Central Oregon Fabricators, Inc. v. Hudspeth

JurisdictionOregon
CourtOregon Court of Appeals
Citation977 P.2d 416,159 Or.App. 391
PartiesCENTRAL OREGON FABRICATORS, INC., an Oregon corporation, and Jack Rhoden, Respondents, v. Alan HUDSPETH, Barry Hudspeth and F & M Realty Company, Inc., an Oregon corporation, Appellants. (95-3546; CA A99398)
Decision Date31 March 1999

Thomas W. Sondag argued the cause for appellants. With him on the briefs was Lane Powell Spears Lubersky LLP.

Gregory P. Lynch argued the cause for respondents. With him on the brief were Stanley D. Austin and Hurley, Lynch & Re, P.C.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

HASELTON, J.

Defendants appeal from a judgment quieting title to 24,000 acres of land in favor of plaintiffs and extinguishing an express profit a prendre 1 granting defendants the right to hunt and fish on plaintiffs' property. On de novo review, ORS 19.415(3), we agree with defendants' principal contention that the trial court erred in concluding that defendants had abandoned their rights or, alternatively, that those rights had been extinguished by way of adverse possession. We further agree, in part, that the trial court erroneously construed the scope of defendants' rights under the deed. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

On August 7, 1964, Hudspeth Land and Livestock Company and Hudspeth Sawmill Company executed a deed conveying more than 24,000 acres of land in Wheeler County (the "Bald Mountain property") to plaintiff Central Oregon Fabricators, Inc. (COF). On the same day, and immediately after executing the deed, Fred Hudspeth, one of the principal owners of the Hudspeth companies, asked plaintiff Jack Rhoden, principal owner of COF, if he and his family could continue to hunt on the land. Rhoden agreed, and COF, for a payment of $10 and "other good and valuable consideration," subsequently executed a deed granting 11 individuals rights to hunt and fish on the Bald Mountain property. Among the grantees were defendants Alan and Barry Hudspeth and Fred Hudspeth, the predecessor-in-interest of defendant F & M Realty Company, Inc. (F & M). 2 That deed, which is the focus of this dispute, provided that COF

"does hereby grant, bargain, sell and convey unto said Grantees, their heirs and assigns, and personal guests while accompanying the Grantees, the right, privilege, and easement to shoot, kill and take away wild fowl, including but not limited to wild duck, pheasant, grouse, sage hen, quail and other birds of every kind and nature; and wild game, including but not limited to deer, antelope and elk; and to fish in streams and ponds, all of which may be upon the following described real property, or in any and all lakes, and sloughs, and waters situated, lying and being upon said lands lying within Wheeler county, Oregon, as described [as the Bald Mountain Property]."

The deed did not include a limitation on duration but provided, instead, that the conveyance was "to have and to hold said rights granted unto said Grantees, their heirs and assigns, and personal guests while accompanying the Grantees * * *."

Immediately after COF acquired the Bald Mountain property in 1964, Rhoden began constructing fences and trenches around the perimeter of the property, putting locked gates on all access roads, and employing guards to patrol the property during hunting season.

In 1989, Rhoden individually acquired an undivided one-half interest in the property from the trusts of the heirs of his former partner, John Crawford. That conveyance was explicitly "subject to" defendants' and the other grantees' rights under the 1964 hunting deed. 3

At about the time that Rhoden acquired his one-half interest in the property, he and his sons began operating a hunting recreation and guide service on the property, Bald Mountain Recreation, Inc., which charged hunters a fee of up to $5,000 per person for a five-day guided hunting trip. In operating that business, Rhoden modified the cattle and logging practices on the property in ways designed to enhance hunting. For example, Rhoden put out food and planted additional grass to encourage elk to come onto the property and reduced the number of cattle to compensate for the increase in elk.

From 1964 until the trial in 1997, defendant Barry Hudspeth and Fred Hudspeth, F & M's predecessor in interest, never exercised their rights to hunt or fish on the property. Only defendant Alan Hudspeth attempted to exercise rights under the 1964 deed. In 1968 or 1969, Alan hunted on the property after telling Rhoden his plans. In 1974, Alan again told Rhoden that he planned to hunt on the property; however, after Rhoden told him that there would be several other paying hunters in the area, Alan decided to hunt on other land that he owned.

In October 1988, Rhoden invited his grandchildren to hunt on a portion of the Bald Mountain property that had been conveyed to a neighbor. Todd Rhoden, one of Rhoden's grandsons, brought his friend, Todd Hudspeth, who was Alan's son, with him. Jack Rhoden told Todd Hudspeth that he could not stay and hunt. When Todd's grandfather, Fred Hudspeth learned what had happened, he directed his attorney to send Rhoden a copy of the deed, and an explanation of the rights it granted, so as to make it "perfectly clear that the rights existed and to restate the rights so that no one would forget them." Rhoden never responded to that letter. However, he later apologized to Alan Hudspeth about the incident.

In August 1994, Alan Hudspeth approached Rhoden at a golf course and told him that he would like the keys or combinations to the locked gates so that he could hunt during the upcoming season. Although the testimony at trial was disputed, Rhoden apparently told Alan that he did not want him hunting on the land because he had paying hunters coming. After that conversation, Rhoden went home and examined the 1964 deed. He became quite concerned after reading the deed and called his attorney for advice because he believed that the wording granted a broad right to hunt, and he could see that, "with the number of people that they might want to bring * * * because th[e] deed left it wide open for them to bring anybody," that it could "screw up" all the property.

In early 1995, Barry and Alan met with their mother, Margaret, to discuss the hunting and fishing rights. Although their father, Fred Hudspeth, had died in 1992, the probate of his estate remained open. The hunting and fishing rights had not been included on the personal property inventory. At Barry's direction, an amendment to the inventory was filed, adding the rights under the 1964 deed, and Margaret inherited those rights. In exchange for forgiveness of a debt, Margaret subsequently assigned her rights to F & M. Thereafter, F & M explored selling its rights to Rhoden but, when that was rejected, 4 F & M and Barry began developing a plan to sell memberships to hunt on the property by assigning the rights on an annual basis to the members.

In September 1995, plaintiffs filed this action to quiet title, alleging that defendants had abandoned their rights under the 1964 deed or, in the alternative, for declaratory relief, seeking a declaration that defendants' rights under the deed were strictly personal and not "subject to commercialization, sale, or profit taking." Defendants answered that their rights had not been abandoned and were freely alienable. Defendants also counterclaimed, seeking a declaration of the parties' rights under the deed and an injunction against plaintiffs' interference with those rights. 5

Following a trial to the court, the court issued extensive written findings and conclusions. In those findings, the court first addressed plaintiffs' alternative claim for declaratory relief and determined, inter alia, that: (1) "any assignment [of rights under the deed] can only be to a natural person"; (2) "[a]ny assignment * * * cannot be divided, multiplied or assigned to more than one natural person"; (3) "the grant to the Hudspeths is limited to hunting during the season for the particular game mentioned"; and (4) a "guest cannot be a commercial guest, only a non-paying personal guest."

With respect to plaintiffs' principal claim of abandonment, the court determined that defendants' nonuse of the property after 1964, coupled with their failure to object to plaintiffs' action in fencing, gating, and patrolling the property and excluding uninvited guests, evinced an abandonment of the property by no later than 1988. The court further and alternatively determined that defendants' interests were extinguished through adverse possession:

"The Court finds that the Plaintiffs adversely possessed the Defendants' hunting rights. An interest in property, either in whole or in part, can be adversely possessed if the party satisfies the elements of adverse possession. The servient estate can adversely possess a right to use the property away from the dominant holder. Simpson v. Fowles, 272 Or. 342 (1975). The party must show that possession is (1) open, notorious and a hostile claim of right as against others; (2) continuous; (3) exclusive; and (4) the property was held for the statutory period of time, i.e. ten years. Although this legal theory was not claimed by the Plaintiffs, the Court believes that under the broad claim of declaratory judgment, the Court can make a finding regarding this theory to adjudicate the rights of the parties.

"It is clear that after the August, 1964, conveyance, Plaintiffs fenced the property, gated and locked the property and patrolled the property in a manner open and notorious to all others. It is clear that Plaintiffs prohibited all parties, except permitted guests, from going onto the property. Plaintiffs also managed all incidents of ownership in Bald Mountain, including the hunting rights, to the exclusion of all others. Finally, Plaintiffs' exclusivity of ownership was...

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    ...court has no authority to render a decision on issues not presented for determination."); see also Central Oregon Fabricators, Inc. v. Hudspeth , 159 Or. App. 391, 403, 977 P.2d 41, rev. den. , 329 Or. 10, 994 P.2d 119 (1999) (concluding that trial court erred in granting plaintiff relief o......
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