged. credibility be of them It will none was seventy years seen this evidence indicates ago roadway appellants’ prop- extended across the erty end in the 40-acre tract had its western which respondents its ex- now eastern owned tremity road. at Henry years age, appellant, was Denn, upon
born he he owns, now but Evidently “I lived in added, town most the time.” familiarity adjacent property his -with inti not protested, for, mate, cross-examination, he “I ’’ pretend don’t much about know them. I don’t to know. question He recalled the road from the time he was boy? “just playing marbles.” Like the othfw wit present nesses, he indicated that the its follows original exception change with the course, barnyard. around the
In appellant, 1940 one Jacob Denn, a cousin of the Henry Denn, owned the 40-acre tract which re- spondents grandson now own. That Jacob Denn was a Denn to frequently Jacob whom we have re- February, ferred, and derived his title from him. In (the cousin) negotiating Denn 1940, Jacob a sale *11 forty Standley, acres to one C. Oran and in its Standley property. course showed appel- the It was the Henry prospective lant, who took his Denn, as cousin, Standley property. going vendor, In there, party question. the traveled over the road in appel- The as a lant, witness, made no claim that he told Mr. Standley they right or his cousin that had no to travel the road that any the latter could be barricaded at time. during In if he trip fact, mentioned the. road testifying. when that matter
he failed disclose February conveyance Standley received a deed of years conveyed property to four later 1940, and respondents. during Henry appellant, that Denn, The testified forty grandfather acres the time his owned respondents down and removed hold, now cut he logs taken were timber, from it some but swore that “through pasture the other and around the back out impres- impossible gain clear it road.” We find testimony as to the whereabouts from this witness’ sion made Efforts were to elicit from of the “other road.” lay concerning testimony in the a road which others vague give pasture, no statements clear back but their lay impression with it or how it connected as to where telling any existing public witness, about road. One its that course road”, elusive “other indicated this Barney Carey place.” 23 and “the entered into Section any prop- Denn owned is no evidence that Jacob There erty that this “other road” in that section. It is clear thoroughfare. public not a was testimony presented by apрellants indi- Other gates is, road; were cates that there necessity. alleged other evidence that came Still to show that there the same source endeavored from from land to the east of the re- which led road ’ southeasterly pursuing spondents which, course, county road. witnesses Some with connected road and others to that road the Southwick referred major part it Holmes Creek road. termed engaged logging in the indus- a concern is owned it conception gained try. the correct it, If have extremity. scarcely passable at northwestern It its public re- it is not clear that right spondents it. have no to use *12 an appellants in effort much evidence offered public road as the Camas to a known Amstein show that respondents Valley and that affords the road exists it egress property. According from access to their February, petition 1903, was filed record, county Later the sur- the establishment that road. veyor appointed performed the viewers were who far But, our laws. so the functions exacted them nothing further was shows, as the record done. Sec- Bellinger was then Code, tion and Cotton’s in effect, said.: “* * * being and the court satisfied that such utility, public report be of road will being thereto, and
viewers forwarded the court shall report, survey, plat cause said recorded, to be and from thenceforth a said shall be considered public highway, and the court shall issue order opened.” directing said road to be far know, So action we was never taken and the road was never Mr. established. whom Frear, we already have testified that mentioned, the Amstein Valley “only paper, paper Camas road is a road on opened spent road” and that the never it nor upon judge a cent The trial it. took the commendable visiting course of the areas have mentioned in an gain conception facts, effort to clearer While appellants’ one of the witnesses was the stand testimony giving which indicated that the Amstein Valley subject open public Camas road was use, judge the trial addressed him as follows: you day remember “You were there the Mr. and Mr. Green Felker and I were there, and Henry, any I didn’t see evidence of that Amstein any place; road back there I couldn’t find being evidence of used in there or couldn’t find ground. location of it on It hasn’t been many years
used for as far as the Rose has it?” concerned, replied: The witness *13 presume quite “I that it hasn’t used for a been years.”
few Valley think that We the Amstein Camas road never by Mr. achieved even the status attributed to it Frear’s expression, paper Evidently “a road.” the efforts to abandoned before time establish were ocсurred for the court to enter the order authorized Bellinger § and Cotton’s Code. 4785, Henry In Jacob father of J. March, 1907, Denn, large quarter still tracts east Denn, who owned of conveyed 1894, section he to his son in deeded to the latter: strip (of) of land 120wide off the North side “A quarter East of Southwest of the South Section strip Twenty Also a of land 120 five. feet wide off quarter north side of the South West of twenty quarter Except- of Section five, Southeast strip
ing of a land sufficient in therefrom width wagon strip on the a South side said for * * conveyed hereby *. of land strip land 120 “Also a feet wide off the North Twenty Four of of Lot No Section five, side ex- strip cepting a of land therefrom sufficient wagon a road on the South side of said width ** Four Lot May, heirs of 1921, the aforementioned Jacob In quitclaim conveyed signed appel- deed which Denn Henry quarter father the Denn’s Northwest lant quarter of Section Southwest excepting strip “save and therefrom a of land thirty (30) feet wide across the South end of said quarter quarter (NW of the Southwest Northwest
17 14 Twenty-five Southwest SW14)- quarter (25), * * * The (Save (SE Southeast quarter °f excepting SW %) of Section therefrom land 100 feet wide across the North end strip of of the Southwest quarter said Southeast quarter.) “A of land described as follows: Begin- strip feet North of the at 11.99.8 one ning point quarter corner, Twenty-five between Sections and twenty- six (25 26), running thence East parallel with & one thence line, feet; twenty sixteenth North feet; thence west 1969 thence south feet; twenty feet, beginning place containing one ninety-two hundredths acres.” (.92) in those respondents argue provisions deeds for warrant an inference roadways that when Jacob Denn conveyed additional lands to his son he wished the assurance of written words he would have access his lands which remaining far west lay *14 of the county road. make the They same argument the deed executed concerning by heirs. In any the reservations event, indicate that the owners of land in the vicinity respondents got and out by the contested road.
The deed which Jacob Denn and his wife to gave . their son, Henry J. Denn in 1894 said: “* * * does hereby covenant to and with the said his Henry Denn, heirs and assigns, they are the owners fee of simple said premises, are they free from all incumbrances, and that they will warrant defend same from all lawful claims.”
The above is a of all review the evidence which indicates whether or not the now owned by has had respondents at time access to and egress from a over public highway the road except ’ which leads across the lands. appellants clearly
We believe that the evidence warrants a finding seventy years that for about before this suit was filed a road extended across the land now owned appellants. Evidently the road inwas use for years grand- fifteen or more before Jacob Denn, the appellant Henry convey- father of received the Denn, ance in 1893 the thousand acres, which included all appellants of the land now owned and the re- spondents. It is that road which the decree of the Circuit Court holds is a available respondents. clearly to the We think that the road was purpose defined and that its was obvious in 1894 when gave Jacob Denn his son a deed to the Southeast quarter of Section 26. It will be observed that Henry appellant Henry son, J. father of Denn, Denn, upon receiving his deed, father’s could not reach the quarter given section which him was without cross- ing land owned Ms father and which the latter lay retained. The father’s retained land between conveyed quarter road and the section. Like- practical, any, way getting the father had no if wise, lay conveyed to or from his lands which west quarter crossing of Section 26 without Southeast quarter Obviously, section. route which both father compelled employ and son were the-road question. In short, father crossed his son’s land crossed his and the son father’s. No one claims that deny either of them ever endeavored to the other use According gate, the road. evidence, possibly along more than one, was encountered purрose gates that the think, however, road. We *15 traveling prop- was not to exclude those who were to remote from the road, erties but to restrain wandering presence gates, livestock. The of they part a indicates that were of course, fences which
19 mentioned some witnesses fact, road; bordered the course further defined fences. The latter adjacent apart fields. from the the easement and set Finally, until effort was made that no we are satisfied using anyone recently prevent from the road who go respondents’ tract. 40-acre had occasion Property, § law, Restatement of the From 474, following: take the we ownership is divided into land one “When conveyance, parts
separately an ease- owned may the limitations set created, ment be within §§ has 476, in favor one who forth in part may possessory interest in one have a may possessory against one has or have who by implication part in another from interest conveyance under which circumstances alone.” made
Manifestly, probed Denn in no one the mind of Jacob aforementioned deed to when he handed the his Henry and in that manner discerned his son, Denn, J. concerning the contested road. as we see But, wishes just quoted, justified language we are from the analyzing the circumstances which we have tаken ascertaining purpose notice for the whether the conveyor, by implication, an reserved easement over conveyed tract. Property, § Law,
From Restatement quote: determining
“In whether circumstances conveyance imply of land is made under following important easement, factors are (a) conveyor the claimant is the or the whether conveyee, conveyance, (b) the terms of the given (c) for it, consideration *16 against (d) is made a the claim simul- whether eonveyee, taneous (e) the extent of of the easement to claimant, (f) reciprocal benefits result whether conveyor eonveyee, and the Denn be recalled that the deed which Jacob It will general warranty gave his son in 1894 was deed. to appellants Although claim that the do not terms alleged preclude the existence of the that instrument believe that it is to take note of the easement, we well appended following § the Restate- comment to 476 of page ment, at 2980: nant “* form of a deed against * * Thus, the fact incumbrances containing that a [*] * or implying conveyance [*] a is an cove- is item implication claim of the of an ease-
adverse conveyor. conveyance ment in favor of the That a necessarily such covenants does not inor, contains existing implication. often rebut an otherwise fact, Despite implicatiоn may justify them, other circumstances * * *” conveyor. in favor of following is with the illus- That statement followed tration : adjoining
“A is the owner two tracts of land, Blackacre and Whiteacre. Blackacre has access to highway, high- Whiteacre is shut off from while ways by parties. and the lands Blackacre of other conveys language B. A Blackacre to conveyance general against contains covenant Despite this A covenant, incumbrances. to is entitled high- an easement of over Blackacre to the way.” says: page the comment
At cations “* [*] are less favorable to the [*] If a conveyance gratuitous eonveyee than is impli pays gratuitous if true he for it. In a value con veyance conveyor may he assumed to intend convey relatively little more than is indicated * * * language conveyance. As the any, fact and the clearer the if extent, of consideration makes
implication of an easement in favor of conveyee, a sideration the lack of, of, smallness con a circumstance favorable to the con ’’ veyor implication when an is claimed in his favor. *17 following says, § page The comment at 2982: implication “In the easement it is im- portant, pointed as out in Comment toc, consider by conveyee whether the easement is claimed the against conveyor by conveyor against or cоnveyee. important It is also to consider against whether it is claimed a simultaneous con- veyee. implica- Where the claim is thus made, the stronger tion is than where the claim is made against conveyor himself. It is reasonable to conveyor infer that a who has divided his land among conveyees very simultaneous intends that privileges considerable them. constitutes a of use shall exist between Commonly, conveyance in such cases, the family distribution, and, this where probability is true, existing of a desire that operative conveniences shall continue to be greater probability conveyor than would against desire them continued as himself. In such conveyance cases, the wholly gratui- fact that the relatively significance.” tous is of little doing page on find at 2983: greater
“In the number of cases, its to the use of land of the claimant is the circum- implication stance that contributes most to the an easement. If no use can be made of land con- veyed or retained without the benefit of an ease- parties ment, it is assumed that the intended the only easement to be created. This is true not where conveyor by but also it is where it is claimed conveyee. by It is assumed claimed parties have that the land re- could not intended conveyor be useless his should tained may though assumption have too not hands, in fact. Thе inference firm a foundation largely by is influenced is made intention which policy public in favor land considerations of utilization. necessity of an easement is such that “If the effectively used, be it the land cannot without nothing convey language explicit in the less than t negating of the easemen will ance the creation may prevent implication. made, If use some be its might the easement which if an alternative to implied implica secured, the be can be otherwise subject to control other circum tion becomes necessary expense Thus, effort stances. secure a substitute conveyor may not be so may
disproportionate he but that be assumed expense like to suffer while it, intended conveyee may he was the inference that warrant ** to suffer it. not intended *18 page again This time to to the comment. resort We 2985: conveyor conveyee and the receive “That the implication
reciprocal an ease- benefits from the of implication. to in favor each contributes ment of benefits and neither that both receive The fact easement from the creation of the alone suffers they probable its more intended makes it necessity in where the Hence, even cases creation. justify been sufficient to not have alone would implication in favor con- an easement of the of veyor, are sufficient that the circumstances the fact implication in favor of the con- to warrant veyee, accrue to both like benefits would and that conveyee, may justify conveyor of each was in favor an easement inference ** *.” intended. following page Finally, from 2988: take * * “* conveyance party is bound to a Each merely but what also to intended, to what he not party reasonably might foreseen the other have he convey- conveyance expected. Parties to may, to be assumed intend the therefore, ance them are in a uses to continuance of considerable known degree necessary use- to continued they assumed Also will be of the land. fulness contemplate of the continuance reason- know and to ably necessary so altered uses which have apparent upon premises reason- as to make them degree necessity ably required conveyor investigation. prudent imply an easement favor of the greater required than that ease conveyee (see c). even Yet, Comment conveyor, implication the ease of the from necessity previous will be aided use made physical adaptation apparent premises to it. Illustration: adjacent “A is the of two tracts land, ownеr Blaekacre and Whiteacre. Blaekacre has on it a dwelling unimproved. house. Whiteacre Drain- age public from the house to sewer is across pur- This A Whiteacre. fact is unknown to who already the two tracts with the house chased built. By might reasonable A discover the effort, manner drainage and the location the drain. A sells B Blaekacre to who has been informed as to the drainage manner of and the location of the drain A it. assumes that is aware of There is created drainage implication an easement of in favor of B across Whiteacre.” principles governing impli
Most of the above by way cation of an easement have received recognition by holdings of our this court. Some are: 490, 172 P. 2d Penn White, 822; Ford v. Or. Mutual *19 24 248, 979; 132 P. 2d Nelson, Ins. v. Or. Co. 170
Life
P.
v. Lane
362;
49
2d
Beck
Colt,
331,
v.
151 Or.
Dean
County,
Miller,
v.
580,
594;
P. 2d
Fendall
Or.
Nuding,
319,
v.
92 Or.
196 P.
Tucker
610,
381;
99 Or.
Kemp,
There us. When principles before those tion of facts gift Henry a Denn, J. his son, made 1894, in Denn, Jacob quarter he still owned 26, of Section the of Southeast conveyed the east of large and land west of tracts ques employed the road quarter he section. Unless con west of the his lands not reach he could tion, by pursuing except a circuitous veyed quarter section through area some which an undefined course pasture.” That route back termed “the witnesses passage of seemingly the over involved nothing in record which shows know of others. We any appreciable ever made of the back use was Denn pasture that Jacob are satisfied route. We reaching road. of it as a means never used route a equivocal to that made references holding certainly justify couple cannot a of witnesses reaching practical of means a it constituted that property respondents. The road in now owned conveyor indispensable both question was, think, we conveyee. reciprocal of value to each. It It was and reaching the means of the lands father afforded the conveyed quarter section, to the west of newly-acquired go from his tract son to enabled the public father’s land to the across his eastward gave thoroughfare. son father, his When ground well defined deed, conveyee. conveyor It both would and obvious gave that the father who the deed to believe be absurd family gift, possibly distribution, in the nature of as a great value to easement, him, intended In of all the circumstances out. view be blotted should conveyee paid nothing for the that the the fact and conveyance, language do not believe that the preceding paragraph, quoted ain fore- deed, alleged implied easement. We think that it closes grantee grantor clear that both intended to conveyed quarter way section, across the reserve, necessity, and that similar еasement was reserved conveyances. subsequent In short, we believe that alleged exists, and that the decree Court is correct. That decree is affirmed. of the Circuit Rehearing. Petition for On n Avery Thompson and D. Green, Jr., W. William Roseburg, appellants. *21 Roseburg, respondents. & for Felher,
Geddes Justice, Before Chief Lusk, Brand, Rossman, Hay Justices. Page, Bailey, J. ROSSMAN, ’ appellants petition rehearing says: for a
The stating page in erred on 9 of its “The Court opinion, is no Denn ‘There evidence that Jacob (See plain- property 23).’ in that section owned J).”' tiffs’ Exhibit inventory filed in was the the estate of Exhibit J signed It was in 1915and Denn, deceased. listed Jacob property the deceased owned time which at the The list included some land in in 1915. of his death course, does not indicate when it 23, but, Section previous acquired. opinion, in our in stated As challenge, petition language does not Jacob conveyed a deed in 1893 which to him received Denn lying approximately in acres of land Sections 1,000 conveyed nothing situated in Sec- The deed 26 and 35. conveyance year received the after he tion 23. One gave Henry just son, J. Denn, mentioned he his previous opinion quarter held, across our which, section The in the form of road. he reserved an easement recognized express which we was not reservation by implication. grant, far as the record in- but So nothing Denn dicates, Jacob owned Section 23 when determining gift. In whether or not the he made the parties Denn, to reserve to Jacob the con- intended conveyed veyor, land, across the the court easement facts and circumstances is, course, controlled gift, they time is, as existed at the 1894. not know when Denn came into owner- do Jacob We inventory ship 23 which the Section sentence, our criticized as- lists. When we wrote we had that all would understand that we reference sumed year, 1894. The facts mentioned in the crucial J are immaterial. Exhibit rehearing says: petition also ruling that
“The court erred in Amstein opened understanding it is the Road was never petitioners appellants’ 1 in- Exhibit of the cludes road which County opening an order of the Court public made the road a whether improved County.” ever or not was petition receipt rehearing, for a After again transcript of evidence *22 once more read all the exhibits. The latter examined of consist copies large part of and other records. of deeds Dur- ing evidence, court trial received county appellants, copies proffer aof court record of public to establish as road a intended which was Valley thoroughfare known the Amstein Camas be as to comprised many documents and the The record Road. copies copies, the latter. The of consisted exhibit exception photostatic with the of one, were and all of together. single exception were latter fastened typewritten copy was a of an order which we will presently quote. It was not attached to the others. top page photostatic Across the of the first copies large script appellation: was written in this Valley single “Amstein Camas Road.” The unattached typewritten appellation. had sheet no appellants which
The brief when filed this cause part was submitted mentioned no the records just designated. It did not allude to Exhibit 1 or to any document within included it and nowhere em- ployed Valley name, Amstein Camas Road. Be- quoting fore road, sole reference in the brief explain “roadway” phrase we that the word county through “another route to the road his own ” pasture’ quoted passage ‘back in the do not refer Valley quote to the Amstein We now Camas road. from the brief: the road- “Furthermore, deed, at the time of the
way, beneficial necessary if there not such, was enjoyment land deeded the land retained executor Denn, ancestor, since Jacob and the preferred after death his estate his through to use another route to the pasture’ his ‘back own own over his lays appellants’ proр- west and north of the erty (Tr. 67). in the 1894 included deed 60, 61, not even mention This does the other routes south (Tr. respondents’ property and east 58, 62, 66).” only pur- allusion in entire brief to the Thus, Valley ported Amstein road was this: Camas “the south and east.” other routes Due the above overlooked circumstances, *23 typewritten copy part County Court’s rehearing appellants’ petition record which the part mentions. The material of that record follows: “Friday, May 1903: 8th,
“In the Matter ] Rudolph SECOND READING- Amstein-Camasj- ) Valley Road reading “Now at this time comes on for report Am the viewers stein Camas Valley Report being road. favorable, the road is opened. ordered
(Journal signed) Thompson, M. D. Judge. Attest: Shambrook, R.D. Clerk.” explained the circumstances in
We order to show how happened that we overlooked the order and for suggesting purpose of whenever an exhibit papers they consists of several should be fastened together they marked such manner that will a unit. A brief should an be refer to exhibit symbol identifying placed name or whenever reliance is upon it. appellants’
In view of the fact that the did brief alleged Valley depend upon Amstein not Camas justified ignoring road, we would -have been purported it commanded road, but since attention dur- opinion gave ing Court, trial in the Circuit our it consideration. quoted made, §4785, order above was
When the Bellinger Code, in effect. The ma- and Cotton’s quoted original part our of that section terial opinion. order not believe that We do requirements County met the entered Court
§4785. It did not declare that the court was “satis- utility” public will fied such road be nor did survey “report, plat” it order that the be recorded. *24 adequate, if But, even the order could be deemed still helped we do not believe the alone order the appellants’ cause.
Normally, in form an easement the of a necessity necessity as ceases, terminates when the public thoroughfare through construction of the in the dominant estate. Since it was which serves quarter gave his the father son the section 1894 that roadway, reserved a ease over it is said he the which year all. at ment was created it was created —if claimed created Amstein The order which it is the Valley signed until The road was not 1903. Camas necessity appellants for claim that it terminated thereby extinguished using the easement and ease previous opinion points out, Amstein ment. As our Valley improved. never route road was The Camas surveyors in its for it remained selected which the that condition on the was still natural state respondents’ day trial. For one reach county sur means of route road land from Valley veyed road Amstein Camas unbuilt for the travel for about mile and have necessitated would through primeval mis land unless we are and, a half previous unbridged de stream. Our taken, over testimony Frear, A. quotes Mr. F. C. from the cision Douglas years the roadmaster of has been who 26% spent upon County, never cent that the Valley road. purported He referred Amstein Camas judge paper who, The trial “a road.” the latter says, area which the opinion visited the as our situated, controversy no are could find properties in Valley Although the Amstein road. trace of Camas diligent appellants made efforts were to show person npon part had that this or that traveled some Valley Amstein road, of the so-called Camas no one had testified that he done so. Even the name awas stranger Plainly in the ears of some of the witnesses. never used or the route was traveled. petition
In when the order which cites respondents the road entered, de was twenty years pend old and had was so served Jacob years. not think Denn for nine We do that the mere County quoted adoption above of the order Court necessity the road. to use was ended adoption of the latter, order. The unaffected immaterial was, if do not think that valid, contemplated Had of this case. to the issues *25 would have ma usable, that fact been been rendered terial. appellants’ petition for a rehear- that the fact they
ing details indicates that mentions the above inferring opinion. In that' the father our misconstrued granted an father, the son and that reserved,, conveyed land, we did not draw easement over necessity alone. The from our inference only passageway the circumstances one of a was may significant. It be that our use we deemed which necessity” appellants. “way misled term implied only type an easement. one form of That by going attempt matters clearer over to make We will again. phases of the case some indicating interpret the evidence not
We did gave his son the in Denn, 1894, Jacob that when respondents claim he quarter over which section property father which the easement, reserved conveyed quarter retained west and southwest of the thought section was landlocked. We that we made it clear that the father land owned to the north and east quarter section. That land extended all of the way county to the road which is indicated plat accompanies previous which our decision. Pos- sibly way county the father could have made his by going over that land. The distance was about nearly glean two miles. As as we can from the record, conveyed quarter land north and east of the section partially cоvered with timber and crossed through stream. It that area that the father would compelled way going have been to wend his from respondents county the land which the now own to the anyone road. No testified that ever witness took that theory possible. least, at it was course, but, Wit- pasture” spoke of the “back route, but, nesses as oür previous through indicates, decision that route went appear and it does not Section that the father opinion land there in 1894. owned Our reviewed testimony positively swore of witnesses who only getting means of from the land which respondents now own to road was means recognized our decision the lane which as an ease- likely Yery witnesses, ment. those who were farmers practical concerned with matters settlers, were going through not with theoretical testimony that their untamed land. We think reflects nothing know of the record the truth. IVe wagon anyone from the drove shows *26 county by by respondents to the road now owned except over the lane which we held is an route phases these of the evidence easement. We reviewed making (1) purpose again it clear that when for the
33 gave quarter the father to his son a deed to the sec- respondents the land which the tion, now own not was only (2) practical going landlocked; method of by respondents land from the now owned county alleged road was over the easement. purchased
As we have Jacob Denn in said, piece comprising of land one thousand acres which by appellants included the tracts now owned respondents. It embraced all of the land over which the road extends. The was, thousand-acre tract roughly speaking, rectangular shape and the road paralleled longer rectangle. somewhat sides of the nothing wagon The road was more than a road in 1893, plainly but its contours were visible. Witnesses, mentioning spoke gates it, of fences, and a cattle guard. permissible Hence, it seems to infer that the only by course of the road defined, was not the clear- ings through wagon which it ran and the tracks left passed behind vehicles which had over it, but also of fence. stretches The road was used those county who had occasion to leave the road and visit lay comprising the land which west of it that which acquired beyond Jacob Denn other land extremity his. The western of the road was in respondents 40-acre tract which the now own. Its eastern end in the was to which we have frequent length reference. Tims, made the entire upon property about two road, miles, of which Denn owner. Jacob was the
Frequently of real when the owner so employs part that one it receives service part through example, another renders medium, road, of a or a drain we term road or drain a quasi express readily in order easement more *27 part in
manner which the favored has become dominant and the other When, servient. in such instances, quasi inaccuracy use term easement, the we realize the recognize normally possess and no that one can an ease- over land which he himself ment owns. the term Yet quasi easement, when used in such situations, facilitates understanding. extremity seen,
In we have the western question road in the 40-acre tract which respondents own, now but which Denn Jacob had purchased year. road When the left tract shortly quarter entered and then crossed section appellants own, which now but Jacob Denn which legal then Had Denn been familiar with terms owned. principles, have deemed and he would the 40-aere tract quarter section as the tenement, as the dominant quasi and tenement the road as easement. servient they but inaccurate, have been would The terms would purpose. have served their purchase year made his after father One just property which we had assumed the features Henry gave son, Denn, J. to his described, he appellants quarter now own. We which the section just The servient tenement. deemed it as the have possible ownership' conveyance and made severed the accompaniment of dom its with easement technical question this servient estates. inant propounds father made that appeal is this: When the forego road, surrender gift, he then intend did right his to erect up authorize son it and use his leading from the dominant road where the a barrier did father and Or one1? servient tenement entered relationship the. two preserve intend to son father an reserve to the to each other tenements conveyed property easement across the so that he get in could and out of his retained land without constructing long? a new road about two miles
We shall mention another fact. It received atten- previous opinion. tion our When the son received conveyance quarter section, he had no getting using very to his without *28 quarter with which we are concerned. The section was completely lay landlocked. On three sides of it land by owned father the and on its fourth side anwas area by strangers. question, held originat- The road in after ing upon by the respond- 40-acre tract now owned crossing quarter ents and section, extended a mile easterly over lands held the father, and in that manner reached the road. Thus, the son him- way necessity, self needed a question of and the road in very right way required. was the of which he It appears apрellants, that he and successors, his have constantly it. used It can, therefore, be inferred that gave quarter when the father his son the section he gave appurtenance quarter him, also as an to the large section, easement across the father’s tract way to the east. That easement, the form of a necessity, awas one-mile stretch of the road with which we are concerned. dispute
When the about the road arose about four years ago, both father and son were dead and, hence, help lips. no could come from their When trans- place nothing action between them took was written except previous opinion states, the deed and, as our warranty. it included a The latter is adverse respondents’ them. contentions, but not fatal whether or not the The evidence which indicates
. granted, alleged reserved, father son ease- which at- found in circumstances ment must be making gratuitous conveyance. tended the There nothing novel about the fact that must look to frequently circumstantial for evidence, the courts re- sort to evidence that kind.
The circumstances which show whether not father open intended that road son should remain (1) giving the former are thes'e: The father after his quarter son section owned still west and conveyed quarter (2) section. southwest The conveyance unaccompanied by to the son was con- gift. (3) prac- father sideration The had no egress from land tical means of access to or his west conveyed quarter except section and southwest of receiving quarter (4) road. The after son, means, going except from it had to or no section, lay upon property part the road which over the quarter section; in father east of the owned had need of over words, other he (5) in use The had been land. the father’s plainly years; many well defined and contours were its (6) purposes were self-evident. land its visible; *29 of west and southwest the father retained which the county lay conveyed from the two miles land almost although cost no estimated the of witness and road, to building land the from the retained a road large. have would been that cost it is obvious road, is the easement claimed is (7) which land over The (8) conveyed had for the the son need Since land. upon lay his land father’s part which the road of entirety quarter in its section, the easement east of by both the father and the extended owned over’land- son. space to a delineation authorities devote'much implication may which an under
of circumstances be that a drawn easement became a quasi technical one of ownership. severance It apparent is that discord in the exists many decisions of them rules employ difficult of application.
In 28 C. J. S., it Easements, page 694, is said: §
“Where the owner of an entire of tract land or of or two more parcels adjoining employs part thereof so that one derives from the other a benefit or aof advantage continuous, permanent, ap- parent nature, and sells one against such quasi exists, easement such if easement, necessary to the reasonable of enjoyment re- tained, is, under what is the more perhaps generally rule, accepted impliedly reserved the grantor, to no distinction being made between the circum- stances under which an as regarded easement impliedly granted those under which one is as regarded reserved. impliedly authorities, Other however, that a urge grantor should not be per- to from his derogate grant mitted and accordingly in many jurisdictions the rule is established that, where there is land grant of without express reservation of can easements, there be no reserva- tion by implication, unless easement is strictly one of necessity, particularly where the grant with full covenants of warranty.” on Property, Ed., Real Perm. Thompson 502, says: § “The authorities are conflict to de- of to an gree necessity required create easement an by implication on severance way estate. In this the cаses country, usually hold that to easement of way by create implied grant necessary must be proper enjoyment reasonably necessary, land, according authority. There are cases which hold weight * ** strictly be must way necessary. has A no existence during the con- right *30 unity upon tinuance of and severance of of seizin, way pass a it does unless it tenement, not is necessity convey- operative of of the or the words grant Upon are it de novo. con- ance sufficient to veyance parcel grantor land, of a of retains way adjoin- right to and his no over it ing expressly right, reserves the or land, unless he way necessity, implied although a it is as there is granted way existing a which has land, over the street, as a and so marked on a been known plan. was * ** way A from lands to and in- inaccessible is not because created, otherwise grantee, dispensable im- but it arises to presumed plication to of law order effectuate parties. It not of the does rest on mere intention convenience if or unusual benefit. one con- Thus, veys part of his to another such form as a land deprive to the remainder, himself of access there to conveyance legal presumption that is a understanding parties that the with the portion grantor across the con- reserved ** veyed. Tiffany, Property, § states: Ed., 781, Reаl 3d part land, one of which is
“If the owner subject quasi in favor of another easement conveys quasi part, tenement, an dominant quasi corresponding is to such easement easement thereby grantee ordinarily regarded vested in the quasi provided, said, easement land, necessary apparent, char- continuous is of grant thing imports conveyance of a acter. convey- actually exists at time as it of it contrary intention is mani- unless the made, ance grant. ‘the has been started that It in the fested part, sale of a occurs a severance moment properties right owner to re-distribute the of the portions
respective ceases easements corresponding benefits are created servitudes mutually existing at the time of the burdens
39 sale. This is not a rule for the benefit of pur- chasers, only, but is entirely if reciprocal. Hence, instead of a benefit a conferred burden has been imposed upon sold, the portion purchase, pro- vided the marks of this burden are open visible, takes property with a servitude it. upon parties are presumed to contract in reference to the condition of the at time of the sale, and neither has right, by altering arrange- ments then openly to existing change materially the relative value of the respective parts.’
“It is perhaps unfоrtunate that courts, in a determining whether, particular case, an ease- quasi ease- ment corresponding to a pre-existing ment has passed with land, having usually failed that recognize question is primarily one of construction, and have instead undertaken to lay down absolute rules as to what characteristics particular easement or quasi easement must have, these, if implying that, it has characteristics, easement will pass as matter of law. The char- acteristics are, referred ordinarily to in this connection
as above indicated, the user be apparent, that it be continuous, and that it be necessary, each of which will be hereafter discussed in turn. But it does not seem that the presence or absence of or all these any clusive. characteristics should be con- * * * ” From Am. Jur., Easements, 34,§ page 948, we take the following:
“Various elements are essential to create an easement by implication upon severance of the in an unity estate. are: A ownership They (1) separation title; (2) that, before takes separation the use place, gives rise to the easement shall have been so long continued or and obvious manifest as show that it was to be permanent; meant (3) necessity that be essential to the beneficial easement enjoyment granted retainеd. Another essential the land or namely, added to is sometimes these— distinguished continuous, from servitude be * * * ” temporary or occasional. passages quoted It is seen from the which we that the have from the authorities courts em above conflicting determining ployed whether various tests ownership quasi easement became severance it will be tests, a technical one. One noticed, was continuous or not the servitude dis whether *32 Savings Society & Loan v. Gor continuous. German 147, 736, 102 P. bestowed 54 Or. considerable don, analysis upon the distinction between continuous then held: servitude, a discontinuous discover valid reason “We are unable to distinction, applicable to
for a rules of law they upon depending are con- servitudes whether except of discontinuous, tinuous or the in the matter usually greater conspicuity which the former reg- An water affords. artificial ditch which ularly necessarily must be a constant reminder flows changed condition of the all beholders to surface of whereby the earth the dominant tenement irrigated by conduit which is drained * * * quasi A appurtenant easement when thereto. discontinuous a similar evidenced in substantial ought pass by implied grant to as an manner appurtenant the dominant to tenement when the by conveyance thereof.” severed latter simplified that at least decision extent To pаrties or not the whether determination in- for test ownership occurs, severance that an tend, when existing should become easement. servitude “Con- longer is no the test in or discontinuous” this tinuous
41 “Conspicuity” was substituted that decision state. phase Law, of the text. Bestatement Property, expresses § 476, that feature of test thus: “(h) prior the extent to the manner might parties.”
use was or have been known to the Savings Society & The German decision Loan was with still another detail concerned of the test. The 1, 2, lots case involved 7 and 8 of a subdivision upon 2 1 Lots and Portland. fronted Hood lots Street; immediately to the rear of 8, 7 and those lots, fronted Upon upon Street. lots and 2 Corbett stood a dwell- facing ing occupied Hood Street. It house one Gray, owner of the Mrs. Leaner lots. In 1891 she. exception conveyed strip 7, lot with of a 5.125 feet side, north presently off its defendant w'ide who part conveyed improved dwelling him with house. Gray strip converted narrow Mrs. she reserved leading passageway from into a Corbett Street to the fronting house. her Thus, rear her as it did house, had passage- access Street, Hood means passageway Corbett Street. was 5.125 long. Gray and about feet Later, feet wide Mrs. mortgaged plaintiff, 2 and lots 8 to the and still *33 meeting mortgage in the defaulted later indebtedness. plaintiff Through foreclosure sale the became the 2 and lots 8. After the owner of foreсlosure sale plaintiff, had been deed delivered and after to the Gray conveyed to the Mrs. defendant the fractional strip have mentioned. defendant we then closed passageway. This court affirmed the decree of the held which Court servitude to Circuit which Gray subjected strip Mrs. when she was owner upon became an estate easement the entire sever- doing ownership. affirming In
anee of so in injunction, an award of decision said: though plaintiffs’ “In case at ten- bar, pass can over its own land ants Corbett across lot 8 to passageway street, so that is not an necessity, are satisfied absolute and walk as that the stairs by Gray laid Mrs. serve as more way, reasonably and believe them to be convenient necessary * * enjoyment language renders it clear that reasonable That neces- sity be observed It should suffices. notwith- Gray’s standing home fronted for Mrs. the width of city upon Hood Street, lots access to two Corbett passageway means of the contested Street novelty. decision is no That means a sustained. jurisdictions like effect from other others to Several depended, part, upon in Each be cited. could necessity although, defining in the latter, element “necessary for convenience and like comfort- terms enjoyment” present Therefore, were used. able though might Denn Jaсob instance, even have been through pasture, reach the back able in itself would not be fatal to the that circumstance alleged easement. original reverting
By our decision, it will be large part quoted the test written that it seen Property, §476. Law, We believe Restatement harmony prior opinions, with our test that that improvement phraseology although an over its they employed. permits language That test which alleged implied with an are confronted courts give proper grant easement to reservation weight which bears in- to all the evidence conveyee. conveyor and It will be tention recalled *34 quoted Tiffany passage on from Eeal from Property deemed it “unfortunate that that that writer determining particular in a whether courts, corresponding pre-existing quasi ato an easement case, usually passed land, have failed has with easement question primarily recognize is one of offered The rule Eestatement construction.” permits question one of construction and deems weigh all of the circumstances attendant the courts conveyance purpose determining upon for the conveyee conveyor and intended that an ease- whether necessity only ment should be created. So-called given. attention one of the items to which should be (1) adequаte In those in an instances, some like paid, (2) consideration was the claimant is the con- veyor warranty (3) reciprocal deed, and executed a no (4) clearly the servitude was resulted, benefits not pressing must be more than defined, speak up other elements instances where behalf of alleged suggested by easement. The test the Ee- merely determining a method of statement from available circumstantial evidence the conveyor whether or not conveyee conveyance intended when the place that a then in servitude, took existence, should parties preserved be as an easement. If the had no subject, thoughts at all then, since no ease- intended, ment was none can be awarded the court’s they If decree. intended that the servitude should give easement, an court’s become decree should effect to their wishes. previous in our decision,
As stated we think that clearly circumstances indicate that father and son existing intended that the servitude should remain as affording father easement, access to the he from the land which retained west and south- gave he to his son. the tract west of *35 every- for a consideration The above suffices petition thing rehearing. submitted petition denied.
Page, participate in this decision. J., did not Bailey, J., dissents. J.
LUSK, C. evidence I think that the ease- establishes question, and therefore concur the denial ment rehearing. petition for