Cheney v. Mueller

• Decision Date: 10 June 1971
• Citation: 259 Or. 108,485 P.2d 1218,92 Or.Adv.Sh. 1325
• Parties: Clinton F. CHENEY, Dolores G. Cheney, Lowell Hansen and Pearl Hansen, Respondents, v. Ernest F. MUELLER and Dolores D. Mueller, husband and wife, Appellants.
• Court: Oregon Supreme Court

Page 1218

485 P.2d 1218

259 Or. 108

Clinton F. CHENEY, Dolores G. Cheney, Lowell Hansen and Pearl Hansen, Respondents, v. Ernest F. MUELLER and Dolores D. Mueller, husband and wife Appellants.

Supreme Court of Oregon.

Argued and Submitted at Pendleton, May 3, 1971.

Decided June 10, 1971.

Phillip M. Roberts, Prineville, argued the cause for appellants. With him on the brief was Ralph J. Brown, Prineville.

No appearance contra.

Before McALLISTER, P.J., and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.

TONGUE, Justice.

Defendants appeal from a judgment granting to plaintiffs an easement by implied reservation across defendants' property.

Plaintiffs' complaint, after alleging the facts, asked that the deed from plaintiffs to defendants be reformed to include a reference to 'existing rights of way for roads'; that defendants be enjoined from blocking the access road to a house subsequently sold by plaintiffs to a Mr. Hansen and 'for such other and further relief as to the court seems just and equitable.' Defendants' answer, in addition to a general denial, also asked for affirmative relief requiring plaintiffs to deliver a warranty deed subject only to easements of record, and thus excluding the disputed access road.

Since the granting of an easement by implied reservation depends primarily upon a determination of the intent of the parties, as reflected by their conduct and in the light of the particular facts and circumstances, the principal question in this case is one of fact.

In November 1958 plaintiffs sold to defendants the property in question, consisting of a service station and trailer park near Prineville, Oregon. At that time plaintiffs also owned adjacent property on the west of the trailer court. Both tracts fronted to the south on a highway running west to Prineville. Plaintiffs also then owned property to the north of the trailer court and had previously owned property adjacent to it both on the west and the east. In selling the property to the east of the trailer court a road easement eight feet in width was provided, running north and south along the east side of the trailer court property so as to provide access to the purchasers of portions of the property northeast and east of it. The original tract owned by plaintiffs (before these sales) included 33 acres and was purchased by them in 1947.

At the time of the sale to defendants the plaintiffs owned two houses on the property immediately west of the trailer court, one of which also fronted on the highway. The other house (later sold to Mr. Hansen and called the 'Hansen house' throughout this case) was built in 1948 by Mr. Cheney, who then lived in it for a time. At the time of the sale of the trailer court to defendants the 'Hansen house' was occupied by a Mrs. Baker, who was employed by plaintiffs in operating the trailer court. The access to that house is the problem in this case.

At that time, of course, there was no legal problem of access to the 'Hansen house,' since both that house and the adjacent property to the east, as well as to the south, were all owned by plaintiffs. As a practical matter, however, access to the car port on the east side of that house was provided by a roadway extending in a general easterly or southeasterly direction from that car port across the trailer park to the eight foot road easement extending along the east side of the trailer park property. At that time there was also a fence between plaintiffs' trailer park property and their adjacent property to the west, including the 'Hansen house.' However, a wire gate was provided in that fence for the roadway to that house at a point immediately opposite the entrance to the car port of that house. All previous occupants of the 'Hansen house' used that roadway for access.

Prior to the sale to defendants a map had been prepared by a surveyor of the trailer park property and the property immediately north of it. That map also showed four tracts of property to the east of the trailer park, as previously sold by plaintiffs, together with a dotted line to show the location of the eight foot road easement extending along the east side of the trailer park property so as to provide access to three of such tracts. The map also included a metes and bounds description of that road easement, after which followed the words: 'Subject to all existing easements and rights of way.'

The map also showed a similar dotted line parallel to the north line of the trailer park property so as to indicate a strip of the same width extending along the north side of that tract and between it and the tract immediately north of the trailer court property. No metes and bounds description for that strip was shown on the map. The map did not show the location of the 'Hansen house' or the gate opposite its car port. The surveyor who prepared that map testified that he added that 'dotted line' at the request of Mr. Cheney after completing the remainder of the map and for that reason did not include a metes and bounds description of it. He also testified that the usual way to show an easement on a survey map is by dotted lines. He did not know whether the strip as shown by these dotted lines corresponded to any existing roadway. The evidence showed, however, that the west end of that strip terminated at or about the location of the gate opposite the 'Hansen house' car port.

On the evening of Saturday, November 25, 1967, defendants came to look at the trailer park in response to an advertisement placed by plaintiffs and after corresponding with them. That same evening they also drove up to look at the 'Hansen house,' which was also for sale, Mr. Mueller having found out how to get to that house. In doing so, defendants drove through the trailer court and through the gate opposite the car port of that house, but said that they did not see the gate, which may have been open at that time.

The next day defendants also walked over the trailer court property. Meanwhile, there had been a light snow. They testified that they saw no car tracks in the snow leading across the trailer court property to the 'Hansen house' (where they had driven the night before).

Defendants admitted that in showing them the trailer court property the next day Mr. Cheney showed them a map 'like' the one which showed the 'strip' by a dotted line running east and west along the north line of the trailer court property. Defendants also said that they asked if that map had been recorded, but did not rely on it. Defendants testified that there was no discussion of that 'strip' or of any roadway or right of way to the 'Hansen house.' They also testified that there was no 'defined roadway at that time and that there could have been no roadway along the 'strip' shown on the map because of a four foot 'bank' at the west end of that 'strip.'

Plaintiffs testified, on the contrary, that in showing defendants the property they not only showed defendants the map in going over the property, but informed them of the roadway, although admitting that 'nothing in particular' was said about it. Mr. Cheney also testified that the 'tracks' on the roadway through the gate to the 'Hansen house' were 'plain' at that time. He also testified that he had previously put rock on that roadway.

After looking at the trailer court property, defendants decided also to buy the tract immediately north of it (and north of the 'strip' as shown on the map along the boundary of that tract). A price was then agreed upon for both tracts and an earnest money contract was then prepared by plaintiffs' attorney and signed by both parties on November 28, 1967. A copy of the same survey map, showing the same 'strip' in dotted lines, was referred to and attached, as well as a legal description, which included a metes and bounds description of the road easement along the east side of the property and also again added 'subject to all existing easements and rights of way.'

The attorney then prepared a formal contract, dated December 5, 1967, which included the same description, but added the words, 'subject to other existing easements and rights of ways Now of record if any.' Later, however, on payment of the contract, a deed was prepared by the same attorney and executed on August 15, 1968, with a description in substantially the same terms as the earnest money contract ('also subject to existing rights of way for roads'), but not including either the limitation 'now of record if any' or reference to the word 'easements,' as included in the contract of sale.

After executing the earnest money receipt defendants returned to their home in Alaska and did not take possession of the property until March or April 1968. Meanwhile, Mrs. Baker operated the trailer court for them and continued to live in the 'Hansen house' until July 1968. During that time she continued to use the same roadway for access to the house, without objection by defendants. At that time, however, she was still employed by them.

After Mrs. Baker moved out, the house was vacant until sold by plaintiffs to Mr. Hansen. On May 5, 1969, plaintiffs sold the 'Hansen house' to Mr. Hansen, showed him the same map, and told him that there was an easement across the Mueller property to the roadway along the east side of that property. The contract of sale to Hansen made no reference to any access roadway or easement, but describes only the tract actually conveyed and which is adjacent to the trailer park on the west. That tract is also adjacent to plaintiffs' remaining property (and house), which was also adjacent to the trailer park on the west, but south of the 'Hansen house' and between it and the highway.

Mr. Mueller also testified that he never heard of an easement to the 'Hansen house' until after Mr. Hansen moved in; that he then went to see the attorney who prepared the deed, who told him there was no such easement, and that when he first talked to Mr. Hansen about it, Hansen agreed...