Dayton v. Jordan ( 2020 )

256
Argued and submitted January 4, 2019, affirmed February 12, petition for
review denied May 21, 2020 (366 or 492)
Stephen G. DAYTON
and Carolyn LaVerne Dayton,
Plaintiffs-Appellants,
v.
Randy JORDAN
and Sun Buggy Fun Rentals, Inc.,
Defendants-Respondents.
Coos County Circuit Court
14CV1087; A166490
460 P3d 525
Plaintiffs appeal from a judgment determining that defendants have an
implied easement over a road on plaintiffs’ property. The trial court based
its determination in part on a plat map on which the disputed road appears.
Plaintiffs argue that the trial court erred in rejecting their contention that the
easement is foreclosed by ORS 92.075, which requires that any easement created
by a plat be stated by the declarant in a signed declaration. The plat on which the
trial court relied does not include a declaration of an easement. In the absence of
such a declaration, plaintiff contends, the plat cannot support the existence of an
easement. Held: ORS 92.075 sets forth the legal requirements for establishing a
plat, but does not foreclose the existence of an implied easement. In determining
whether an implied easement exists, a court is not precluded from considering a
plat that does not include the required declaration. The trial court correctly con-
sidered the plat among the factors that led to its conclusion that defendants have
an implied easement over the disputed road.
Affirmed.
Paula M. Bechtold, Judge.
George W. Kelly argued the cause and filed the briefs for
appellants.
William McDaniel argued the cause and filed the brief
for respondents.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
TOOKEY, J.
Affirmed.
Cite as 302 Or App 256 (2020) 257
TOOKEY, J.
This is the third appeal in a dispute over defen-
dants’ use of a road over plaintiffs’ property for access to the
Oregon Dunes National Recreation Area in conjunction with
defendants’ business renting all-terrain vehicles (ATV) for
recreational use. Plaintiffs appeal from a judgment deter-
mining that defendants have an implied easement over the
disputed road, arguing that the trial court erred in reject-
ing plaintiffs’ contention that the easement is foreclosed by
ORS 92.075,1 which requires that any easement created by
a plat be stated by the declarant in a signed declaration.
The appeal presents a question of statutory construction,
which we review for errors of law. State v. Gaines, 346 Or
160, 171-72, 206 P3d 1042 (2009) (questions of statutory con-
struction reviewed for errors of law, first examining the text
and context of the statute and any useful legislative history
to determine the legislature’s intent). We conclude that the
trial court did not err and therefore affirm.
The underlying facts have been described in two
previous opinions, Dayton v. Jordan, 280 Or App 236, 381
P3d 1041 (2016) (Dayton II); Dayton v. Jordan, 279 Or App
737, 381 P3d 1031 (2016) (Dayton I), and the trial court also
made findings, which we summarize here. Plaintiffs and
defendants own adjacent properties in Coos County at the
Oregon coast, to the west of Highway 101 and to the east
of the Oregon Dunes National Recreational Area.2 On their
properties, they operate businesses renting ATVs for recre-
ational use on the sand dunes.
Plaintiffs’ and defendants’ adjacent properties were
once part of a larger common ownership of Pacific Coast
Recreation RV, Inc. Pacific Coast operated an ATV rental
1
ORS 92.075 provides, in pertinent part:
“(1) In order to subdivide or partition any property, the declarant shall
include on the face of the subdivision or partition plat, if a partition plat is
required, a declaration, taken before a notary public or other person autho-
rized by law to administer oaths, stating that the declarant has caused the
subdivision or partition plat to be prepared and the property subdivided or
partitioned in accordance with the provisions of this chapter. Any dedication
of land to public purposes or any public or private easements created, or any
other restriction made, shall be stated in the declaration.”
2
A map of the properties is included as an appendix to this opinion.
258 Dayton v. Jordan
business on the portion of its property that is now owned
by plaintiffs. In 1990, Pacific Coast acquired an easement
appurtenant to all of its property over land to the west
owned by Coos Bay Lumber, for recreational access to
the dunes. The disputed road, which runs in an easterly-
westerly direction along what is now the southern boundary
of plaintiffs’ property, connects the Coos Bay Lumber ease-
ment to Highway 101. Defendants’ only direct access from
their property to the Coos Bay Lumber easement and the
dunes is over the disputed road.3
Pacific Coast first partitioned its property in 1997,
creating Parcel 603, to the south of the disputed road,
toward the dunes and south and west of the parties’ prop-
erties. Parcel 603 had access to the dunes and Highway
101 only over the disputed road, but the partition plat did
not describe an easement over the disputed road. Plaintiffs
concede that Parcel 603 has an easement over the disputed
road.
Pacific Coast made another partition in 1999, cre-
ating two more parcels to the south of the disputed road—
Parcel 606, which now belongs to defendants, and Parcel
607, immediately to the west of Parcel 606, which would
have been landlocked without an easement over the dis-
puted road. At that time, plaintiffs’ parcel, to the north of
the newly created parcels, remained part of Pacific Coast’s
larger undivided property. On a “Notice of Tentative Plat
Approval” for the 1999 plat, the Coos County Planning
Department included this requirement:
“Because there is an existing private road to be used as
access to the proposed parcels the subject parcels must
enjoy non-exclusive easements covering the entire exist-
ing private road being used to access the property being
divided.”
As part of the 1999 partition, Pacific Coast entered into an
agreement with Coos County “To Maintain Right of Way
and Hold Coos County Harmless,” which bound Pacific Coast
and its successors to maintain the disputed road. Plaintiffs
concede that Parcel 607 has an easement over the disputed
3
Defendants can drive approximately one mile on Highway 101 to a different
access point.
Cite as 302 Or App 256 (2020) 259
road; but they dispute that Parcel 606, now owned by defen-
dants and created by the same partition, has an easement
for use of the disputed road.
In 2004, defendants’ immediate predecessor, Endicott,
acquired Parcel 606 from Pacific Coast. The deed described
the property by reference to the 1999 plat. At the time of
sale, Endicott agreed that it would not engage in the busi-
ness of recreational or ATV rentals for a period of 10 years.
In 2005, Pacific Coast further partitioned its prop-
erty, creating plaintiffs’ parcel, Parcel 600, and two other
parcels. The 2005 partition plat depicts the disputed road
running on and forming the southern boundary of Parcel
600. The plat also expressly grants easements over the road
to the three newly created parcels, for ingress and egress to
the sand dunes. In 2008, plaintiffs acquired Parcel 600 and
Pacific Coast’s ATV rental business.
In 2014, defendants acquired Parcel 606 from
Endicott. The 10-year restriction on the use of the property
for recreational or ATV rentals had expired, and defendants
sought to develop the parcel for their ATV rental business.
Plaintiffs brought this quiet title action, seeking to prohibit
defendants’ use of the disputed road for access to the dunes.
Defendants responded with counterclaims seeking to estab-
lish an implied easement to use the disputed road.
Our two prior opinions have described the analysis
for determining the existence of an implied easement. On
remand from Dayton II, the trial court applied that analysis,
going through the factors described in Cheney v. Mueller,
259 Or 108, 118-19, 485 P2d 1218 (1971), for determining the
existence of an implied easement, and concluded that the
evidence established that defendants have an implied ease-
ment for use of the disputed road. In its letter opinion, the
trial court described the factors that it viewed as support-
ing a strong inference that Pacific Coast intended that the
properties subject to partition could use the disputed road:
(1) The disputed road preexisted all of the partitions, and all
of the parcels other than plaintiffs’ and defendants’ (which
abut Highway 101) would have been landlocked without
access to the disputed road; (2) The terms of Pacific Coast’s
conveyance to defendants were by reference to the 1999 plat,
260 Dayton v. Jordan
which showed the disputed road as the northern boundary
of Parcel 606; and (3) The county’s tentative approval of the
1999 partition required that the proposed parcels (includ-
ing Parcel 606) “enjoy non-exclusive easements covering the
entire existing private road.”
The trial court found that the primary attraction
for all of the lots created by the partitions was access to the
dunes. The court also mentioned evidence of the sums paid
by Endicott and defendants for Parcel 606, which the court
considered significant enough to include direct access to the
sand dunes over the disputed road. And the court noted that
Pacific Coast’s acquisition of the Coos Bay Lumber appurte-
nant easement, which extended to all future owners of the
Pacific Coast property, would have been superfluous without
access to the disputed road.
Summarizing its conclusion that defendants had an
implied easement, the court explained:
“The essence of plaintiffs’ position is that of all the prop-
erty formerly owned by Pacific Coast, it is only defendants’
property which does not have an easement to use the road.
However, defendants are not excluded from the Coos Bay
Lumber easement for access to the dunes nor from the obli-
gation to maintain the contested road nor from the county
requirements at the time of plat approval for access though
a non-exclusive easement. There is simply no evidence to
support a finding that Pacific Coast specifically intended
to treat defendants’ property differently than all of the
others.”
(Emphasis in original.)
In reaching its conclusion, the trial court rejected
plaintiffs’ contention that, under ORS 92.075, a declaration
is conclusive, and an easement cannot be implied from a plat
that does not include an easement declaration. The court
explained that, as a statute that relates to the creation of
express easements by plat, ORS 92.075 does not bear on the
court’s determination of the implied easement in this case.
On appeal, plaintiffs raise three assignments.
We write to address only their contention that the trial
court erred in concluding that ORS 92.075 does not bear
Cite as 302 Or App 256 (2020) 261
on the determination whether defendants have an implied
easement.
ORS 92.075(1) provides that, in order to partition a
property, the owner must make a declaration stating that
the declarant has caused the plat to be prepared in accor-
dance with ORS chapter 92.4 ORS 92.075(1) further states
that “any public or private easement created * * * shall be
stated in the declaration.” Plaintiffs contend that the effect
of that provision is that any easement based on a plat must
be express, and that no easement may be implied from a
plat. The 1999 plat contains a declaration by the owners of
the property declaring their intention to make a plat. It also
states that, as a condition for approval of the plat, the own-
ers agree to hold Coos County harmless “for any damage
* * * as a result of the undersigned’s failure to build, improve
or maintain roads in this proposed land division.” But the
declaration does not contain a statement that it creates an
easement. By inference, plaintiffs contend, having failed
to make an express declaration of an easement, the own-
ers must be deemed not to have intended to create an ease-
ment for Parcel 606. Thus, plaintiffs contend, the plat could
not support the existence of an implied easement, and the
trial court therefore erred in considering the plat. The court
further erred, plaintiffs contend, in failing to consider the
absence of a declaration as evidence that no easement was
intended.
We reject plaintiffs’ contention that the trial court
erred. As an initial matter, we note that plaintiffs’ position—
that a plat lacking a declaration of an easement cannot
be evidence of an implied easement—is inconsistent with
plaintiffs’ acknowledgment that Parcels 603 and 607 have
an easement over the disputed road, despite the absence of a
declaration of easement.
Additionally, we conclude that the text of ORS
92.075 is not susceptible to plaintiffs’ construction of it.
The statute sets forth the legal requirements for establish-
ing a plat; it does not foreclose the existence of an implied
4
ORS chapter 92 governs subdivisions and partitions. As defined in ORS
92.010, a “declaration” is “the instrument described in ORS 92.075 by which a
subdivision or partition plat was created.”
262 Dayton v. Jordan
easement. Thus, we agree with the trial court’s rejection of
plaintiffs’ contention that the statute provides the exclusive
means of creating an easement. Certainly, the absence of
the required declaration could be evidence that no easement
exists. And the existence of a declaration describing an
easement could establish the existence of an easement. But
a court is not precluded from considering a plat that does not
include the required declaration in determining whether an
implied easement exists. In fact, the plat is among the evi-
dence that a court should consider in determining whether
an implied easement is created. See Dayton I, 279 Or App
at 752 (a plat not conclusive but is among the evidence to
be considered in determining whether the creator in fact
intended an implied interest). Finally, we reject plaintiffs’
contention that the trial court did not consider it relevant
that the plat does not contain a declaration of an easement.
Contrary to plaintiffs’ contention, the trial court’s thorough
letter opinion shows that the court correctly considered the
plat among the factors that led to its conclusion that defen-
dants have an implied easement over the disputed road.
Affirmed.
Cite as 302 Or App 256 (2020) 263
APPENDIX