Dean v. Colt

• Decision Date: 22 November 1938
• Citation: 160 Or. 342,84 P.2d 481
• Parties: DEAN <I>v.</I> COLT ET AL.
• Court: Oregon Supreme Court

160 Or. 342

84 P.2d 481

DEANv.

COLT ET AL.

Supreme Court of Oregon.

Argued October 6, 1938.

Affirmed November 22, 1938.

Rehearing denied December 20, 1938.

Easements

1. Courts are not inclined to favor forfeiture of easements unless the intent to abandon them plainly appears.

Injunction

2. In suit to enjoin defendants from using automobile driveway over plaintiff's property on ground that defendants had abandoned the right of way, plaintiff's allegations that defendants had relocated driveway expressly negatived an intention on defendants' part to abandon the right of way.

Injunction

3. In suit to enjoin defendants from using automobile driveway over plaintiff's property on ground that defendants had abandoned the right of way, or, if not, had committed a trespass in obstructing the right of way on the driveway where it crossed defendants' property, plaintiff's allegation that plaintiff acquiesced in defendants' action in obstructing and destroying the easement negatived a claim of trespass.

                  Loss of easement by nonuser, note, 98 A.L.R. 1291. See, also
                17 Am. Jur. 1029
                

Department 1.

Appeal from Circuit Court, Multnomah County.

JAMES W. CRAWFORD, Judge.

Suit by Agnes L. Dean against Anna V. Colt and others to enjoin the defendants from using an automobile driveway on plaintiff's property. From a decree of dismissal, the plaintiff appeals.

AFFIRMED. REHEARING DENIED.

J.P. Kavanaugh and Robert C. Bradshaw, both of Portland (Kavanaugh & Kavanaugh, Robert C. Bradshaw, and Harry G. Hoy, all of Portland, on the brief), for appellant.

C.E. Zollinger, of Portland (Pendergrass & Zollinger and Robert M. Kerr, all of Portland, on the brief), for respondents.

KELLY, J.

This is a suit to enjoin defendants from using an automobile driveway upon plaintiff's property. A demurrer to plaintiff's amended complaint was sustained. Plaintiff declined to plead over and from the resulting decree of dismissal plaintiff has appealed.

The property involved in this suit is in block 53 in Irvington within the corporate limits of the city of Portland. This block is bounded on the east by Northeast 17th Avenue, on the west by Northeast 16th Avenue and on the south by Northeast Knott Street. Plaintiff's property embraces a parcel in the southwest corner of said block extending easterly from the southwest corner thereof along Northeast Knott Street a distance of 70 feet; thence northerly 100 feet, thence westerly 70 feet and thence southerly to the southwest corner of said block. The property of defendants, Anna V. and C.C. Colt adjoins and lies immediately to the east of plaintiff's property, beginning at the southeast corner of plaintiff's above described parcel and running easterly 60 feet along Northeast Knott Street, thence northerly 100 feet, thence westerly 60 feet and thence southerly 100 feet to the southeast corner of plaintiff's parcel. The property of defendants, W.J. and L.H. Kerr adjoins and lies immediately to the east of the above described parcel of said defendants, Anna V. and C.C. Colt, beginning at the southeast corner of said Colt's parcel and running easterly 70 feet along Northeast Knott Street to Northeast 17th Avenue; thence northerly 100 feet along the westerly line of said Northeast 17th Avenue; thence westerly 70 feet and thence southerly 100 feet to the southeast corner of said Colt's parcel.

These three parcels of real property above described extend from Northeast 17th Avenue to Northeast 16th Avenue. A plat thereof appears in the opinion in the case of Dean v. Colt, 151 Or. 331, 332, 49 P. (2d) 362. The defendants Kerr now occupy the property identified by that plat as "Richardson residence".

The prior grantors of the above described property constructed a concrete roadway across said property from Northeast 16th Avenue to Northeast 17th Avenue, approximately seven feet in width which was permanently laid and affixed to the soil on and across the south seven (7) feet of the north twenty (20) feet of the said entire tract, comprising the three above described parcels. Said driveway was designed by said prior grantors as a permanent, hard surfaced automobile driveway serving each and all of the said three parcels; and said property was improved as residence property by said prior grantors and each of said properties was sold by them with the understanding between said prior grantors and the purchaser that the said concrete driveway should be regarded as an entire driveway across said properties according to said resubdivision and should be a common driveway serving each and all of said properties.

In addition to the parcel first hereinabove described, plaintiff was at all times herein mentioned the owner of property adjacent to and on the north of said described parcel, the same being lot 13 and the south 40 feet of lot 14 in said block 53.

That prior to September 17, 1935, plaintiff and defendants became the respective owners in due course by mesne conveyances of the above described parcels of property respectively and on and for sometime subsequent to said 17th day of September, 1935, enjoyed and were enjoying in common the right of easement to the said driveway as originally created with some slight alterations near the westerly end thereof and which said alterations were wholly on plaintiff's property and had previously been made by agreement among the persons interested, the said right of easement being a right of easement to a driveway for passenger automobiles extending, as aforesaid, from Northeast 16th Avenue to Northeast 17th Avenue, bisecting all of the said properties hereinabove described, and said driveway consisted at all times of a permanent hard surfaced driveway, the portion thereof crossing the property of the said defendants above described being approximately seven (7) feet in width and permanently laid and affixed to the soil along and across the southerly seven (7) feet of the northerly twenty (20) feet of each and both of the said property of said defendants.

The foregoing facts are derived from the amended complaint. We quote paragraphs IV, V, VI and VII of said amended complaint:

"IV

"That during the months of October and November, 1935, the above named defendants without seeking or obtaining consent thereto from this plaintiff, and without consulting this plaintiff regarding the matter, proceeded to make certain changes in said driveway where it crossed their said properties and in their said respective premises, the full extent of which said changes is unknown to this plaintiff, but which changes consisted in part of tearing up the said paved driveway where it crossed the said property of the defendants W.J. Kerr and L.H. Kerr and a portion of the premises of said defendants Anna V. Colt and C.C. Colt, and in placing the same along the extreme northerly side of the property of said defendants W.J. Kerr and L H. Kerr, and connecting the same directly with the northerly portion of the easterly end of the garage of said defendants Anna V. Colt and C.C. Colt, and by all of which changes, the full extent of which are at this time unknown to this plaintiff, rendering it impossible for this plaintiff to enjoy an automobile driveway over and across the said properties of said defendants, thereby obstructing the said right-of-way over which this plaintiff theretofore had, in common with said defendants, and each and all of them, as easement for passenger automobile travel and traffic, as aforesaid, from Northeast 16th Avenue to Northeast 17th Avenue, across said Block fifty-three (53), Irvington.

V

That by the said action of said defendants the said common easement theretofore existing on the part of the several owners of said properties whereby each was entitled to an automobile driveway over and across the property of each and both of the others was obstructed and destroyed. That this plaintiff has acquiesced in the said action of said defendants in so obstructing and destroying said common easement, and has made, and makes no objection thereto, assuming that such acquiescence results in an extinguishment of said common easement in its entirety.

VI

That nothwithstanding the facts hereinabove set forth the said defendants are claiming and asserting the right to exercise the said former rights existing in them to the use of the said common driveway where the same crosses this plaintiff's property, as an automobile driveway serving their said properties or property, and the said C.C. Colt has, on numerous occasions, unlawfully trespassed upon plaintiff's said property by so using the same; and that unless restrained by decree of this Court said defendants will continue to use the same as in the past, without any reciprocal or compensating right of this plaintiff to a similar right-of-way over and across their said properties, whereby this plaintiff's property will be greatly depreciated in value as a residence property, and by all of which the said threatened action of said defendants will constitute a continuing trespass, or intermittent trespasses, on the said property of this plaintiff.

VII

That the said common easement for said driveway bisecting the three properties above mentioned and described in Subdivsion numbered III of this Amended Complaint, was a perpetual easement, and it is wholly impossible to measure or determine with any degree of accuracy the amount of damages sustained and which will be sustained by the plaintiff by reason of the action of said defendants in so obstructing and destroying the said driveway where the same crossed the said properties; and that this plaintiff by reason of said acts has no plain, adequate and complete remedy at law."

The question is whether the above facts disclose an abandonment by defendants of the right-of-way in suit, and if not, whether facts are pleaded showing a trespass on defendants' part in obstructing said right-of-way.

1. The purpose of this suit is to declare a forfeiture of the easement across ...