Knight v. Nyara

JurisdictionOregon
PartiesAlbert KNIGHT and Carol Knight, Plaintiffs–Respondents,v.Bill NYARA and Robbie Nyara, Defendants–Appellants.
Citation248 P.3d 36,240 Or.App. 586
Docket Number062833; A138945.
CourtOregon Court of Appeals
Decision Date16 February 2011

OPINION TEXT STARTS HERE

Barry L. Groce, Portland, argued the cause for appellants. With him on the briefs was McEwen Gisvold LLP.Norman R. Hill argued the cause for respondents. With him on the brief were Wesley A. Hill and Martinis & Hill.Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge.*BREWER, C.J.

Defendants appeal from a judgment dismissing their counterclaim for trespass, construing an express easement over a portion of their property, and enjoining defendants from using the portion of their property subject to the easement. In three assignments of error, defendants argue, first, that the trial court erred by construing the word “exclusive” in the easement to prohibit them from using all of the land included within the easement; second, that the trial court erred in determining that plaintiffs' use of the easement area was reasonable under the terms of the easement; and, third, that the court erred in dismissing their counterclaim for trespass. On de novo review, ORS 19.415(3) (2007),1 we reverse in part and otherwise affirm.

Plaintiffs originally owned 10 acres of land on a gravel bar within the meander line of the South Santiam River. That parcel was bounded to the south by the river and to the north by a county road. The parcel was swampy and wet most of the year owing to its proximity to the river, a high water table, and the presence of a natural drainage way running east to west across the parcel. The drainage way had historically been a channel of the South Santiam River. After purchasing the property, plaintiffs excavated a pond on the drainage way, and they used the excavated material to build an elevated driveway with sloping embankments on each side. The embankment operates as a dam and makes up the western end of the pond. Plaintiffs installed a culvert under the driveway that followed the east-to-west line of the drainage way, and the culvert was connected, by a ninety-degree connector on its eastern end, to a “stand pipe” that plaintiffs installed inside the pond. When the water level in the pond would rise to the top of the stand pipe, water would then drain through the pipe into the culvert; water cannot travel through the culvert unless it rises above the stand-pipe because of the ninety-degree connector which seals off the eastern end of the culvert pipe. The culvert's western end empties into the natural drainage way.

The pond receives its water from the South Santiam River, and the level of water in the pond fluctuates in accordance with the level of water in the river. River water does not flow into the pond through a channel, but rather flows underground through the loose gravel soil. At times, plaintiffs pumped water from the pond into sprinklers that they used to irrigate the sloping embankment and other parts of their property. Plaintiffs planted vegetation on the slopes of the embankment to help control erosion, along with ornamental plants around the property, and they watered that vegetation with water drawn from the pond. Plaintiffs installed a water spigot on their property to facilitate the watering. Plaintiffs' watering draws down the level of the pond, thereby allowing fresh water to flow underground from the river into the pond. Plaintiffs stocked the pond with fish and would sometimes draw down the level of the pond during the summer months to allow fresh water in to benefit the health of the fish. Plaintiffs also pumped water out because allowing in fresh water would lower the temperature of the pond, mitigating the growth of algae blooms.

While they had fish in the pond, plaintiffs placed a grill over the top of the stand pipe to prevent the fish from flowing into the culvert when the water level topped the level of the stand pipe. Plaintiff Albert Knight testified that he did not use the grill to filter out the weeds that grew in the pond from the water flowing into the culvert, because those weeds would clog the grill and cause the water level to “build up and blow out the driveway.”

In 1995, plaintiffs partitioned the property into three lots, as shown in the map below.

Image 1 (5.03" X 2.77") Available for Offline Print

Plaintiffs retained Parcel 3, the parcel that included the pond, their home, and a portion of the elevated driveway. Plaintiffs sold the adjoining parcel, Parcel 2, to defendants in 2005. At that time, the pond was already built and had been used by plaintiffs, as described above, for nearly ten years. We describe the lay of the land and the nature of the pond in some detail because, as discussed below, the way that water drains across the parcels and the way that the pond affects that drainage, forms the basis of defendant's counterclaim for trespass. Parcel 2 is downstream from parcel 3 at a lower elevation and is bounded on the south by the South Santiam River, to the north by the county road, and to the east by the elevated driveway and plaintiffs' property line. The natural drainage way from parcel 3 lies across parcel 2, proceeding west from the culvert installed by plaintiffs at the bottom of the elevated driveway. The drainage way traverses the width of defendant's property and continues onto parcel 1, which lies to the west of parcel 2 and is not at issue in this case.

When they sold parcel 2 to defendants, plaintiffs reserved for themselves an easement. That easement provided:

“INCLUDING an exclusive easement for access and utilities to Parcel 3, Partition Plat No. 1995–70 over the following described area: Beginning at the NE corner of Parcel 2 of Partition Plat No. 1995–70 in Section 28, Township 13 South, Range 1 East of the Willamette Meridian in Linn County, Oregon and running thence South 0°01'10? West, 204.75 feet to a 5/8? iron rod; thence North 89°58'50? West, 40.0 feet; thence North 0°01'10? East, 223.59 feet to the Southerly line of County Road No. 908; thence South 64°45'52? East, 44.21 feet to the point of beginning.”

A portion of the elevated driveway, the water spigot, and the western end of the culvert lie within the easement. The elevated driveway proceeds south toward the river from the county road to a “T,” where it intersects another driveway—also built by plaintiffs before their partition of the property—which leads east to plaintiffs' residence, and west to defendants' residence. The water spigot that plaintiffs use is located near that intersection, on the southern end of plaintiffs' driveway. The driveway slopes downward to the south from its intersection with the county road, and is elevated approximately thirty feet above the natural grade of the land at its north end where the pond is located. That downward slope continues to the “T;” the approach to plaintiffs' home slopes upward, and the approach to defendants' home slopes downward from the intersection.

After defendants purchased parcel 2 in 2005, they became concerned about plaintiffs' watering of vegetation within the easement. Defendants believed that the easement did not grant plaintiffs the right to water the easement area, and they were concerned that the water would run off onto their property. In the summer of 2006, defendants began turning off the water spigot and, after plaintiffs continued to turn it back on—in one day the parties went back and forth in this manner seven times—defendants twice spiked the spigot with an epoxy plug, eventually disabling it. Defendants also placed a note on the spigot telling plaintiffs that they considered the use of the spigot to be a trespass.

During this time, defendants also became concerned that their guests might become confused and travel onto plaintiffs' property by driving along the driveway on their property past the “T” intersection with plaintiffs' driveway. Defendants spoke with plaintiffs about this; they also received a letter from plaintiffs' attorney regarding their use of the driveway. In response, defendants placed plywood and cut firewood blocks across the driveway at the “T” intersection, forming a barrier between the two driveways. Some time later, plaintiffs removed the plywood and firewood and placed several large boulders along the same line across the “T” intersection. In so doing, plaintiffs broke the plywood and firewood into small pieces which they left in place. Later, defendant Bill Nyara spread those pieces about the easement area, because he felt “the Knights should look at what they had done.” At trial, Bill Nyara testified that he was concerned that the boulders that plaintiffs placed would catch debris during high water events and could redirect water toward his house, potentially eroding the land on which it is situated. Plaintiffs adduced the testimony of an expert witness, Bliss, who opined that the boulders would have only a “negligible impact” on the property during a high water event.

[248 P.3d 40 , 240 Or.App. 592]

Most aggravating to defendants during this time was the presence of pond weeds, which had grown in plaintiffs' pond and had then been carried through the stand pipe, into the culvert, and out into the drainage way on defendants' property. During one day of heavy rainfall—“a deluge,” according to one defendantdefendants found the drainage way clogged with pond weeds and overflowing its banks. Defendants spent three hours out in the rain removing the weeds. Defendants placed weeds that they had removed from the drainage way in front of the plywood barrier that they had constructed at the “T” intersection, “to let [plaintiffs] see what I had to pull out of my ditch.” Plaintiffs removed those weeds when they replaced the wooden barrier with boulders. Bill Nyara testified that that was the second time defendants had had to remove pond weeds from the drainage way, the first time having been the...

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14 cases
  • United States v. Beasley
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    • U.S. District Court — District of Oregon
    • April 29, 2016
    ...agricultural, horticultural or grazing purposes," including opening the land to public use. Id. at 158, 733 P.2d 466. Knight v. Nyara , 240 Or.App. 586, 248 P.3d 36 (2011), involved the holders of dominant and servient estates. Here, the Beasleys have no claim to the property in question ot......
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    ...in the context of the entire document; if the words clearly express the easement's purpose, our analysis ends.” Knight v. Nyara, 240 Or.App. 586, 595, 248 P.3d 36 (2011) (citation omitted). “If the wording at issue is uncertain or ambiguous, then the court must determine the intent of the o......
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    ...to be granted only on clear and convincing proof of irreparable harm when there is no adequate legal remedy.” Knight v. Nyara, 240 Or.App. 586, 597, 248 P.3d 36 (2011) (citing Wilson v. Parent, 228 Or. 354, 369–70, 365 P.2d 72 (1961)). “Moreover, there must be an appreciable threat of conti......
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3 books & journal articles
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    • United States
    • Oregon Civil Pleading and Litigation (OSBar) Chapter 20 Temporary Restraining Orders and Injunctions
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