Vossen v. Forrester

• Decision Date: 05 August 1998
• Citation: 155 Or.App. 323,963 P.2d 157
• Parties: Earl E. VOSSEN, Cleda E. Vossen, Chris Greenup, Susan Greenup, Kenneth C. Snow, Frances E. Snow, and Frank Leichleiter, Respondents, v. Norman M. FORRESTER, trustee for the Norman M. Forrester Trust, Appellant. 951769; CA A96078.
• Court: Oregon Court of Appeals

Page 157

963 P.2d 157

155 Or.App. 323

Earl E. VOSSEN, Cleda E. Vossen, Chris Greenup, Susan Greenup, Kenneth C. Snow, Frances E. Snow, and Frank Leichleiter, Respondents, v. Norman M. FORRESTER, trustee for the Norman M. Forrester Trust, Appellant.

951769; CA A96078.

Court of Appeals of Oregon.

Argued and Submitted May 27, 1998.

Decided Aug. 5, 1998.

Randall P. Sutton, Salem, argued the cause for appellant. With him on the briefs was Saalfeld, Griggs, Gorsuch, Alexander & Emerick, P.C.

Scott Beckstead, Waldport, argued the cause and filed the brief for respondents.

Before RIGGS, P.J., and LANDAU and WOLLHEIM, JJ.

RIGGS, Presiding Judge.

Defendant appeals the trial court's issuance of a mandatory injunction ordering him to remove all encroachments, including his home, from a 16-foot easement in plaintiffs' favor. On de novo review, ORS 19.425(3), we reverse and remand.

Defendant Norman Forrester bought a beachfront lot in Yachats in November 1993, after making inquiries of the city planner about whether a house could be built on the lot and receiving an affirmative answer. A title report on the property disclosed the existence of an easement described only by reference to Book 128, Page 315, Deed Records of Lincoln County, as well as several other easements described with more particularity. A map attached to the title report did not disclose the location of the easement described at Book 128, Page 315, Deed Records of Lincoln County, and defendant's deed made no reference to that easement.

After defendant bought the property, a group called the "Friends of the 804 Trail" asserted that the lot was too small for a house and opposed the issuance of a building permit. ¹ Ultimately, the permit was issued and, in July 1994, while appeals in the above-described litigation were still pending, defendant began excavation in preparation for building his house. At that time, defendant did not have actual knowledge that the easement described in Book 128, Page 315, Deed Records of Lincoln County ran over the north portion of his property in such a manner that the planned house encroached 2.08 feet onto the southern portion of that easement. Defendant believed that the easement described in the title report was an easement over another portion of his lot. The actual easement described in Book 128, Page 315, Deed Records of Lincoln County was not apparent based on a visual inspection of the property.

When defendant started construction in mid-1994, plaintiffs, who own the four properties benefitted by the easement, believed that the house might be encroaching on their easement. Several months before that time, they had observed that defendant had placed a number of other encroachments on the easement, including boulders and trees. They did not attempt to use the easement, however, and did not notify defendant either of the existence of the easement or of their belief that he was encroaching on it. Plaintiffs took no action because they believed that defendant would be ordered to tear down his house as a result of the "Friends of the 804 Trail" litigation.

In April 1995, when the house was substantially completed, plaintiffs filed this action seeking a mandatory injunction requiring defendant to remove the house and the various other obstructions from the easement, as well as a preliminary injunction to prevent defendant from occupying the house. Defendant attempted to settle this case by offering plaintiffs an easement over a different portion of the lot, slightly further to the north, but plaintiffs refused. ²

The trial court granted partial summary judgment in favor of plaintiffs concerning the existence of the easement, and the parties went to trial on whether laches barred plaintiffs' claim and whether the trial court should balance the relative hardships to the parties in determining an appropriate remedy. At trial, the contractor who constructed the house testified that it had a foundation designed to withstand tsunamis, and that due to the nature of the construction, it would not be possible to move the house or to cut off the northern 2.08 feet from the house without harming its structural integrity.

The trial court concluded that defendant "knew or should have known" of the location of the easement, and that the defense of laches therefore did not apply. The trial court further concluded that because defendant "knew or should have known" of the location of the easement, it was precluded from balancing the relative hardships of the parties in determining the appropriate relief. The trial court granted a mandatory injunction requiring defendant to remove the house, as well as the other encroachments, from the easement.

On appeal, defendant asserts that the trial court erred in determining that he was precluded from raising a laches defense and in determining that the court was precluded from balancing the relative hardships to the parties in determining what remedy was appropriate.

We turn first to the question of laches. Where a defendant raises a defense of laches, but the analogous statute of limitations for an action at law has not run, the defendant bears the burden of proving that laches applies. Fontana v. Steenson, 145 Or.App. 229, 232, 929 P.2d 336 (1996). In the present case, the parties agree that defendant bore the burden of proof. Defendant therefore was required to establish the three elements of laches: (1) that plaintiffs delayed in asserting their claim for an unreasonable length of time; (2) that plaintiffs had full knowledge of all of the relevant facts; and (3) that the delay resulted in such substantial prejudice to defendant that it would be inequitable to grant plaintiffs the relief requested. Id., citing Mattson v. Commercial Credit Business Loans, 301 Or. 407, 419, 723 P.2d 996 (1986).

At the outset, we note that plaintiffs do not assert on appeal that the trial court correctly concluded that a laches defense necessarily must fail if a defendant "should have known" of an encroachment on an easement. Rather, plaintiffs assert that laches should not apply because defendant has "unclean hands" because he had actual notice of the easement when the house was constructed--an argument that the trial court rejected and that we also reject as inconsistent with our de novo review of the facts.

In order to determine whether plaintiffs delayed for an unreasonable length of time in bringing this action, we must first determine when plaintiffs had full knowledge of all of the relevant facts. Plaintiffs assert that they did not have full knowledge of all of the relevant facts until they were permitted to conduct a survey of defendant's property after this lawsuit was initiated. Defendant asserts that plaintiffs had full knowledge of all of the relevant facts by the summer of 1994, when they observed the foundation of the house being constructed and suspected that it encroached on their easement.

We agree with defendant that the date from which the laches defense should be measured is mid-1994. Before that time, plaintiffs had observed that defendant had obstructed the easement with boulders, shrubs, and various other items. Plaintiffs saw the location of the foundation of the house, and suspected that the house was on the easement. Plaintiffs did not attempt to survey the property to find out if the house actually was on the easement until April 1995, the same month this litigation was commenced. Plaintiffs chose not to take action until April 1995, not because they lacked knowledge of the relevant facts, but because they hoped that other litigation would force defendant to remove his house. We conclude that plaintiffs were chargeable with full knowledge of all of the relevant facts by mid-1994 at the latest. See Collins v. Rathbun, 43 Or.App. 857, 866, 604 P.2d 441 (1979), rev. den. 288 Or. 701 (1980) ("the period for the application of laches commences when a plaintiff could have, through the exercise of due diligence, become aware or actually did become aware of a threatened violation, whichever comes first"); Nyman v. City of Eugene, 32 Or.App. 307, 320, 574 P.2d 332 (1977), aff'd on other grounds 286 Or. 47, 593 P.2d 515 (1978) (laches will begin to run when plaintiff is chargeable with knowledge that would put a person of ordinary intelligence on notice to inquire).

We next turn to the question of whether plaintiffs delayed for an unreasonable time in bringing this action. Plaintiffs argue that delay to await resolution of other litigation is necessarily excusable, relying on persuasive authority from other jurisdictions. However, the cases they cite are not on point. In Hill v. Hattrem, 172 Cal.Rptr. 806, 117 Cal.App.3d 569, 573 (1981), the court noted that "awaiting determination of a legal issue in another pending case may be excusable." Similarly, in Hoehn v. Crews, 144 F.2d 665, 671 (10th Cir.1944), the court stated that "equity will not consider as laches delay due to a bona fide effort to assert a right at law." While we might find the rule of law announced on those cases persuasive in other circumstances, it does not assist plaintiffs in this case. Here, the "Friends of the 804 Trail" litigation concerned whether defendant could build a house on his lot. It did not concern whether defendant could place encroachments in plaintiffs' easement. Even if the "Friends of the 804 Trail" litigation had been successful, it would not have prevented defendant from encroaching on plaintiffs' easement. Awaiting the outcome of litigation that pertains to an entirely different legal issue and that would not supply plaintiffs with a remedy does not justify a delay in bringing an action.

Although we reject plaintiffs' arguments that the pendency of the "Friends of the 804 Trail" litigation excused their delay, that does not end our inquiry. The question remains whether plaintiffs' delay in bringing this action between July 1994, when they had full knowledge of all of the...