Ghiglieri v. Tomalak
| Decision Date | 17 June 2020 |
| Docket Number | A167699 |
| Citation | 469 P.3d 262,304 Or.App. 717 |
| Parties | Michael P. GHIGLIERI, Plaintiff-Respondent, v. Eric S. TOMALAK and Holly Anne Tomalak, Trustees of the Eric S. Tomalak Living Trust, Defendants-Appellants. |
| Court | Oregon Court of Appeals |
Michael W. Franell filed the briefs for appellants.
Joseph M. Charter filed the brief for respondent.
Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
This is an easement dispute between neighboring landowners. Plaintiff brought this action alleging that he has an express or implied easement over a portion of defendants’ property and that defendants have interfered with that easement by building a fence. The trial court ruled on summary judgment that plaintiff has an implied easement and that defendants have interfered with it. Defendants appeal. We affirm.1
Summary judgment is appropriate when the pleadings, depositions, affidavits, declarations, and admissions on file show that there is no genuine dispute of material fact and that the moving party is entitled to judgment as a matter of law. ORCP 47 C. A material fact is "one that, under applicable law, might affect the outcome of a case." Zygar v. Johnson , 169 Or. App. 638, 646, 10 P.3d 326 (2000), rev. den. , 331 Or. 584, 19 P.3d 356 (2001). "On review of cross-motions for summary judgment, we view the record for each motion in the light most favorable to the party opposing it to determine whether there is a genuine issue of material fact and, if not, whether either party is entitled to judgment as a matter of law." O'Kain v. Landress , 299 Or. App. 417, 419, 450 P.3d 508 (2019).
This case involves two adjacent properties situated between Highway 62 and the Rogue River. Lot 100 is upriver, has a house on it, and is currently owned by plaintiff. Lot 2400 is downriver, undeveloped, and currently owned by defendants. Both lots are accessed from the highway via a driveway on Lot 100; the highway is "quite a ways above the level" of Lot 2400. The first photo in the Appendix shows the general layout of the properties (with the white captions added by the court for reference). The following is a summary of the evidence in the summary judgment record.
Prior to 1984, Ralph Train owned both lots and built the house on Lot 100. In 1984, Train conveyed Lot 2400 to Bettis. The deed expressly reserved "an easement for ingress and egress" over Lot 2400 for the benefit of Lot 100.2
Around 2003—when Train owned Lot 100 and Bettis owned Lot 2400—someone built a "woven wire" fence, "like a horse fence," on Lot 2400. The fence was located well inside Lot 2400. It is unknown who built the fence or why.
Soon thereafter, Train died, and Lot 100 appears to have gone into foreclosure. In 2004, the Richmonds obtained ownership of Lot 100, and, in 2005, they purchased Lot 2400 from Bettis, thus bringing the two lots back into common ownership.
In 2007, the Richmonds sold both lots to defendants. As part of the same transaction, defendants obtained a mortgage from the Federal National Mortgage Association (Fannie Mae), which resulted in Fannie Mae acquiring a property interest in Lot 100 by way of a deed of trust.
In 2011, Fannie Mae foreclosed on Lot 100. As a result of the foreclosure, the lots were once again in separate ownership.
In 2012, Fannie Mae conveyed Lot 100 to plaintiff,3 and plaintiff's son moved into the house. That same year, plaintiff's son replaced the wire fence on Lot 2400 with a wooden fence, erroneously believing it to mark the property line. In 2014, plaintiff's son built a carport on Lot 100, attached to the garage, at a cost of $4,750.
In 2017, defendants, who had by then transferred their property interest to a trust, obtained a survey of Lot 2400. Soon thereafter, defendants erected a fence on the property line, and they removed the wooden fence that plaintiff's son had built on Lot 2400. The new fence is approximately 20 feet from the garage of the house on Lot 100. The second photo in the Appendix shows both the fenceposts for the new fence on the property line and the older wooden fence built by plaintiff's son in 2012 (with the white captions added by the court for reference).
Once defendants built a fence on the property line, plaintiff's son could no longer turn into his carport, because the "average turn[ing] radius of a car is 35.5 feet." He had to remove the carport because he "could not make the turn without hitting the fence." Plaintiff's son also spent $460 to pour a concrete ramp near the driveway, as cars otherwise would get stuck coming down the driveway after the fence went in. Because of the new fence, plaintiff's son has "to drive [his] car north past the entrance to the top of the drive and reverse and then back down the driveway to the garage area"; "[t]here isn't enough room to turn around at the bottom of the drive due to the closeness of the fence"; "it is impossible to back out and up the steep driveway and on to Highway 62"; he "cannot drive forward down [the] driveway because there is no way to turn around"; and he "cannot leave [the] property at night because, without the aid of headlights to see behind [him], it is extremely dangerous to back down the driveway in the dark." It is also "very difficult to accurately maneuver a vehicle in the limited space between the fence and the garage," and at least one post has already been hit by a vehicle.
Within a few months of defendants building the new fence, plaintiff filed this action, asserting, as relevant here, claims for express easement, implied easement, and interference with easement. The parties cross-moved for summary judgment on those claims. The trial court ruled in defendants’ favor on the express-easement claim. On the implied-easement and interference claims, however, it ruled in plaintiff's favor, granting summary judgment to plaintiff and denying it to defendants:
The trial court entered a general judgment consistent with its rulings. In the judgment, the court ordered and adjudged that defendants have "granted, by implication, an easement for a driveway, parking area, and vehicle turn around necessary to the reasonable enjoyment by the owners and possessors of the house located [on Lot 100], for use of a portion of the property located [on Lot 2400]." The court described the easement as "reasonably necessary for Plaintiff's access to the residence, garage, parking, and property storage located on Lot 100." The easement "extends 30 feet south of Plaintiff's south property line" to the edge of the gravel drive. (In the first photo in the Appendix, the easement area is the roughly rectangular area to the right of the shared property line, labelled "disputed area.") Finally, the court ordered defendants to remove their fence; not to install any structures, barriers, fences, buildings, or other improvements of any kind in the easement area; and to pay plaintiff $5,210 in damages.
Defendants appeal. In their three assignments of error, they challenge the trial court's grant of summary judgment to plaintiff on plaintiff's implied-easement claim, denial of summary judgment to them on plaintiff's implied-easement claim, and grant of summary judgment to plaintiff on plaintiff's interference-with-easement claim.
"When land in one ownership is divided into separately owned parts by a conveyance, an easement may be created * * * by implication from the circumstances under which the conveyance was made alone." Rose et ux. v. Denn et ux. , 188 Or. 1, 19, 212 P.2d 1077 (1949), reh'g den. , 188 Or. 26 (1950) (quoting Restatement (First) of Property § 474 (1936) ). "That is, an implied easement is created when the circumstances that exist at the time of severance of a parcel establish that the grantor of the parcel intended to create an easement." Manusos v. Skeels , 263 Or. App. 721, 723, 330 P.3d 53 (2014) (internal quotation marks omitted).
Although the grantor must have intended to create an easement at the time of severance, that does not mean that the grantor had to form such intent consciously. Rather, "the circumstances must be such as to permit an inference that had the grantor put his mind to the matter he would have intended the servitude to be created." Dressler et al v. Isaacs et al , 217 Or. 586, 597, 343 P.2d 714 (1959)(emphasis added). To make that determination, the court views the circumstances from the putative grantee's point of view: "We think that the proper adjustment of the conflicting claims of the parties in this type of case can be arrived at more directly by attempting to determine what a reasonable grantee would be justified in expecting as a part of his bargain when he purchases land under the particular circumstances." Id. at 599, 343 P.2d 714. Thus, the "essential question is whether a reasonable purchaser would be justified in expecting the easement under the circumstances in which he or she purchased the land." Garrett v. Mueller , 144 Or. App. 330, 341, 927 P.2d 612 (1996), rev. den. , 324 Or. 560, 931 P.2d 99 (1997) ; see also German Savings & Loan Soc. v. Gordon , 54 Or. 147, 157, 102 P. 736 (1909) ().
Determining whether an implied easement exists "is inherently factual and involves a weighing of numerous factors." Bloomfield v. Weakland ...
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