Jones v. Edwards

• Jurisdiction: Oregon
• Parties: Edward F. JONES and Agnes I. Jones, Appellants, v. Edith EDWARDS and W. L. Edwards, Respondents.
• Citation: 219 Or. 429,347 P.2d 846
• Court: Oregon Supreme Court
• Decision Date: 23 December 1959

Page 846

347 P.2d 846

219 Or. 429

Edward F. JONES and Agnes I. Jones, Appellants, v. Edith EDWARDS and W. L. Edwards, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted Nov. 13, 1959.

Decided Dec. 23, 1959.

James M. Blackford, Eugene, argued the cause for appellants. With him on the brief was Clyde N. Johnston, Eugene.

Ronald W. Husk, Eugene, argued the cause for respondents. With him on the brief were Harris, Butler, Husk & Gleaves, Eugene.

Before McALLISTER, C. J., and PERRY, O'CONNELL and REDDING, JJ.

O'CONNELL, Justice.

This is a suit brought by the servient owner to enjoin the owner of an easement of right of way over plaintiffs' land from trespassing upon plaintiffs' land and from leaving gates open along the right of way.

The defendants, by way of counterclaim, seek a decree (1) ordering plaintiffs to remove two of six gates along the right of way, (2) establishing the width of the right of way at 30 feet, (3) requiring plaintiffs to refrain from interfering with defendants' use of the right, (4) requiring plaintiffs to maintain four of the gates (remaining after the removal of two as requested); and defendants seek such other relief as the court deems equitable.

The trial court in effect granted the relief prayed for in defendants' counterclaim and made other provisions in the decree adversely affecting plaintiffs. The plaintiffs appeal from this decree.

The easement was created by an instrument dated September 20, 1944, in which G. A. Maupin and Edith L. Maupin, plaintiffs' predecessors in interest, were the grantors and the defendants were the grantees. The easement was described as follows:

'A gateway road right of way over and across the following described real property, to wit [description of grantors' land] as said road is now established and traveled * * *.'

At the time the easement was created four gates crossed the right of way. Two gates to the west of the original gates were constructed later by plaintiffs. These two gates were ordered to be removed in the decree of the lower court. Plaintiffs contend that all of the gates are necessary to the efficient operation of their ranch; the defendants allege that the two westerly gates are unnecessary and constitute an unreasonable interference with their use of the easement.

It is also alleged by defendants that at the time the easement was granted to them, and for a long time prior thereto, the four gates then located on the land were left open a substantial part of the time. They deny that they leave open the four easterly gates, but admit leaving open the two westerly gates.

In their counterclaim defendants assert that the easement was granted to them for the 'express' purpose of confirming the defendants' unlimited and unrestricted right to use the existing road for all purposes in connection with the defendants' land, and that it was contemplated that the way should be not less than 30 feet in width. It is alleged that 'Plaintiffs have also constructed a new road that parallels portions of the road, the subject of defendants' right of way, which new road encroaches on portions of the right of way and plaintiffs have caused mud, rocks and debris to be cast upon the defendants' right of way so as to make the same virtually impassible, and have refused to remove said mud, rocks and other debris.' This alleged conduct on the part of plaintiffs is relied upon as a justification for the use by the defendants of parts of the newly constructed portion of the roadway which do not coincide with the original way.

Finally, it is alleged that plaintiffs have interfered with defendants' use of the right of way and that plaintiffs have threatened bodily harm to defendants and their business and social guests if they should deviate from the traveled portion of the way.

The plaintiffs provided several witnesses acquainted with the operation of ranches in the area to support their contention that the two westerly gates were necessary to the efficient use of their land. There was evidence to the contrary but as we appraise the entire record we are convinced that plaintiffs' position is more strongly supported. We hold, therefore, that plaintiffs are entitled to maintain the six gates along the right of way as long as the reasonable use of their land makes such gates necessary.

Apparently the trial court considered the scope of the easement to be controlled by the language 'as said road is now established and traveled' and that no gates other than the original ones could be constructed without violating the terms of the grant. We do not so interpret the instrument. Unless the language of the creating instrument or the attendant circumstances at the time of the grant indicate a contrary intent, the scope of an easement is not limited to the uses contemplated to be made at the time of or immediately after its creation, either with respect to the permissible uses of the easement or with respect to the permissible uses which may be made of the servient land by the servient owner. In the absence of a contrary intent both the uses of the dominant and servient owners are subject to adjustment consistent with the normal development of their respective lands. See Bernards v. Link and Hynes, 1953, 199 Or. 579, 248 P.2d 341, 263 P.2d 794. The servient owner 'is privileged to make such uses of the servient tenement as are not inconsistent with the provisions of the creating instrument' and in the application of this principle the servient owner's use of his land 'may vary as the respective needs of himself and the owner of the easement vary.' 5 Restatement, Property (Servitudes) 3027, § 486. City of Pasadena v. California-Michigan Land & Water Co., 1941, 17 Cal.2d 576, 110 P.2d 983, 133 A.L.R. 1186; Bishields v. Campbell, 1952, 200 Md. 622, 91 A.2d 922; Hodgkins v. Bianchini, 1948, 323 Mass. 169, 80 N.E.2d 464; Hill v. Carolina Power & Light Co., 1943, 204 S.C. 83, 28 S.E.2d 545.

Admittedly, the language, 'as said road is now established and traveled,' could be interpreted to mean that neither the dominant nor servient owners were intended to have the privilege of expanding the respective uses of their lands. On the other hand, it is possible that the phrase was used simply to designate the location and width of the easement and to describe generally the character of the uses which the conveyees were entitled to make of it. The evidence in this case of the intention of the parties to the creation of the easement is scant. Under these circumstances we think that the instrument should be interpreted in the second sense indicated above, giving it the meaning of an ordinary easement, the scope of which is intended to change with changing needs.

There is no evidence as to the consideration paid by the conveyee for the easement other than the recital in the instrument itself. The original parties to the easement were related and it is likely that the consideration for the grant was not more than nominal. In the absence of evidence that substantial consideration was paid for the easement, we shall no assume that by the use of the phrase referred to the grantor bargained away his privilege, and the privilege of his successors in interest, to develop the servient land in such a way as to require the construction of additional gates across the right of way.

Assuming, then, as we do, that the easement and the servient land are subject to adjustment with changing circumstances, our only task is to appraise the evidence for the purpose of determining the reasonableness of the addition of the two westerly gates. As we have already indicated, plaintiffs'...