Bo & Lia Holdings LLC v. 2021 Morrison LLC
| Decision Date | 27 October 2021 |
| Docket Number | A173325 |
| Parties | BO AND LIA HOLDINGS LLC and 2010 W Burnside, LLC, Plaintiffs-Appellants, v. 2021 MORRISON LLC; Onsite Advertising Services, LLC; and Big Outdoor Real Estate, LLC, Defendants-Respondents. |
| Court | Oregon Court of Appeals |
Jonathan M. Radmacher, Portland, argued the cause for appellants. Also on the briefs was McEwen Gisvold LLP.
E. Michael Connors, Portland, argued the cause for respondents 2021 Morrison, LLC, and Onsite Advertising Services, LLC. On the brief were Christopher P. Koback and Hathaway Larson LLP.
No appearance for respondent Big Outdoor Real Estate LLC.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and Hadlock, Judge pro tempore.
Robert Frost wrote, "Good fences make good neighbors." Robert Frost, Mending Wall , in North of Boston 11 (1914). Prescriptive easements, perhaps, do not. They are, after all, anathema to many common conceptions of property ownership: They permit a "person to acquire an interest in land without paying the owner for it." Wels v. Hippe , 360 Or. 569, 578, 385 P.3d 1028 (2016), modified on recons. , 360 Or. 807, 388 P.3d 1103 (2017). Nevertheless, prescriptive easements serve an important purpose: protecting "established patterns of land possession" by "rewarding the long-time user of property, fulfilling expectations fostered by long use, and conforming titles to actual use of the property." Albany & Eastern Railroad Co. v. Martell , 366 Or. 715, 720, 469 P.3d 748, modified on recons. , 367 Or. 139, 475 P.3d 437 (2020) ( Albany ) (internal quotation marks, brackets, and omissions omitted).
In this case, the trial court granted summary judgment to defendants, 2021 Morrison, LLC (Morrison), Onsite Advertising Services, LLC (Onsite), and Big Outdoor Real Estate, LLC (Big Outdoor), determining that Morrison has a prescriptive easement over the east-facing portion of a wall that defendants and their predecessors had used for advertising purposes. The trial court also denied plaintiffs’ cross-motion for summary judgment. On appeal, plaintiffs contend that the trial court erred in granting defendants’ motions for summary judgment and denying plaintiffs’ cross-motion for summary judgment. Among other points, plaintiffs argue that the trial court erred in determining that "Defendants’ predecessors’ use of Plaintiffs’ wall was not permissive or consensual."1 For the reasons that follow, we affirm.
At the outset, we note that on "appeal of a judgment disposing of cross motions for summary judgment, we review to determine whether there are any disputed issues of material fact and whether either party was entitled to judgment as a matter of law." Bethlehem Construction, Inc. v. PGE , 298 Or. App. 348, 351, 447 P.3d 18 (2019) (internal quotation marks omitted); see also ORCP 47 C ().
In this case, the material facts, as reflected in the summary judgment record, are undisputed. Plaintiff Bo and Lia Holdings, LLC (Bo) is the present owner of a lot in downtown Portland on which sits a one-story building. That lot was identified as "Lot 7" in the trial court. Immediately adjacent to Lot 7, to the west, is a lot that was identified as "Lot 6" in the trial court. A three-story building sits on Lot 6. Lot 6 is owned by Morrison.
Given the height disparity between the building on Lot 6 and the building on Lot 7, the upper two-thirds of the eastern wall of the building on Lot 6 is exposed. That exposed, east-facing portion of the wall is the subject of the dispute in this case. For ease of reference, in this opinion, we will refer to that wall as "the Wall."
The Wall was built pursuant to a 1911 agreement (the Party Wall Agreement) between the predecessor owners of Lot 6 and Lot 7. Under the Party Wall Agreement, a one-foot thick and three-story tall "party wall" was to be constructed along the dividing line of Lot 6 and Lot 7, with half of the Wall to be located on Lot 6 and half of the Wall to be located on Lot 7. Further, under the Party Wall Agreement, the owner of Lot 6 and the owner of Lot 7 were each entitled to use the Wall "for all such purposes as party walls are ordinarily used."
After it was constructed, the Wall functioned as one of the walls of the three-story building on Lot 6. That is, the three-story building on Lot 6 is attached to the Wall. In contrast, the one-story building on Lot 7 is approximately 20 inches away from the Wall. It is not connected to the Wall.
In May 1997—over 80 years after the Party Wall Agreement was entered into—Onsite entered a lease agreement with the owners of Lot 6 to lease the eastern side of the Wall.2 Onsite's primary business is outdoor advertising. Onsite enters into leases with the owners of structures that can be used for outdoor advertising, which permit Onsite to place advertisements on the structures. Onsite then enters into agreements with businesses that desire to place advertisements on the structures.
As consideration, the owners of Lot 6 were to receive a monthly payment "equal to 25% * * * of advertising revenue generated by lessee." The agreement had a term of 10 years, with an option to the lessee to renew the lease for an additional 10 years.
Onsite, however, perceived "two potential issues" with using the Wall for advertising. First, there were billboards atop the one-story building on Lot 7, which, to some extent, obstructed the view of the Wall. Second, Onsite was concerned with the possibility that the owner of Lot 7 could add a second story to the building on Lot 7, which could obstruct the view of any advertisements appearing on the Wall.
Additionally, in the 1998 Agreement, Fischer agreed "not to build up or add a second floor to the existing building [on Lot 7] for a minimum of 60 months from the start" of the 1998 Agreement; to provide Onsite with notice if she intended to build a second floor; and provided that if Fischer "builds a second story or remodels the existing building upward in any way that causes view of the advertising wall to be obstructed, Onsite may end this agreement in its entirety * * * without any compensation due to Fischer from the date of such obstruction."
In exchange, Onsite agreed to pay Fischer a lump sum of $5,000 immediately, followed by another lump sum of $13,000, due after removal of the billboards affixed to the top of the building on Lot 7. Additionally, starting two years after the billboards affixed to the top of the building on Lot 7 were removed by Fischer, Onsite was to pay $750 per month to Fischer for the duration of the agreement. The 1998 Agreement had a duration of 120 months, "commencing on the date of billboard removal," and provided Onsite with the right to extend the agreement for an additional 120 months.
During negotiation of the 1998 Agreement, Fischer stated that she did not want any flower shops advertised on the Wall, because the tenant in the building on Lot 7 was a flower shop. Onsite and Fischer accordingly agreed to a provision in the 1998 Agreement stating, "Onsite will not advertise any type of product, service or business that would, in any way, compete with tenants of the existing building."
After entering the agreements with the owners of Lot 6 and with Fischer, Onsite entered an agreement with a third party who wanted to advertise on the Wall, and advertising was placed on the Wall in 1999.
The 1998 Agreement expired 120 months after its commencement and was not renewed; payments to Fischer ceased in June 2009. At that time, Lot 6 had been sold to Morrison. The 1998 Agreement was not renewed, because Morrison and the then-lessee of the Wall from Morrison "concluded there was no reason to renew and continue to pay under the [1998 Agreement] because it was unlikely that the City of Portland would approve any significant development on Ms. Fischer's lot."
Additionally, in 2009, Fischer expressed to Morrison, with reference to the Party Wall Agreement, that she believed she had some right to the advertising revenue from the Wall. Morrison disagreed with Fischer and communicated to her that it did not believe that she had any rights to advertising revenue generated from advertising on the Wall. Negotiations between Morrison and Fischer ensued. At some point, there was an exchange between Fischer's counsel and Morrison's counsel, wherein Fischer's counsel asserted that Morrison's use of the Wall was "trespassing" on Fischer's property. Morrison's counsel responded, among other points, that "the 1998 Agreement * * * establishes [Fischer] consented to use the wall," and "consent is a defense to trespass." After expiration of the 1998 Agreement, no further agreement was reached between the owners of Lot 7 and owners of Lot 6 regarding use of the Wall.
Over the ensuing years, the Wall continued to be used for advertising, and various transactions occurred. As...
To continue reading
Request your trial