Shumate v. Robinson

• Citation: 627 P.2d 1295,52 Or.App. 199
• Decision Date: 11 May 1981
• Docket Number: No. 25383,25383
• Parties: Bernice K. SHUMATE, Appellant, v. Vernon W. ROBINSON and Ruth Ann Robinson, husband and wife, Respondents. ; CA 17911.
• Court: Court of Appeals of Oregon

Page 1295

627 P.2d 1295

52 Or.App. 199

Bernice K. SHUMATE, Appellant, v. Vernon W. ROBINSON and Ruth Ann Robinson, husband and wife Respondents.

No. 25383; CA 17911.

Court of Appeals of Oregon.

Argued and Submitted Jan. 19, 1981.

Decided May 11, 1981.

Steven K. Blackhurst, Portland, argued the cause for appellant. With him on the briefs was Lindsay, Hart, Neil & Weigler, Portland.

Vernon W. Robinson, Bend, argued the cause and filed the brief pro se for respondents.

Before RICHARDSON, P. J., and THORNTON and VAN HOOMISSEN, JJ.

VAN HOOMISSEN, Judge.

Plaintiff brought suit to quiet title to her property described as Lot 17, Block 7, Center Addition to the City of Bend. Defendants' amended answer consisted of a general denial, and separate defenses alleging ownership by adverse possession, parol agreement, acquiescence, estoppel or practical location of the boundary line between the parties.

The suit was tried to the court without a jury. Rejecting the defendants' claim of ownership by adverse possession and, by implication, the remainder of the theories upon which the defendants claimed ownership of the property, the court found that title to all of Lot 17 was in the plaintiff.

After the court denied the defendants' claim of ownership, the court, sua sponte, entered a decree awarding the defendants a nonexclusive prescriptive easement for ingress and egress over a portion of Lot 17 which had been used by the defendants and others as a driveway. The defendants had not pled, nor had they claimed during trial that they had an easement in the plaintiff's property. ¹

On appeal plaintiff contends the trial court erred in awarding defendants an easement over Lot 17, sua sponte, when the defendants' answer claimed only ownership of the property and the case was briefed, tried and argued by both parties on that basis alone. ² Plaintiff claims she was "shocked and surprised" when the trial court, on its own motion and without prior notice to the parties, awarded defendants an easement, an award which plaintiff asserts radically departed from the legal theories relied upon by both parties throughout the proceedings. Plaintiff alleges she was prejudiced by the trial court's ruling and that she has been unfairly denied an opportunity to offer evidence to rebut any prescriptive easement in the defendants. ³

In this court defendants persist in their claim of ownership; however, they do not cross-appeal. They argue here that a court of equity may shape a decree according to the equities of the case and award any relief warranted by the pleadings and the evidence. ⁴ Defendants contend that an easement is a lesser interest than ownership and that a party alleging a greater interest may prove a lesser interest and thus be entitled to a decree recognizing whatever interest the evidence supports. ⁵ They argue further that under a prayer for general relief, such as is found in the pleadings of both the parties here, an equity court has broad jurisdiction to finally resolve the controversy between the parties and to shape a decree accordingly. ⁶ Finally, defendants argue that the plaintiff was not prejudiced by the ruling of the trail court in granting an easement because the proof required to defeat a claim of easement is, if anything, less than that required to defeat a claim of adverse possession. We review de novo, ORS 19.125(3), and reverse and remand for further proceedings.

The issue on appeal is the authority of a court of equity to decree a prescriptive easement where the defendants' answer claimed only ownership of the property and that claim was rejected by the trial court. Stated differently, the issue on appeal is whether the pleadings were sufficiently broad for the trial court sua sponte to award an easement, no prior notice having been given to the plaintiff by the defendants' pleadings, or by the court, that the existence of an easement was even being considered by the court.

To establish ownership by adverse possession a party must prove by clear and convincing evidence open, notorious, hostile, continuous, and exclusive possession under a claim of right or color of title for a period of ten years. Whitley v. Jacobs, 278 Or. 541, 547, 564 P.2d 1057 (1977); Werner v. Brown, 44 Or.App. 319, 605 P.2d 1352, rev. den. 289 Or. 71 (1980). In defending against defendants' claim of ownership, plaintiff asserted inter alia that adverse possession could not be established because defendants' use of the driveway was not exclusive. This was the thrust of plaintiff's trial memorandum, the focus of her cross-examination of the defendants and the substance of her final argument to the court. Plaintiff knew that all she had to prove to defeat defendants' claim of ownership by adverse possession was that other persons, in addition to the defendants, had used her property and that therefore the exclusivity element of adverse possession was absent. The evidence showed that the defendants, their clients, and the owners of various adjoining businesses and their customers had for years used the driveway to travel to the rear of Lot 16 and to adjacent properties. The trial court found against the defendants on the exclusive possession element of adverse possession.

Having defeated the defendants' claim of ownership, and not being on notice from the pleadings or otherwise that the defendants were then making any lesser claim in the property, the plaintiff was entitled to rest her case. Absent notice, plaintiff had no affirmative duty to then go forward with evidence to disprove any lesser interest in the property the defendants might conceivably have upon any imaginable theory.

Easements by prescription are not favored by the law. Wood v. Woodcock, 276 Or. 49, 56, 554 P.2d 151 (1976); Boyer v. Abston, 274 Or. 161, 163, 544 P.2d 1031 (1976); Thompson v. Scott, 270 Or. 542, 528 P.2d 509 (1974); Woods v. Hart, 254 Or. 434, 458 P.2d 945 (1969). It seems entirely reasonable to us that if a person desires to assert a claim not favored by the law, at a minimum he should be required to give notice in his pleadings that he is specifically asserting such a claim.

In equity, as in law, the function of a pleading is to inform the opposite party of the plaintiff's cause of suit or the defendant's grounds of defense so that both parties know what is admitted and what is disputed. Ball v. Danton, 64 Or. 184, 201, 129 P. 1032 (1913). The Supreme Court said in Perkins v. Standard Oil Co., 235 Or. 7, 19, 383 P.2d 107, 383 P.2d 1002 (1963):

"The purpose of requiring an exchange of pleadings is not to produce perfection in the statement of the issue but only to bring forth into the light the points that are in dispute. When those points are sufficiently revealed so that the opponent is apprized of what he must meet and the trial judge is given sufficient information so that he can rule advisedly during the progress of the trial, the pleadings have performed their function."

In Schroeder v. Schaefer, 258 Or. 444, 464, 477 P.2d 720, 483 P.2d 818 (1970), the Supreme Court said:

" * * * The purpose of pleadings is to give notice of the issues to be litigated so that appropriate defenses can be prepared. * * * "

This court recently held that the policy behind the well established rule that a party must recover, if at all, on the party's pleadings is to prevent unfair surprise. Snyder v. Pynn, 50 Or.App. 449, 454, 623 P.2d 1090 (1981).

While we have not been able to find any Oregon authority directly on point, we agree with the California Court of Appeals, which said in Raab v. Casper, 51 Cal.App.3d 866, 876, 124 Cal.Rptr. 590, 596 (1975):

" * * * There is a difference between a prescriptive use of land culminating in an easement (i. e., an incorporeal interest) and adverse possession which creates a change in title or ownership (i. e., a corporeal interest); the former deals with the use of land, the other with possession; although the elements of each are similar, the requirements of proof are materially different. (See Glatts v. Henson, 31 Cal.2d 368, 371-372, 188 P.2d 745; Cleary v. Trimble, 229 Cal.App.2d 1, 6, 39 Cal.Rptr. 776; 7 Cal.L.Rev. 65.)"

We find that the relief granted defendants here was outside the scope of the pleadings.

The broad power of a court of equity should not be invoked to shape a decree which was not reasonably contemplated by the parties and which, as here, represents a substantial departure from the pleadings and the legal theories relied upon by the parties.

The only remaining question is what disposition should be made of the case by this court?

In her appellate brief, the plaintiff urges:

" * * * this case should be remanded to the trial court with the direction that it enter a decree quieting title in the plaintiff, as prayed for in her complaint. Alternatively, the case should be remanded to the trial court for a new trial on the issue of whether defendants have a prescriptive easement over any portion of Lot 17."

The trial court failed to rule on the defendants' motion to amend their pleadings. We believe it is reasonable to assume that if the trial court had any doubt about its authority to award the relief granted in this case, it would have allowed defendants' motion to amend, and had the amendment been allowed, the suit would not have reached this court on the procedural question raised by this appeal.

Two alternative dispositions appear available to us: first, we may remand for entry of a decree quieting title in the plaintiff, or second, we may remand for further proceedings. Bearing in mind the maxim that he who seeks equity must do equity, we conclude that it would be equitable to remand for further proceedings not inconsistent with this opinion.

Reversed and remanded for further proceedings.

THORNTON, J., dissents.

THORNTON, Judge, dissenting.

Contrary to the majority, I would affirm. I agree with the trial judge that under the pleadings and evidence in this case, both part...