Mid-Valley Res., Inc. v. Foxglove Props., LLP

Citation280 Or.App. 784,381 P.3d 910
Decision Date08 September 2016
Docket NumberA154337
Parties Mid–Valley Resources, Inc., an Oregon corporation, Plaintiff–Respondent Cross–Appellant, v. Foxglove Properties, LLP, a Minnesota limited liability company, Defendant–Appellant Cross–Respondent, and Yamhill County, a political subdivision, Defendant–Respondent.
CourtOregon Court of Appeals

Thomas Sondag argued the cause for appellant-cross-respondent. With him on the briefs was Lane Powell, PC.

Christopher P. Koback, Portland, argued the cause for respondent-cross-appellant. With him on the briefs were E. Michael Connors and Hathaway Koback Connors LLP.

No appearance for respondent Yamhill County.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.


, J.

This appeal arises from an action under the Uniform Declaratory Judgments Act, ORS 28.010

to 28.160, to resolve a property dispute between neighboring land owners. Foxglove Properties, LLP, and Mid–Valley Resources, Inc., own adjoining parcels of land in rural Yamhill County. The trial court issued a limited and then a general judgment declaring that Foxglove's property is subject to both a 40–foot–wide public right-of-way and an adjacent 24–foot–wide private easement across which Mid–Valley can build a road. Foxglove appeals from both judgments, challenging the trial court's rulings on summary judgment that the original owner of both parcels dedicated a 40–foot–wide public roadway through Foxglove's property and that any private easement owned by Mid–Valley has not been extinguished by adverse possession. Mid–Valley cross-appeals from the general judgment, challenging the trial court's refusal to declare that the 24–foot–wide strip is part of the public right-of-way, rather than only a private easement. We conclude that the trial court erred in declaring that there is a public right-of-way across Foxglove's property, but correctly ruled that the 24–foot–wide roadway is not a public-right-of-way. We also conclude that genuine issues of material fact preclude summary judgment on the question of adverse possession. Accordingly, we reverse and remand the judgment on Foxglove's appeal and affirm on Mid–Valley's cross-appeal.


Mid–Valley owns the northern half, and Foxglove the southern half, of what was once a single parcel known as Breyman Orchards. The 1909 plat of Breyman Orchards divided the property into 83 numbered lots drawn with solid lines to show the lot boundaries, although Breyman Orchards was never developed as a subdivision, and the lots were never sold off individually. In addition to the solid lot lines, the plat is marked with dashed lines that run inside the perimeter of, and across, the plat. The dashed lines are drawn parallel to lot lines, in some places bracketing the lot lines with double dashed lines.

Based on “scaling,” the distance between each dashed line and the adjacent, parallel lot line is approximately 20 feet, making the space between the double-dashed lines approximately 40 feet. However, no wording on the 1909 plat specifies the meaning of the dashed lines or the distance between the dashed lines and the adjacent lot lines.

At the southern end of the plat—now the Foxglove property at issue in this case—lots 42 and 43, and lots 52 and 53, are drawn as divided by a meandering north-south border with a single dashed line running alongside of that border. The space between the meandering border and dashed line is the strip that Mid–Valley claims to be a 40–foot wide public right-of-way across Foxglove's property (“the purported 40–foot road”).

In 1936, the northern portion of the property was conveyed in a deed that also conveyed a “24–ft. roadway” running through the southern parcel (“the 24–foot easement”). In language that has significance to Mid–Valley's public dedication claim, the deed describes the easement as running “parallel to and 12 ft. from the easterly margin of that certain roadway laid out and designated on the map of Breyman Orchards as running between lots 42 & 43, 52 & 53.”

The 24–foot easement and the purported 40–foot road running through those lots meet the southern boundary of the property at Breyman Orchards Road. Beginning in the late 1960's, a gravel road also ran from Breyman Orchards Road onto the property through the area at issue. The southern property was owned by the Timmons family at that time, and the gravel road connected Breyman Orchards Road to a rock quarry on the property. The quarry was initially operated by a tenant of the Timmons family and, after 1994, by son Craig Timmons. There is a gate at the entrance to the gravel road at the point where it meets Breyman Orchards Road.

Mid–Valley sought a declaration that the dashed lines crossing the 1909 plat of Breyman Orchards were intended to represent dedications of public rights-of-way for roads, including a 40–foot public right-of-way across Foxglove's property. It also sought a declaration that the 1936 deed created an additional 24–foot public right-of-way to widen the 40–foot public right-of-way across Foxglove's property or, in the alternative, that the 24–foot easement created by the 1936 deed remained enforceable. Foxglove responded by seeking a declaration that there are no public rights-of-way through its property and that Foxglove's predecessor extinguished through adverse possession any private easements across Foxglove's property. Both parties filed motions for summary judgment to resolve the dispute.

The trial court granted both summary judgment motions in part and denied both motions in part, concluding that the 1909 plat dedicated a 40–foot–wide public-right-of-way through Foxglove's property. The court reasoned in part that Foxglove should be judicially estopped from denying that the 1909 plat created a public right-of-way claim in light of a position Foxglove took in a 2004 hearing. The court also declared that the 1936 deed created a private easement that has not been extinguished through adverse possession.


Because the parties appeal from judgments that address cross-motions for summary judgment and have assigned error to the court's rulings on both motions, both rulings are subject to review. Adair Homes, Inc. v. Dunn Carney , 262 Or.App. 273, 276, 325 P.3d 49

, rev. den., 355 Or. 879, 333 P.3d 333 (2014). We review the record for each motion in the light most favorable to the party opposing it to determine whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law.” Id . (citing ORCP 47 C and Eden Gate, Inc. v. D&L Excavating & Trucking, Inc., 178 Or.App. 610, 622, 37 P.3d 233 (2002) ).

A. Dedication for Public Roads

Before we explain why we are not persuaded that the dashed lines on the 1909 plat represent the dedication of public streets, we briefly describe the doctrine of common law dedication1 and then explain why we disagree with the suggestion that Foxglove should be judicially estopped from denying the existence of a public road through its property—an argument that would be dispositive of the dedication issue if correct.

“A ‘dedication’ is ‘an appropriation of land by the owner for a public use.’ Dayton v. Jordan , 279 Or.App. 737, 746, 381 P.3d 1031, 2016 WL 4013747 (2016)

(quoting Security & Invest. Co. v.

Oregon City , 161 Or. 421, 432, 90 P.2d 467 (1939) ); see Black's Law Dictionary 473 (9th ed. 2009) (defining “dedication” as “the donation of land or creation of an easement for public use”). The doctrine of common law dedication “rests on a theory of equitable estoppel.” Fallon v. Humes, 51 Or.App. 381, 386, 627 P.2d 1 (1981).

As the Supreme Court has explained, when

“the public and individuals * * * proceed as if in fact there had been a dedication and acquire rights which would be lost if the owner were allowed to reclaim the land, then the law would not permit him to assert that there was no intent to dedicate no matter what may have been his secret intent.”

Muzzy v. Wilson , 259 Or. 512, 519, 487 P.2d 875 (1971)

(quoting Portland Ry., L. & P. Co. v. Oregon City , 85 Or. 574, 583–84, 166 P. 932 (1917) ); see also

McCoy v. Thompson , 84 Or. 141, 147, 164 P. 589, 591 (1917) (explaining, “to reclaim land would be a violation of good faith to the public and to those who have acquired private property with the expectation of enjoying the use contemplated by the dedication”).

A dedication may be express, “as when the intention to dedicate is expressly manifested by a deed or an explicit oral or written declaration of the owner, or some other explicit manifestation of his purpose to devote the land to public use.” Muzzy , 259 Or. at 518, 487 P.2d 875

(quoting Harris v. St. Helens , 72 Or. 377, 386, 143 P. 941 (1914) ). But the intention to dedicate land for a public use may also be implied, as long as that intention is clearly and unequivocally manifested. Id . (quoting Harris , 72 Or. at 388, 143 P. 941 ) (emphasis in Muzzy ).

Mid–Valley's public dedication argument turns on whether the 1909 plat implies an intention to dedicate public streets, but Mid–Valley also contends that Foxglove should be judicially estopped from denying that the plat dedicated public roads. We disagree with both propositions

1. Judicial estoppel

Judicial estoppel is a common law equitable principle by which a party may be barred from taking a position in one judicial proceeding that is inconsistent with a position the same party successfully asserted in a different judicial proceeding. Hampton Tree Farms, Inc. v. Jewett , 320 Or. 599, 609–10, 892 P.2d 683 (1995)

; Caplener v. U. S. National Bank , 317 Or. 506, 520–21, 857 P.2d 830 (1993) ; Johnson v. Dave's Auto Center, Inc. , 257 Or. 34, 41 n. 7, 476 P.2d 190 (1970). The doctrine “has a twofold purpose: to preserve the sanctity of the oath and to protect the integrity of the judicial system by preventing inconsistent results in separate proceedings.” White v. Goth , 182 Or.App. 138, 141, 47 P.3d...

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    ...error to the trial court's rulings on both motions, both rulings are subject to appellate review. Mid-Valley Resources v. Foxglove Properties , 280 Or.App. 784, 789, 381 P.3d 910 (2016). In reviewing cross-motions for summary judgment, we view the record "in the light most favorable to the ......
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    ...located as a public road. A dedication occurs when a property owner appropriates land for public use. Mid-Valley Resources v. Foxglove Properties , 280 Or App 784, 789, 381 P.3d 910 (2016). "For example, a private property owner may dedicate land to be used as a public roadway." Dayton I , ......
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