Dority v. Hiller

• Decision Date: 25 August 1999
• Citation: 986 P.2d 636,162 Or. App. 353
• Parties: A.D. DORITY, Jr., Trustee of the A.D. Dority, Jr. Trust, Theo M. Dority, Trustee of the Theo M. Dority Trust, Arthur D. Dority, III, Diane M. Dority, Deri C. Dority, Meri Lee Dority Clarke, Mark McKay, Dean McKay, Mark McKay Farms, Inc., an Oregon corporation, and Dean McKay Farms, Inc., an Oregon corporation, Appellants, v. Irene HILLER, Trustee of the Irene Hiller Trust, John Coleman, William Coleman, Coleman Farms, Inc., an Oregon corporation, and Fairfield Farms, Inc., an Oregon corporation, Respondents.
• Court: Oregon Court of Appeals

986 P.2d 636

162 Or. App. 353

A.D. DORITY, Jr., Trustee of the A.D. Dority, Jr. Trust, Theo M. Dority, Trustee of the Theo M. Dority Trust, Arthur D. Dority, III, Diane M. Dority, Deri C. Dority, Meri Lee Dority Clarke, Mark McKay, Dean McKay, Mark McKay Farms, Inc., an Oregon corporation, and Dean McKay Farms, Inc., an Oregon corporation, Appellants, v. Irene HILLER, Trustee of the Irene Hiller Trust, John Coleman, William Coleman, Coleman Farms, Inc., an Oregon corporation, and Fairfield Farms, Inc., an Oregon corporation, Respondents.

(96C-11125; CA A99563)

Court of Appeals of Oregon.

Argued and Submitted December 15, 1998.

Decided August 25, 1999.

Laura A. Schroeder, Boardman, argued the cause for appellants. With her on the briefs was Schroeder Law Offices.

A. Richard Vial, Portland, argued the cause for respondents. With him on the brief was Vial Fotheringham LLP.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge,¹ and ARMSTRONG, Judge.

EDMONDS, P.J.

Plaintiffs² brought this action to quiet title to real property and for damages on theories of trespass, private nuisance and public nuisance against defendants.³ Defendants raised counterclaims seeking a declaration of a right to maintain an irrigation pipeline across plaintiffs' property. Defendants then moved for partial summary judgment against plaintiffs on the question of whether defendants possessed an irrevocable license for the use of plaintiffs' property for the pipeline. ORCP 47. The trial court granted defendants' motion and entered judgment in their favor. ORCP 67 B.⁴ Plaintiffs appeal, ORS 19.205(2)(e), and we affirm.

This dispute concerns a pipeline running from a diversion point on the Willamette River across plaintiffs' property to defendants' adjoining farmland. The following facts are not disputed. In 1964, Milton Wolsborn owned plaintiffs' property. That year, having no direct access from their own property to the river, defendants applied for a permit from the Oregon Water Resources Department to take water from a point commencing on plaintiffs' property, which was approved. Defendants buried a steel pipeline from the edge of the river, across a corner of plaintiffs' field and to their property. They installed an electrical pole and box on plaintiffs' property and obtained electrical service in order to operate a pump that they placed at the river's edge. Defendants used the water to irrigate their crops.

In 1967, plaintiffs purchased Wolsborn's property. They were aware of the presence of the pipeline at that time. In 1971, plaintiffs applied for a permit to take water from the same diversion point described in defendants' permit. In 1975, defendants undertook to bury a plastic pipeline on plaintiffs' property in the same general location. When challenged by plaintiff, A.D. Dority, defendants explained that the plastic pipe was intended to replace the steel pipeline. Dority asked if they had an easement, and defendants replied that they had a written easement from Wolsborn.⁵ Dority then gave defendants permission to install the plastic pipeline.

In 1994, plaintiffs and defendants began to quarrel over the use of the pipeline, and plaintiffs admit to disconnecting or cutting the pipeline on at least one occasion in 1994 and another in 1995. Those actions led to this litigation and to the partial summary judgment declaring that defendants have an irrevocable license across plaintiffs' property for their pipeline. The judgment requires plaintiffs to restore the connection and enjoins them from interfering with it.

Plaintiffs first assign error to the determination that defendants possess an irrevocable license across plaintiffs' land. On review of a summary judgment, we determine whether there exists any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. ORCP 47 C. We review the record in the light most favorable to plaintiffs, the nonmoving parties. Id.

A license is an interest created in real property when a landowner consents to the use by another of the landowner's property in a way that would otherwise be wrongful. Rouse v. Roy L. Houck Sons', 249 Or. 655, 660, 439 P.2d 856 (1968). An irrevocable license arises when the landowner's promise to allow a use of the land for an unlimited time induces the other party to make significant expenditures for permanent improvements, consistent with the use for which the consent was given. Brown v. Eoff, 271 Or. 7, 11, 530 P.2d 49 (1975). If the licensee proves by clear and convincing evidence that the consent was given and that the licensee reasonably and detrimentally relied on the consent, then the landowner is estopped from revoking the license. See id.

The affidavits from George Hiller, Irene Hiller and A.D. Dority provide the only information in the summary Judgment record regarding the original consent to install the steel pipeline. George Hiller states:

"Milton Wolsborn granted us a right to place a pump, electrical pole and box, and underground pipeline to transmit water from the Willamette River, across, under and upon the headlands of his property * * * provided his tenant, Nels Tribbett did not object.

"* * * Nels Tribbett did not object; He asked that we notify him when we were completed with our work, so he could plant his crops."

Irene Hiller's affidavit contains essentially the same language. On the other hand, Dority's affidavit says, "I have spoken with Mr. Wolsborn, the previous owner, of my property concerning this matter. He specifically informed me that he did not give permission to Defendants to lay a pipeline across his property or give the Defendants an easement[.]" Defendants objected to the admissibility of Wolsborn's statement as hearsay. OEC 801 et seq. The trial court sustained the objection. On appeal, plaintiffs assign the trial court's ruling as error. The import of the issue is that, without the evidence about Wolsborn's statement from Dority's affidavit, the Hillers' averments that Wolsborn gave them permission for the pipeline are uncontroverted in the summary judgment evidentiary record.

ORCP 47 D provides that affidavits supporting or opposing a motion for summary judgment must be made on personal knowledge and shall set forth such facts as would be admissible in evidence. OEC 801(3) defines hearsay as: "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Because Dority offered Wolsborn's out-of-court statement to prove that Wolsborn did not give consent to defendants, or to prove the truth of the matter asserted, Dority's testimony about what Wolsborn told him is hearsay and inadmissible under OEC 801. The trial court did not err when it sustained defendants' objection on that ground.

Plaintiffs argue, for the first time on appeal, that Wolsborn's statement should have been admitted pursuant to OEC 803(26), which permits a trial court to admit a hearsay statement not covered by a specific exception to OEC 801 when the declaration possesses the equivalent circumstantial guarantees of trustworthiness of other exceptions. OEC 803(26)(a)(B) requires that the hearsay statement must be "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts[.]" Even if an issue under OEC 803(26) had been preserved in the trial court, see ORAP 5.45(2), the requirements of the rule are not met. Wolsborn was not deposed by either side and plaintiffs did not procure an affidavit from him nor argue that he was unavailable or that he refused to provide an affidavit. Under the circumstances, the trial court did not err in excluding from the summary judgment evidentiary record the portion of Dority's affidavit reporting Wolsborn's statements.

Next, plaintiffs argue that the portions of the Hillers' affidavits reciting Wolsborn's statements to them are hearsay and cannot be considered. However, plaintiffs failed to make that objection to the trial court. In the absence of any objection, we will consider the Hillers' affidavits as admissible evidence. Knez Building Materials Co. v. Manikas, 113 Or.App. 220, 222 n. 2, 831 P.2d 80 (1992). As a result, the summary judgment evidentiary record is uncontroverted that defendants received consent from Wolsborn to install an underground pipeline to convey water to defendants' property and to place an electrical pole and box on plaintiffs' property.

Next, plaintiffs argue that defendants have failed to prove that they relied on Wolsborn's consent to their detriment. Plaintiffs concede that defendants placed electrical pumping equipment and buried an underground irrigation pipeline on their property. Also, the location of the pipeline required defendants to bury it under a county road. Plaintiff further concede that at various times since 1964 defendants have entered plaintiffs' property to install and remove the pump and have used the pipeline to bring water from the river to irrigate their fields. However, they argue that "[d]efendants failed to show any specific amounts paid in reliance upon a permanent property interest." We are persuaded that the evidence that defendants installed a pipeline and electrical service in reliance on Wolsborn's consent under the circumstances of this case suffices to carry their burden of proving the element of detrimental reliance.⁶

Next, plaintiffs argue that, even if an irrevocable license existed for the steel pipeline, defendants abandoned that license by burying the plastic pipeline in a different location and that plaintiffs' permission as to the plastic pipeline was conditioned on an agreement about shared use and the existence of a prior written easement agreement with Wolsborn. The record indicates that the steel pipeline was used exclusively by defendants from 1964 to 1971. Dority's affidavit states that in April 1971 he applied to the state...