Bloomfield v. Weakland

• Decision Date: 16 June 2004
• Citation: 193 Or. App. 784,92 P.3d 749
• Parties: Stefan D. BLOOMFIELD, Molly M. Bloomfield, Ruth H. Bloomfield, and Richard Andrew Bloomfield, trustees of the William M. and Ruth H. Bloomfield Trust U/A dated July 9, 1980; Milosh Popovich, trustee of the Milosh Popovich Trust dated January 29, 1991; J. Michael Schwab; Steven W. Brookshire; Robert M. Cortright; Joseph S. Cortright; Cascadia Investment Co., LLC, an Oregon limited liability company; Lin L. Craft, trustee of the Lin L. Craft Trust dated December 23, 1998; Bruce G. Blain; Patricia A. Blain; Janet Yarbrough; Dokay, LLC, an Oregon limited liability company; Gary R. Jones; Sarah D. Wright; Kathleen L. Buchner, fka Kathleen Weswig; Robert Dean Jones and Hilda M. Jones, as trustees of the Hilda M. Jones Trust; and Bloomfield Associates, a California limited partnership, Respondents, v. Jean Marie WEAKLAND, Appellant, Sarah K. Chartz and Brian D. Tooley, Respondents, v. Jean Marie Weakland, Appellant. Jean Marie Weakland and Margaret Anne Patricia Montgomery, Third-Party Plaintiffs, v. Corinne Labarre; Valerie L. Tadda; Linda L. Craft; Kay Nelson; Marilyn J. Thompson; and Lawrence K. Labarre, Third-Party Defendants.
• Court: Oregon Court of Appeals

92 P.3d 749

193 Or. App. 784

Stefan D. BLOOMFIELD, Molly M. Bloomfield, Ruth H. Bloomfield, and Richard Andrew Bloomfield, trustees of the William M. and Ruth H. Bloomfield Trust U/A dated July 9, 1980; Milosh Popovich, trustee of the Milosh Popovich Trust dated January 29, 1991; J. Michael Schwab; Steven W. Brookshire; Robert M. Cortright; Joseph S. Cortright; Cascadia Investment Co., LLC, an Oregon limited liability company; Lin L. Craft, trustee of the Lin L. Craft Trust dated December 23, 1998; Bruce G. Blain; Patricia A. Blain; Janet Yarbrough; Dokay, LLC, an Oregon limited liability company; Gary R. Jones; Sarah

D. Wright; Kathleen L. Buchner, fka Kathleen Weswig; Robert Dean Jones and Hilda M. Jones, as trustees of the Hilda M. Jones Trust; and Bloomfield Associates, a California limited partnership, Respondents, v. Jean Marie WEAKLAND, Appellant, Sarah K. Chartz and Brian D. Tooley, Respondents, v. Jean Marie Weakland, Appellant.

Jean Marie Weakland and Margaret Anne Patricia Montgomery, Third-Party Plaintiffs, v. Corinne Labarre; Valerie L. Tadda; Linda L. Craft; Kay Nelson; Marilyn J. Thompson; and Lawrence K. Labarre, Third-Party Defendants.

003480, 003497; A119891.

Court of Appeals of Oregon.

Argued and Submitted January 21, 2004.

Decided June 16, 2004.

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant. Thomas L. Gallagher, Jr., Corvallis, argued the cause and filed the brief for respondents.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

ARMSTRONG, J.

Defendant owns an oceanfront lot, Lot 14, in Sea Woods Park, which is a subdivision near Waldport, Oregon. Plaintiffs are owners of other lots in the subdivision who sought a declaratory ruling that they have an implied easement to the beach over defendant's property by virtue of a 1957 plat that depicted a 10-foot wide "Private Walk Way" over Lot 14. Defendant appeals from a judgment for plaintiffs on their implied easement claim. The court based the judgment on an order that granted plaintiffs summary judgment on their claims. Because we conclude that there are material issues of fact on the existence of the implied easement, we reverse the judgment and remand.

We summarize the evidence in the record on summary judgment. In 1935, Charles LaBarre acquired 5.5 acres of undeveloped land south of Waldport. His children (the LaBarre heirs) inherited the property in 1954. In 1955, the LaBarre heirs partitioned the property and conveyed to two heirs, two ocean-front parcels now encompassed within platted Lots 4, 5, and 6, to the south of and adjacent to what is now Lot 14. The deed to Gwen Craft, recorded in 1955, described an appurtenant easement across a 10-foot strip of what is now Lot 14 "for ingress and egress." The deed to Corinne LaBarre, recorded in 1993, also conveyed an "easement for ingress and egress over a strip of land 10 feet in width which is adjacent northwesterly to the [Craft property]." In 1956, the LaBarre heirs conveyed what became Lot 7 to Shipek by a land sale contract that made no mention of the walkway or of an easement.

The LaBarre heirs developed a plan to plat the property. The record on summary judgment contains a handwritten memorandum of Julia Pike, a now-deceased LaBarre heir, entitled "Family decisions 1956." The memorandum lists nine "decisions" discussed by the LaBarre heirs. Three are relevant to the issues on appeal. "Decision 2" states:

"Access to beach (10 ft. wide) will be deeded to ______ to become part of lot 14 and shown as easement for privilege of owners of the subdivision."

"Decision 3" refers to a different part of the subdivision:

"Give easement to Elkins in exchange for his right of way. Otherwise reserve 10 ft. strip of roadway and make it part of lot 10."

"Decision 7" states:

"Have plat recorded as soon as feasible, Elkins easement settled and decision made on how far roads go and record restrictions with it revise restrictions to eliminate F.H.A."

In a later, typed document, Corrine LaBarre is listed as the grantee of Lot 14.

Clarence and Elizabeth Elkins owned land in the 1950s that was immediately to the south of Sea Woods Park. In March 1956, they dedicated a 15-foot strip of land over their property that connected the southern terminus of "Sea Woods Terrace," a public road in Sea Woods Park, with the property of the Clines, immediately to the south of the Elkins property. In October 1956, the Clines conveyed a right of way of a 5-foot public walkway, connecting the Elkins strip to the Pacific Ocean. Both conveyances were recorded on February 4, 1957. The next day, on February 5, 1957, the LaBarre heirs recorded a plat for Sea Woods Park. The plat defined the lots and roads in the subdivision. It "dedicate[d] to the use of the public as public ways forever all streets shown on said plat." The plat drawing depicts within the solid lines of Lot 14 a 10-foot "private walkway," but makes no mention of an easement reserved or dedicated across Lot 14. The plat drawing also depicts the Elkins dedication at the southern terminus of Sea Woods Terrace, labeled "Path to Beach." The plat was signed by all owners within the subdivision except Shipek, who was the only nonfamily member owner.

There is evidence in the record on summary judgment that, at the time that they drew up the plat, the LaBarre heirs contemplated that the private walkway would be for the benefit of all property owners in the subdivision, to the exclusion of the public. Corrine LaBarre, who signed the plat, testified by deposition:

"It was put on the sheet what we discussed and one was access to the beach, ten-foot wide, needed to become part of lot fourteen as shown on the easement walk for the privilege of owners of the subdivision lots. That was the—The wording to me is kind of ambiguous but—It certainly was discussed as potential access to the beach, that ten-foot strip. * * *

"When I say, easement, I mean available to all the lot owners. It's an easement available to them but not outside and, therefore, it was offered as a private walkway. * * *

"It means there is an easement to get down to the beach but that it is not open to the public in general."

Corrine LaBarre also testified that it was her understanding that the walkway was a separate parcel, not a part of Lot 14.

In June 1957, the LaBarre heirs divided the remaining subdivision lots among themselves, and Corrine LaBarre received a deed to Lot 14. None of the deeds referred to an easement over Lot 14. They simply conveyed the lots "as platted and recorded in Book 9, Page 7 of the Lincoln County Plat Records." In July 1957, the LaBarre heirs recorded building and subdivision restrictions for Sea Woods Park, making no mention of the walkway or of an easement over Lot 14.

Before defendant purchased Lot 14 in 1972, her attorney and her realtor reviewed the plat and researched Lincoln County records and found no record of an easement or encumbrance on Lot 14. The deed to the property described it as "free of all encumbrances." At that time, the Gwen Craft deed was of record, having been recorded in 1956, but the Corrine LaBarre deed had not yet been recorded. No deed of record to Lot 14 mentioned an easement over the walkway. The previous owners had posted a "Private" sign on the walkway but had allowed neighbors to use the walkway as access to the beach. Defendant's attorney advised her that the walkway depicted on the plat was private to Lot 14. Defendant continued to allow neighbors to use the walkway as a courtesy; however, she believed that she had full control of her property and did not know of an easement. After a 1988 burglary, defendant posted two additional "private" signs along the walkway but continued to allow her neighbors to use the walkway. The record on summary judgment shows that the owners in the subdivision used the walkway for beach access until approximately 1991, when a stairway on the walkway became unuseable. It is undisputed that, since 1991, defendant has refused to allow anyone other than the owners of Lots 5 and 6 to use the walkway.

In 1993, the owners of lots in the subdivision other than Lot 14 formed Sea Woods Park, Inc., a nonprofit corporation, for the purpose of securing an easement over the walkway. All but two of the current plaintiffs were members of Sea Woods Park, Inc., in 1993.¹ In 1994, Sea Woods Park, Inc., filed a claim against defendant in Lincoln County Circuit Court asserting that, in platting the subdivision with the private walkway and conveying lots by deeds referring to the plat, the LaBarre heirs created a private dedication and grant of an easement over the walkway. The prayer sought unrestricted access to the beach by way of the walkway. The trial court granted summary judgment to defendant on that claim on the ground that Sea Woods Park, Inc., had no ownership interest in any property in the subdivision and, consequently, was not a real party in interest. The court then entered an order that allowed the real parties in interest to join the litigation. Only Lin Craft (Craft), the owner of Lot 5 and part of Lot 6, joined as a plaintiff. Sea Woods Park, Inc., continued to support the litigation through the payment of Craft's legal fees and through discussions with her about the issues in the case. Craft's amended complaint sought a judgment declaring her right to an easement over defendant's property and also sought a judgment "declaring the right of plaintiff to assign to other property owners in [Sea Woods] Park her right to have the use and enjoyment of the strip of land." Craft prevailed in the litigation. The court ruled that Craft had an easement appurtenant to her property for use of the walkway, based on the express grant of an easement in the 1955 deed to her mother, Gwen Craft. However, the trial court declined to rule on the existence of an implied easement for Craft or any other person by virtue of the platted walkway:

"While there has been evidence

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