Shields v. Villareal

• Decision Date: 31 October 2001
• Citation: 33 P.3d 1032,177 Or. App. 687
• Court: Oregon Court of Appeals
• Parties: Davie R. SHIELDS and Craig A. Bloom, Appellants, v. Joseph A. VILLAREAL, Respondent. Joseph A. Villareal, Counterclaim-Plaintiff, v. Davie R. Shields and Craig A. Bloom, Counterclaim-Defendants.

33 P.3d 1032

177 Or. App. 687

Davie R. SHIELDS and Craig A. Bloom, Appellants, v. Joseph A. VILLAREAL, Respondent.

Joseph A. Villareal, Counterclaim-Plaintiff, v. Davie R. Shields and Craig A. Bloom, Counterclaim-Defendants.

9811-07817, A108341

Court of Appeals of Oregon.

Argued and Submitted July 9, 2001.

Decided October 31, 2001.

Tod Eames, Gresham, argued the cause and filed the brief for appellants.

Craig Wymetalek, Olaha, argued the cause for respondent. With him on the brief was Douglas M. Bomarito, P.C.

Before LANDAU, Presiding Judge, and BREWER and SCHUMAN, Judges.

SCHUMAN, J.

Plaintiffs sought a declaratory judgment confirming their ownership of an express easement across defendant's property and an injunction ordering defendant to remove all impediments from it and to refrain from future interference. In his answer and counterclaim, defendant argued that plaintiffs had abandoned the easement and it should therefore be extinguished. The trial judge found by a preponderance of the evidence that plaintiffs had abandoned the easement, and he entered judgment as requested by defendant. On de novo review, we reverse and remand.

Plaintiffs own property immediately north of property owned by defendant. Plaintiffs' deed contains an express easement that runs along the north 15 feet of defendant's property for the length of the boundary between the two parcels. In 1987, plaintiffs constructed an automotive machine shop and parking lot on their property. In the process, they graded their parcel and put in a curb and a row of bushes along the property line between their lot and defendant's. As a result, the elevation of plaintiffs' property is higher than the elevation of the easement on defendant's property; the difference varies from a few feet at the east end of the property line to more than six feet at the west end. Near its steepest point, the berm between the curbing and the easement is sloped at an angle of between 35 and 45 degrees.

In 1998 or 1999, defendant decided to turn his then-undeveloped parcel into a steel yard. In the process, he placed large amounts of fill dirt on the easement, blocking plaintiffs' ability to traverse its length. After defendant refused to remove the dirt, plaintiffs initiated this action. At trial, in arguing over defendant's theory that plaintiffs did not and could not use the easement, the parties presented conflicting testimony as to whether it was possible for plaintiff to access the easement despite the curb, bushes and berm. Plaintiffs testified they trimmed the bushes approximately every two years so as to keep them low enough that their service trucks could clear them when bumping over the curb. Defendant testified that the bushes had grown into a "huge hedge" that completely blocked vehicular access. When asked if it was possible to access the easement as plaintiffs suggested, defendant responded that it might be possible but that "I don't think anybody with a right mind would do it." The parties also presented conflicting testimony as to whether plaintiffs actually used the easement. Plaintiffs testified that they had continually used it to gain access to the rear side of their building in order to perform maintenance work and clear underbrush. Defendant, on the other hand, testified that he had never observed plaintiffs' service vehicles bumping over the curb or otherwise making use of the easement, he had never observed vehicle tracks on the easement, and he had never seen plaintiffs perform any building maintenance from the easement. The trial court agreed with defendant's version of the facts and found, by a preponderance of the evidence, that plaintiffs had "manifested an intent to relinquish possession * * * by performing acts inconsistent with the continued use of the easement and subsequently relinquished possession of the easement by non-use."

Plaintiffs argue that the court erred in using a "preponderance of the evidence" standard instead of a "clear and convincing evidence" standard and that, under the correct standard, the court's decision in favor of defendant was error. We begin with the question of which standard applies. Although no Oregon case law explicitly announces the standard of proof for a claim of abandonment, plaintiffs argue that such a claim should be judged according to the same proof standard required to establish an easement by prescription, because in both instances the particular acts and motives of the parties establish grounds for extinguishing one party's previously recognized property right while at the same time creating a new property right in favor of the adverse party. Defendant, on the other hand, argues that in the absence of legislation to the contrary, ORS 10.095(5) requires a preponderance standard.¹ We agree with plaintiffs.

Zockert v. Fanning, 310 Or. 514, 800 P.2d 773 (1990), describes two categories of civil cases in which the clear and convincing standard of proof might be proper. One category is not relevant to this case: quasi-criminal actions. Id. at 527, 800 P.2d 773 (citing Riley Hill General Contractor Inc. v. Tandy Corp., 303 Or. 390, 405, 737 P.2d 595 (1987)). The relevant category consists of actions in which the evidence required to prove a particular kind of fact is of questionable reliability or trustworthiness. Id. Easement by prescription cases and abandonment by nonuse cases are within that category. In recognizing the creation of an easement by prescription, a court reallocates relative rights to the use of a parcel of land based on proof of how the purported easement holder has viewed and used it: Was the use adverse, continuous and uninterrupted over time? E.g., Garrett v. Mueller, 144 Or.App. 330, 336, 927 P.2d 612 (1996),

rev. den. 324 Or. 560, 931 P.2d 99 (1997). A court performs essentially the same function when it determines that an easement is extinguished by abandonment. In such cases, a court also reallocates relative rights to the land based on proof of how the easement holders have thought of and used it: Have they expressed or manifested an intent to make no further use of the easement? E.g., Abbott v. Thompson, 56 Or.App. 311, 316, 641 P.2d 652,

rev. den. 293 Or. 103, 648 P.2d 851 (1982). In both types of cases, the relevant party's intent may be difficult to discern with accuracy, and any direct testimony from that party must be critically screened for the possibility of "self-serving declarations." Powers et ux. v. Coos Bay Lumber Co., 200 Or. 329, 398, 263 P.2d 913 (1953). Given the similarity in the kinds of interest at stake, the facts to be proved, and the inherent difficulty of demonstrating the relevant intent, logic and consistency suggest that both types of claims should be subjected to the same standard of proof.

More persuasive, however, is the fact that Oregon courts have applied the clear and convincing standard to extinction-of-easement claims based on reasons other than abandonment. For example, in Slak v. Porter, 128 Or.App. 274, 278, 875 P.2d 515 (1994), this court applied the clear and convincing standard to a claim that an easement was extinguished by adverse possession. Similarly, an easement was held to be extinguished by consent of the parties in Tusi v. Jacobsen, 134 Or. 505, 515, 293 P. 587 (1930), only after the court was "convinced" by "decisive and conclusive" evidence of consent. We can discern no good reason why a claim that an easement no longer exists should be judged by a different standard depending on whether the facts giving rise to the claim establish consent, adverse use, or abandonment. In all those cases, easements are extinguished on the basis of proof regarding the particular actions and attitudes of the parties. And in all those cases, the same presumption applies: that easement rights remain secure in the party in whom they are vested by deed or other express grant unless clear and convincing proof to the contrary overcomes such a presumption.

Finally, we note that, although Oregon courts have not previously specified what standard of proof to use in abandonment cases, they have implicitly held the evidentiary bar to a level significantly higher than the preponderance standard. In Bernards et ux. v. Link and Haynes,199 Or. 579, 248 P.2d 341 (1952), adhered to on rehearing199 Or. 579, 263 P.2d 794 (1953), for example, the court quoted extensively from a number of authorities before concluding that a railroad right of way was not abandoned when it was sold and converted into a road for logging trucks. Id. at 591, 248 P.2d 341. Among the authorities cited was the following:

"Thompson on Real Property, Perm. Ed., § 700 says:

`"* * * An easement created by deed is not defeated by mere nonuser. There must be in addition other acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence."' Bernards, 199 Or. at 589-90, 248 P.2d 341 (emphasis added).

In another early abandonment case, the Supreme Court noted that at common law "the courts are not inclined to favor forfeiture of easements unless the intent to abandon them plainly appears." Dean v. Colt, 160 Or. 342, 347, 84 P.2d 481 (1938) (citations omitted). The courts rarely find such intent, and when they do it is because the acts manifesting the intent have so fundamentally changed the landscape that further use of the easement is deemed impossible. See Haskell v. Borschowa, 271 Or. 326, 333, 532 P.2d 14 (1975)

(easement abandoned when building addition made it impossible to use easement without trespassing on neighboring property); Dean, 160 Or. at 347, 84 P.2d 481 (partial obstruction that does not prevent use does not manifest intent to abandon); Abbott, 56 Or.App. at 313, 316,

641 P.2d 652 (lack of maintenance that renders an easement difficult, but not impossible, to use does not evince intent to abandon).

Defendant argues that the "clear and...