Ericsson v. Braukman

• Jurisdiction: Oregon
• Parties: Robert J. ERICSSON and Teresa M. Ericsson, Appellants, v. Eugene BRAUKMAN, Farren T. Kohler, Gerald Bechler, and Donna Muzzie, Respondents. 87-1087C; CA A64929.
• Citation: 111 Or.App. 57,824 P.2d 1174
• Court: Oregon Court of Appeals
• Decision Date: 28 April 1992

Page 1174

824 P.2d 1174

111 Or.App. 57

Robert J. ERICSSON and Teresa M. Ericsson, Appellants, v. Eugene BRAUKMAN, Farren T. Kohler, Gerald Bechler, and Donna Muzzie, Respondents.

87-1087C; CA A64929.

Court of Appeals of Oregon.

Argued and Submitted May 17, 1991.

Decided Jan. 22, 1992.

Reconsideration Denied March 18, 1992.

Review Denied April 28, 1992.

Jacob Tanzer, Portland, argued the cause, for appellants. With him on the briefs was Ball, Janik & Novack, Portland.

Robert A. Browning, Forest Grove, and Janice M. Stewart, Portland, argued the cause, for respondents. With Janice M. Stewart on the brief were Sara V. Fraser and McEwen, Gisvold, Rankin & Stewart, Portland.

Before JOSEPH, C.J., and RICHARDSON ^* and DEITS, JJ.

DEITS, Judge.

Plaintiffs brought this action for declaratory and injunctive relief to resolve a dispute with defendants, their neighbors, concerning an easement across defendants' property. The trial court issued a judgment defining the scope of the easement. Plaintiffs appeal.

The property owned by the parties is shown on the map (see Appendix). Parcel A is owned by plaintiffs, and defendants own Parcel B. Both properties were previously in the common ownership of the Davies, who conveyed Parcel A to Danielson in 1968. The contract of sale called for Danielson to have an easement across Parcel B:

"First parties further grant to second parties the right and easement upon the old roads in the SE 1/4 of the NE 1/4 of Sec. 19; and in the North 1/2 of the SE 1/4 of Sec. 19, T2N, R3W, W.M., to use said roadway for ingress and egress to and from said property. First parties also grant second parties the use of the roads along the edge of the field in the SE 1/4 of the NE 1/4 of Sec. 19, said Township and Range for access to timber in the tracts conveyed."

The deed to Danielson, signed nine months later, describes the same easement, except that it does not restrict the use of the road along the field "for access to timber in the tracts conveyed." Plaintiffs purchased Parcel A from Danielson's successors in 1986. Their deed describes the same easement as in Danielson's deed. The Davies conveyed Parcel B to defendants Braukman and Kohler in 1971. Since that time, Parcel B has been further divided, and defendants each own a portion of it.

The property is in a rural, timber and agricultural area. Until plaintiffs purchased Parcel A and built their home on it in 1986, that portion of the property had only been used for logging. Parcel B has been used for growing raspberries, strawberries, wheat and Christmas trees. Braukman testified that he has about 50 acres of Christmas trees worth about $750,000 and that he uses over twenty pieces of large farm equipment during harvest every November and December. As shown in the map, roads run throughout Parcel B.

Soon after purchasing Parcel A, plaintiffs told Braukman that they planned to grade and gravel an access road across Parcel B from Lodge Road to their house. They discussed grading Straight Road, which was not being used much at the time, instead of Loop Road, which was being used, but they did not reach an agreement. Plaintiffs proceeded to grade, ditch and gravel the roads, including Straight Road, Lower Field Road and Upper Field Road, as shown by the dots on the map. The work cost approximately $8,000. Defendants knew about it, but did not protest.

Defendants had encountered problems with theft, vandalism and dumping, and those problems increased after the improvement of the roads. In response, they put up gates on some of the roads on their property. However, the gates did not prevent theft, especially during harvest. As a result, they put locks on some of the gates and gave plaintiffs a key. That causes some inconvenience to plaintiffs and to persons visiting their property.

Plaintiffs' first assignment of error is that the trial court erred in declaring the location of their easement. The judgment ordered that

"[p]laintiffs' property rights include a 20 foot wide permanent easement for ingress and egress and for logging purposes over what is commonly referred to as the Loop Road and the Field Road which extends along the Western boundary of defendant's property to its most Northerly reach, and along the Pond Road from what is commonly referred to as the Landing Area to where that road enters the plaintiffs' property[.]"

Plaintiffs argue that they have the right to use all roads that were in existence on Parcel B at the time of the creation of the easement. They rely on the term "old roads," used in the deed, in arguing that all such roads are included in the easement. They also argue that the terms of the easement are ambiguous and that the evidence shows that, at the time of the conveyance, the parties intended to include all of the roads.

Contrary to plaintiffs' assertions, the language of the easement does not require the conclusion that it includes all of the roads that existed on the property in 1968. The first part of the easement grants ingress and egress to Parcel A from Lodge Road north along Loop Road and Lower Field Road to the landing and then westerly on Pond Road. Pond Road and the landing are located in the SE 1/4 of the NE 1/4, and Loop and Lower Field Roads are in the N 1/2 of the SE 1/4, as described in the deed. The second part of the conveyance grants access to Parcel A from the landing along Upper Field Road to the northerly edge of Parcel B, the part of the easement in the SE 1/4 of the NE 1/4. In addition, the easement's stated purpose is for ingress and egress to Parcel A. The roads that we conclude are described by the conveyance provide that access. The additional roads that plaintiffs seek to include are not necessary for ingress and egress.

One reason that plaintiffs contend that the easement should be construed to include all roads on defendants' property is that they want the use of both Straight Road and Loop Road. Apparently Loop Road is less muddy in winter and is flatter, but Straight Road is easier for large trucks transporting long loads. However, the trial court found, and we agree, that Loop Road was included in the easement description, but Straight Road was not. The evidence shows that Loop Road was regularly used at the time of the conveyance in 1968. Until plaintiffs graded it in 1986, Straight Road was overgrown and had been used only during a short period in the mid-1970's, after plaintiffs' predecessor in interest asked permission to open it so that some poles could be transported.

Plaintiffs argue that, even if Straight Road was not included in the original conveyance, the easement was relocated by mutual consent.

"[An] easement holder and the servient estate owner may relocate the easement by mutual consent. Although such arrangement should be carefully drafted, courts will enforce executed oral understandings regarding relocation. Furthermore, an agreement to relocate may be implied from the parties' actions, such as when an easement holder uses a new location established by the owner of the servient estate or when a landowner stands by while the easement holder utilizes a different route." Bruce, Law of Easements and Licenses in Land p 7.03[c] (1988). (Footnotes omitted.)

We conclude that, by plaintiffs' investment of considerable time and money in the improvement of Straight Road and by defendants' failure to object to the improvement and use of Straight Road, the parties implicitly agreed to relocate the easement from Loop Road to Straight Road.

Defendants assign error to the trial court's failure to restrict the use of the portion of the easement running north along Upper Field Road from the landing to timber access only. The language in the contract that the Davies signed when they originally conveyed the property shows that, at that time, they intended to restrict use of that part of the easement to timber access only. The contract reads:

"First parties also grant second parties the use of the...