Farnsworth v. Meadowland Ranches, Inc. ( 2022 )

814
Argued and submitted May 31, affirmed September 21, 2022
Allen FARNSWORTH
and Stephanie Farnsworth,
Plaintiffs-Respondents,
v.
MEADOWLAND RANCHES, INC.,
an Oregon Corporation et al.,
Defendants,
and
Patrick O. McPURDY
and Rose Marie McPurdy,
Defendants-Appellants.
Harney County Circuit Court
19CV18173; A175091
519 P3d 153
Plaintiffs, the Farnsworths, and defendants, the McPurdys, own neighbor-
ing properties outside Burns. Both properties used to be part of a larger plot
that Meadowland purchased in the 1960s with the intention of subdividing it.
Meadowland partitioned and sold over 1,400 parcels before its administrative
dissolution in 1982, but it never recorded a plat with the county, and the deeds
that it recorded do not reference any map or plat. In both the original 1971 deed
for plaintiffs’ property and the original 1978 deed for defendants’ property,
Meadowland reserved “an easement of forty feet (40 feet) along all boundaries
for public highway use in common with others, with power to dedicate.” In recent
years, a dispute arose between plaintiffs and defendants regarding the use of
a road on the eastern edge of plaintiffs’ property. Plaintiffs brought this quiet-
title action, asserting an exclusive right to use the road, and defendants counter-
claimed, seeking a declaration that they “enjoy a valid easement.” After a bench
trial, the trial court ruled in plaintiffs’ favor. On appeal, defendants contend that
they were legally entitled to judgment in their favor. Held: The trial court did
not err. First, it did not err in concluding that an express easement had not been
proved, because the reservation in the original deeds was an easement in gross,
personal to Meadowland. Second, it did not err in concluding that an implied
public easement had not been proved, given its express and implied factual find-
ings. Third, it did not err in rejecting defendants’ third-party beneficiary theory,
which was premised on the existence of an express or implied public easement.
Finally, it did not err in concluding that an implied public dedication had not
been proved, because Meadowland never recorded a plat or otherwise clearly and
unequivocally manifested to the public an intention to dedicate the entire outer
40 feet of each parcel as public roads.
Affirmed.
W. D. Cramer, Jr., Judge.
Cite as 321 Or App 814 (2022) 815
Dominic M. Carollo argued the cause for appellants. Also
on the briefs was Carollo Law Group.
Shawn E. Logan argued the cause and filed the answer-
ing brief for respondents. Also on the supplemental brief was
Logan & Copple, P.C.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
AOYAGI, J.
Affirmed.
816 Farnsworth v. Meadowland Ranches, Inc.
AOYAGI, J.
This case involves a dispute between neighboring
landowners regarding who may use a gravel road located
on plaintiffs’ property (the Road). Plaintiffs Allen and
Stephanie Farnsworth and defendants Patrick and Rose
McPurdy own neighboring properties. Both properties were
once owned by Meadowland Ranches, Inc. (Meadowland). In
the original deeds conveying them, Meadowland reserved
“an easement of forty feet (40 feet) along all boundaries
for public highway use in common with others, with power
to dedicate.” Plaintiffs brought this action to quiet title
to their property, asserting an exclusive right to use the
Road. Defendants counterclaimed, seeking a declaration
that defendants “enjoy a valid easement” over the Road.1
After a bench trial, the trial court found in plaintiffs’ favor.
Defendants appeal the resulting judgment. For the follow-
ing reasons, we affirm.
I. FACTS
“In reviewing a trial court’s determinations follow-
ing a bench trial, we review the trial court’s explicit and
implicit findings of fact for any evidence in the record to sup-
port them, and the legal consequences of those facts for legal
error.” Pistol Resources, LLC v. McNeely, 312 Or App 627,
629, 496 P3d 28 (2021) (internal quotation marks omitted).
We state the facts, briefly, in accordance with that standard.2
In the early 1960s, Meadowland purchased a large
plot of land outside Burns and planned to develop it.
Meadowland partitioned the property and sold over 1,400
parcels before its administrative dissolution in 1982. Each
deed contained the following reservation:
“Reserving therefrom an easement of forty feet (40 feet)
along all boundaries for public highway use in common with
1
The McPurdys were not the only defendants in the action, but they are the
only defendants who appealed the judgment, so we limit our discussion to the
claims against and by the McPurdys. All references to “defendants” herein are to
the McPurdys.
2
We do not understand defendants to request de novo review, nor would
de novo review be warranted here. See ORS 19.415(3) (allowing discretionary
de novo review in certain types of cases); ORAP 5.40(8)(c) (stating that we will
exercise that discretion “only in exceptional cases”).
Cite as 321 Or App 814 (2022) 817
others, with power to dedicate, and, excepting therefrom all
petroleum, oil, minerals, and products derived therefrom,
within or underlying said land or that may be produced
therefrom and all rights thereto; and further reserving a
right of way, with right of entry upon, over, under, along,
across, and through the said land for the purpose of erect-
ing, constructing, operating, repairing and maintaining
pole lines with cross arms for the transmission of electrical
energy, and for telephone lines, and/or for laying, repairing,
operating and renewing, any pipe line or lines for water,
gas or sewerage, and any conduits for electric or telephone
wires, and/or a right-of-way along, across, and through said
land for the purpose of constructing irrigation and drain-
age ditches or other facilities, and reserving to the Seller the
sole right to convey the rights hereby reserved.”
(Emphases added.)
Despite its plans, Meadowland never recorded a
plat with the county, and the deeds do not reference any map
or plat. A 1963 map titled “Meadowland Ranches Road Map”
was found in Meadowland’s file on the county’s website and
admitted at trial; that map shows a combination of exist-
ing and proposed paved, gravel, and other roads running
through the planned development, some of which exist today.
However, beyond whatever the deeds themselves accomplish,
Meadowland never conveyed any easement rights to anyone,
nor did it formally dedicate any roads. Consequently, as the
trial court put it, “The Meadowland Ranches venture has
left a legacy of confusion, frustration, uncertainty, and in
this instance litigation.”3
The dispute that gave rise to this litigation arose
more than 50 years after Meadowland embarked on its devel-
opment. In 2007, defendants purchased Tax Lot 300 (orig-
inally deeded in 1978), and, in 2009, plaintiffs purchased
Tax Lot 1000 (originally deeded in 1971). The properties are
located outside Burns, in an area south of Highway 20 E,
and both are large parcels (20 or 40 acres). The original
deeds for both properties contain Meadowland’s standard
3
This is not the first time that property owners have looked to the courts
to resolve road access disputes in the Meadowland development. See Williams v.
Harrsch, 297 Or 1, 9, 681 P2d 119 (1984) (holding that the plaintiffs had failed to
prove that they and the public had a prescriptive easement to use a certain road
on land sold by Meadowland).
818 Farnsworth v. Meadowland Ranches, Inc.
reservation provision quoted above. It is undisputed that
both parties took title to their respective properties subject
to that deed reservation.
The parties have not pointed us to any useful map
in the trial court record, nor have we found one, so we must
try to convey the lay of the land in words, based on the trial
testimony. Both plaintiffs’ and defendants’ properties are
located to the south of Highway 20 E. There is a “four-wheel
drive quality” gravel road that turns south off Highway
20 E, which first runs down a property line shared by the
Gosnells (to the west) and Actin Ranch (to the east); then
runs through the eastern edge of plaintiffs’ property (within
40 feet inside plaintiffs’ eastern property line); then runs
through property owned by the Tylers; then runs through
property owned by the Hulls; then enters into tribal land
that is located directly west of defendants’ property. There
is a driveway on defendants’ property that connects to the
gravel road.
The aforementioned road has existed since “as
early as the 1980s, and perhaps sooner.” The local Native
American tribe and others have used it, including as recog-
nized access to the tribal land mentioned above. However,
the county does not recognize it as a road, and the county’s
road historian testified that no road has ever been identified
there on historical surveys. Defendants claim to have used
this road since 2007 to travel between Highway 20 E and
their property, although there was conflicting evidence at
trial, and the court did not make specific findings on that
point. Defendants have alternative access to their property
via better maintained roads, but they testified that the
alternative routes are longer and less convenient than this
road.
In 2019, plaintiffs brought this action to quiet title
to their property and to enjoin defendants from using the
portion of the aforementioned road that runs through their
property, i.e., the Road, which is the only portion of the
aforementioned road that is at issue in this case. Defendants
counterclaimed for declaratory relief, seeking a declaration
that they have an easement to use the Road. At trial, plain-
tiffs argued that, because Meadowland never conveyed any
Cite as 321 Or App 814 (2022) 819
easement that it reserved, or exercised its right to dedicate
a public road, defendants have no right to use the Road to
drive across plaintiffs’ property. In response, defendants
relied primarily on the original 1971 deed for plaintiffs’
property, in which Meadowland reserved “an easement of
forty feet (40 feet) along all boundaries for public highway
use in common with others,” to argue that the general pub-
lic has a right to use the Road, which includes defendants.
Alternatively, defendants asserted a third-party beneficiary
theory, argued for an implied public easement, and argued
that Meadowland implicitly dedicated the Road for public
use.4
After trial, the court found in plaintiffs’ favor. It
declared them to be the owners in fee simple of the property,
free and clear of any claim or interest of defendants; pre-
cluded defendants from asserting any claim or interest in
the property, “including without limitation a claim of ease-
ment, right-of-way, public way, or public road”; quieted title
in plaintiffs’ favor; and denied defendants’ counterclaims.
Defendants appeal.
II. DENIAL OF SUMMARY JUDGMENT
In their first assignment of error, defendants chal-
lenge the denial of their motion for summary judgment. We
do not address the merits of that claim of error because a
trial court’s denial of summary judgment is generally unre-
viewable on appeal, with limited exceptions not applicable
here.
Defendants contend that the exception for a motion
that rests on “purely legal contentions” applies—see York
v. Bailey, 159 Or App 341, 345, 976 P2d 1181, rev den, 329
Or 287 (1999) (“[A]n order denying summary judgment is
not reviewable following a full trial on the merits, unless
the motion rests on ‘purely legal contentions’ that do not
require the establishment of any predicate facts.”)—because
their motion was based on “the text and context of deed
4
Defendants did not claim a prescriptive easement. Nor have they asserted
any application of claim preclusion, issue preclusion, or estoppel, despite includ-
ing in their briefing on appeal several references to a 2006 county land use pro-
ceeding regarding their property and to certain 2014 statements by plaintiffs
regarding the Road.
820 Farnsworth v. Meadowland Ranches, Inc.
reservations” and other “undisputed facts.” That argument
conflates the summary judgment standard with the review-
ability standard.
As explained in York, a motion rests on “purely legal
contentions” when “the facts are not merely undisputed but
immaterial, such as a facial challenge to the constitutional-
ity of a statute.” Id. (internal quotation marks omitted). “In
other words, the legal theory underlying the motion must
be that the moving party has a right to prevail on any set
of facts and that the facts, in effect, do not matter.” Id. at
345-46. Here, as in York, defendants’ motion did not rest
on purely legal contentions, but rather “turned on the sig-
nificance of adjudicative facts (albeit facts that defendant
asserted to be undisputed).” Id. at 346. “[T]he denial of a
motion for summary judgment that is based on facts, even
undisputed facts, is not reviewable.” Staten v. Steel, 222 Or
App 17, 26, 191 P3d 778 (2008), rev den, 345 Or 618 (2009).
The trial court’s denial of defendants’ summary judgment
motion is therefore unreviewable.
III. TRIAL VERDICT ON PLAINTIFFS’
QUIET-TITLE CLAIM
In their second assignment of error, defendants
claim that the trial court erred by quieting title in plaintiffs’
favor after trial. Before turning to the merits, we pause to
address the procedural posture of this case, as relevant to
preservation. See Harrison v. Hall, 211 Or App 697, 701, 156
P3d 141, rev den, 343 Or 159 (2007) (we have an independent
obligation to assess preservation).
In a bench trial, to preserve for appeal a conten-
tion that one was entitled to prevail as a matter of law on a
particular claim, the party who does not bear the burden of
persuasion on that claim must move for directed verdict (or
the like), whereas the party with the burden of persuasion
need not make such a motion. Peiffer v. Hoyt, 339 Or 649,
658, 125 P3d 734 (2005). Here, plaintiffs bore the burden
of persuasion on their quiet-title claim, Day v. Day, 299 Or
App 460, 468, 450 P3d 1 (2019), and defendants did not move
for directed verdict on that claim, so defendants’ assertion
of an entitlement to prevail on the quiet-title claim would
normally be considered unpreserved. However, defendants
Cite as 321 Or App 814 (2022) 821
brought a declaratory judgment counterclaim, and they
bore the burden of persuasion as to the existence of an ease-
ment. Eugene Water & Electric Board v. Miller, 290 Or App
721, 733, 417 P3d 456 (2018) (in a declaratory judgment
action, “the parties bear the same burden of production and
persuasion that they would have in an ordinary action to
enforce rights under an easement,” i.e., the party claiming
an easement bears the burden to establish its existence).
Applying the same principles animating Peiffer, we conclude
that requiring defendants to have moved for directed ver-
dict on plaintiffs’ quiet title claim to preserve their second
assignment of error would “not promote judicial efficiency or
fairness to the parties.” Peiffer, 339 Or at 658. We therefore
conclude that no preservation problem exists, and we pro-
ceed to the merits of the second assignment.
On the merits, we are unpersuaded that the trial
court committed legal error in quieting title in plaintiffs’
favor. To explain why, we address each of the four points of
the court’s reasoning, which correspond to defendants’ argu-
ments for a right to use the Road: express easement for the
public, third-party beneficiary of the deeds, implied public
easement, and implied dedication of a public road.
First, we agree with the trial court that the express
easement for public highways that Meadowland reserved in
the original deed for plaintiffs’ property was “an easement
in gross, personal to Meadowland Ranches.” See Block v.
DEA Properties-2 LLC, 315 Or App 525, 530-31, 501 P3d 545
(2021) (unlike an easement appurtenant, an easement in
gross is personal to the creator, does not run with the land,
and, if it has commercial value, is transferrable separately
from the land itself). In interpreting a deed, “[o]ur objective
is to ascertain the meaning that most likely was intended
by the parties who entered into it.” Connall v. Felton, 225
Or App 266, 271, 201 P3d 219, rev den, 346 Or 257 (2009).
“We look first to the language of the instrument itself and
consider its text in the context of the document as a whole.”
Id. at 272. With respect to easements created by deed, “[t]here
is an extremely strong constructional preference for the
finding of an easement appurtenant rather than in gross[,]”
unless the deed language is “sufficient to override that pref-
erence.” Hall v. Meyer, 270 Or 335, 339, 527 P2d 722 (1974).
822 Farnsworth v. Meadowland Ranches, Inc.
Here, the deed language is sufficient to override
the constructional preference for an easement appurtenant.
Meadowland’s reservation of the “power to dedicate” points
to an easement in gross, as there would be no need to reserve
the power to dedicate if the deed itself effected a public ease-
ment over the outermost 40 feet of the entire perimeter. Even
more telling is the concluding sentence of the reservation pro-
vision, in which Meadowland expressly reserved to itself “the
sole right to convey the rights hereby reserved.” (Emphasis
added.) That is strongly indicative of an easement in gross
personal to Meadowland. Cf. Sunset Lake v. Remington, 45
Or App 973, 976-77, 609 P2d 896 (1980) (concluding that the
person who platted a town in 1907 had intended an easement
in gross, where he reserved to himself and his “associates
and assigns” the “exclusive right” to construct and operate
utility infrastructure). The absence of any mention of neigh-
boring parcels is also consistent with an easement in gross,
see Hall, 270 Or at 339 (concluding that a deed created an
easement appurtenant, not in gross, where it specifically ref-
erenced the grantor’s dwelling, which indicated “the intent
to create it as the dominant estate of an easement appur-
tenant”), although that aspect of the deed language is less
significant here given the allegedly “public” nature of the
easement.
Meadowland’s intention to reserve an easement in
gross, for its own benefit, is further supported by the cir-
cumstances under which the deeds were prepared,5 i.e., in
5
When applying the “three steps” of contract interpretation described in
Yogman v. Parrott, 325 Or 358, 361-65, 937 P2d 1019 (1997), it is important not to
forget the clarification in Batzer Construction, Inc. v. Boyer, 204 Or App 309, 129
P3d 773, rev den, 341 Or 366 (2006) (synthesizing Yogman with Abercrombie v.
Hayden Corp., 320 Or 279, 883 P2d 845 (1994)). On its face, Yogman could be read
to suggest that no extrinsic evidence can be considered at the first step of inter-
pretation, but as explained in Batzer, that would be a misreading of Yogman. 204
Or App at 316-17. At the first step of interpretation, “the trial court can properly
consider the text of the provision in the context of the agreement as a whole and
in light of the circumstances underlying the formation of the contract.” Id. at 317(emphasis added); see also ORS 42.220 (“In construing an instrument, the cir-
cumstances under which it was made, including the situation of the subject and
of the parties, may be shown so that the judge is placed in the position of those
whose language the judge is interpreting.”). Thus, “[i]n determining whether a
term in a deed is ambiguous,” which is the first step of interpretation, “the court
can consider evidence of the circumstances surrounding its execution.” James B.
House Living Trust v. Thompson, 230 Or App 595, 600, 217 P3d 228 (2009).
Cite as 321 Or App 814 (2022) 823
the context of Meadowland’s larger development scheme for
the area. That scheme ultimately did not come to fruition—
insofar as Meadowland never recorded a subdivision plat,
conveyed any easements, or formally dedicated any roads,
before its administrative dissolution in 1982—but its exis-
tence informs what Meadowland intended when it reserved
extensive easements and rights of way 6 on each parcel that
it sold and retained “the sole right to convey” those rights.
On the whole, the trial court did not err in interpreting
the deed language as creating easement rights personal
to Meadowland, to be used in furtherance of Meadowland’s
future development scheme, rather than granting immedi-
ate easement rights to the general public over a significant
portion of the property.
In their reply brief, defendants seek to analogize
their situation to that of the general public in Cal-Neva
Land & Timber Inc. v. United States, 70 F Supp 2d 1151,
1155-56, 1159 (D Or 1999), wherein the Bureau of Land
Management (BLM) had been granted a “perpetual ease-
ment and right-of-way” over private land “for the full use as
a roadway by [BLM], its licensees and permittees,” and the
federal district court concluded that BLM was not wrong to
interpret “licensees and permittees” to include the public, if
BLM chose to allow the public to use the easement. The situ-
ations are not analogous, and we find no persuasive support
in that case for defendants’ argument.
Second, we agree with the trial court’s rejection
of defendants’ “third party beneficiary” theory. See Sisters
of St. Joseph v. Russell, 318 Or 370, 374-75, 867 P2d 1377(1994) (discussing Oregon law on third-party beneficiaries).
Defendants argue that they and other “lot owners like sit-
uated” are “intended third-party beneficiaries of the ease-
ments reserved in both parties’ deeds.” They argue that the
deeds contain an “implied promise” to people buying prop-
erty in the Meadowland subdivision “that the lots they were
buying were benefited by the easements that Meadowland
6
A right-of-way is a type of easement. Cappelli v. Justice, 262 Or 120, 128-29,
496 P2d 209 (1972) (absent special circumstances indicating a contrary meaning,
courts have generally construed “right of way” to signify an easement, as that is
the common usage).
824 Farnsworth v. Meadowland Ranches, Inc.
Ranches reserved in each deed.” That theory is essentially
a hybrid of defendants’ arguments for an express or implied
easement, but with a specific focus on Meadowland property
owners. We have already addressed why the deeds do not
create an express easement for the public—but rather an
easement in gross personal to Meadowland for use in possi-
ble future road dedication—and we will address shortly why
no implied public easement exists.
Defendants have not made a viable argument for an
easement based on third-party beneficiary status indepen-
dent of the existence of an express or implied public ease-
ment. The only case that they cite as substantive support for
their third-party beneficiary argument is Vale Dean Canyon
Homeowners Assoc. v. Dean, 100 Or App 158, 785 P2d 772(1990), which is readily distinguishable. In that case, we
concluded that there was sufficient evidence to survive sum-
mary judgment as to whether the plaintiffs—who had pur-
chased a lot in a platted subdivision—were intended third-
party beneficiaries of a 1981 contract between the developer
and the county, in which the developer promised to build
roads in the subdivision. Id. at 160. That contract had been
required as a condition of plat approval, and the developer
failed to honor it, forcing the lot owners to incur their own
costs to build roads. Id. at 160-61. The plaintiffs sought
to recover damages from the developer for those costs.
Id. at 161. The situation here is not comparable. Defendants
are relying on the deeds themselves, which are already
the subject of their arguments for an express or implied
easement.
Third, relying on the trial court’s express and
implied factual findings, we conclude that the court did not
err in rejecting defendants’ assertion of a public easement
by implication.7 “ ‘Implied easements are disfavored and
must be established by clear and convincing evidence. The
provisions of an instrument relied upon to create an implied
easement are to be strictly construed, with any doubt being
resolved in favor of the free use of the land.’ ” Dayton v.
7
The doctrine of implied dedication is the usual means to claim a right to
public use of private property. For purposes of this appeal, however, we assume,
without deciding that an implied easement for the general public is also possible,
as neither party has significantly briefed that issue.
Cite as 321 Or App 814 (2022) 825
Jordan, 279 Or App 737, 750, 381 P3d 1031 (2016) (Dayton I)
(quoting Bloomfield v. Weakland, 193 Or App 784, 795-96, 92
P3d 749 (2004), aff’d on other grounds, 339 Or 504, 123 P3d
275 (2005)).
An implied easement may be inferred only if the
claimant proves by clear and convincing evidence that,
although the grantor failed to expressly convey an easement,
the grantor intended to create an easement, as evinced by
the circumstances at the time that the parcel was severed or
conveyed. Dayton v. Jordan, 280 Or App 236, 241, 381 P3d
1041 (2016) (Dayton II). For example, in Garrett v. Mueller,
144 Or App 330, 341, 927 P2d 612 (1996), rev den, 324 Or
560 (1997), the plaintiffs proved an implied easement
to take water from a spring on adjacent property, where
the properties were previously a single parcel, there was
50 years of prior use, the wells on the plaintiffs’ property
were completely inadequate, the grantors knew how import-
ant the spring water was to the plaintiffs when they sold the
property, and one of the grantors had promised to provide
an express easement but failed to follow through.
“ ‘The determination of the existence of an implied
easement is inherently factual and involves a weighing of
numerous factors.’ ” Dayton I, 279 Or App at 750 (quoting
Bloomfield, 193 Or App at 795-96). Those factors include:
(1) whether the claimant is the conveyor or the conveyee;
(2) the terms of the conveyance; (3) the consideration given
for the conveyance; (4) whether the claim is made against a
simultaneous conveyee; (5) the extent of the claimant’s need
for the easement; (6) whether there are reciprocal benefits to
the conveyor and the conveyee; (7) the manner in which the
land was used prior to its conveyance; and (8) the extent to
which the prior use was or might have been known to the
parties. Dayton II, 280 Or App at 242; see also Thompson
v. Schuh, 286 Or 201, 212, 593 P2d 1138 (1979) (discussing
each factor). No one factor is controlling. Dayton II, 280 Or
App at 245. Ultimately, “the essential question is whether
a reasonable purchaser would expect the easement under
the circumstances in which he or she purchased the land.”
Eagles Five, LLC v. Lawton, 250 Or App 413, 424, 280 P3d
1017 (2012) (internal quotation marks omitted).
826 Farnsworth v. Meadowland Ranches, Inc.
Defendants do not address the foregoing factors
directly. Instead, they argue in general terms that the deed
language, either alone or in conjunction with the 1963 map,
shows that Meadowland “clearly” intended the properties in
its subdivision “to have access via the 40-foot-wide access
easements for public highway use” and, thus, conclusively
establishes a public easement by implication.8
We disagree with defendants that the trial court
was required to find on these facts that an implied easement
exists over the outermost 40 feet of plaintiffs’ entire property,
including the Road, for use by the general public, including
defendants. The trial court focused on two factors in par-
ticular (which is consistent with how the implied-easement
issue was argued below): the deed language, and the exis-
tence of alternative access to defendants’ property. The deed
language—that is, the terms of the conveyance, Dayton II,
280 Or App at 242 (second factor)—does not support the
existence of an implied easement. As we have explained, the
deed language was intended to create an easement in gross,
personal to Meadowland. That conclusion forecloses the pos-
sibility that, as defendants contend, Meadowland actually
intended, and defendants’ predecessors reasonably would
have understood, the same deed language to create a public
easement by implication in exactly the same location and for
essentially the same purpose.
As for the existence of alternative access to defen-
dant’s property—which goes to the extent of the claimant’s
need for the easement, id. (fifth factor)—defendants failed
to prove that their predecessor needed the easement. The
court expressly found that there are alternative routes to
defendants’ property, which is supported by defendants’
own trial testimony. Defendants largely ignore that finding,
leaving little further to discuss. If defendants’ predeces-
sor lacked legal access to the property—which, as the trial
court expressly recognized, a reasonable buyer would have
8
Defendants also refer to their own expectations before purchasing their
property in 2007. However, the relevant issue is the reasonable expectations of
defendants’ predecessor in 1978, not what defendants believed or expected in
2007. See Eagles Five, 250 Or App at 424-25 (reviewing evidence of the parties’
intent in 1988, when the property was severed and conveyed, as the “central
issue” on an implied easement claim).
Cite as 321 Or App 814 (2022) 827
expected to have9 —defendants failed to prove that fact and,
accordingly, failed to prove the need for the easement as a
factor in their favor.10
Defendants have not identified any other factors
as weighing in favor of an implied easement, but we have
reviewed all of the factors. Ultimately, we cannot say that
the trial court was required to find an implied easement on
this record.
Fourth, the trial court did not err in rejecting defen-
dants’ argument that Meadowland implicitly dedicated the
land where the Road is located as a public road. A dedication
occurs when a property owner appropriates land for public
use. Mid-Valley Resources v. Foxglove Properties, 280 Or App
784, 789, 381 P3d 910 (2016). “For example, a private prop-
erty owner may dedicate land to be used as a public road-
way.” Dayton I, 279 Or App at 746. Common-law dedication
is based on principles of equitable estoppel, may be express
or implied, and “typically arises when members of the pub-
lic rely on a property owner’s representations that land has
been opened up for public use.” Id.“In order to prevail on a theory of implied dedication
defendant must prove that the owner intended ‘to devote his
property to a public use, and this intention must be clearly
and unequivocally manifested by his acts.’ ” Muzzy v. Wilson,
259 Or 512, 518, 487 P2d 875 (1971) (quoting Harris v. City
of St. Helens, 72 Or 377, 388, 143 P 941 (1914)). Such acts
9
Early in its opinion, the trial court noted that people who bought property
from Meadowland would have expected “legal access” to their property, while
also noting that they presumably would not have expected “to give up 40' ease-
ments around the entire perimeter of their property—almost 20% of a 40-acre
parcel.”
10
Relatedly, defendants failed to prove prior use, by their predecessor or the
general public. See Dayton II, 280 Or App at 242 (seventh and eighth factors
relate to prior use); id. at 247 (although it is possible to prove an implied easement
without evidence of prior use, “evidence of prior use is highly relevant”). The court
expressly declined to find that the Road even existed in the 1970s, noting that
the only evidence that it did was the 1963 map, which shows a gravel road where
the Road is located, but which the court viewed as unreliable. Defendants argue
that it is irrelevant whether the Road existed, “because the easements reserved
by Meadowlands exist with or without a road.” It is true that whether the Road
existed in the 1970s is not important to defendants’ arguments, as defendants
have framed them—defendants essentially treat the Road as no different from
the rest of the outermost 40-foot perimeter of plaintiffs’ property.
828 Farnsworth v. Meadowland Ranches, Inc.
must be “open and known” in nature and “of such a char-
acter as to induce the belief that [the owner] intended to
dedicate the way to public use.” Id. at 519. If “the public and
individuals act upon such conduct, and proceed as if in fact
there had been a dedication, and acquire rights which would
be lost if the owner were allowed to reclaim the land, then
the law would not permit [the owner] to assert that there
was no intent to dedicate, no matter what may have been
[the owner’s] secret intent.” Id. (internal quotation marks
omitted).
Defendants argue that it is reasonably inferable
from the deed language, along with the 1963 map, that
Meadowland intended to dedicate the Road for public use.
Although this may be defendants’ strongest argument, the
trial court did not err in finding otherwise. “The burden to
establish an implied common law dedication is a heavy one.”
Mid-Valley Resources, 280 Or App at 792; see also id. at 794
n 3 (recognizing “the enduring line of authority specifying
that a dedication for public use is not presumed,” and citing
cases). Meadowland reserved an easement in gross for itself,
expressly retaining the “power to dedicate” and “the sole
right to convey” the reserved rights. That deed language
strongly suggests that Meadowland contemplated dedicating
appropriate roads in the future, as part of its development
plan, but had not decided where to put them and wanted to
leave its options open. It does not clearly and unequivocally
manifest an intention to dedicate the entire outer 40 feet of
each subdivided parcel as public roads.
The 1963 map does not change that conclusion.
Meadowland never recorded a plat, and the deeds by which
it conveyed the subdivided parcels contain no reference to
the 1963 map or any other map. If either of those things
were different, it might change the result. See Dayton I, 279
Or App at 747-48 (recognizing that a public-use designation
on a recorded plat, or a public-use designation on a plat or
map that is expressly referenced in a deed, is strong evidence
that the platter intended to make a public dedication, albeit
not necessarily dispositive). But the fact is no plat showing
public roads was recorded, and the deeds do not reference
any map showing public roads. The existence of one unre-
corded map in the county’s file is inadequate to establish
Cite as 321 Or App 814 (2022) 829
that Meadowland engaged in “open and known” acts of pub-
lic dedication of the type that would give rise to an implied
dedication—which, as mentioned, sounds in principles of
equitable estoppel between the landowner and the general
public. See Muzzy, 259 Or at 519. The trial court did not err
in rejecting defendants’ implied dedication argument.11
In sum, the trial court did not err in quieting title in
plaintiffs’ favor. We therefore affirm the general judgment.
Affirmed.
11
Because we agree with the trial court’s first basis for rejecting defendants’
implied-dedication argument, we do not address its alternative bases, which
related to (1) the expectations of purchasers to whom Meadowland sold multiple
adjoining parcels for commercial use, and (2) the lack of evidence that the general
public believed the Road to be public. See Muzzy, 259 Or at 522 (use of property by
neighbors does not equate to general public use).