Faulconer v. Williams

• Decision Date: 16 April 1997
• Parties: Jay FAULCONER and Sheila Faulconer, husband and wife, Appellants, v. Billie J. WILLIAMS; John C. Mackey and Jeanne L. Mackey; Robert D. Webb and Carolyn L. Webb; Randy L. Bahler and Donna J. Bahler; Kenneth J. Stevenson and Joanne Stevenson; Jerry L. Lasater and Dawn Lasater; Elmer C. Williams and Marie E. Williams; and Michael A. Revelle and Sandra A. Revelle, Respondents. 95-10169; CA A93542.
• Court: Oregon Court of Appeals

Page 999

936 P.2d 999

147 Or.App. 389

Jay FAULCONER and Sheila Faulconer, husband and wife, Appellants, v. Billie J. WILLIAMS; John C. Mackey and Jeanne L. Mackey;

Robert D. Webb and Carolyn L. Webb; Randy L. Bahler and

Donna J. Bahler; Kenneth J. Stevenson and Joanne Stevenson;

Jerry L. Lasater and Dawn Lasater; Elmer C. Williams and

Marie E. Williams; and Michael A. Revelle and Sandra A.

Revelle, Respondents.

95-10169; CA A93542.

Court of Appeals of Oregon.

Argued and Submitted Jan. 15, 1997.

Decided April 16, 1997.

[147 Or.App. 390-A] George B. Heilig argued the cause for appellants. With him on the brief was Cable, Huston, Benedict, Haagensen & Ferris.

William Cohnstaedt argued the cause and filed the brief for respondents.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

RIGGS, Presiding Judge.

This case concerns the existence of a 20-foot easement for roadway purposes across the north portion of plaintiffs' property. Plaintiffs brought an action to quiet title, claiming that the easement in question had been extinguished due to adverse possession by plaintiffs and their predecessors in interest. Alternatively, plaintiffs argued that the easement had been extinguished due to abandonment. The trial court rejected each of plaintiffs' claims. On appeal, plaintiffs contend that the trial court erred in determining that their possession of the easement was not "hostile," in determining that defendants had not abandoned the easement, and in determining alternatively that even if the easement had been extinguished by adverse possession by plaintiffs' predecessors in interest at some point in the past, the easement was recreated when the property was conveyed to plaintiffs subject to the easement. ¹ We review the judgment of the trial court de novo, ORS 19.125(3); Brunswick v. Rundell, 126 Or.App. 582, 869 P.2d 886 (1994), and reverse.

Plaintiffs own a parcel of residential real property, Tax Lot 300, in Benton County. This property is bordered on the west by a county road and on the east by Tax Lot 100. Defendants are owners of real property further east of Tax Lot 100. In 1956 and 1957, Passon, who then owned Tax Lot 300, conveyed to defendants' predecessors in interest a 20-foot easement running east and west over the northernmost portion of Tax Lot 300, variously described as a "right of way," or an easement "for roadway purposes." This easement was described in metes and bounds. Tax Lot 100, east of Tax Lot 300, was subject to a similar easement. Thus, the easement ran east-west from the county road to the properties of defendants' predecessors in interest. Defendants' predecessors in interest and Passons then constructed a private roadway running east to west to connect the properties east of Tax Lot 100 to the county road. However, Passons mistakenly believed that the northern boundary of Tax Lot 300 was represented by an east-west fence. That fence actually was located some 20 feet north of the northern boundary of Tax Lot 300. The private roadway was constructed immediately south of the fence, on the parcel of property immediately to the north of Tax Lot 300. ² Immediately south of the private road, at the actual (rather than the presumed) northern boundary of Tax Lot 300, Passons built a wall that fenced his residence on Tax Lot 300 from the private road.

Inside the fenced area, Passons and subsequent owners planted trees and maintained this area as part of the yard of Tax Lot 300. Tax Lot 300 was sold to Williams in 1959, but the deed made no express reference to the easement. However, Williams knew of the easement, because he owned other property that was benefitted by the easement. Williams, in fact, had helped construct the original private road in 1957, believing at that time that it was being constructed within the easement over Tax Lot 300. Williams sold Tax Lot 300 to the Fryers in 1964, and the deed conveyed the property "subject to" the easement as described in the earlier deeds. The Fryers believed that the fence to the north of the private road was their property line and that the private road was built on the easement described in their deed. The Fryers also added a fence at the easternmost portion of the actual easement, and thus any east-west travel through the easement would have been impossible. Tax Lot 300 was conveyed in 1982 to the Hendricksons, and the deed described the property as free from encumbrances "except for" the easement. The Hendricksons conveyed the property to plaintiffs in 1989, free from encumbrances "except" the above-described easement. Plaintiffs, like their predecessors in interest, believed that the easement was over the existing private roadway, and continued their predecessors' use of the actual easement as a part of their yard. Plaintiffs and their predecessors in interest all maintained a wall or fence between the private road and the yard of Tax Lot 300.

In 1995, a survey revealed the nearly 40-year-old mistake as to the location of the easement. Plaintiffs then sought to quiet title in the 20-foot strip described in the easement. Defendants, owners of the dominant estates, disputed that plaintiffs had successfully established that they had either adversely possessed the easement or that defendants had abandoned it.

The trial court ruled in defendants' favor, based on three separate conclusions of law. First, the trial court ruled that plaintiffs and their predecessors in interests had not adversely possessed the easement, because their use of this area as a yard was not "hostile." Second, the trial court ruled that defendants and their predecessors in interest had not abandoned the easement. Third, the trial court ruled that, even if the predecessors in interest's use of the easement as a yard had extinguished the easement, the deed conveying Tax Lot 300 to plaintiffs subject to the easement recreated the easement.

An easement may be extinguished in several ways: by consent, by prescription, by abandonment, by merger, or, if it is an easement by necessity, by the cessation of the necessity. See Cotsifas v. Conrad, 137 Or.App. 468, 471, 905 P.2d 851 (1995). Plaintiffs claim that the easement on their property was extinguished by prescription (e.g., adverse possession) or by abandonment.

We first turn to the question whether defendants abandoned the easement. Nonuse of an easement, by itself, does not establish that an easement has been abandoned. Conner v. Lucas, 141 Or.App. 531, 538, 920 P.2d 171 (1996). In addition to nonuse, the party seeking to extinguish the easement must show "either [a] verbal expression of an intent to abandon or conduct inconsistent with an intention to make further use." Abbott v. Thompson, 56 Or.App. 311, 316, 641 P.2d 652, rev. den. 293 Or. 103, 648 P.2d 851 (1982). Plaintiffs cite defendants' use of the actual private road located directly north of the easement as conduct that is inconsistent with an intention to make use of the easement on their property. We disagree. In this case, all of the parties and their predecessors in interest were mistaken about the location of the easement for some 40 years. The conduct of defendants and their predecessors in interest shows that they had every intention of using the easement but simply were mistaken about where it was located. Nothing in the record establishes that any of the defendants or their predecessors in interest intended to abandon the easement.

We next turn to the question whether the easement was terminated by prescription, due to plaintiffs' adverse possession of it. To establish adverse possession, the claimant must show that his or her use of the property was open, notorious, exclusive, continuous and hostile for a 10-year period, and that the use was inconsistent with the use of the easement by the owners of the dominant estate. Slak v. Porter, 128 Or.App. 274, 278, 281, 875 P.2d 515 (1994). The party claiming adverse possession must demonstrate each element by clear and convincing evidence. Id. ³ The key questions in the present case are whether plaintiff's possession of the easement was "hostile," and whether it was "continuous." ⁴ "Possession of realty under a mistaken belief of ownership normally satisfies the element of hostility without the need for further inquiry into the claimant's subjective intent, but the belief must result from a 'pure mistake,' rather than a mistake based upon a 'conscious doubt.' " Lee v. Hansen, 282 Or. 371, 375, 578 P.2d 784 (1978).

The trial court found that plaintiffs had not established that their use of the easement was "hostile." The trial court concluded that plaintiffs and their predecessors in interest had not adversely possessed the easement by maintaining it as a fenced yard, planting trees and shrubs in it, etc. In Slak, this court considered a similar claim concerning the extinguishment of an easement. In that case, a three-foot easement for access to a river was created in 1958, but in 1959 a fence was built on the servient estate that blocked the easement, and trees and other vegetation was planted in the easement. Due to these obstructions, none of the owners of the dominant estate was able to use the easement. 128 Or. App. at 278, 875 P.2d 515. The "open and notorious" requirements were met by construction of a fence blocking access to the easement. Id. at 279, 875 P.2d 515. The "exclusive" requirement was met because "construction of the fence and the planting of vegetation directly in the easement [was] use consistent with ownership." Id. at 279, 875 P.2d 515. The existence of the fence and the vegetation in the easement over a 10-year period met the requirement that the possession be "continuous." Id. at 280, 875 P.2d 515. The "hostility" requirement was met by showing that the owners "possessed the easement intending to be its owner and not in subordination to the true owner." Id. The construction of the fence across the easement also established that the use of the easement by the owners of...