Rogers v. Donovan

• Decision Date: 19 January 1972
• Citation: 492 P.2d 768,261 Or. 124
• Parties: George T. ROGERS and Lola E. Rogers, husband and wife, Appellants, v. Edward J. DONOVAN and Lorraine T. Donovan, husband and wife, Respondents.
• Court: Oregon Supreme Court

Page 768

492 P.2d 768

261 Or. 124

George T. ROGERS and Lola E. Rogers, husband and wife, Appellants, v. Edward J. DONOVAN and Lorraine T. Donovan, husband and wife,

Respondents.

Supreme Court of Oregon.

Argued and Submitted Dec. 7, 1971.

Decided Jan. 19, 1972.

Reuben Lenske, Portland, argued the cause and filed a brief for appellants.

Darrell E. Bewley, Portland, argued the cause for respondents. With him on the brief was Francis F. Yunker, Portland.

Before O'CONNELL, C.J., and DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

O'CONNELL, Chief Justice.

This is an action to recover damages for interference with an easement of way which plaintiffs claim to have acquired by prescription. Defendants interposed an answer which the trial court treated as raising an equitable defense which was tried first. The court found in favor of defendants and since the issues decided at that stage in the proceedings were determinative of the issue raised by plaintiffs, the court dismissed plaintiffs' complaint. Plaintiffs appeal, contending that they were deprived of their right to a trial by jury.

The complaint alleged that plaintiffs were owners of a certain parcel of property, describing it; that defendants were owners of an adjoining parcel; that plaintiffs acquired a right of way by prescription over defendants' parcel; that plaintiffs were prevented by defendants from using the right of way; that said continuing trespasses were committed by defendants maliciously; wherefore plaintiffs prayed for $1,000 general damages and $10,000 punitive damages. ¹

Defendants' answer consisted of a general denial and a further and separate answer which alleged by way of 'countersuit' that defendants were owners of a certain parcel of land, describing it; that plaintiffs 'claim some right, title and interest' in and to a strip of defendants' land; that the rights so claimed 'are spurious and without legal right or justification and are inferior to the fee simple title thereto by these defendants'; that plaintiffs have trespassed on the 10-foot strip and are threatening to further trespass thereon, 'and unless restrained will continue the said trespass'; that defendants have no plain, speedy or adequate remedy at law. Defendants' prayer asked that plaintiffs' complaint be dismissed and that plaintiffs 'be forever restrained from claiming any interest in and to any part of the real property herein described, and especially the ten feet thereof, and that they be restrained from trespassing upon defendants' parcel and for such other relief as the court may deem meet and equitable * * *.'

Plaintiffs then responded with a pleading in which plaintiffs demurred to defendants' further and separate answer on the ground (1) that the countersuit fails to state sufficient facts to constitute a valid defense or countersuit, (2) that in plaintiffs' complaint and defendants' general denial issue is duly raised as to plaintiffs' right to use the strip in question, and therefore defendants' countersuit is surplusage and 'the sole purpose of said countersuit is to deprive plaintiffs of a jury trial on the issues set forth in said...