Stone v. CCXL, LLC

• Decision Date: 02 March 2022
• Docket Number: A172815
• Citation: 318 Or.App. 107,506 P.3d 1167
• Parties: Patrick STONE and Vicki Stone, AS TRUSTEES OF the STONE FAMILY 2002 REVOCABLE TRUST, Plaintiffs-Respondents, v. CCXL, LLC, a Delaware limited liability company, Defendant-Appellant.
• Court: Oregon Court of Appeals

318 Or.App. 107

506 P.3d 1167

Patrick STONE and Vicki Stone, AS TRUSTEES OF the STONE FAMILY 2002 REVOCABLE TRUST, Plaintiffs-Respondents,

v.CCXL, LLC, a Delaware limited liability company, Defendant-Appellant.

A172815

Court of Appeals of Oregon.

Argued and submitted June 1, 2021.

March 2, 2022

Harry B. Wilson argued the cause for appellant. Also on the briefs were Anna M. Joyce, Teresa M. Shill and Markowitz Herbold PC.

Jonathan M. Radmacher, Portland, argued the cause for respondents. Also on the brief was McEwen Gisvold LLP.

Before Mooney, Presiding Judge, and Lagesen, Chief Judge, and DeVore, Senior Judge.^*

DeVORE, S. J.

The parties own neighboring residential properties with conflicting property rights. Defendant appeals from a two-part judgment that resulted from litigation underlying that property dispute. The trial court awarded title to plaintiffs, through adverse possession, to land upon which a water feature straddled the border of the parties’ properties. The trial court also declared that defendant's view easement across plaintiffs’ property is presently unenforceable.

We conclude that the trial court did not err in determining that plaintiffs had adversely possessed the disputed area. We determine that the trial court erred in relying on extrinsic evidence to find that the purpose of the view easement was to offer a view of Mt. Hood, but we conclude that the trial court did not err in its decision, after balancing the parties’ hardships, that the view easement is presently unenforceable. We affirm.

I. FACTS

On appeal, we accept the trial court's findings of fact that are supported by the evidence. Hammond v. Hammond , 296 Or. App. 321, 323-34, 438 P.3d 408 (2019). In the absence of an express factual finding, we will " ‘presume that the facts were decided in a manner consistent with the [trial court's] ultimate conclusion.’ " Agrons v. Strong , 250 Or. App. 641, 655, 282 P.3d 925 (2012) (quoting Ball v. Gladden , 250 Or. 485, 487, 443 P.2d 621 (1968) (brackets in Agrons )). We state the facts in accordance with that standard.

The parties own properties that share a single, long border. Plaintiffs’ property is shaped like a flagpole, with the driveway following the narrower portion of the "pole" and turning slightly left before leading to the residence situated on the "flag" portion of the lot. One side of defendant's property, to the back of the residence, abuts the entire "flagpole" portion of plaintiff's property. As depicted in the following diagram, plaintiffs’ property is referenced as "Tax Lot 2300," and defendant's lot is immediately to the left:

The shading indicates portions of plaintiffs’ property and neighbors’ properties subject to view easements described later.

When plaintiffs purchased their property in 2008, there was a landscape feature, including a rock waterfall and a pond below the waterfall, that ran alongside the driveway on the narrow flagpole portion of lot that bordered defendant's property. The input for the pond was on the other side of the driveway, where an electric pump pumped water from a stream through a culvert that ran underneath the driveway and led to the water feature on the other side. The motor that ran the pump was located in a wooden box directly above the waterfall. There was also a sitting area near the waterfall.

Defendant purchased its property in 2014 and had a survey performed to determine the physical location of the property's boundary lines. The stakes that the surveyor placed alerted plaintiffs that the water feature encroached upon defendant's property. On June 30, 2014, plaintiffs’ counsel sent a letter to defendant seeking to resolve the apparent "encroachment issue" through "some kind of lot line adjustment, exclusive easement, or irrevocable license." In July 2017, defendant's counsel sent a letter to plaintiffs summarizing that the parties had been unable to reach an agreement regarding the disputed area. Defendant also informed plaintiffs in that letter that defendant held the dominant interest of a view easement running over plaintiffs’ property and that plaintiffs’ property currently had "a substantial number of trees that obstruct the view easement." Defendant stated that it "intend[ed] to take immediate steps to enforce the easement."

Plaintiffs filed the complaint in this action in August 2017. In their first claim for relief, plaintiffs sought quiet title to the land with the disputed water feature and sitting areas. In their second claim for relief, plaintiffs sought a declaratory judgment that, because of changed circumstances, defendant's view easement was terminated. In the alternative, to the extent that the court found that the view easement was not terminated, plaintiffs asked the trial court to equitably balance the hardships that would result from enforcing the view easement and to declare that the easement was not presently enforceable.

At trial, two previous owners of plaintiffs’ property testified about their use of the water feature. Jennifer Othus, who owned the property from April 1997 to October 2002, testified by deposition that the waterfall, pond, and pump were present when she purchased the property. She added the chairs next to the pond soon after she moved in. In a declaration, Othus testified that the pond and associated culvert required constant maintenance to avoid flooding and that she viewed it as more of "an obligation" to maintain the water feature than "a benefit." She believed that anyone who looked at the property would assume that the water feature, while close to the "very sketchy" boundary line, was part of her property.

Othus sold the property to the Wilkens in October 2002. The Wilkens sold the property to the Armstrongs on October 7, 2004.¹ Thomas Armstrong testified that when he owned the property, he "was pretty much indifferent to [the water feature]." He "didn't have a lot of interest in it," but since it was "on [his] property," he "felt it was necessary" to "take care of it." He hired a landscaping service to maintain the area and made sure that the pump did not get clogged. Armstrong testified that no one was actively living on the property when he toured it "several months" before he purchased it. He testified that once he owned the property, he "just accepted the fact that it was on [his] property and dealt with it as [his] property * * *."

The Armstrongs sold the property to plaintiffs, the Stones, in July 2008. In a declaration, Patrick Stone testified that the water feature was "obviously" and "visually" a part of the property and "so close to the driveway" that he did not question it being part of the property. Stone testified that he had hired a landscaping service to maintain the water feature area since purchasing the property, including to repair the pump when it broke, clean the water flow areas, and spread bark dust. Stone also testified that he paid the electric bill to operate the pump.

As to the view easement, Stone testified that he was aware of the 1958 view easement when he purchased the property, but he thought it had been abandoned because "the whole area is a forest." He testified that there were 13 to 15 trees subject to defendant's view easement on his property, and that complying would result in topping half of the 50-to 70-foot mature trees on his property. That would result, according to Stone, in the corresponding diminishment of the privacy and value of his property. Stone also testified that topping the identified trees would not result in the unobstructed easterly view that defendant desired, because doing so would simply offer a view into, or blocked by, the equally tall trees of other easterly neighboring properties.

Another neighbor, Frank Fristoe, whose property was east of plaintiffs’ and subject to a separate, 1951 view easement, which benefitted defendant's property, testified that defendant's predecessor had terminated that view easement as applied to his property in 2013. When Fristoe realized that defendant's predecessor was preparing to sell the property, he had approached the owner to see if the family would be willing to terminate the view easement. Fristoe testified that the family supported terminating the easement because the landscaping and growth of trees on defendant's own property also blocked any view that defendant's property may have.

The trial court issued written findings of facts and conclusions of law concluding that

"[p]laintiffs have proven by clear and convincing evidence all of the elements of adverse possession with respect to the land that contains the small waterfall area, the pump and its motor, and associated utilities and rocks necessary to make the waterfall function (cumulatively ‘the Water Feature’), to the extent these permanent improvements encroach on defendant's property. It is highly probable that these improvements have existed continuously for more than ten years in their current location. The installation and maintenance of these improvements to create the Water Feature constitutes open and notorious, and exclusive and hostile possession of the property where these permanent improvements are located."

The trial court also concluded that plaintiffs proved by clear and convincing evidence that plaintiffs and their predecessors honestly believed for a continuous period of more than 10 years that the water feature was located on plaintiffs’ property. The trial court, however, concluded that plaintiffs had not proved that they and their predecessors had adversely possessed the sitting area next to the water feature.

With respect to the view easement, the trial court first concluded that the purpose of the 1951 and 1958 view easements was to provide the owner of defendant's property with a view of Mt. Hood to the east. Over the years, however, the court found that those easements were generally not enforced. Based on the evidence presented and the trial court's visit to the properties, the court found that "enforcement of the...