Lute v. Cascadia Tower Inc. ( 2024 )

No. 810 November 14, 2024 155
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Kyle Steven LUTE,
Kari Danielle Lute, Kelle M. Lute,
and Donald Scott Lute, individuals,
Plaintiffs-Appellants,
v.
CASCADIA TOWER INCORPORATED,
an Oregon corporation,
Defendant-Respondent.
Marion County Circuit Court
21CV28190; A178984
J. Channing Bennett, Judge.
Argued November 30, 2023.
Timothy R. Volpert argued the cause for appellants. Also
on the briefs were Tim Volpert, P.C., Paul B. Barton and
Alex Graven.
Stephen Elzinga argued the cause for respondent. Also
on the brief was Sherman, Sherman, Johnnie & Hoyt, LLP.
Before Shorr, Presiding Judge, Pagán, Judge, and
Mooney, Senior Judge.
SHORR, P. J.
Affirmed.
156 Lute v. Cascadia Tower Inc.
SHORR, P. J.
Plaintiffs appeal from the trial court’s general judg-
ment declaring that defendant holds a valid easement over
plaintiffs’ property and declaring the scope of that easement,
and a supplemental judgment granting defendant attorney
fees and costs. In early 2015, defendant owned the property
at issue, which has a cell tower in the southwest corner. In
April 2015, defendant recorded an easement document pur-
porting to grant an easement to itself for installation, con-
struction, and operation of the tower, including a defined
exclusive zone of 2,200 square feet consisting of the actual
tower and the fenced-in area around it with telecommuni-
cations equipment, and a non-exclusive access easement
across the property for ingress and egress to the tower. In
June 2015, defendant sold the property to the Bodtkers, and
continued to maintain the tower. In 2018, the Bodtkers sold
the property to plaintiffs.
The present dispute involves the parties’ disagree-
ment over the existence and terms of the easement, partic-
ularly the extent of defendant’s access for construction and
upgrades to the tower. On the legal issue of whether an
easement existed, the court granted defendant’s motion for
summary judgment, concluding that an easement had been
created by the circumstances surrounding the conveyance
from defendant to the Bodtkers. The court then held a bench
trial on the question of the terms of the easement and issued
a judgment declaring the extent of the parties’ rights. On
appeal, plaintiffs raise four assignments of error, challeng-
ing the trial court’s conclusion that a valid easement exists
and disputing the terms of the easement.1 We conclude that
the trial court did not err and we affirm.
Creation of the Easement. On the parties’ cross-
motions for summary judgment, the trial court resolved the
initial issue of whether an easement had been created at all.
The court granted defendant’s motion for summary judg-
ment and denied plaintiffs’ cross-motion for summary judg-
ment. The court concluded that the original recording of the
1
Plaintiffs’ final assignment of error asserts that, if the easement is found
invalid, the court should have granted plaintiffs’ claim for ejection. Because we
conclude that a valid easement exists, we do not reach that issue.
Cite as 336 Or App 155 (2024) 157
easement in April 2015 was null because defendant owned
the entire plot at the time and could not grant an easement
to itself; however, the court concluded that the terms of the
warranty deed and the circumstances surrounding defen-
dant’s conveyance of the property to the Bodtkers demon-
strated the intent to create the easement. The court reserved
for trial any ruling on the terms of the easement.
Plaintiffs agree that the April 2015 recording was
invalid but argue that the trial court erred in granting defen-
dant’s motion for summary judgment and denying plaintiffs’
motion when it concluded that the transfer from defendant
to the Bodtkers created the easement.2 They assert that the
warranty deed does not reflect an intent to create an ease-
ment on its face, and therefore no easement was created.
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).
Assuming, without deciding, that the April 2015
easement recording was null, we conclude that the trial
court did not err in concluding that the warranty deed from
defendant to the Bodtkers created the easement. In inter-
preting a deed, our objective is to ascertain the meaning
that most likely was intended by the parties who entered
into it. Farnsworth v. Meadowland Ranches, Inc., 321 Or App
814, 821, 519 P3d 153 (2022). That intent may appear on
the face of the deed itself but may also be inferred from the
circumstances surrounding the deed, including through ref-
erence to other recorded documents. See Partney v. Russell,
304 Or App 679, 689, 692-94, 469 P3d 756 (2020). Plaintiffs’
assertion that the deed itself must contain language express-
ing an intent to create the easement is not supported by con-
trolling case law.
2
Generally an order denying a motion for summary judgment is not appeal-
able; however, where cross-motions for summary judgment result in denial of one
motion and the granting of the other, a final judgment is entered that an appeal
may be taken from, and the denial of the cross-motion for summary judgment
may be assigned as error for our review. See, e.g., Martin v. State of Oregon, 331
Or App 225, 226 & n 1, 545 P3d 776 (2024).
158 Lute v. Cascadia Tower Inc.
The deed from defendant to the Bodtkers conveyed
the property “free from encumbrances except as specifically
set forth” therein, cross-referencing “Exhibit A.” Exhibit A
listed a number of items, including the April 2015 recorded
easement document, noting the purpose, recording date,
and record number of that document. As discussed in more
detail below, the April 2015 document set forth the details of
the easement. The deed, when read together with the cross-
referenced recorded easement document, demonstrates the
parties’ intent that the property be conveyed subject to the
cell tower easement.
Terms of the Easement. Following trial, the court
issued an extensive letter opinion and corresponding judg-
ment declaring the terms of the easement. Plaintiffs argue
that the trial court erred in going outside the express terms
of the easement and considering extrinsic evidence in
order to determine the intent and extent of the easement.
Plaintiffs maintain that the easement document unambigu-
ously limits defendant’s use to the 40-foot by 55-foot fenced
area, with access via an established gravel road, and does
not include the right to use any other portion of the property,
run utilities, or use Rocky Way, a private road that provides
access for plaintiffs and nearby landowners to a public road.
Defendant maintains that the trial court correctly found the
easement document to be ambiguous on its face, and there-
fore rightly considered the circumstances surrounding the
easement’s creation in interpreting the terms of the ease-
ment to reflect the intent of the parties that created it.
The interpretation of an easement is a question of
law to be decided by the courts. Cascade v. Georgia-Pacific,
259 Or App 348, 365, 314 P3d 311 (2013), rev den, 355 Or
142 (2014). “In construing an easement, a court’s task is to
discern the nature and scope of the easement’s purpose and
to give effect to that purpose in a practical manner,” look-
ing first “to the words of the easement, viewing them in the
context of the entire document,” and considering the words
of the agreement “in the context of the circumstances under
which it was made[.]” Id. (internal quotation marks and cita-
tions omitted). If the court determines that the provisions
are ambiguous, meaning the instrument can reasonably
Cite as 336 Or App 155 (2024) 159
be understood to have more than one meaning, the court
determines the intent of the original parties by examining
the surrounding circumstances, such as “the purpose and
nature of the easement, the circumstances existing at the
time of the grant or reservation, and the manner in which
the easement was used by the original parties.” Tipperman
v. Tsiatsos, 327 Or 539, 545, 964 P2d 1015 (1998); see also
Olson v. Van Horn, 182 Or App 264, 269-70, 48 P3d 860,
rev den, 334 Or 631 (2002).
We agree with the trial court that the documents
creating the easement are ambiguous as to its terms. The
April 2015 recorded easement granted:
“an exclusive easement over the Easement Area for the sole
purpose of installation, construction, and operation of a
communications facility and to lease space on the Property
to telecommunications tenant(s) and uses associated with
the rights of telecommunications tenants under such leases
and for no other purpose.”
The document went on to state:
“NON-EXCLUSIVE ACCESS EASEMENT. As part of the
consideration for this Agreement, Grantor hereby grants
to Grantee, for so long as this Easement is in effect, a non-
exclusive easement in, to, under and across the Property
adequate to allow ingress and egress to the Easement Area
as outlined in Exhibit [B].”3
Exhibit B, the “Easement Area Description,” sets forth a
metes and bounds description of the Exclusive Easement
Area, the fenced-in portion of the property containing the
tower and other equipment. It also contains a map of the
property and surrounding properties, and contains two red
text boxes, one reading “Easement Area, 40’ x 55’,” point-
ing to the fenced area, and the other reading “Access &
Underground Utilities (non exclusive area),” pointing to a
spot on the improved gravel road. The documents contain no
further description of the extent or location of the easement
for access, what “adequate” means in terms of ingress and
egress, or any details regarding the placement or location
3
The parties agree that the document contains a scrivener’s error, errone-
ously referring to Exhibit “C” when it was intending to refer to Exhibit “B,” which
contains the description and map of the property and easement.
160 Lute v. Cascadia Tower Inc.
of utilities. The parties assert conflicting explanations of
what those documents mean in terms of location and scope
of access, both of which are reasonable. The documents are
subject to more than one reasonable interpretation and, as
the trial court correctly concluded, are ambiguous.
It was thus appropriate for the trial court to con-
sider the circumstances surrounding the creation of the
easement to determine the intent of the original parties and
resolve the ambiguity. Tipperman, 327 Or at 545. Plaintiffs
raise no alternative argument that, even if the court did not
err in considering extrinsic evidence, it erred in finding the
extrinsic facts or reaching the conclusions of law that it did.
Accordingly, we affirm the trial court’s judgment declaring
the rights of the parties with respect to the scope and loca-
tion of the easement.
Plaintiffs additionally assert that the trial court
erred in failing to declare that the easement does not grant
defendant a right of access over the private road Rocky Way.
The trial court declined to answer the question. Plaintiffs’
operative complaint did not seek a declaration of rights
regarding the use of Rocky Way but asked for a declaration
of rights on any easement on their property leading to that
road. The parties that own Rocky Way were not parties to
the proceedings. We conclude that the trial court did not err
in declining to declare rights regarding the use of land that
was not a subject of the easement at issue.
Affirmed.