Manusos v. Skeels

• Decision Date: 25 June 2014
• Docket Number: A151495.,062566
• Citation: 330 P.3d 53,263 Or.App. 721
• Parties: Romanna MANUSOS, Plaintiff–Respondent, v. Francis L. SKEELS, Sr.; and Donna F. Skeels, Husband and Wife, Defendants–Appellants.
• Court: Oregon Court of Appeals

263 Or.App. 721

330 P.3d 53

Romanna MANUSOS, Plaintiff–Respondent,

v.Francis L. SKEELS, Sr.; and Donna F. Skeels, Husband and Wife, Defendants–Appellants.

062566; A151495.

Court of Appeals of Oregon.

Argued and Submitted Aug. 15, 2013.

Decided June 25, 2014.

William C. Cox argued the cause for appellants. With him on the briefs was Gary P. Shepherd.

Robert J. Miller, Sr., argued the cause for respondent. With him on the briefs was Pamela Yee.

Before DUNCAN, Presiding Judge, and WOLLHEIM, Judge, and SCHUMAN, Senior Judge.

DUNCAN, P.J.

This dispute between neighbors concerns plaintiff's access to a well located on defendants' adjacent property. It is before us for the second time. In our first decision, we concluded that the trial court had erred in reforming defendants' deed to reflect a waterline easement serving plaintiff's property, because plaintiff, who was not a party to the deed or in privity with any party to the deed, was not in a position to seek its reformation. Manusos v. Skeels, 238 Or.App. 657, 243 P.3d 491 (2010), rev. den.,350 Or. 130, 250 P.3d 922 (2011) ( Manusos I ). We then remanded the case to the trial court to address plaintiff's remaining claims for relief, including her claim that defendants' parcel, which was once part of the same commonly owned land as plaintiff's parcel, was burdened by an implied waterline easement when the parcels were separately conveyed. On remand, the trial court agreed that plaintiff's property benefitted from an implied easement to access the well, and it awarded damages to plaintiff based on defendants' interference with that access.

Defendants now appeal the judgment entered after remand, arguing that the trial court misapplied the law of easement by implication. According to defendants, the court looked at the wrong moment of “severance” of plaintiff's and defendants' parcels to determine whether an implied easement existed between them, and that, in any event, plaintiff failed to demonstrate that the parties' common predecessor-in-interest intended any such easement when the parcels were conveyed separately to plaintiff and to defendants' predecessor. For the reasons that follow, we affirm.

Before describing the relevant facts, we pause to provide a brief summary of the law of implied easements. “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), on reh'g,188 Or. 1, 213 P.2d 810 (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.” Bloomfield v. Weakland, 193 Or.App. 784, 795, 92 P.3d 749 (2004), aff'd on other grounds,339 Or. 504, 123 P.3d 275 (2005). “A number of factors are used to determine whether an easement has been created by implication, including ‘the claimant's need for the easement, the manner in which the land was used before its conveyance, and the extent to which the manner of prior use was or might have been known to the parties.’ ” Fischer v. Walker, 246 Or.App. 589, 598, 266 P.3d 178 (2011) (quoting Penny v. Burch, 149 Or.App. 15, 19, 941 P.2d 1049 (1997)); see also Cheney v. Mueller, 259 Or. 108, 118–19, 485 P.2d 1218 (1971) (listing relevant considerations regarding creation of an easement by implication); Jack v. Hunt et ux., 200 Or. 263, 267–70, 264 P.2d 461 (1953), on reh'g,200 Or. 263, 265 P.2d 251 (1954) (same). Implied easements are disfavored and must be established by clear and convincing evidence. Thompson v. Schuh, 286 Or. 201, 203, 593 P.2d 1138 (1979).

With that overview of the law, we turn to the relevant facts, which we set forth in a manner consistent with the trial court's express and implicit factual findings. See Eagles Five, LLC v. Lawton, 250 Or.App. 413, 415, 280 P.3d 1017 (2012) (describing the standard for reviewing a trial court's ruling that a party proved a claim for an implied easement).¹

This case involves two parcels, a northern parcel and a southern parcel, that were once owned by Gordon Foster. Foster purchased the adjacent parcels in 1990, and he made various improvements in the early 1990s—most notably, the addition of a koi pond and an irrigation well that served the pond and provided water to gardens on the property. That irrigation well was added because the existing domestic well was insufficient for the needs of the pond and gardens. In April 2000, a year before he died, Foster completed a lot line adjustment that changed the dimensions of the northern and southern parcels. The adjustment resulted in a southern parcel that was approximately two acres and a northern parcel that was approximately eight acres. What is most relevant to this case, though, is that the irrigation well was not on the same parcel as the koi pond it served; the koi pond, along with circuit breakers for the electrical pump, were on the southern parcel, while the well itself was on the northern parcel.

In 2001, Foster died and both parcels passed to his estate. Sometime the following year, plaintiff and the Cowleys, who are plaintiff's daughter and son-in-law, discovered the Foster property while looking for rural real estate. Plaintiff and the Cowleys had been interested in property that they could divide so that they could live nearby each other. Plaintiff was drawn to the lush gardens on the property, and a real estate flyer for the southern parcel listed “Irrigation/Koi Pond with Arbor” among the property's features. Plaintiff asked about the irrigation and was told that a well serviced the property. The personal representative of Foster's estate agreed to sell the parcels separately, one to plaintiff and the other to the Cowleys. Plaintiff purchased the two-acre southern parcel, which included the koi pond and a residence, on May 7, 2002. The next day, May 8, 2002, the Cowleys purchased the eight-acre northern parcel, which included the irrigation well but was otherwise undeveloped. Although the deeds refer to access and utilities easements, neither plaintiff's deed nor the Cowleys' deed makes any reference to a well, well easement, or irrigation system.

After plaintiff and the Cowleys purchased their respective parcels, the Cowleys established a second well on the northern parcel (apart from the irrigation well) and put a mobile home on the parcel. Meanwhile, plaintiff expanded the gardens on the southern parcel and used the irrigation well on the northern parcel to water the gardens and supply the koi pond.

That arrangement continued without complication until 2004, when the Cowleys decided to sell their parcel to defendants. The Cowleys wanted to ensure that plaintiff would retain access to the irrigation well after they sold their parcel, and they communicated that fact to defendants before the sale closed. The property disclosure statement listed a “water line easement” as a claim affecting the Cowley property, and the sales agreement provided that “[b]uyer agrees to allow current owner of property located to the south access to [irrigation] well.” The Cowleys and defendants executed a document entitled “Addendum to Real Estate Sale Agreement,” which stated that “[s]eller will comple[te] and pay cost of easement for waterline to adjacent property,” and they likewise executed an amendment to their escrow instructions that stated:

“Seller and Buyer hereby acknowledge that a waterline easement is being prepared but is not completed at the time of signing. Seller and buyer hereby authorize Fidelity National Title to close this escrow before easement is recorded and further to hold Fidelity National Title harmless of the content of said Easement.”

The sale ultimately closed, and a statutory warranty deed was conveyed, before the Cowleys recorded a waterline easement.

On March 15, 2005, defendants recorded their deed with the county. The following day, the Cowleys recorded a document purporting to grant a waterline easement burdening the northern parcel—notwithstanding the fact that they no longer owned that parcel. Neither the Cowleys nor plaintiff notifieddefendants when they recorded the purported easement.

Defendants eventually moved onto the northern parcel, while plaintiff continued living on the southern parcel. Plaintiff continued to draw water from the well until, approximately a year after defendants first moved onto their property, a dispute arose between plaintiff and defendants over use of the well. As a result of the dispute, plaintiff's water was interrupted, and her koi fish and some of her plants and shrubs died.

Plaintiff then filed this action in which she alleged, inter alia, a claim to reform the deed that the Cowleys conveyed to defendants such that it would include a waterline easement; a claim to establish an easement by estoppel; and a claim to recognize an easement by implication. After a bench trial, the court ruled in plaintiff's favor on the reformation claim and awarded plaintiff $3,373 for defendants' interference with plaintiff's right to use the well and consequent damage to her fish, plants, and shrubs. The court did not reach plaintiff's claims regarding easement by estoppel or easement by implication.

As noted above, we later reversed that judgment in Manusos I, concluding that, “[b]ecause plaintiff was neither a party to the deed nor in a relationship of privity with any party to the deed, the trial court erred in granting her relief in the form of reformation of that deed.” 238 Or.App. at 662, 243 P.3d 491. We remanded the case to the trial court, with the explicit qualification that “we state no opinion about whether plaintiff may be entitled to relief on any of her other claims, issues that the trial court did not have occasion to address.” Id. at 662–63, 243 P.3d...