Rose v. Denn

• Decision Date: 26 October 1949
• Citation: 212 P.2d 1077,188 Or. 1
• Parties: ROSE et al. v. DENN et al.
• Court: Oregon Supreme Court

212 P.2d 1077

188 Or. 1

ROSE et al. v. DENN et al.

Supreme Court of Oregon

October 26, 1949

S. L Rose, and another, sued Henry Denn, and others, to enjoin defendants from interfering with the use of an easement and way of necessity.

The Circuit Court for Douglas County, Carl E. Wimberly, J rendered a decree for plaintiffs, and defendants appealed.

The Supreme Court, Rossman, J., affirmed the decree, and held that an implied way of necessity was reserved by the original grantor and grantee of lands over which the road passed.

Before LUSK, C.J., and BRAND, ROSSMAN, BAILEY, HAY and PAGE, JJ.

ROSSMAN Justice.

This is an appeal by the defendants from a decree of the Circuit Court which held that the plaintiffs 'are the owners and users of an easement and way of necessity, more particularly described as follows, * * *. The defendants and each of them be and they hereby are perpetually restrained and enjoined from in any manner closing or interfering with the use and travel of said easement and way of necessity by the plaintiffs * * *.' The easement and way of necessity sustained by the challenged decree extends across a tract of land which is owned by the defendants-appellants, Henry Denn and Nora Denn, husband and wife. The other defendants-appellants have an interest in the Denns' property, but the interest is immaterial to the issues in this case. Our use of the term 'the appellants' will hereafter mean the defendants-appellants, Henry Denn and Nora Denn. All of the lands involved in this suit are situated in Sections 25, 26 and 35, Township 29 South, Range 9 West, Willamette Meridian, and are near Camas Valley in Douglas County. A glance at the following sketch which makes no pretense at accuracy, will facilitate an understanding of the facts which we shall presently narrate.

RPT.CC.1950103010.00010

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The ownership by the respondents, who are husband and wife, of the Northeast quarter of the Northwest quarter of Section 35, being the 40-acre tract which our sketch shows is conceded. The respondents were the plaintiffs in the Circuit Court. Likewise conceded is the fact that the appellants own the tracts attributed to them by our sketch. Their lands are:

'The West half of the Southwest quarter (W 1/2 SW 1/4) and the Southeast quarter of the Southwest quarter (SE 1/4 SW 1/4), Section 25.

'Lot No. Four (4) and the Southwest quarter of the Southwest quarter (SW 1/4 SW 1/4) Section 26.

'A strip of land 120 feet wide off the North end of Lot No. Four (4) and a strip of land 120 feet wide off the North end of the Southwest quarter of the Southeast quarter (SW 1/4 SE 1/4) Section 25.

'All that part of the Adam Day Donation Claim No. 44 in Section 26, described as follows, to-wit; Beginning at the Southeast corner of said Section 26, running thence North 40 chains; thence West 56.50 chains to the Northeast corner of Lot No. 4 in said Section 26; thence South 40 chains to the Southwest corner of said Donation Claim No. 44; thence East 56.36 chains to the place of beginning.

'All of the above land being in Township 29 South of Range 9 West of the Willamette Meridian, and containing in the aggregate 396.82 acres more or less.'

From the appellants' brief, we quote the following:

'It is undisputed that at present a roadway is in existence over and across the appellants' property including the property acquired by Henry J. Denn from Jacob Denn, the ancestor, in 1894 and that this roadway extends in an easterly and northerly direction commencing about 50 feet west of the northeast corner of the respondents' property.'

The quoted language mentions a conveyance made by Jacob Denn to Henry J. Denn in 1894. The conveyee, Henry J. Denn, was the son of the conveyor and father of the appellant, Henry Denn. It is the contention of the respondents that since the conveyed tract lay between the public road and other tracts which the conveyor owned, an implication arose that the conveyor reserved an easement or way of necessity across the conveyed lands. The thoroughfare shown on our sketch and marked 'public road' is a county road which was opened in 1874. Thus, the easement, recognized by the decree, is not imposed upon the retained land, but upon the conveyed property. The quoted statement speaks of the 'present' existence of the road which it mentions, but the appellant, Henry Denn, as a witness, conceded that the road was in use as long ago as 1914. That road is the 'easement and way of necessity' claimed by the respondents and mentioned in the part of the decree which we quoted. We made no effort to trace it upon our map. Hereafter when we employ the term, 'the road', we will mean the purported 'easement and way of necessity'; that is, the road described in the sentence which we just took from the appellants' brief. It will be observed from the statement which we quoted that the road terminates at its western extremity in the respondents' 40-acre tract of land. Its eastern end leads into the county road which shortly, in its southerly course, joins the Coos Bay Highway. The road (easement) is the same one which was the subject matter of Baum v. Denn, decided by us November 15, 1949.

The respondents' tract contains a stand of timber and is unimproved. The appellants' land is improved with a dwelling house and farm structures.

The complaint alleges:

'That the lands of the plaintiffs and the defendants, as hereinabove described, were deraigned by separate chains of title from a common grantor, Jacob Denn, who owned all of said lands on or about the year 1894. That at the time said lands were owned by Jacob Denn there was a county road running along the east boundary of the lands now owned by the defendants and then owned by Jacob Denn, and that said county road has ever since that time and now is used by the general public as a public highway. That there was not at the time the property was conveyed to the plaintiffs' predecessors in interest nor is there now any public road which can be used as ingress to and or egress from the hereinabove described lands of the plaintiffs. That it is necessary that the plaintiffs have ingress to and egress from their lands.'

That averment is denied by the answer, but the part concerning deraignment of title from a common source was conceded, as well as established, by evidence at the trial. The complaint alleges that January 10, 1945, the appellants erected a barrier across the road and denied the respondents the privilege of using it any further.

The respondents' brief claims that they obtained their right to the use of the road in the following ways: (1) 'By implied right or grant'; (2) 'right to travel the same by reason of the way of necessity'; (3) 'if, as the appellants contend, there is no implied right, then the respondents and their predecessors have acquired their rights to the same by adverse use, as shown by the testimony of both appellants and respondents as to the many years that the roadway was in use and travel.' The appellants present the following contentions: (1) 'The record does not show evidence that the respondents acquired the described easement by prescription'; (2) 'the doctrine of implied easement does not apply'; and (3) 'the doctrine of a way of necessity does not apply.'

Although the parties express their contentions in the words just quoted, the issues to which they devoted their major efforts during the trial were these: (1) Does any public road lead to the tract owned by the respondents? and (2) was it necessary for the respondents to travel upon the appellants' land in order to reach a public thoroughfare? During the trial the respondents contended that no public road reached their property and that the appellants' land lay between respondents' and the public thoroughfare. The appellants controverted those propositions. During the trial they contended that a public road known as the Amstein Camas Valley road touched the respondents' tract and that another known as the Southwick road or the Holmes Creek road was available to them. Further, they contended that the predecessors in interest of the respondents, in going to or from the land now owned by the respondents, did so by passing through an area termed by the appellants 'the back pasture.'

The answer affirmatively alleges:

'That a county and public road known as the Amstein Camas Valley Road was laid out, viewed, surveyed, established, and approved by the County Court of Douglas County, Oregon, in 1903, and said road is recorded in the Road Records of Douglas County, volume 6 at p. 393.

'That above described roadway is a public road and has been used over a period of years by the plaintiffs' predecessors in interest as a means of ingress to and egress from their premises.'

The affirmative averments of the answer also say:

'There is a public road known as the Southwick Road or the Holmes Creek Road and described as following * * *; that said road has been and is now in constant use by the plaintiffs herein and their predecessors in interest, and the general public and adjoining landowners and tenants.'

We shall now take notice of the evidence applicable to those contentions.

Jacob Denn, whom we have mentioned, received a deed in 1893 which conveyed to him a thousand acres lying in Sections 25, 26 and 35, and which included all of the land now owned by the parties to this suit. April 9, 1894, he gave to his son Henry J. Denn, the father of the appellant, Henry Denn, a deed which conveyed to him the Southeast quarter of Section 26. There was no consideration for the deed; the transfer was a gift. The Southwest corner of that quarter touches the Northeast corner of the 40-acre tract now owned by the respondents. When that conveyance was made, the...