Oltmanns v. Lewis

• Jurisdiction: Oregon
• Parties: Geraldine OLTMANNS, Respondent, v. Frank LEWIS and Diane Watkins, Appellants, and Gary Skovil, Defendant. 9306-04047; CA A83119.
• Citation: Oltmanns v. Lewis, 898 P.2d 772, 135 Or.App. 35 (Or. App. 1995)
• Court: Oregon Court of Appeals
• Decision Date: 21 June 1995

Page 772

898 P.2d 772

135 Or.App. 35

Geraldine OLTMANNS, Respondent, v.Frank LEWIS and Diane Watkins, Appellants and Gary Skovil, Defendant.

9306-04047; CA A83119.

Court of Appeals of Oregon.

Argued and submitted Jan. 18, 1995.

Decided June 21, 1995.

Robert T. Scherzer, Portland, argued the cause and filed the brief for appellants.

Eric S. Shilling, Portland, argued the cause and filed the brief for respondent.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

RIGGS, Presiding Judge.

Plaintiff brought this declaratory judgment action seeking to establish the existence of an easement.Defendants¹ appeal from the grant of summary judgment in favor of plaintiff arguing that questions of material fact still exist.We reverse and remand.

In reviewing a grant of summary judgment, we view the record in the light most favorable to the party opposing summary judgment.Here, plaintiff must establish that there is no issue as to any material fact and that she is entitled to judgment as a matter of law.Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100(1978).

In the spring of 1990, plaintiff arrived home one day to find that a retaining wall separating her property from Skovil's property had collapsed.The wall had been damaged when Skovil drove his truck into his backyard through his side yard.The truck compacted the soil above the retaining wall, causing a 20 to 25-foot section of the 18-inch high wall to bow out and spill onto plaintiff's yard.Skovil met with plaintiff and the two orally agreed to build a common driveway over both their properties so that they would have access to their respective backyards.As part of the agreement, Skovil moved the retaining wall onto plaintiff's property, filled in the area with dirt and removed eight trees from plaintiff's backyard.At that point, Skovil was able to remove his truck from his backyard, where it had been trapped since the retaining wall collapsed.Skovil continued to use this area as a driveway while he owned the property.

In November 1991, Skovil sold his house to defendants.As part of the sale, Skovil executed an earnest money agreement, including a seller's disclosure statement.That statement, which defendants received before purchasing the house, provided:

"Neighbor to the South has verbally agreed to create a common driveway between the properties for access to the backyards."

After they bought the house, defendants continued the practice of using the common driveway to reach their backyard.For example, they brought in a backhoe to prepare a new patio and parked a truck on the driveway for an extended period of time.In the spring of 1993, plaintiff used the driveway to bring in a backhoe to remove debris.At some point, defendants confronted plaintiff and requested that she rebuild the retaining wall between their properties.Plaintiff refused to rebuild the wall, believing that she had an easement over defendants' property for use of the common driveway.

Plaintiff then brought this action seeking to establish an easement.Defendants moved for summary judgment, arguing that any agreement between plaintiff and Skovil did not satisfy the Statute of Frauds.²Plaintiff also moved for summary judgment, arguing that the Statute of Frauds was satisfied by Skovil's disclosure statement or that the agreement was taken outside the Statute of Frauds by partial performance.The court granted plaintiff's motion, denied defendants' motion, and upheld the easement.

In general, an oral agreement to transfer real property is unenforceable, because it violates the Statute of Frauds.ORS 93.020;Martin v. Allbritton, 124 Or.App. 345, 349, 862 P.2d 569(1993).The Statute of Frauds applies to any interest in land, including easements.Wiggins v. Barrett & Associates, Inc., 295 Or. 679, 669 P.2d 1132(1983).However, part performance of an agreement to transfer an interest in land may take the contract out of the Statute of Frauds.Strong v. Hall, 253 Or. 61, 70, 453 P.2d 425(1969).The doctrine of part performance

" 'is invoked in those cases where a contract is entered into in good faith, and the plaintiff, relying upon the contract, and in pursuance of it, takes possession of property with the consent of the grantor, and makes expenditures on account thereof, or improves the same, or changes his relation with the grantor, so that a refusal to carry out the contract would result in manifest fraud, injustice, or oppression.' "Hearn v May et al, 207 Or. 514, 519, 298 P.2d 177(1956)(quotingJohnson v. Upper, 38 Wash. 693, 80 P. 801(1905)).

Before a contract may be taken out of the Statute of Frauds, the court must find that the part performance was

"unequivocally and exclusively referable to the contract, in the sense that it must not be susceptible of being otherwise reasonably accounted for."Strong, 253 Or. at 70, 453 P.2d 425.

In this case, plaintiff used the disputed easement without objection, allowed trees to be removed from her backyard, allowed dirt fill to be placed on her property,...