Cullison v. Hotel Seaside, Inc.

• Decision Date: 26 June 1928
• Citation: 268 P. 758,126 Or. 18
• Parties: CULLISON ET AL. v. HOTEL SEASIDE, INC.
• Court: Oregon Supreme Court

268 P. 758

126 Or. 18

CULLISON ET AL. v. HOTEL SEASIDE, INC.

Supreme Court of Oregon, En banc.

June 26, 1928

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Suit by Lizzie A. Cullison and others against the Hotel Seaside, Inc. Decree for defendant, and plaintiffs appeal. Reversed, and decree entered for plaintiffs.

Edw. C. Judd, of Astoria, for appellants.

G. C. &amp A. C. Fulton, of Astoria, for respondent.

BEAN J.

Plaintiffs' appeal from an adverse decree in a suit to enjoin the defendant from obstructing a right of way consisting of a strip of land 30 feet wide, lying between the west end of First avenue in Ocean Grove and the Pacific Ocean.

On July 11, 1883, George K. Grimes laid out, dedicated, and duly recorded a plat of the town of Ocean Grove. It is located approximately in the center of lots 2 and 3 of section 21 township 6 north of range 10 west of the W. M. containing 44.33 acres, also in the center of the peninsula on the west side of the Necanicum river, and was bounded on four sides by the property of George K. Grimes. After the dedication Grimes proceeded to place upon the market and sell the lots and blocks in the town of Ocean Grove to various people to be used as summer homes.

Ocean Grove consisted of 6 blocks of four lots each. These blocks were completely surrounded by the lands of Grimes. There was no recognized county road or other public highway on the west side of the Necanicum river. There was a county road on the east side of the river. The only method of ingress and egress to and from the premises located in Ocean Grove was over the privately-owned bridge across the Necanicum river belonging to Grimes and over his lands surrounding the town. Each of the deeds issued by George K Grimes to the purchasers contained the following covenant:

"Together with the right to use the sea beach in front of the land owned by the grantor for bathing purposes and the right of ingress and egress to and from said lots, and the county road, and the sea beach."

The properties of plaintiffs are located on each side of that certain street in Ocean Grove originally known as "Spruce street," which was later changed to "First avenue." The plaintiffs and their predecessors in interest of these lots have, since 1883, used a strip of land, described as an extension of First avenue to the west extending to the low-water mark of the Pacific Ocean, to go to and come from the beach to their respective properties, in accordance with the terms of the easement above mentioned contained in the deeds.

The defendant is the owner by virtue of mesne conveyances from George K. Grimes of a strip of land on the west of Ocean Grove over which the easement in controversy extends on the south portion of which Seaside Hotel is located. The plaintiffs used this right of way until the fall of 1924, when the defendant by its agents attempted to obstruct and barricade it. The plaintiffs immediately tore down the barricade and commenced this suit.

Grimes sold a portion of his acreage on the west of Ocean Grove, which was not platted, describing the same by metes and bounds, and in designating the property so sold he left an extension of First avenue to the west, a distance of 100 feet, and extended First avenue that distance toward the Pacific Ocean. For a further distance for a time on the south side of the strip of land in controversy there was a fence constructed for about 40 feet forming a part of the corral on the south of the right of way.

At times there was a temporary or loosely constructed fence at the west end of First avenue forming an inclosure used by Mr. Moore, who then owned the Hotel Seaside property, for the purpose of keeping a pony and his horses. This would be torn down during the summer season, while the way was used; during some of the years and at other times a turnstile, or posts, were set so that people could pass between. And at different times Moore posted notices patterned after those of the Southern Pacific Company indicating that the strip was a "Private Way." The notices were soon torn down and were put up again.

For a few years after Ocean Grove was platted there was brush and timber growing on the land west of Ocean Grove and the path used by the pedestrians zigzagged to avoid trees. There was a walk along a portion of the way and a bridge over a small stream with a railing on the sides to keep people from falling off. This way connects at the west end with a promenade parallel with the ocean, constructed with boards, and an incline constructed for pedestrians to cross the same.

The case purely depends upon the construction of the clause in the deeds granting the easement. The defendant contends and the trial court held, as shown by the opinion of the court printed in the brief, that, assuming the provision in the deeds of the lots to which plaintiffs granted a private easement over defendant's land, that the complaint calls for a specific tract of land in a definite location which in no way fits the reservation in the deeds. The trial court said:

"As I construe that clause of the deed, it grants the right to the purchasers of the lots the right to use the proprietor's beach for bathing purposes, a right not available without the proprietor's consent; it also grants the right of ingress and egress to and

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