Arrien v. Levanger

• Decision Date: 10 November 1972
• Citation: 502 P.2d 573,263 Or. 363
• Parties: Andrew J. ARRIEN, Respondent, v. Ross LEVANGER, Appellant.
• Court: Oregon Supreme Court

Page 573

502 P.2d 573

263 Or. 363

Andrew J. ARRIEN, Respondent, v. Ross LEVANGER, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton, May 1, 1972.

Decided Nov. 10, 1972.

William D. Cramer, Burns, argued the cause for appellant. With him on the briefs were Cramer, Gronso & Pinkerton, Burns.

H. Clifford Looney, Vale, argued the cause for respondent. With him on the brief were Swan, Butler & Looney, Vale.

O'CONNELL, Chief Justice.

This is a suit to enjoin defendant from trespassing upon plaintiff's land by the seasonal flooding of his land, and to recover damages for the alleged trespass. As an affirmative defense, defendant claims a prescriptive easement to flood plaintiff's land. The trial court granted the relief sought by plaintiff. Defendant appeals. The only issue on appeal is whether defendant acquired a prescriptive right to flood plaintiff's land.

In 1948, defendant's predecessor in interest erected a dam on his land creating what is known as Easterday Reservoir. ¹ The reservoir is used to store water which flows into it during spring when the rain and the snowpack from the adjacent watershed produce a runoff. The damages claimed by plaintiff resulted when the waters impounded by the reservoir backed up onto plaintiff's contiguous upland and destroyed his crested wheatgrass crop.

It is defendant's position that the inundation of a part of plaintiff's land from 1948 to 1970 gave him a prescriptive easement in plaintiff's land. The trial court held that the interference with plaintiff's land did not meet the requirement of continuity of use necessary to establish a prescriptive right, and that even assuming continuity of use was established, there was no evidence to prove that defendant's use was under 'color of title' or 'claim of right.'

On appeal, plaintiff asserts in support of his position these two grounds relied upon by the trial court. In addition, he contends that the defendant's adverse claim must fail on the ground that defendant did not establish with sufficient definiteness the area claimed to be subject to the easement. We shall consider the last contention first.

The evidence established that the reservoir usually started to collect the runoff in February and the waters so collected were impounded until they were used during the irrigation period, which usually lasted until the end of April. Over the years there were variations in the extent to which the water spread over plaintiff's land, depending upon the amount of runoff for the particular year. One of plaintiff's witnesses testified that in terms of available water for irrigation during a 10-year period, about one third of the years were 'very good' or 'wet' years, one third 'moderate' or 'fair' years, and one third were 'dry' years. He also testified that during the 'wet' years the impoundment of the water would cause plaintiff's land to be flooded. Likewise, in 'fair' years plaintiff's land would be flooded, but to a lesser extent.

One of defendant's witnesses testified that four out of five years could be characterized as fair years and that in those years the water would 'get on him (plaintiff) but won't get clear over him.' The defendant and his son testified to the same effect and noted that the dam had 'spilled' three times since it had been built. The district watermaster indicated that in 1965 the defendant told him that the dam had spilled in 1951, 1958 and 1962.

Other evidence establishing the existence and extent of the flooding of plaintiff's land included the testimony of Walter Gillespie, the County Surveyor, who interpreted a stadia survey map which he had made in September, 1965. The map showed the area of land covered by the reservoir when various amounts of water were backed up by the dam. Gillespie correlated the water elevations at the dam with the contour lines on his stadia survey map. Upon the basis fo the evidence elicited from Gillespie it appears that during the 'wet' years the reservoir water would encroach upon the plaintiff's land up to the 97.5 contour line drawn on the stadia survey map.

The plotted and projected contour lines on the stadia survey map were in substantial accord with aerial photo maps taken over the reservoir. By interpreting these maps, witnesses explained that it was possible to note the fluctuating course of the waters in the reservoir. These maps, made in 1954 (less than seven years after the dam's construction), showed that water from the Easterday Reservoir had inundated the plaintiff's land in varying degrees.

Plaintiff contends that the foregoing evidence does not disclose the flooding of any definite area of land over the years. We think that the evidence taken as a whole is sufficient to identify the area of land flooded from time to time during the prescriptive period. It is true that the area of land flooded was not the same each year, and in some years there was no flooding at all. But this in itself does not preclude the acquisition of an easement, any more so than in the case of other easements where the area of the servient estate fluctuates with variations in use by the dominant owner.

All that is necessary to meet the requirement of definiteness where there is a variation in the area invaded is that the maximum or outer limits of the interference by established. This requirement was met in the present case. The evidence established that the water reached the 97.5 contour line in 'wet' years, which were approximately one third of the years during which defendant impounded water in the reservoir. This, we think, is enough.

In addition to the requirement of definiteness is the requirement of continuity. Recently, in Hay v. Stevens, 94 Or.Adv.Sh. 1617, 497 P.2d 362 (1972), we had the occasion to explain and apply the requirement of continuity of use. There we turned to 5 Restatement of Property (Servitudes) § 459, Comment b, p. 2936 (1944), for a statement of the principle:

'To satisfy the requirement that the use be continuous it is not necessary that it be constant. A use may be continuous though there are periods of time more or less extended between the specific acts of use. Many easements, such as rights of way and rights of hunting or fishing, which are periodical or only occasional in use may be acquired by prescription. The requirement means that there be no break in the essential attitude of mind required for adverse use rather than that the use be constant.'

In Hay v. Stevens, Supra, we held that an easement was established to pass on foot over a pathway on the servient owner's land leading to the ocean beach even though the use was made only during the summer months and on weekends during the winter months. We also noted other Oregon cases where intermittent uses were held sufficient to satisfy the requirement of continuity. ²

In the present case, the flooding of plaintiff's land by defendant spanned a period of over twenty years. As we have noted above, the extent of the flooding during that period was not constant. But the irrigation flooding of plaintiff's land was the normal use which an average owner of farm land requiring irrigation would make if he were the owner. Thus the use here meets the test laid down in Springer v. Durrette et ux., 217 Or. 196, 342 P.2d 132 (1959) and Hay v. Stevens, Supra, where we held that an important consideration in testing continuity is the character of the property and the manner in which the average person would use it.

If, as the Restatement of Property explains, '(t)he requirement (of continuity) means that there be no break in the essential attitude of mind required for adverse use,' then the requirement is clearly made out in the present case because the existence of the dam on defendant's land served as a constant warning to plaintiff that the flooding of his land would continue to recur in varying degrees as the runoff from the surrounding watershed collected behind defendant's dam. This recurring invasion of plaintiff's land reached a contour length of 97.5 in approximately seven out of the 22 years from 1948 to 1970, as demonstrated by the testimony that one third of the years were 'wet.' This, we think, was of sufficient recurrence to give plaintiff warning that defendant's claim was to the full flooding capacity of the dam. ³

The trial court held that 'even assuming that the possession here could be found to be 'continued possession' for the required ten-year period, the plaintiff (sic) has produced practically no evidence or showing that such possession was had under any 'color of title' or 'claim of right' adverse to the plaintiff as is required.'

The term 'color of title' is properly used to describe the situation where the adverse possessor is the grantee of a deed purporting to describe the limits of the tract which he intends to possess. A possessor having color of title may acquire title by adverse possession of the land described in the deed through the actual possession of only a part. ⁴ Thus, it can be seen that the doctrine of color of title is not applicable to the facts of the present case.

Nor can the trial court's conclusion that defendant's possession was not under 'claim of right' adverse to the plaintiff be sustained. The trial court stated that: 'All the evidence in the case at bar is to the effect that he (defendant) knew full well that he was trespassing on plaintiff's lands but did not feel that he was causing much harm.' Whether a person who intrudes upon another's land feels that his intrusion is harmful or beneficial is immaterial in determining whether adverse possession or prescription is established. All that must be shown is that the use is 'not made in subordination to those against whom it is claimed to be adverse.' 5 Restatement of Property (Servitudes) § 458, Comment d, p. 2927 (1944).

In contending that the use was not adverse, plaintiff relies upon an alleged conversation with defendant which was explained by plaintif...