Sander v. Nicholson

• Decision Date: 26 August 2020
• Docket Number: A161996
• Parties: Barry J. SANDER and Goldye Wolf, TRUSTEES OF the BARRY J. SANDER AND GOLDYE WOLF REVOCABLE LIVING TRUST, Plaintiffs-Respondents Cross-Appellants, v. Paul NICHOLSON and Cathy Nicholson, husband and wife, Defendants-Appellants Cross-Respondents.
• Court: Oregon Court of Appeals

306 Or.App. 167

473 P.3d 1113

Barry J. SANDER and Goldye Wolf, TRUSTEES OF the BARRY J. SANDER AND GOLDYE WOLF REVOCABLE LIVING TRUST, Plaintiffs-Respondents Cross-Appellants,

v.Paul NICHOLSON and Cathy Nicholson, husband and wife, Defendants-Appellants Cross-Respondents.

A161996

Court of Appeals of Oregon.

Argued and submitted June 11, 2019.

August 26, 2020

Alicia Marie Wilson argued the cause for appellants-cross-respondents. On the briefs was Frohnmayer, Deatherage, Jamieson, Moore, Armosino and McGovern, P.C.

Samuel Kornhauser argued the cause for respondents-cross-appellants. Also on the briefs were law offices of Samuel Kornhauser, Jay Beattie, and Lindsay Hart LLP.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.^*

DeVORE, J.

Plaintiffs brought this action with a variety of claims related to an easement agreement, alleging that defendants’ improvements within the easement interfered with plaintiffs’ access. Defendants counterclaimed. The trial court entered a judgment declaring that plaintiffs have an easement for ingress and egress running the length of defendants’ eastern boundary, concluding that defendants are interfering with that easement, and ordering removal of defendants’ improvements. The court directed a verdict in plaintiffs’ favor as to liability on plaintiffs’ contract claims but dismissed them without prejudice after concluding that issues as to damages were not ripe. The court also dismissed without prejudice plaintiff's claims for negligent and intentional trespass, but the court dismissed with prejudice plaintiffs’ fraud, negligent misrepresentation, and private nuisance claims. The court dismissed defendants’ counterclaims with prejudice. In a supplemental judgment, the court denied plaintiffs’ request for attorney fees and awarded a reduced amount of costs. Defendants appeal, and plaintiffs cross-appeal.

We conclude that the trial court erred as to its rulings concerning plaintiffs’ contract claims but otherwise affirm the judgment. On the primary issue raised by defendants’ first three assignments of error, we conclude that the trial court did not err in granting plaintiffs’ claims for interference with easement and declaratory judgment. We reject without further discussion defendants’ fourth assignment in which they contend that the court erred in considering parol evidence to interpret the easement. We conclude, as to defendants’ fifth assignment, that the trial court erred in denying defendants their motion for directed verdict, and in granting plaintiffs’ motion for directed verdict as to liability, with regard to plaintiffs’ claims for breach of contract and breach of the implied covenant of good faith and fair dealing. We reject as unpreserved defendants’ sixth assignment of error, which challenges the court's denial of their motion for directed verdict on plaintiffs’ claims of negligent and intentional trespass on a ground not asserted in their motion. We reject plaintiffs’ first assignment of error on cross-appeal—that the trial court erred in dismissing their claims for fraud and negligent misrepresentation—without further discussion. We conclude, as to plaintiffs’ second assignment of error, that the trial court did not err in denying their request for attorney fees and awarding a reduced amount of costs in the supplemental judgment.

I. BACKGROUND

In 1994, plaintiffs and an adjacent property owner, Monosoff, created and recorded a reciprocal express easement running along the eastern boundaries of both properties.¹ It provides:

"The parties hereby grant unto each other, their successors and assigns, a perpetual and non-exclusive easement for ingress and egress, as well as the installation and maintenance of underground utilities lines, within 25 feet of the east boundaries of the two parcels . It is further agreed between the parties that each will dedicate the area described in this easement unto the City of Ashland for creation of a public roadway, along with such additional land adjoining as shall be necessary for creation of the public roadway, at such time as the City is willing to accept said dedication, and construct said roadway, and one of these parties requests same of the other in writing."

(Emphasis added.) A county-owned local access road, Prather Street, runs parallel to the southern portion of the easement on what became defendants’ property. The parties do not dispute that the road existed at the time the easement was created.

In December 2005, Monosoff partitioned his property and sold the parcel containing the easement to defendants. A domestic well was constructed on the southern portion of the easement on defendants’ property, and, over the years, defendants have added other improvements within that portion of the easement, including a rock wall, trees, fencing, and other landscaping.² Defendants’ house is within eight to ten feet of the western edge of the easement. The diagram below is an approximation of the relationship of the properties.

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Plaintiffs filed this action, asserting claims due to defendants’ alleged obstruction of the southern portion of the easement. Plaintiffs alleged interference with easement, negligent and intentional trespass, declaratory judgment, breach of contract and of the implied covenant of good faith and fair dealing, fraud, negligent misrepresentation, and private nuisance. Defendants counterclaimed for declaratory judgment, quiet title, and attorney fees.

A jury trial was held, but the trial court ultimately decided the parties’ claims on motions before the case was submitted to the jury. The court subsequently entered a general judgment declaring:

"Plaintiffs have an easement 25 feet wide (which includes the five foot strip purportedly dedicated to the City of Ashland) along the entire eastern length of Defendants’ property, and Plaintiffs have the right to use the entire length and width of the easement (described in Exhibit 29 attached hereto and incorporated herein) for ingress and egress. This Court specifically rejects Defendants’ contention that Plaintiffs may only use the portion of the easement for ingress and egress starting at the northern terminus of Prather Street."

Consistent with that declaration, the court ruled in plaintiffs’ favor on their claim of interference with easement. The judgment authorizes plaintiffs to remove defendants’ well, rock walls, landscaping, fences, and trees from the southern portion of easement, at defendants’ expense if defendants fail to do so.³ The judgment also enjoins defendants from building any more structures or placing any obstructions on the easement.

A variety of issues were resolved when reaching that judgment. The court directed a verdict for plaintiffs on the liability portion of their claims for breach of the easement agreement and breach of an implied covenant of good faith and fair dealing. The court, however, dismissed, on defendants’ motion, the "damages component" of those claims without prejudice as "not yet ripe." The court likewise dismissed plaintiffs’ trespass claims without prejudice. The court dismissed with prejudice plaintiffs’ claims of fraud, negligent misrepresentation, and private nuisance. The court dismissed defendants’ three counterclaims with prejudice. Later, the court entered a supplemental judgment denying plaintiffs’ request for attorney fees and awarding a reduced amount of costs.

II. DEFENDANTS’ APPEAL

A. Interference with Easement

In their first three assignments of error, defendants challenge the trial court's rulings in plaintiffs’ favor on declaratory judgment and interference with easement.⁴

Those assignments of error present essentially the same question, although posed in different ways. Did the trial court err in declaring that plaintiffs have use of a 25-foot-wide easement along the entire eastern boundary of defendants’ property for the purpose of ingress and egress to plaintiffs’ property, and, therefore, that defendants have interfered with that easement by obstructing it? Is that true when plaintiffs have ingress and egress by an alternate means of Prather Street? Those questions are legal issues that we review for legal error.⁵ On those central issues, we conclude that the trial court did not err.

"An express easement is one expressed clearly in writing containing plain and direct language evincing the grantor's intent to create a right in the nature of an easement." Bloomfield v. Weakland , 224 Or. App. 433, 445, 199 P.3d 318 (2008), rev. den. , 346 Or. 115, 205 P.3d 887 (2009). It may be extinguished only by consent, prescription, abandonment, or merger. Cotsifas v. Conrad , 137 Or. App. 468, 471, 905 P.2d 851 (1995). Here, it is undisputed that plaintiffs have a nonexclusive, express easement running along the eastern boundary of defendants’ property and that it has not been extinguished.⁶ It is also undisputed in this case that defendants’ obstructions on their southern portion of the easement—landscaping, rock walls, plants, trees, fences, and a well—make that portion unusable by plaintiffs for vehicular ingress/egress to their property.

In their defense, defendants assert that "an easement holder is not entitled to unrestricted use of an entire easement. Rather, the use must be tempered by what is necessary to accomplish the purpose for which the easement is granted and the rights of the servient estate holders." In defendants’ view, the purpose of the easement in this case is ingress and egress and that purpose is accomplished by plaintiffs’ use of Prather Street to reach the northern section of the easement and, from there, their property. Therefore, defendants contend that plaintiffs failed to demonstrate that defendants’ improvements "unreasonably and substantially" interfere with the easement. Defendants conclude that the trial court, in concluding otherwise, disregarded defendants’ rights, as the servient estate holder, "to use the burdened property in ways that do not unreasonably interfere with the...