Gorman v. Jones

• Decision Date: 07 November 1962
• Citation: 375 P.2d 821,232 Or. 416
• Parties: J. W. GORMAN, also known as Jack Gorman, and Caryl M. Gorman, husband and wife, Respondents and Cross-Appellants, v. Edward F. JONES and Agnes I. Jones, husband and wife, Appellants.
• Court: Oregon Supreme Court

Page 821

375 P.2d 821

232 Or. 416

J. W. GORMAN, also known as Jack Gorman, and Caryl M Gorman, husband and wife, Respondents and Cross-Appellants, v. Edward F. JONES and Agnes I. Jones, husband and wife, Appellants.

Supreme Court of Oregon, Department 2.

Argued and Submitted Oct. 4, 1962.

Decided Nov. 7, 1962.

James M. Blackford and Edwin E. Allen, Eugene, argued the cause for appellants. On the briefs were Bartle & Allen and James M. Blackford, Eugene.

Eldon F. Caley, Roseburg, argued the cause for respondents and cross-appellants. On the brief were Long, Neumer, Dole & Caley, Roseburg.

Before McALLISTER, C. J., and SLOAN, O'CONNELL, LUSK and DENECKE, JJ.

O'CONNELL, Justice.

This is a suit for a declaratory judgment in which plaintiffs seek a determination of their rights under a written right-of-way agreement. Plaintiffs also pray for a judgment allowing them attorney's fees in accordance with the terms of that agreement. Defendants appeal from a decree interpreting the agreement in accordance with plaintiffs' prayer. Plaintiffs cross-appeal from that part of the decree denying plaintiffs an award of attorney's fees.

On March 26, 1954 plaintiffs and defendants entered into an agreement entitled 'Right-of-Way Agreement' which granted a nonexclusive easement of right of way over plaintiffs' farm land to defendants. The agreement contained the following covenant:

'4. In consideration for the grant of said right-of-way and easement, Jones hereby covenant and agree as follows:

'That there is a gate where said roadway connects with the highway and Jones agree in their operation and use of said highway to keep said gate closed except during the time when actually passing through the same. Should Gorman desire to install additional gates along said right-of-way, they may do so and Jones likewise covenant and agree to keep said gates closed except at such times as they are actually being used by Jones under this agreement; provided, however, that Gorman shall not construct or install more than three (3) additional gates, and in the event Gorman should construct cross-fences in excess of three (3) in number, then at the place where said cross-fences intersect said road, Gorman shall at their expense install a suitable cattle guard at the intersection of said cross-fence with said road, it being the intention of the parties herein that no more than three (3) additional gates shall be installed along the route of said road, but as many cattle guards may be installed as Gorman may desire; and provided further that Jones may at their option and at their expense install and maintain cattle guards of sufficient width to turn livestock in lieu of any gates permitted hereunder, but in said event Jones shall also install, adjacent to said cattle guard, a gate for the passage of livestock and shall keep and maintain said gate in good condition. All other cattle guards, except such as are hereunder required to be kept and maintained by Jones, shall be kept and maintained at Gorman's own expense.'

Defendants contend that the foregoing paragraph of the agreement gives them the right to substitute a cattle guard and stockgate for any gate placed across the right of way, including the gate at the highway. Plaintiffs contend that defendants have the right to make such substitution only at the interior cross-fences. Specifically, defendants rely upon the proviso that they 'may at their option and at their expense install and maintain cattle guards of sufficient width to turn livestock in lieu of any gates permitted hereunder.' It will be noted that this proviso is a part of the sentence which provides for installation of 'additional gates.' These are gates other than that which is installed at the point where the roadway connects with the highway. We therefore construe the proviso as being applicable only to the additional gates.

Defendants further contend that changes in the character of the use of an easement may be made by the dominant owner if the changes do not materially increase the burden upon the servient estate. It is asserted that the burden on the servient estate would not be increased by the substitution of a cattle...