Wright v. Transamerica Title Insurance , 52 Or. App. 641 ( 1981 )

VAN HOOMISSEN, J.,

Plaintiff appeals the entry of summary judgment in favor of defendant in this contract action for damages under a title insurance policy. We review the record in the light most favorable to the plaintiff and find that summary judgment should not have been allowed. ORCP 47(C); Yartzoff v. Democrat-Herald Publishing Co., 281 Or 651, 655, 576 P2d 356 (1978). We therefore reverse and remand.

Plaintiff purchased real property in Coos Comity, title to which was insured by defendant. Included in the title insurance policy was the following legal description:

"A parcel of land in the NW and SW quarters of the SE quarter of Section 35, Township 25 South, Range 12 West of the Willamette Meridian, Coos County, Oregon, more particularly described as follows: Beginning at a point which is South 53 degrees 52’ West 230feet to a 5/8” iron rod located on the NW bank of Daniels Creek and which rod is 1241 feet North and 3041.17 feet East of the SW comer of said Section 35, thence South 53 degrees 52’ West 230 feet to said rod, thence upstream along the center of Daniels Creek to a point which is South 53 degrees 52’ West 230 feet of said rod, thence South 62 degrees East to the Eastern boundary of said SW quarter of the SE quarter of Section 35, thence North along said boundary to a point that bears South 62 degrees East from said iron rod, thence further North along said boundary to a point that bears South 62 degrees East from the point of beginning, thence North 62 degrees West to the point of beginning.” (Emphasis supplied. )

Both parties argue that this legal description is unambiguous. They nevertheless reach opposite conclusions as to what the description means. Plaintiff claims that "South 53 degrees 52’ West 230 feet to a 5/8” rod” means that the starting point of the description is 230 feet northeast of the rod. If plaintiff is correct, this would include 8.48 acres to which plaintiff did not receive good title, that acreage being owned by a third person not a party to this action. Plaintiff contends that defendant is liable for his "loss” of that acreage. Defendant claims that "to the rod” means "in relation to” or "from” the rod and that the starting point is 230 feet southwest of the rod. If defendant is correct, the 8.48 acres are not included in the legal description and thus are not covered by the title insurance policy.

The trial court found the legal description was ambiguous, yet found that a reasonable interpretation did not include the 8.48 acres in dispute. In Timberline Equip. v. St. Paul Fire and Mar. Ins., 281 Or 639, 643, 576 P2d 1244 (1978), the Supreme Court said:

"As a general rule the construction of a contract, including an insurance contract, is a question of law. May v. Chicago Insurance Co., 260 Or 285, 292-94, 490 P2d 150 (1971). The exception to this rule is that if the language of the contract is ambiguous, or if technical words, local phrases or terms of art are used and evidence is properly admitted showing meaning, the question becomes one of fact. Libby Creek Logging, Inc. v. Johnson, 225 Or 336, 339, 358 P2d 491 (1960).”

We agree with the trial court that the legal description of the property is ambiguous. The question, therefore, is one of disputed fact, and it was error for the trial court to grant summary judgment.

Reversed and remanded.