Tipperman v. Tsiatsos

• Decision Date: 02 October 1998
• Citation: 327 Or. 539,964 P.2d 1015
• Parties: Mark TIPPERMAN, dba McCoy Meadows Ranch, Petitioner on Review, v. William TSIATSOS, Respondent on Review, and State of Oregon, by the Department of Fish and Wildlife, Respondent. CC 93-12-35919; CA A86086; SC S43269.
• Court: Oregon Supreme Court

Page 1015

964 P.2d 1015

327 Or. 539

Mark TIPPERMAN, dba McCoy Meadows Ranch, Petitioner on Review, v. William TSIATSOS, Respondent on Review, and State of Oregon, by the Department of Fish and Wildlife, Respondent.

CC 93-12-35919; CA A86086; SC S43269.

Supreme Court of Oregon.

Argued and Submitted Jan. 14, 1997.

Resubmitted July 27, 1998.

Decided Oct. 2, 1998.

Mark Tipperman, La Grande, argued the cause and filed the briefs in propria persona for Petitioner on review.

Steven J. Joseph, La Grande, argued the cause and filed the brief for Respondent on review.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, DURHAM and LEESON, JJ. ^* CARSON, Chief Justice.

In this action for a declaratory judgment and an injunction against defendant Tsiatsos (defendant), ¹ plaintiff asks this court to modify the trial court's judgment, which construed a deed that reserved an easement favorably for defendant. The Court of Appeals affirmed the trial court's judgment, with one minor modification. Tipperman v. Tsiatsos, 140 Or.App. 282, 915 P.2d 446 (1996). The issues before us concern the proper methodology for construing a deed that reserves an easement and the application of that methodology to the deed at issue in this case. For the reasons that follow, we affirm in part and modify in part the decision of the Court of Appeals.

The Court of Appeals reviewed the trial court's judgment de novo, pursuant to former ORS 19.125(3) (1995), renumbered as ORS 19.415(3) (1997). We accept the facts as found by the Court of Appeals and limit our review to questions of law. ORS 19.415(4). We take the following facts from the Court of Appeals' decision and from other undisputed facts contained in the record.

In 1909, Jeff and Jennie Ayres, defendant's predecessors in interest and the original grantors, conveyed land located in Union County to The Grande Ronde Reservoir Company, plaintiff's predecessor in interest. The deed conveying the land (the Ayres deed) contained the following reservation of an easement:

"Reserving, however, out of the said last described tract of land [175 acres], * * * the right to use the waters of Meadow Creek flowing through the same, for stock water for stock of the grantors and their assigns pasturing on adjacent lands and the right of free access for said stock to said waters over said lands."

There is no evidence in the record that demonstrates how the burdened land was used at the time when the Ayres deed was executed. Nor is there any evidence that demonstrates how the Ayreses used the easement after executing the deed.

Defendant's family purchased the benefitted land in 1929, and defendant became the owner in the 1970s. Defendant's practice has been to feed his livestock hay on the benefitted land in the winter months and to graze them on the benefitted land during the five-month summer grazing season. Defendant's family had followed a similar practice since 1929. Also, from about 1929 to the late 1980s, livestock belonging to defendant or defendant's family had unrestricted, year-round access to all areas of Meadow Creek referred to in the reservation contained in the Ayres deed, by crossing over the burdened land.

From 1986 to 1990, Earle and Dorothy Meisener owned the burdened land now owned by plaintiff. In 1987, they entered into a lease with defendant State of Oregon that authorized the erection of a riparian fence along both sides of Meadow Creek. Defendant was not a party to that lease agreement.

In the spring of 1988, defendant met Earle Meisener (Meisener) and Willie Noll, a representative of the Oregon Department of Fish and Wildlife (ODFW), on the Meiseners' property at Meadow Creek to discuss construction of the riparian fence. Noll had staked out the fence, as well as a water gap in the fence, to allow limited access to the creek. Defendant expressed concern about the width of the water gap, and Noll agreed to widen it. Defendant later contacted Noll and requested additional changes to the gap. Noll told defendant to work out the dispute with Meisener, but defendant did not do so. ODFW completed construction of the riparian fence and water gap in the fall of 1988.

In 1990, plaintiff purchased the land burdened by the easement from the Meiseners. At that time, a fenced corridor ran from defendant's land to the water gap in the riparian fence at Meadow Creek, providing defendant's livestock with a single access route over plaintiff's land to the creek.

In 1991, the original water gap was damaged by a flood. Consequently, in 1992 ODFW modified the riparian fence and water gap, resulting in a wider gap of about 50 feet. About that same time, defendant again complained to ODFW about the width of the gap, asserting that it should be about 300 feet. Also in 1992, defendant complained for the first time to plaintiff about his limited access to Meadow Creek. Defendant never had complained to Meisener about his limited access or the width of the water gap.

In the fall of 1992, ODFW closed off the water gap for the winter months due to icing problems. As a result, defendant's livestock had no access to Meadow Creek over the burdened land during that time.

Defendant continued to complain about his limited access to Meadow Creek and the width of the water gap. The parties were unable to work out a resolution, and this litigation ensued. After a trial on the merits, the trial court entered a judgment that declared, among other things, that the easement at issue "was reserved and exists for the benefit of a livestock operation on the Benefitted Land." The judgment further declared that: (1) with limited exceptions, defendant could water 163 head of livestock year-round at Meadow Creek, albeit not through the fenced riparian area; (2) defendant, at his own expense, could widen the existing water gap to 60 feet; (3) a second corridor fence, running from defendant's land to Meadow Creek over plaintiff's land, and a second water gap must be constructed, to provide defendant's livestock with a second means of access to Meadow Creek; (4) plaintiff and defendant State of Oregon must share equally the cost of constructing the second water gap; and (5) plaintiff alone must bear the cost of constructing and maintaining the second corridor fence, as well as the cost of maintaining the first corridor fence.

Plaintiff appealed to the Court of Appeals. Among other things, he contended that the trial court erred in construing the Ayres deed in favor of defendant, a successor of the original grantors, rather than plaintiff, a successor of the original grantee. The Court of Appeals rejected plaintiff's argument, effectively stating that the reservation contained in the Ayres deed should be construed in favor of the owner of the dominant estate, here, defendant. Tipperman, 140 Or.App. at 290, 915 P.2d 446.

After reviewing the evidence, the Court of Appeals concluded that the trial court had construed the deed correctly and had not erred in ordering the construction of a second corridor fence and water gap. Id. at 289, 915 P.2d 446. The Court of Appeals further concluded, citing ORS 105.175, ² that defendant, not plaintiff, should bear the cost of maintaining--but not constructing--the second corridor fence, as well as the first corridor fence. Id. at 290, 915 P.2d 446. Accordingly, the court remanded the case with instructions to amend the judgment so that defendant would bear the sole responsibility of maintaining both corridor fences, but otherwise affirmed. Plaintiff petitioned for review in this court, and we allowed review.

Plaintiff contends that the Court of Appeals erred when it rejected his argument that the Ayres deed must be construed narrowly against defendant, the grantors' successor in interest. In plaintiff's view, had the trial court and the Court of Appeals applied his construction methodology, they would have been compelled to conclude that the reference in the Ayres deed to "stock * * * pasturing on adjacent lands" (emphasis added) means that only livestock actually grazing on defendant's land could use Meadow Creek for water and, consequently, that nongrazing livestock otherwise being fed on defendant's land are not included in the scope of the easement. For the same reason, plaintiff also contends that the Court of Appeals and the trial court erred in requiring construction of a second corridor fence and water gap. Defendant does not challenge plaintiff's contention that the Court of Appeals applied an erroneous legal standard when it construed the deed, but argues, nonetheless, that we should affirm that court's construction.

Several legal principles govern the proper construction of an instrument creating an easement, whether by reservation or express grant. First, in such cases, "[i]t is the duty of the court to declare the meaning of what is written in the instrument." Minto v. Salem Water Etc. Co., 120 Or. 202, 210, 250 P. 722 (1926). Further, the court will look beyond the wording of the instrument "only where there is an uncertainty or ambiguity." Fendall v. Miller, 99 Or. 610, 619, 196 P. 381 (1921). If the wording at issue is uncertain or ambiguous, then the court must determine the intent of the original parties by examining the relevant surrounding circumstances. Doyle v. Gilbert, 255 Or. 563, 566, 469 P.2d 624 (1970); see also Fendall, 99 Or. at 615, 196 P. 381 ("The extent of an easement is to be determined by a true construction of the grant or reservation by which it is created, aided by any concomitant circumstances which have a legitimate tendency to show the intention of the parties."). Such circumstances include the purpose and nature of the easement, the circumstances existing at the time of the grant or reservation, and the manner in which the easement was used by the original parties. Fendall, 99 Or. at 616, 196 P. 381; see also Beck v. Lane County, 141 Or. 580, 591-92, 18 P.2d 594 (1933) (court looked to circumstances surrounding creation of easement...