Van Natta v. Nys

JurisdictionOregon
PartiesGeorge G. VAN NATTA, Plaintiff-Appellant, v. Donald NYS, Defendant-Respondent, and Walter S. Erickson, Charles D. Erickson and Irving T. Erickson, Intervenors-Respondents.
Citation278 P.2d 163,203 Or. 204
CourtOregon Supreme Court
Decision Date31 December 1954

D. C. Bond, Portland, argued the cause for appellant. With him on the brief was George G. Van Natta, St. Helens, pro se.

Norman B. Kobin, Portland, argued the cause for respondent Nys. With him on the brief was W. J. Prendergast, Jr., Portland.

Leo Levenson, Portland, argued the cause for respondents Erickson. On the brief were Norman B. Kobin and W. J. Prendergast, Jr., Portland.

Before LATOURETTE, C. J., and ROSSMAN, TOOZE and PERRY, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff from a decree of the circuit court which dismissed his complaint.

The subject matter of the controversy is a road of undisclosed length which lies in Columbia county and which the parties term a 'CCC' road. The dispute between them centers in a part of the road which extends from the plaintiff's home on the west to a county road on the east known as the Apiary-Nehalem Valley county road. The distance from the plaintiff's home to the county road is 2.6 miles. A fraction of the westerly part of the disputed section lies upon property which the plaintiff owns, and the easterly 75 yards is upon property which is owned by one Potter. Apart from those two short lengths, all of the rest of the 2.6 mile stretch crosses land owned by the intervenors-respondents. This suit is concerned only with the part of the 2.6 mile section which lies upon the property of the intervenors-respondents. It is about 1.6 miles long. Since the parties term the road a CCC road, we will also use that term.

The plaintiff-appellant is the owner of a tract of land in Columbia county which he devotes to reforestation and cattle grazing purposes. His predecessor in title was the county. The plaintiff contracted in 1940 to purchase the land from the county, and on July 3, 1941, received the deed. The land was a part of an area eight square miles or more in extent which was owned by the county and which completely surrounded the piece which the plaintiff purchased. When the plaintiff made his purchase he built a house upon the part which we have mentioned and has made his home there ever since.

The complaint, referring to the CCC road, alleges:

'In connection with and to the plaintiff's ownership of the premises above described the plaintiff is also the exclusive owner of a sixty foot right of way extending westerly from a point on the Apiary-Nehalem Valley County Road, near the center of Section 22, Township 6 North of Range 3 West of Willamette Meridian, being 30 feet on each side of the center line of presently traveled road, intersecting a 'CCC' road about 75 yards from said County Road and continuing on location of said 'CCC' road to plaintiff's premises above described.'

The last four words, 'plaintiff's premises above described', refer to the west half of the west half of Section 21, Township 6 North of Range 3 West of the Willamette Meridian. The plaintiff's home is in that part. Actually, the 'premises above described' is only a minor part of the plaintiff's land, but since the road, and not the land, is the subject matter of the controversy, the description of the other parts of the land is immaterial.

The defendant-respondent is Donald Nys, a logging contractor, who made use of the aforementioned road prior to the institution of this suit. He did so while logging upon the property of the intervenors-respondents, Walter S., Charles D. and Irving T. Erickson. The property of the Ericksons abuts upon the east the property of the plaintiff, and, like the latter's is principally useful for reforestation and cattle grazing purposes. It contains a stand of timber which Nys, under contract with the Ericksons, has been logging. The operation, which is small, employs one truck and four men. The CCC road stretches along much of the property owned by the Ericksons. For purposes of convenience, we will speak of the plaintiff-appellant as the plaintiff, of the defendant-respondent Nys as the defendant, and of the intervenors-respondents as the Ericksons.

The complaint, as we have seen, alleged that the plaintiff is 'the exclusive owner' of the CCC road. Other averments charged that the defendant Nys.

'has wrongfully and unlawfully claimed and asserted in his own behalf the right to make unrestricted use of plaintiff's easement above described and he has threatened to and will, unless restrained by this Court, take heavily loaded logging trucks and other equipment over said roadway * * *.'

After stating that Nys' operations, unless enjoined, 'will soon have damaged' the road, the complaint prayed for an injunction.

The answer of Nys denied the complaint's averments with the exception that it admitted the plaintiff's ownership of the land. Further parts of the answer alleged that the defendant was logging land owned by the Ericksons and in connection therewith was using parts of the road which lie upon the Ericksons' property. The Ericksons filed a complaint in intervention which alleged their ownership of the land upon which the road was situated, and averred that Nys was conducting his logging operation in their behalf. The pleading prayed for a declaration of rights. The answer to the complaint in intervention admitted that 'intervenors are entitled, as owners of the servient tenement, to make such use of any premises owned by them as does not obstruct or destroy plaintiff's easement, or render the exercise of plaintiff's right unreasonable, difficult or burdensome.'

After the parties had rested, the trial judge rendered a memorandum opinion, from which we take the following:

'From an examination of the record title as disclosed by the deeds offered in evidence and above referred to it is clear that the plaintiff did not acquire any kind of an exclusive right of way by express grant from Columbia County or from anyone else. There is no language in the deeds which could be construed as granting to plaintiff an exclusive right of way.

'It is the opinion of the Court that plaintiff's right to use the road is in the nature of an easement by implication. Whether this easement by implication was created by necessity, prescription or estoppel does not appear important to the determination of this case since plaintiff's right to use the road must be governed by the law relating to the relative rights of the owners of dominant and servient estates.

'The owner of a dominant estate in an easement does not acquire an exclusive right to use the easement to the exclusion of the holder of the servient estate unless given an exclusive use by express grant.

* * *

* * *

'Since the Court is of the opinion that the plaintiff's right to use the roadway is not exclusive the remaining question is, does defendant's use of said road in connection with his logging operation constitute such an unreasonable use or threaten such irreparable damage as would warrant a court of equity in granting injunctive relief. From a consideration of all of the evidence the Court does not believe that injunctive relief should be granted. The evidence shows that the road can be used for log truck travel without irreparable damage. Indeed, the plaintiff himself operated logging trucks over the same road during a portion of the past summer without any great amount of damage to the road. Nor does it appear that any great amount of damage resulted to the road as a result of defendant's operations during the past summer and to the date of this trial. Some wear results from such use to be sure, but it can be repaired. * * *

'Summarizing the Court's view of this case, the plaintiff and the Ericksons, the Intervenors herein, and those in privity with the Intervenors, both have a right to use this road. Each in the use of the road is entitled to a reasonable enjoyment thereof.'

The plaintiff presents these two assignments of error:

'The court erred in denying plaintiff's prayer for a prohibitory injunction against the defendant and intervenors.'

'The court erred in denying plaintiff recovery of compensatory damages.'

When the plaintiff contracted in 1940 with the county to purchase his land, it was completely landlocked, as we have said, with other tracts which the county retained. The area was intercepted by no public roadways, unless the CCC road was of that nature.

The only means in the form of a road or a trial whereby the plaintiff could gain access to and egress from the land which he had purchased was the narrow road which the witnesses termed the CCC road. It was built about 1936 by the federal agency which had its origin in the depression period and which was known as the Civilian Conservation Corps. The youths who constructed the road employed, in large part, the grade of an abandoned logging railroad. However, where the logging railroad had crossed canyons by means of trestles, the road built by the CCC did not restore the trestles but followed the contour of the land. The road was about eight or nine feet wide and was designed for fire protection. Although some parts of it had a rock base, it was principally a dirt road and could not be traveled by vehicles in the winter months.

The deed to the plaintiff, who is a member of the bar, did not mention the CCC road, but the plaintiff swore that when he made his purchase he relied upon the road as his means of ingress and egress.

When the plaintiff built his home upon his newly acquired possession, he began to improve the road. At the outset he was forced to restore some of the surface. Presently he began to spread gravel upon sections of the road. In some of that work he was aided by the county. He has added gravel to the surface from time to time since then. Witnesses described the road as 'fair.' One termed it 'a good country road.'...

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13 cases
  • Bloomfield v. Weakland
    • United States
    • Oregon Court of Appeals
    • December 10, 2008
    ...of conflicting evidence. An injunction is an appropriate remedy for interference with an easement. Van Natta v. Nys and Erickson et al, 203 Or. 204, 227, 278 P.2d 163 (1954), on reh'g, 203 Or. 204, 279 P.2d 657 (1955). We have examined the record and conclude that, considering the duration ......
  • Latham v. Garner
    • United States
    • Idaho Supreme Court
    • January 26, 1983
    ...E.g., Duke v. Pine Crest Homes, Inc., 358 So.2d 148 (Ala.1978); George v. Coombes, 278 Or. 3, 562 P.2d 200 (1977); Van Natta v. Nys, 203 Or. 204, 278 P.2d 163 (1954), overruled on other grounds, Garza v. Grayson, 255 Or. 413, 467 P.2d 960 (1970); Weggeland v. Ujifusa, 14 Utah 2d 364, 384 P.......
  • Moore Mill & Lumber Co. v. Foster
    • United States
    • Oregon Supreme Court
    • April 15, 1959
    ...property of his grantor, in situations akin to those depicted in Rose v. Denn, 188 Or. 1, 212 P.2d 1077, 213 P.2d 810, and Van Natta v. Nys, 203 Or. 204, 278 P.2d 163, 279 P.2d 657, and seeks a way of necessity, his efforts to break through rest upon legal principles different from those th......
  • McDonald v. Bemboom
    • United States
    • Missouri Court of Appeals
    • May 28, 1985
    ...and servient tenements regularly use the private roadway. See: Lindhorst v. Wright, 616 P.2d 450 (Okla.App.1980); Van Natta v. Nys, 203 Or. 204, 278 P.2d 163 (1954), overruled on unrelated grounds in Garza v. Grayson, 255 Or. 413, 467 P.2d 960, 962 (1970); Marsh v. Pullen, 50 Or.App. 405, 6......
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