Muzzy v. Wilson

• Decision Date: 11 August 1971
• Citation: 259 Or. 512,487 P.2d 875
• Parties: Wallace D. MUZZY and Darlene A. Muzzy, husband and wife, Respondents, v. Helen Lois WILSON, a single woman, Appellant, and also all other persons or parties unknown claiming any right, title, estate, lien or interest in the real property described in the amended complaint herein; Orval D. Yokom, et al., Defendants.
• Court: Oregon Supreme Court

Page 875

487 P.2d 875

259 Or. 512

Wallace D. MUZZY and Darlene A. Muzzy, husband and wife, Respondents, v. Helen Lois WILSON, a single woman, Appellant and also all other persons or parties unknown claiming any right, title, estate, lien or interest in the real property described in the amended complaint herein; Orval D Yokom, et al., Defendants.

Supreme Court of Oregon.

Argued and Submitted at Pendleton May 3, 1971.

Decided Aug. 11, 1971.

Roy Kilpatrick, John Day, argued the cause for appellant. On the briefs were Kilpatrick & Matzen, John Day.

Thomas M. Mosgrove, John Day, argued the cause for respondents. On the brief were Yokom & Mosgrove, John Day.

Before McALLISTER, P.J., and DENECKE, HOLMAN, TONGUE, and BRYSON, JJ.

McALLISTER, Justice.

This is a suit to quiet title to a strip of land in the city of John Day. Plaintiff is the owner of the record title. The defendant Helen Wilson claims a right of way over the land, either as a member of the public or as the owner of an easement. The trial court held that defendant had no rights in the disputed strip and quieted plaintiff's title. Defendant appeals. ¹

A fairly detailed statement of facts is necessary. We have prepared a map, similar to one used at the trial, to assist in following the history of the strip in question and other adjacent tracts. The two small tracts designated A and B on the map are the strip in dispute. Plaintiff owns tract 1, lying south of parcel A, and defendant owns tract 2, lying north of parcels A and B. The strip in dispute is about 18 feet wide where it abuts North Canyon Boulevard on the east. Other tracts in the area are numbered and labeled according to the current or most recent owners disclosed by the evidence.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

All of the property on the map, which lies in the southeast portion of Block E of the original plat of the city of John Day, was at one time owned by Earl Brent. Brent acquired this land during the 1920's and 1930's and developed and resold it.

In 1932 Brent sold to Leo Gunther tract 1 which was used then and for some years thereafter as a service station. This is the lot now owned by plaintiff and is vacant at present.

In 1933 Brent had completed a commercial building on tract 4, the Brandli tract, and leased a portion of it to Frank Chester, who operated a grocery store there until about 1940. Mr. Chester testified that the back door to this store was near the northeast corner of the property, and that he used the disputed strip for access to that back door. He also testified that other business in the building used the strip.

In 1936 Brent sold tract 2 to Dr. Norris. The building on that lot, which Brent had built, lies within two or three feet of the south property line where it abuts parcel A. The building had, when Brent built and sold it, two doors on the south side, one in the part north of parcel A and one in the part north of parcel B. Dr. Norris lived in this building and had his office there. Mr. Chester testified that some of Dr. Norris's patients used these south doors; the doctor had, according to Mr. Chester, a 'pretty good traffic' coming into the building on the south side. This property is now owned by defendant.

Also in 1936 Brent sold tract 3, the Yokom tract, on which he had built a commercial building. By the terms of the conveyances from Brent, the owners of tract 2 and tract 3 have rights of way over the strip of land lying between their properties, labeled 'Easement' on the map. This strip is 20 feet wide.

In 1940 Brent conveyed to Henderson a large parcel of land which included tracts 4, 6, 7 and 9, and parcels A and B. The record does not show when Brent sold tract 8, the small piece now owned by Wick. Parcel 8 is now occupied by a garage which opens on the south. The evidence also fails to show when Brent sold tract 5, now owned by Lemons. There is evidence, however, that he constructed the apartments which occupy the land and are indicated on the map by dotted lines.

Summing up the situation during the period of Brent's development of the area, we note that when he sold tract 1 to Gunther and tract 2 to Norris he retained title to a strip of land between these two lots and apparently made no provision in the deeds for use of the retained strip by the owners of those lots. At that time he owned a commercial building on tract 4, and his tenants used the strip for access to the back of that building. After Dr. Norris purchased tract 2, some of his patients used the strip, and there is no evidence of any objection to this use. Mr. Chester testified that during this period there was a visible road over the strip in dispute.

In 1940, when Brent sold tract 4 and other property to Henderson, he conveyed to Henderson the title to the disputed strip. The deed to Henderson makes no reference to any rights of way over the land, and warrants that the property is free of all encumbrances.

In 1948, defendant's husband, Gordon Wilson, purchased tract 2. Mrs. Wilson testified that the building had been used, prior to its purchase by Mr. Wilson, as a residence. The evidence does not disclose when Dr. Norris ceased to practice in the building, or what other uses it may have had until defendant's husband purchased it and used it as his law office. We conclude from Mr. Chester's testimony that Dr Norris occupied the building at least until 1940. The record contains no information about the use of the building or its ownership during the period from 1940 to 1948.

In 1962, the property which Brent had sold to Henderson was conveyed, with the exception of tract 4, to Swanner and Hansen. The deed includes the disputed strip. In the description of tract 4 as an exception to the property conveyed, the deed refers to the north line as going along an alley. As will be seen from the map, the north line of tract 4 is adjacent to parcel B of the disputed strip, and to its extension on the west designated as tract 9.

By mesne conveyances parcels A and B and tracts 6, 7, and 9 were conveyed to Ledgerwood. In 1966, Ledgerwood conveyed the property to Wick. The deed to Wick employed a new description which did not encompass tract 4; there was, therefore, no need to describe tract 4 as an exception, and the new description contains no reference to an alley. There is however, an exception to the covenant against encumbrances, for 'that certain easement from S. E. Henderson and Dorothy K. Henderson, husband and wife, a copartnership, to Gordon Wilson and Leo Gunther, dated January 12, 1950, and recorded March 5, 1956 in Book 74, Page 156, Deeds, Grant County, Oregon.' The easement is not described in the Ledgerwood deed. The original document granting the easement was not introduced into evidence, and none of the witnesses, including the title examiner called by plaintiff, mentioned this recorded easement. Nothing in the evidence discloses whether this easement covers all or part of the property in dispute, what its purpose was, or whether it ever was or is now appurtenant to defendant's land.

On October 11, 1968, Wick conveyed tracts 6, 7 and 9, and parcel B of the disputed strip to Elledge and Pollock, subject to the recorded easement from Henderson to Wilson and Gunther. On October 17, 1968, Wick conveyed parcel A to plaintiff in consideration of permission from plaintiff for Wick to erect a sign on plaintiff's property. The deed conveys parcel A 'Subject to the rights, if any of the public or common owners of abutting property to the use of the land above described.'

Some time after this conveyance, plaintiff sought to obtain from defendant a deed to the same parcel. Defendant refused to execute such a deed, and on March 3, 1969, plaintiff filed his complaint in this suit praying that his title to parcel A be quieted.

In April of 1969 Elledge and Pollock conveyed tract 9 and parcel B to Lemons, subject to the recorded Wilson and Gunther easement. In June plaintiff purchased parcel B from Lemons for $500; his deed states that the conveyance is subject to the recorded Wilson and Gunther easement. When this case came to trial plaintiff filed an amended complaint, adding parcel B, and praying that his title to both parcels be quieted.

Defendant has pleaded two alternative theories upon which she bases her alleged right to use the disputed strip for ingress and egress to her property. The first theory is that the strip has been dedicated to the public as a roadway. The second is that she has an easement over the strip by prescription, obtained by the use of herself and her predecessors in interest for a period of more than ten years. We think defendant has failed to carry her burden of proof on both theories.

Dedication was defined as follows in Harris v. St. Helens, 72 Or. 377, 386, 143 P. 941, 943 (1914):

'* * * Dedication is an appropriation of land to a public use, made by the owner, and accepted for such use by or on behalf of the public. 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 and land to public use. An Implied dedication may be shown by some act or course of conduct on the part of the owner from which a reasonable inference of his intent may be drawn, or which is inconsistent with any other theory than that he intended a dedication. * * *'

There is no evidence of express dedication in this case. In order to prevail on a theory of implied dedication defendant must prove that the owner intended 'to devote his property to a Public use, And this intention must be clearly and unequivocally manifested by his acts.' 72 Or. at 388, 143 P. at 944. We have recently reaffirmed this formulation of the burden of proof. Miller v. Roy W. Heinrich & Co., Or., 476 P.2d 183 (1970). In Security and Investment Co. v. Oregon City, 161 Or. 421, 433, 90 P.2d 467, 472...