Coussens v. Stevens

• Decision Date: 15 June 2005
• Citation: Coussens v. Stevens, 113 P.3d 952, 200 Or. App. 165 (Or. App. 2005)
• Parties: Robert J. COUSSENS and Susan Jean Coussens, cotrustees of the Robert J. Coussens Revocable Trust U/A dated July 11, 2002; Jack A. Erickson; Contractors, Inc., an Oregon corporation; Michael Burmeister-Brown; Susan Burmeister-Brown; Robert L. Bailey; Barbara S. Bailey; Linda A. Hutchins, Trustee of the Linda A. Hutchins Revocable Trust u/a/d 8/16/93; Michael Thayer; Byron E. Thompson, M. Patricia Thompson; William B. Boone; Madeline F. Boone and the William B. Boone and Madeline F. Boone Trusts; Barbara B. Gray; Michael S. Gray; Claudia S. Gray; Scott Donald Gray; Steven John Gray; Jodith M. Teetz; Allen K. Bechtel; Janet Lynn Bechtel; Virginia Burns; Robert S. Burns; Linda Burns; George P. Kane and Shirley K. Kane, Trustees of the George P. Kane Living Trust and the Shirley K. Kane Living Trust; Patrick C. Hegrenes And Patricia J. Hegrenes, husband and wife; Barbara J. McMinn; Racker Investment, LLC; Shoaib Tareen; Catherine A. Silgas; Elaine Lucretia Murphy; William L. McCormack; Darlene T. McCormack, trustees; W.L. McCormack and D.T. McCormack, Trusts u/a/d 5/11/98; Donald A. Kessler; Marilyn M. Kessler; Kenneth L. White; Ann O. White; Reiersdale Development Inc.; Florence T. Dolan; Patrick L. Radecki; Linda Ann Radecki; Catherine Brands; Elizabeth Brands; Julianne Brands; Julie E. Brands; David C. Brands; John G. Connors; and Kathy M. Connors, Respondents, v. Irving P. STEVENS and Jeanette E. Stevens, Appellants.
• Court: Oregon Court of Appeals

113 P.3d 952

200 Or. App. 165

Robert J. COUSSENS and Susan Jean Coussens, cotrustees of the Robert J. Coussens Revocable Trust U/A dated July 11, 2002; Jack A. Erickson; Contractors, Inc., an Oregon corporation; Michael Burmeister-Brown; Susan Burmeister-Brown; Robert L. Bailey; Barbara S. Bailey; Linda A. Hutchins, Trustee of the Linda A. Hutchins Revocable Trust u/a/d 8/16/93; Michael Thayer; Byron E. Thompson, M. Patricia Thompson; William B. Boone; Madeline F. Boone and the William B. Boone and Madeline F. Boone Trusts; Barbara B. Gray; Michael S. Gray; Claudia S. Gray; Scott Donald Gray; Steven John Gray; Jodith M. Teetz; Allen K. Bechtel; Janet Lynn Bechtel; Virginia Burns; Robert S. Burns; Linda Burns; George P. Kane and Shirley K. Kane, Trustees of the George P. Kane Living Trust and the Shirley K. Kane Living Trust; Patrick C. Hegrenes And Patricia J. Hegrenes, husband and wife; Barbara J. McMinn; Racker Investment, LLC; Shoaib Tareen; Catherine A. Silgas; Elaine Lucretia Murphy; William L. McCormack; Darlene T. McCormack, trustees; W.L. McCormack and D.T. McCormack, Trusts u/a/d 5/11/98; Donald A. Kessler; Marilyn M. Kessler; Kenneth L. White; Ann O. White; Reiersdale Development Inc.; Florence T. Dolan; Patrick L. Radecki; Linda Ann Radecki; Catherine Brands; Elizabeth Brands; Julianne Brands; Julie E. Brands; David C. Brands; John G. Connors; and Kathy M. Connors, Respondents, v.Irving P. STEVENS and Jeanette E. Stevens, Appellants.

032118; A123633.

Court of Appeals of Oregon.

Argued and Submitted February 8, 2005.

Decided June 15, 2005.

Richard M. Stephens argued the cause for appellants.With him on the briefs was Groen Stephens & Klinge LLP.

James N. Westwood, Portland, argued the cause for respondents.With him on the brief were Amy Edwards and Stoel Rives LLP.

Before LINDER, Presiding Judge, and HASELTON¹ and ORTEGA, Judges.

HASELTON, J.

Defendants appeal from a judgment quieting title in plaintiffs to a strip of land between Ocean Avenue and the ordinary high tide line of the Pacific Ocean in the City of Cannon Beach.Defendants assign error to the trial court's allowance of plaintiffs' motion for summary judgment, arguing that plaintiffs failed to prove the strength of their titles because, inter alia, the relevant plat map establishes Ocean Avenue as the western boundary of plaintiffs' lots.²We conclude that plaintiffs' lots are bounded on the west by Ocean Avenue and that, therefore, the trial court erred in granting summary judgment.Accordingly, we reverse.

This case arose from a disagreement among the parties over a proposed sand grading and vegetation management plan for the disputed area.Plaintiffs own the westernmost lots in the Elk Creek Park subdivision, which is laid out adjacent to Ocean Avenue as it runs parallel to the coastline between Washington and Harrison streets.Defendants own oceanfront property immediately south of Elk Creek Park.The juxtaposition of the parties' properties and the disputed area is roughly as is shown on the following map:³

In 1983, defendants purchased quitclaim deeds to the disputed area from the heirs of one of the original owners of the disputed area.They recorded those deeds with the county and began receiving and paying tax assessments.In 1988, defendants filed an action to quiet title to a large swath of land described as follows:

"Government Lot 1, Section 30, Township 5 North, Range 10 West, Willamette Meridian, Clatsop County, Oregon, EXCEPTING THEREFROM the following:

"(1) That portion within the plat of Brooklyn;

"(2)That portion within the plat of Elk Creek Park;

"(3) Any portion lying below the ordinary high water mark of the Pacific Ocean."

(Emphasis added.)Defendants did not name plaintiffs individually as defendants in that action.Rather, they identified as defendants in that action "all persons or parties unknown claiming any right, title, lien or interest in the property described in the complaint herein."

In the 1988 litigation, none of the present plaintiffs was personally served with the complaint.Rather, service was by publication.None of the present plaintiffs appeared to defend in that action.Ultimately, defendants obtained a default judgment quieting title to "Government Lot 1 * * * excepting therefrom * * * [t]hat portion within the plat of Elk Creek Park."(Emphasis added.)

This litigation was triggered when, in 1999, plaintiffs and others formed the Ocean and Laurel Sand Management Association in order to create a dune grading and vegetation management plan that would include the area in dispute here, i.e., west of Ocean Avenue between the terminuses of Harrison and Washington streets.At that time, apparently because of the 1988 default quiet title judgment, the City of Cannon Beach considered defendants to be the owners of the disputed property.The city therefore determined that defendants' approval of the dune grading plan was required.The parties could not, however, reach agreement as to certain conditions of the plan.

Plaintiffs then filed this action to quiet title, claiming title to the westernmost lots in Elk Creek Park and alleging that those lots extended "to the mean high water line of the Pacific Ocean, subject to the rights of the public in and to Ocean Avenue as dedicated on the plat dated August 6, 1903."Plaintiffs subsequently moved for summary judgment, arguing that the language of the dedication accompanying the 1903 plat of Elk Creek Park established their titles as extending to the mean high tide line, despite the fact that the plat map shows Ocean Avenue as located to the west of their lots.

Defendants opposed that motion, arguing that they held superior title to the disputed land under either the 1988 default quiet title judgment or by adverse possession.⁴Defendants also disputed plaintiffs' interpretation of the plat and subsequent conveyances.In particular, as amplified below, defendants argued that, in creating and conveying Elk Creek Park, the original owner, Otto Kraemer("Kraemer"), intended to and did reserve for himself the land west of Ocean Avenue.Thus, defendants reasoned, plaintiffs' properties extend no further than the centerline of Ocean Avenue.

The trial court granted plaintiffs' motion, determining "as a matter of law that there was no reservation by Otto Kraemer on the Plat of the Elk Creek Park subdivision * * *."The trial court subsequently entered judgment quieting title in plaintiffs"to [the] mean * * * high water line of the Pacific Ocean subject to the rights of the public in and to Ocean Avenue as dedicated on the Elk Creek Park Plat * * *."Defendants appeal.

In reviewing the allowance of summary judgment, we determine whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law.SeeKluge v. Oregon State Bar,172 Or.App. 452, 457, 19 P.3d 938(2001);Dimeo v. Gesik,164 Or.App. 567, 569, 993 P.2d 183(1999);ORCP 47 C. We view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the nonmoving party, here, defendants.Jones v. General Motors Corp.,325 Or. 404, 408, 939 P.2d 608(1997).

To secure a judgment quieting title, plaintiffs must prove that they have a substantial interest in, or claim to, the disputed property and that their title is superior to that of defendants.ORS 105.605;Faw v. Larson,274 Or. 643, 646, 548 P.2d 495(1976);Rohner et ux v. Neville,230 Or. 31, 365 P.2d 614(1961);Jones et al v. Jackson et al,195 Or. 643, 659, 246 P.2d 546(1952).While that standard "does not require the plaintiff's title to be above reproach,"Rohner,230 Or. at 39, 365 P.2d 614 it does require that plaintiffs prevail on the strength of their own title as opposed to the weaknesses of defendants' title.Faw,274 Or. at 646, 548 P.2d 495;Jones,195 Or. at 659, 246 P.2d 546("Plaintiffs' right to relief, however, depended upon the strength of their own title and not upon the weakness of that of their adversaries.").Accordingly, we must determine whether plaintiffs have established, as a matter of law and uncontroverted fact, the requisite strength of their title.

On appeal, the parties essentially raise the same arguments presented to the trial court.Plaintiffs argue that the Pacific Ocean is the western boundary of their lots.They contend that the language of their deeds and the plat dedication is evidence that Kraemer intended to convey the land west of Ocean Avenue to plaintiffs' predecessors in interest as part and parcel of their lots.Defendants, on the other hand, argue that the plat map, Kraemer's subsequent conveyance of identified blocks within Elk Creek Park to the Elk Creek and Cannon Beach Land Company, and the circumstances surrounding the 1903 platting and conveyance indicate that Kraemer intended to, and did, reserve the land west of Ocean Avenue for himself.⁵

Our task is to discern and effectuate the intent of the grantor as evinced in the documents of conveyance and surrounding circumstances.Tab Enterprises v. Heare,37 Or.App. 879, 884-85, 588 P.2d 671(1978).As amplified below, we agree with defendants that the 1903 deed from Kraemer to the Elk Creek and Cannon Beach Land Company conveyed only that land within the plat of Elk Creek Park that is located east of the centerline of Ocean Avenue, thus retaining for himself the area west of the centerline of Ocean Avenue.SeeOliver v. Klamath Lake Nav. Co.,54 Or. 95, 102 P. 786(1909).

The historical circumstances attending the platting of Elk Creek Park and the relevant subsequent conveyances are undisputed.In 1903, Kraemer owned a parcel of property described as:

"Beginning at a point 500 feet South of Northeast corner of Lot One (1) in Section 30 Township 5 North Range 10 West; thence south on a straight line 1600 feet following the section line; thence West to the [P]acific Ocean; thence North with the meanders[⁶] of said Ocean to a

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