Sunset Lake Water Service Dist. v. Remington

• Decision Date: 21 April 1980
• Docket Number: No. CC76-460,CC76-460
• Citation: 45 Or.App. 973,609 P.2d 896
• Parties: The SUNSET LAKE WATER SERVICE DISTRICT a Municipal Corporation of the State of Oregon, Respondent, v. Ruth Bower REMINGTON, also all other persons and parties unknown claiming any right, title, estate, lien or interest in the real property described herein, Appellants. ; CA 12690.
• Court: Oregon Court of Appeals

Page 896

609 P.2d 896

45 Or.App. 973

The SUNSET LAKE WATER SERVICE DISTRICT a Municipal

Corporation of the State of Oregon, Respondent, v. Ruth Bower REMINGTON, also all other persons and parties

unknown claiming any right, title, estate, lien or

interest in the real property described

herein, Appellants.

No. CC76-460; CA 12690.

Court of Appeals of Oregon.

Argued and Submitted Aug. 31, 1979.

Decided April 21, 1980.

Paul G. Robeck, Portland, argued the cause for appellants. On the briefs was Gary M. Bullock, Portland.

Lewis Littlehales, Clatsop County Counsel's Office, Astoria, argued the cause and filed the brief for respondent.

Before BUTTLER, P. J., and GILLETTE and ROBERTS, JJ.

BUTTLER, Presiding Judge.

In this declaratory judgment proceeding, plaintiff, a water service district created to provide water to the residents of Sunset Beach, seeks a declaration that it has the right to lay water lines under the streets located within the townsite of Sunset Beach, platted in 1907 by N. W. Bower, now deceased. Defendants are the heirs of N. W. Bower, who claim that they have the exclusive right to use the streets for that purpose. ¹

When N. W. Bower mapped and platted the townsite of Sunset Beach, the streets shown on the plat map were dedicated "to the public as public highways, to be and remain free and open to the public." However, the plat reserved to N. W. Bower, his "associates and assigns," "the exclusive right to construct, maintain and operate upon and in said streets telephone, telegraph and electric poles and wires, gas and water pipes, (and) gas and water mains."

The trial court held that the reservation "died with Mr. Bower" because the phrase "associates and assigns" does not include heirs, and because N. W. Bower's "associates, if any, are unknown" and "there (are) no assigns that appear of record." Defendants appeal. We reverse.

The issues presented focus on N. W. Bower's reservation of the exclusive right to use the Sunset Beach streets for a water system: the nature of that interest; whether it is transferrable; if so, whether it has been transferred or has descended to N. W. Bower's heirs; and, assuming the continuing existence of the reservation, whether it is invalid because it violates public policy or because it is inconsistent with the dedication itself.

We start with the proposition that dedications should be construed so as to effect the intent of the dedicator. McCoy v. Thompson, 84 Or. 141, 164 P. 589 (1917). Here the language of the reservation makes it clear that N. W. Bower intended to carve out an interest in, and separate from, the dedicated land: he reserved the exclusive right to himself, his "associates and assigns," to make certain uses in the streets included in the plat. There is no reason why a dedicator may not qualify his dedication, and if the dedication is accepted the public takes it subject to the uses reserved. Smith v. Gardner, 12 Or. 221, 6 P. 771, 53 Am.Rep. 342 (1885). Cf. Church v. City of Portland, 18 Or. 73, 22 P. 528, 6 L.R.A. 259 (1889). It is conceded here that the dedication was accepted. ²

The real question is how that interest should be characterized. Plaintiff contends that the interest is an easement appurtenant to all of the property within the townsite because all of it would, presumably, benefit from the uses reserved. Pursuing this line of reasoning, plaintiff contends that each time a lot in the plat was sold, the appurtenant easement was transferred with it, thereby destroying the "exclusivity" of the reservation. ³ However, if that were the intention of the dedicator the reservation was meaningless surplusage because the public could use the streets for those purposes without any special grant or reservation.

Although there is a constructional preference for finding an easement to be appurtenant rather than in gross, Hall v. Meyer, 270 Or. 335, 527 P.2d 722 (1974), there is no room for construction here; the easement was not created to benefit the dedicator as the possessor of a particular tract of land. 5 Restatement of Property, § 453. Absent that element, the easement is not appurtenant. Rather, the easement was reserved to the dedicator for commercial purposes, and was personal to him in the sense that it was not an incident of his possession of a dominant tenement. As such it is an easement in gross. 2 American Law of Property 286, § 8.75; 5 Restatement of Property, § 454.

Easements in gross which have commercial value are assignable. Salene v. Isherwood, 55 Or. 263, 106 P. 18 (1910); Talbot v. Joseph, 79 Or. 308, 155 P. 184 (1916); 5 Restatement of Property, supra, § 489; 3 Powell, Real Property, supra, § 419; 2 American Law of Property, supra, § 8.79. Here, the easement has commercial value and, in the absence of an expressed intention to limit its alienability, it has the same attributes of alienability as other interests in property.

Accordingly, if the dedicator had merely reserved the rights to himself without adding the language, "his associates and assigns," the easement would be freely alienable. Unless we can say that the addition of those words was intended to limit alienability, the easement is descendable as are other interests in property. It would, however, require a strained and unnatural construction of the language to treat it as restrictive. The use of the phrase, "his associates and assigns," indicates clearly that the easement reserved was intended to be alienable and we conclude that it is.

An easement has the same duration, and is transferred in the same manner as a like interest in land. Restatement of Property, supra, §§ 494, 495; 3 Powell, Real Property, supra, § 407. See also Luckey et ux. v. Deatsman, 217 Or. 628, 343 P.2d 723 (1959). While the lands in the Sunset Beach plat have been transferred many times since the 1907 dedication, the record before us does not contain any conveyance of the easement itself.

Since the reservation remained intact during N. W. Bower's life, the question remains whether, as the trial court held, the reservation died with N. W. Bower because the term "assigns" in the reservation did not include "heirs." Plaintiff agrees that "assigns" is a more expansive term than "heirs," and that the term "assigns" "generally comprehends all those who take either immediately or remotely from or under the assignor, whether by conveyance, devise, descent or act of law." Black's Law Dictionary 154 (4th ed 1957). See also Webster's Third New International Dictionary (Unabridged 1976) ("assignee" is "one to whom a right of property is legally transferred."); Udall v. Battle Mountain Company, 385 F.2d 90, 95-96 (9th Cir. 1967), cert. den. 390 U.S. 957, 88 S.Ct. 1041, 19 L.Ed.2d 1151 (1968).

Plaintiff contends, however, that reservations of this kind should be strictly construed and, when this reservation is so construed, it was strictly personal to N. W. Bower and died with him. Even if we adopt a strict construction, we cannot reach that result without reading into the reservation words which are not there: either limiting the reservation to a life estate, or limiting the alienability to the lifetime of N. W. Bower. We are not free to do that. ORS 42.230.

"Unless an easement in gross is limited by the terms of its creation to a use to be enjoyed by its grantee only, what happens to it upon the intestate death of the owner depends upon the nature of the estate in it held by the owner of it. If that estate was in fee, the easement will descend as real property to his heirs. If it was a life estate measured by the life of the owner, his death will cause it to come to an end. If it was an interest the duration of which was measured by the life of another, it will pass in accordance with the provisions of statutes providing for the intestate succession to life estates. If it was measured in duration by a definite period of time, it will be distributed to the next of kin in accordance with the rules applicable to intestate succession to chattels real." 2 American Law of Property 286-87, § 8.76, (Footnote omitted.)

Here, N. W. Bower's estate in the easement was not limited in duration either by his or another's life, and was, therefore, in the nature of an interest in fee. The reservation is alienable and, although it does not specifically mention "heirs," language of inheritance is not necessary to create a fee simple interest. ORS 93.120. ⁴ Thus, the easement is in the nature of a fee simple estate, is inheritable, Ruhnke v. Aubert, 58 Or. 6, 113 P. 38 (1911), and passed directly to N. W. Bower's heirs upon his death, State v. O'Day, 41 Or. 495, 69 P. 542 (1902), unless the reservation was not valid.

Plaintiff presents a variety of challenges to the validity of the reservation.

First, it relies on a statute, passed in 1909, which provided that, before any plat could be recorded, the plat must have been approved by municipal authorities and that all streets in the plat must have been dedicated to the public use "without reservation or restriction whatever." Oregon Laws 1909, ch. 144, § 2. ⁵ However, the validity of the reservation must be determined as of the time it was created in 1907 and the 1909 statute clearly does not purport to apply to plats theretofore recorded and accepted.

Accepting plaintiff's contention that the 1909 statute and its present-day counterpart, ORS 92.090, ⁶ evidence the state's public policy against accepting plats containing reservations like the one here involved, we are not directed to any evidence of such a policy existing in 1907. To the contrary, the fact that the plat was accepted at that time, and the fact that no subsequent legislation has clearly purported to invalidate pre-1909 reservations of this kind, indicate that pre-1909 reservations are not affected by the subsequent legislation.

Plaintiff also relies on ORS 451.550, which gives a water district the power to "(c)onstruct service facilities in and on any public street, highway...