Garrett v. Mueller

• Decision Date: 13 November 1996
• Citation: 144 Or.App. 330,927 P.2d 612
• Parties: James L. GARRETT, Colleen L. Rambo, husband and wife, and Michelle Brown, Appellants, v. James MUELLER and Carla Mueller, husband and wife, Respondents. 9202350 CV; CA A88420.
• Court: Oregon Court of Appeals

Page 612

927 P.2d 612

144 Or.App. 330

James L. GARRETT, Colleen L. Rambo, husband and wife, and Michelle Brown, Appellants, v. James MUELLER and Carla Mueller, husband and wife, Respondents.

9202350 CV; CA A88420.

Court of Appeals of Oregon.

Argued and Submitted April 3, 1996.

Decided Nov. 13, 1996.

Gary L. Hedlund, Klamath Falls, argued the cause and filed the brief for appellants.

Donald R. Crane, Klamath Falls, argued the cause and filed the brief for respondents.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

WARREN, Presiding Judge.

Plaintiffs Colleen Rambo and Michelle Brown (plaintiffs) ¹ own land in Klamath County that is directly north of land that defendants own. The issues on appeal are (1) plaintiffs' claims that they are entitled to an easement to receivewater from a spring on defendants' property and (2) defendants' counterclaims to establish a right to an easement on a road through plaintiffs' property. The trial court held that defendants were entitled to an easement on the road and that plaintiffs were not entitled to continue receiving water from the spring. It entered final judgment under ORCP 67 B on the relevant claims and counterclaims. On de novo review ², we reverse on both issues.

Plaintiffs' and defendants' land (collectively, the land) is located north of Klamath Falls along Algoma Road. It was originally in common ownership. Henrietta Horn, the last owner with legal title to all of the land, received her title in 1944. She and George C. Horn, her husband, lived on the land and farmed it for many years, apparently both before and after she received title to it. The land is shaped like a boot. The major portion is a rectangle running north and south along Algoma Road; the short toe of the boot points east. A mountain rises from the eastern part of the land, with its base running from southeast to northwest. As a result, the northern portion of the land is mostly hilly, while the southern portion is primarily level. The remnants of the old Linkville to Fort Klamath Road (the Road) run along the base of the mountain; the county abandoned it as a public road in 1914, but portions are still passable.

In 1966, Henrietta and George C. Horn ³ gave their son Tom Horn and his wife Janet Horn (the Horns) a generally trapezoidal segment of the southern portion of the land that contained approximately 5.76 ⁴ acres (the 5.76 acres). The 5.76 acres lie along the base of the mountain; the Road runs through them. ⁵ The Horns lived there for some years.

Although the 5.76 acres had access to Algoma Road from the south, that access depended on the good will of a neighbor. When George and Henrietta gave that parcel to the Horns, they included in the deed an easement over their remaining land to reach Algoma Road from the north end of the 5.76 acres. However, the easement, as described in the deed, did not follow the Road north from the 5.76 acres to Algoma Road. Rather, the recorded easement was east and north of the Road, somewhere on the side of the mountain. No one knew about the discrepancy until after this litigation began; so far as the record reveals, no one has ever tried to locate the recorded easement on the land, let alone open it for use. Tom Horn and later owners of the 5.76 acres used the Road north from their property to Algoma Road in the incorrect belief that it was the recorded easement.

During the early years of the Great Depression, George C. Horn and his father developed a water supply for several buildings on the land. They found a natural spring a short distance up the mountain in the south central portion of the land, near the northeast corner of what later became the 5.76 acres. They then dug into the mountain, dammed the spring, and ran a pipe from the resulting small reservoir to the Road, just north of where it intersected what later became the northern boundary of the 5.76 acres. They then ran the pipe north along the Road to residences and barns in the north central part of the land and continued it to a service station and several cabins that fronted on Algoma Road. At some time thereafter, a short stub was installed from the pipe south to serve a house on what became the 5.76 acres. The pipe from the spring became either the sole or the primary water supply for all of the places that it served.

The deed giving the Horns title to the 5.76 acres included the easement over what they believed to be the Road and an easement to water from the spring; it was recorded in late 1966 and again in early 1967. In 1973, Tom Horn entered into an unrecorded land sale contract to purchase the remainder of the land, making his payments through an escrow at a local savings and loan. Although his parents ⁶ continued to live in a house on the land, he thereafter farmed it and acted in all respects as the owner of the land.

In 1978 or 1979, Tom Horn rented the northern portion of the land to Rambo, a locomotive engineer; plaintiffs then moved onto it. In 1981, plaintiffs agreed to purchase the northern 48.9 acres of the land from the Horns. Both the Road and the recorded easement go through the property that plaintiffs purchased. After the county approved a minor partition to divide the land into northern and southern portions, plaintiffs and the Horns entered into a land sale contract dated January 28, 1982. Because the Horns held only an unrecorded purchaser's interest in the land, on January 27, 1982, Henrietta deeded the northern portion to them, enabling them to convey good title to plaintiffs. Both the deed and the contract were expressly subject to the road easement described in the 1966 deed. ⁷ Although neither deed referred to a water easement, Tom Horn orally assured Rambo that she would continue to have a right to water and that he would provide an easement for that purpose.

In 1986, the Horns were in financial difficulty and asked plaintiffs to pay the balance of the contract ahead of schedule, offering a substantial discount if they did so. They accepted the offer. In conversations with Rambo at that time, Tom Horn again assured her that she would receive a water easement. However, the deed that conveyed the property, which like the contract was dated January 28, 1982, did not mention a water easement. The deed was recorded on May 7, 1986.

In January 1986, the Horns sold the 5.76 acres to Rambo's sister, Cheryl Blair, and her husband. The Blairs lived on the property together until their divorce several years later, after which Cheryl lived there by herself. She sold the 5.76 acres to defendants in November 1991. The deeds to the Blairs and to defendants referred to the road easement.

Because of his financial difficulties, Tom Horn was unable to maintain the payments on the unrecorded contract under which he was purchasing the land from Henrietta. In early 1986, Henrietta's attorney closed the escrow; thereafter, Henrietta and Tom Horn canceled the contract by mutual consent. In October 1986, Henrietta sold the remaining land (everything south of plaintiff's land except for the 5.76 acres), consisting of 66.5 acres, to defendants. As a result of their purchase of the 5.76 acres in 1991, defendants presently own the entire southern portion of the land.

Plaintiffs' house and other buildings are in the southern portion of their property, while defendants' house and other buildings are in the northern portion of theirs. Plaintiffs and defendants thus live relatively close to each other despite the size of their land holdings. From the time that plaintiffs first lived on the land until early 1992, the persons living on or owning the 5.76 acres--the Horns, the Blairs, and defendants--regularly used the Road for access to their property, with the use apparently increasing as the portion of the Road that was south of the home on the 5.76 acres deteriorated. In addition, defendants used the Road for access to their property, especially for heavy equipment or when the soil was wet, even before they purchased the 5.76 acres. ⁸ Although Rambo did not object to the use until this dispute arose, those using the Road did so in the mistaken belief that it was their recorded access to Algoma Road.

Neighborly relations between Rambo and defendants broke down a few years after defendants moved onto their property. Defendants shut off Rambo's water from the spring on December 15, 1991, leaving her without water for over half a year, until she was able to have a working well drilled. At about the same time, Rambo installed gates across the Road at the entrance from Algoma Road to her property and near where it leaves her property to enter defendants' land. Despite the gates, defendant James Mueller (Mueller) continued using the Road at least through January 6, 1992. On that evening, plaintiff Garrett confronted him as he drove through plaintiffs' land, told him that he was trespassing, and ordered him to leave. Mueller called 911 and a deputy sheriff was dispatched; the deputy treated the matter as a civil dispute and managed to calm things down. Sometime thereafter Rambo installed locks on the gates. On February 23, Mueller cut one of the locks, leading to another altercation that again required a deputy sheriff's presence.

Mueller testified that he stopped using the Road after Rambo installed the locks; Garrett testified that Mueller left tire tracks in the snow a couple of times after the January 6 incident. Defendants' last use of the Road, thus, was sometime between January 6, 1992, and February 23, 1992; it is impossible from this record to determine when.

Plaintiffs first assign error to the trial court's determination that defendants are entitled to an easement by prescription on the Road across their land. In order to establish such an easement, defendants must prove, by clear and convincing evidence, that they or their predecessors, under a claim of right, used the Road adversely to plaintiffs' rights for a continuous and uninterrupted period of ten...