Kutz v. Lee
| Decision Date | 25 April 2018 |
| Docket Number | A162018 |
| Citation | 422 P.3d 362,291 Or.App. 470 |
| Parties | Robert P. KUTZ and Karon V. Johnson Kutz, Plaintiffs-Appellants, v. Olen H. LEE, Lois E. Lee, Katherine Fetz Hagstrom, Central Oregon Irrigation District, Stephen C. and Carol A. Younger Revocable Trust, Defendants-Respondents, and Marcia Legg, et al., Defendants. |
| Court | Oregon Court of Appeals |
Robert P. Kutz and Karon V. Johnson Kutz filed the briefs pro se.
Matthew Singer, Garrett S. Garfield, and Holland & Knight LLP filed the brief for respondent Central Oregon Irrigation District.
No appearance for respondents Olen H. Lee, Lois E. Lee, Katherine Fetz Hagstrom, and Stephen C. and Carol A. Younger Revocable Trust.
Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi, Judge.
Plaintiffs filed this action for declaratory and injunctive relief against a group of private landowners and the Central Oregon Irrigation District (COID), asserting the existence of a public easement on land that defendant landowners own and on which defendant COID has its own easement. Defendants filed motions to dismiss under ORCP 21 A(8) for failure to state a claim. The trial court dismissed plaintiffs' claims on three independent grounds: plaintiffs lack standing, plaintiffs failed to give timely notice under the Oregon Tort Claims Act (OTCA), and plaintiffs' claims are barred by the OTCA statute of limitations. Plaintiffs appeal. For the reasons set forth below, we reverse.
On review of the grant of a motion to dismiss under ORCP 21 A(8), we accept as true all well-pleaded factual allegations in the complaint and make reasonable inferences from those allegations in favor of plaintiffs. Yanney v. Koehler , 147 Or. App. 269, 272, 272 n. 1, 935 P.2d 1235, rev. den. , 325 Or. 368, 939 P.2d 45 (1997). That includes documents that the complaint incorporates by reference, see BoardMaster Corp. v. Jackson County , 224 Or. App. 533, 535, 198 P.3d 454 (2008), which, in this case, the parties agree includes certain plat maps. We state the facts in accordance with that standard.
Defendants Olen and Lois Lee, Katherine Hagstrom, and the other individual defendants (collectively landowners) own residential lots in the Orion Estates neighborhood in Bend. Their lots are located adjacent to the Central Oregon Irrigation Canal. A 20-foot-wide dirt path, hereinafter "the canal path," runs along the canal through the 15 canal-front lots in Orion Estates and continues an unspecified distance north and south of Orion Estates.1 Defendant COID has an easement for right of way on the canal path to facilitate the operation, maintenance, and repair of the canal. COID personnel and vehicles use the canal path for those purposes.
The Orion Estates plat was recorded in 1980. The plat map shows a "canal easement line" running parallel to the canal through Orion Estates lots 12 through 26. The plat contains a dedication "to the public forever, all streets and easements as shown."
The only easements shown on the plat map are the canal easement line and utility easements. Fifty-six people, whom plaintiffs identify as the then-owners of the Orion Estates lots, signed the dedication on the plat. Multiple governmental officials approved the plat, including the then-chairman of COID. The following excerpt from the Orion Estates plat map shows the location of the canal-front lots, the "canal easement line," and the canal. Annotations have been added to indicate the lots currently owned by the Lees (lot 16) and Hagstrom (lot 19). The canal path is located in the area between the canal easement line and the canal.
Map: Excerpt from plat map of Orion Estates (1980) ↑NAccording to the complaint, from at least 1980 (or earlier) until 2007 (or later), members of the public residing in Orion Estates and surrounding neighborhoods used the canal path, including the portions located on defendant landowners' lots, for recreational activities such as walking, bicycling, jogging, and exercising dogs. Dozens of members of the public used it on a daily basis and hundreds on a yearly basis. The Bend High School track team used it for training runs. From 1982 until 2006, members of the public also used the canal path to reach a public golf course and golf course restaurant located immediately north of Orion Estates. One of the golf course greens was adjacent to the canal path, and a path led directly from the green onto the canal path.
In 2006, a developer purchased the golf course property and thereafter built the Orion Greens neighborhood in its place. As in Orion Estates, the canal path runs through the canal-front lots in Orion Greens. Heading north from Orion Estates, the canal-front lots in Orion Greens are numbered 24, 25, 26, and 27. (Orion Estates lot 12 abuts Orion Greens lot 24.) The City of Bend required the developer of Orion Greens to provide public access to the canal path as a condition of development, specifically a "12' pedestrian access easement" and a "50' primary trail easement to B.M.P.R.D. [Bend Metro Parks and Recreation District]." As a result, a 12-foot-wide paved pedestrian path currently runs across Orion Greens lot 27 from a public street to the canal path. Plaintiffs allege that the BMPRD easement runs along the back of Orion Greens lots 24, 25, and 26, coextensive with the canal path, and provides for public use and access to the canal path to the north and south.2
At some point after 2007, three things happened, not necessarily in this order. First, defendant COID entered into two "joint road use agreements" with, respectively, the Lees and Hagstrom. The complaint describes the agreements as "permitting" the Lees and Hagstrom to construct gates on their properties "subject to conditions imposed by COID." The agreements were recorded in Deschutes County in 2009. Second, the Lees built a five foot high chain link fence and gate at the northern end of their property that completely blocks public passage on the canal path. Third, Hagstrom built a five foot high chain link fence and gate wrapped in barbed wire at the southern end of her property that also completely blocks public passage on the canal path. As a result, the canal path is impassable to members of the public from the northern boundary of the Lees' property (Orion Estates lot 16) to the southern boundary of Hagstrom's property (Orion Estates lot 19).
On an unspecified date, plaintiffs purchased a home in the Kings Forest First Addition neighborhood, which, as shown on the Orion Estates plat map, is located immediately west of Orion Estates. According to the complaint, plaintiffs have access to the canal path by travelling on public streets and then using the paved pedestrian path across Orion Greens lot 27. "Plaintiffs and other members of the public walk or bicycle along the Canal Path almost daily, [but] their ability to proceed north or south further along the Canal Path is prevented by Defendants' gates and fences." In plaintiffs' view, the gates also create a safety hazard due to rescuers being unable to access a portion of the canal bank; four people and five dogs have drowned in unspecified portions of the canal since 1995.
On September 9, 2014, plaintiffs gave a presentation to the COID Board of Directors, which, according to the complaint, "demonstrat[ed] the facts which gave rise to Plaintiffs' claims." The complaint does not describe the content of the presentation, who attended it, or why it was directed to COID.
On February 9, 2015, plaintiffs filed a complaint against the Lees and Hagstrom, challenging the legality of their gates. Thereafter, plaintiffs learned from counsel for the Lees and Hagstrom about the joint road use agreements with COID. Until that time, plaintiffs had understood that COID had not agreed to the gates because COID's prior counsel Dickson had denied to plaintiffs that COID gave permission for the gates. Upon learning of the agreements, plaintiffs communicated with COID's "designated counsel Matt Singer" regarding "the inclusion of COID as a defendant in the case." On July 1, 2015, plaintiffs added COID as a defendant by way of filing an amended complaint. Consistent with a court order, plaintiffs then filed a second amended complaint that was substantively identical except that it added as defendants the owners of all the canal-front lots in Orion Estates.3
In their complaint, plaintiffs alleged the existence of a public easement to use the canal path in Orion Estates, both by dedication (based on the 1980 Orion Estates plat) and by prescription. Plaintiffs asserted three claims against the Lees, Hagstrom, and COID: (1) interference with use of a public easement, (2) hazardous private nuisance, and (3) declaratory judgment. Regarding COID in particular, plaintiffs alleged that COID had wrongfully and unlawfully blocked public access to the canal path by "affirmatively permitting [the] construction" of the Lees' and Hagstrom's gates and that COID, together with the Lees and Hagstrom, had created a hazardous private nuisance. Plaintiffs requested that the trial court declare a permanent public easement on the canal path traversing Orion Estates lots 12 through 26. Plaintiffs also requested that the court permanently enjoin defendants from interfering with plaintiffs' and the public's use of the canal path, including by placing or maintaining gates, fences, or other obstacles.
Defendant COID moved to dismiss plaintiffs' complaint under ORCP 21 A(8) for failure to state ultimate facts sufficient to constitute a claim, making multiple arguments. Defendant landowners filed their own motion to dismiss under ORCP 21 A(8), making different arguments. After hearing, the trial court dismissed plaintiffs' claims on three independent grounds, all of which had been argued by COID: (1) plaintiffs lack standing; (2) plaintiffs failed to give timely OTCA notice of their claims to COID; and (3) plaintiffs' claims are barred by the OTCA statute of limitations. The court dismissed all claims...
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