Brewer v. Fritz ( 2023 )

117
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted May 10, affirmed July 12, 2023
Barbie BREWER,
an individual,
Plaintiff-Respondent,
v.
Rene E. FRITZ
and Sharyn A. Fritz,
individually and as Trustees of
the Rene E. Fritz and Sharyn A. Fritz
Revocable Living Trust,
Defendants-Appellants.
Deschutes County Circuit Court
20CV46083; A177265
Bethany P. Flint, Judge.
W. Michael Gillette argued the cause for appellants.
Also on the briefs were Sara Kobak, Craig G. Russillo and
Schwabe, Williamson & Wyatt, P. C.
Michael H. McGean argued the cause for respondent.
Also on the brief was Francis Hansen & Martin LLP.
Before Powers, Presiding Judge, and Hellman, Judge,
and Armstrong, Senior Judge.
HELLMAN, J.
Affirmed.
118 Brewer v. Fritz
HELLMAN, J.
This appeal concerns a mutual easement agreement
that grants the parties the right to use the landing and dock
located between their properties (“the dock”). Defendants
appeal a limited judgment entered in the case. In their
two assignments of error, defendants argue that the trial
court erred by denying defendants’ motion for summary
judgment on their counterclaims for breach of the easement
agreement and declaratory relief and by granting plaintiff’s
cross-motion for summary judgment on those claims. For
the following reasons, we affirm.
When reviewing cross-motions for summary judg-
ment, “we view the record for each motion in the light most
favorable to the party opposing it to determine whether there
is a genuine issue of material fact and, if not, whether either
party is entitled to judgment as a matter of law.” O’Kain v.
Landress, 299 Or App 417, 419, 450 P3d 508 (2019).
In a combined argument, defendants argue that
the trial court erred in concluding that the easement agree-
ment allowed plaintiff’s short-term renters to use the dock.
Specifically, defendants contend that the agreement’s text
and the evidence concerning its formation demonstrate that
the original owners intended to restrict the dock to “per-
sonal or private use by the owners and their social guests or
invitees connected with such private use.” Plaintiff responds
that the easement agreement does not prohibit renters from
using the dock. We agree with plaintiff.
“The interpretation of an express easement, like that
of contracts and other written instruments, is a question of
law for the court.” Kell v. Oppenlander, 154 Or App 422, 426,
961 P2d 861 (1998). “[O]ur task is to discern the nature and
scope of the easement’s purpose and to give effect to that
purpose in a practical manner.” Bloomfield v. Weakland, 224
Or App 433, 446-47, 199 P3d 318 (2008), rev den, 346 Or 115(2009); see also Senko v. Liu, 316 Or App 795, 800, 503 P3d
494, rev den, 369 Or 785 (2022) (“The analysis closely paral-
lels the analysis applied in the construction of a contract.”).
Interpreting the agreement’s words in the context of
the entire document and the circumstances of its execution,
Nonprecedential Memo Op: 327 Or App 117 (2023) 119
we conclude that the agreement is unambiguously silent as
to any prohibition on short-term renters and does not pro-
hibit plaintiff’s renters from using the dock. See Tressel v.
Williams, 291 Or App 215, 222, 420 P3d 31 (2018) (explain-
ing that an easement holder’s rights are limited by general
reasonableness principles, express written restrictions, and
extrinsic evidence showing that “the original parties to the
easement intended some further restriction of the parties’
rights” (quoting Watson v. Banducci, 158 Or App 223, 230,
973 P2d 395 (1999))).
We begin with “the language of the instrument
itself and consider its text in the context of the document as
a whole. If the text’s meaning is unambiguous, the analysis
ends, and we interpret the provision’s meaning as a matter
of law.” Bloomfield, 224 Or App at 447. Here, defendants cen-
ter their arguments on the term “private use” which appears
in the second sentence of the disputed paragraph:
“Each Owner shall endeavor to cooperate with the other
to respect each Owner’s personal use of the landing and
dock and to coordinate such use as to not inconvenience the
other Owner as to excess noise and general raucous behav-
ior by each Owner and their guests. It is agreed that the
landing and dock will be for private use only and members
of the general public shall be prohibited.”
The plain meaning of “private” is “intended for or
restricted to the use of a particular person or group or class
of persons” while the relevant meaning of “public” is “the
people as a whole[.]” Webster’s Third New Int’l Dictionary
1804, 1836 (unabridged ed 2002); see also Black’s Law
Dictionary 1264 (8th ed 2004) (defining “public” as “[t]he peo-
ple of a nation or community as a whole”). Thus, when read
in context, the second sentence is best described as a pur-
pose clause that limits the dock’s use to particular classes of
people and, conversely, excludes the community as a whole.
Although the first sentence provides that each owner will
respect the other’s “personal use” and discourages certain
conduct “by each Owner and their guests,” the first sentence
does not define “private use” in the second sentence.
Even when we consider a declaration from one of the
original dock owners concerning the easement’s formation
120 Brewer v. Fritz
to determine whether the easement is ambiguous, that evi-
dence indicates that the original owners did not discuss any
prohibitions on their renters using the dock. See Bloomfield,
224 Or App at 447 (“To determine whether a provision in
a document is ambiguous, the court can consider evidence
of the circumstances surrounding its execution.”). Although
the declaration states that the original dock owners were
concerned about another neighbor’s short-term renters using
the original dock owners’ properties to access the river, they
“never intended nor discussed the ability of either owner to
have short-term renters use the dock or landing.” Because
the declaration demonstrates that the original owners did
not manifest an intention to prohibit their own renters from
using the dock when they formed the agreement, it fails to
create any ambiguity as to the agreement’s meaning. See
Ken Hood Construction v. Pacific Coast Construction, 201
Or App 568, 578, 120 P3d 6 (2005), adh’d to as modified on
recons, 203 Or App 768, 126 P3d 1254, rev den, 341 Or 366(2006) (explaining that under the objective theory of con-
tracts, “we examine the parties’ objective manifestations of
intent, as evidenced by their communications and acts”).
Finally, even though the agreement expressly grants
each owner the right to transfer and assign the easement,
defendants contend that property owners cannot “circum-
vent” the agreement’s use restrictions by transferring
or assigning the easement to renters. We disagree. As
explained above, the agreement does not restrict the dock’s
use to owners and their social guests and, importantly, the
agreement created an appurtenant easement that runs
with the land for the benefit of owners and their lessees.
See Restatement (Third) of Property (Servitudes) § 5.2 (2000)
(“Except as otherwise provided by the terms of the servitude
* * * an appurtenant benefit or burden runs to all subse-
quent owners and possessors of the benefited and burdened
property, including a lessee * * *.”); Restatement (First) of
Property § 487 comment h (1944) (explaining that a valid
lease “entitles the lessee to the possession of the land and
possession taken under the lease entitles the possessor to
the benefit of the easements appurtenant to the land”).
In view of the foregoing, we conclude that the trial
court did not err in determining that there was no genuine
Nonprecedential Memo Op: 327 Or App 117 (2023) 121
issue of material fact as to the meaning of the easement
agreement and denying defendants’ motion for summary
judgment on their counterclaims. For the same reasons, we
also conclude that the trial court did not err in granting
summary judgment to plaintiff on those claims.
Affirmed.