Cullison v. Hotel Seaside, Inc. , 126 Or. 18 ( 1928 )

In Banc. Plaintiffs appeal from an adverse decree in a suit to enjoin the defendant from obstructing a right of way consisting of a strip of land thirty feet wide, lying between the west end of First Avenue in Ocean Grove and the Pacific Ocean.

On July 11, 1883, Geo. K. Grimes laid out, dedicated and duly recorded a plat of the town of Ocean Grove. It is located approximately in the center of lots 2 and 3 of section 21, Tp. 6 N. of R. 10 W. of the W.M., containing 44.33 acres, also in the center of the peninsula on the west side of the Necanicum River, and was bounded on four sides by the property of George K. Grimes. After the dedication Grimes proceeded to place upon the market and sell the lots and blocks in the town of Ocean Grove to various people to be used as summer homes.

Record of deed or contract for conveyance of one parcel with easement affecting another parcel owned by grantor, as constructive notice to subsequent purchaser of latter parcel, see note in 16 A.L.R. 1013.

Ocean Grove consisted of six blocks of four lots each. These blocks were completely surrounded by the lands of Grimes. There was no recognized county road or other public highway on the west side of the Necanicum River. There was a county road on the east side of the river. The only method of ingress and egress to and from the premises located in Ocean Grove was over the privately owned bridge across the Necanicum River belonging to Grimes, and over his lands surrounding the town. Each of the deeds issued by George K. Grimes to the purchasers contained the following covenant:

"Together with the right to use the sea beach in front of the land owned by the grantor for bathing purposes and the right of ingress and egress to and from said lots, and the county road, and the sea beach."

The properties of plaintiffs are located on each side of that certain street in Ocean Grove originally known as "Spruce Street," which was later changed to "First Avenue." The plaintiffs and their predecessors in interest of these lots have, since 1883, used a strip of land described as an extension of First Avenue to the west extending to the low-water mark of the Pacific Ocean, to go to and come from the beach to their respective properties, in accordance with the terms of the easement above mentioned contained in the deeds.

The defendant is the owner by virtue of mesne conveyances from George K. Grimes of a strip of land on the west of Ocean Grove over which the easement in controversy extends on the south portion of which Seaside Hotel is located. The plaintiffs used this right of way until the fall of 1924, when the defendant by its agents attempted to obstruct and barricade it. The plaintiffs immediately tore down the barricade and commenced this suit.

Grimes sold a portion of his acreage on the west of Ocean Grove, which was not platted, describing the same by metes and bounds and in designing the property so sold he left an extension of First Avenue to the west, a distance of 100 feet, and extended First Avenue that distance toward the Pacific Ocean. For a further distance for a time on the south side of the strip of land in controversy, there was a fence constructed for about 40 feet forming a part of the corral on the south of the right of way.

At times there was a temporary or loosely constructed fence at the west end of First Avenue forming an inclosure used by Mr. Moore, who then owned the Hotel Seaside property, for the purpose of keeping a pony and his horses. This would be torn down during the summer season while the way was used during some of the years and at other times a turnstile, or posts, were set so that people could pass between. And at different times Moore posted notices patterned after those of the Southern Pacific Company indicating that the strip was a "Private Way." The notices were soon torn down and were put up again.

For a few years after Ocean Grove was platted there was brush and timber growing on the land west of Ocean Grove and the path used by the pedestrians zigzagged to avoid trees. There was a walk along a portion of the way and a bridge over a small stream with a railing on the sides to keep people from falling off. This way connects at the west end with a promenade parallel with the ocean, constructed with boards, and an incline constructed for pedestrians to cross the same.

The case purely depends upon the construction of the clause in the deeds granting the easement. The defendant contends and the trial court held, as shown by the opinion of the court printed in the brief, that assuming the provision in the deeds of the lots to which plaintiffs granted a private easement over defendant's land, that the complaint calls for a specific tract of land in a definite location which in no way fits the reservation in the deeds. The trial court said:

"As I construe that clause of the deed, it grants the right to the purchaser of the lots, the right to use the proprietor's beach for bathing purposes, a right not available without the proprietor's consent; it also grants the right of ingress and egress to and from the lots by way of the county road and beach."

REVERSED. It will be noticed that the easement granted by the deeds to plaintiffs and their predecessors is couched in general terms and is somewhat ambiguous. Where an easement in land is granted in general terms, without giving definite location and description to it, so that the part of land over which the right is to be exercised cannot be definitely ascertained, the grantee does not thereby acquire a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed. But the location may be subsequently fixed by an express agreement of the parties, or by an implied agreement arising out of the use of a particular way by the grantee and acquiescence on the part of the grantor, provided the way is located within the boundaries of the land over which the right is granted. In other words, it is a familiar rule that when a right of way is granted without defined limits, the practical location and use of such way by the grantee under his deed acquiesced in for a long time, by the grantor, will operate to fix the location, where the intention is not fairly expressed in the terms of the grant controlling the future location: 19 C.J., p. 972, § 213.

It is stated by Mr. Justice McBRIDE in Patterson v.Chambers-Power Co., 81 Or. 328, 341 (159 P. 568), "* * it has always been the law that where there is an indefinite grant of an easement of this character, with nothing to indicate that it may be changed or enlarged in the future, the first location and user fixes the limits of the grant." See, also, Salem C.F. Mills Co. v. Stayton W. D. Co. (C.C.), 33 Fed. 146, 148.

It is shown by the record that the plaintiffs, together with other people camping in the vicinity of Ocean Grove, used the right of way for ingress and egress to and from the lots and the beach without any practical interference, after they purchased the lots until 1924. The plaintiffs pleaded this fact in their complaint and thereby, in effect, assert that the indefinite grant of the easement was fixed by an implied agreement which arose out of the use of the way by the grantees, and the acquiescence on the part of the grantor.

We think it was the intention of the clause referred to in the deeds on the part of Grimes, the grantor, to convey the right of ingress and egress to and from said lots to the county road, and also to the sea beach. The purpose for which the lots were used at this summer resort, and the use made of this right of way, clearly indicate that it was the intention of Grimes and the expectation of the grantees that these people should have the access to the beach from the lots in a convenient direct way. It is an important inducement held out by Grimes to the purchasers of the lots to buy the same. As we understand the record it was then practically the only means of ingress and egress to and from the lots and beach.

At that time there was marked upon the plat what is now known as Ocean Way, extending through Ocean Grove from east to west. In June, 1902, there was executed by six persons, as the heirs of George K. Grimes, an instrument dedicating to Clatsop County a highway from the bridge over Necanicum Creek, thence in different directions and along Pine Street, now known as Ocean Way, thence westward to the low-tide line of the Pacific Ocean. After that Ocean Way was recognized as a county road and some improvements thereon were made. At the time of the execution of the deeds by Grimes to the various purchasers, it does not appear that there was any county road in or near the west portion of Ocean Grove.

If defendant's construction of the clause should prevail the parties living on First Avenue would be required to go east to Second Street, thence south to Ocean Way, thence west, in order to go to the beach. We do not think that such was the intention of any of the parties in interest. If they are granted the "right of ingress and egress, to and from the lots by way of the county road and beach," we fail to see that the granting clause would have much if any force.

It is not claimed by the defendant that the plaintiffs are using, or claiming to use, more land than is necessary for the exercise of the easement granted: See 9 R.C.L., p. 791, § 48.

The easement in question is appurtenant or appendant to the lots conveyed by Grimes, or the dominant estate, and passed with it, as an incident thereof, the land over which the right of way or easement is granted, or servient tenement, is burdened therewith: Washburn on Real Property (3 ed.), p. 340; Washburn on Easements (2 ed.), p. 32, subd. 12.

Purchasers of the lands from Grimes over which he had granted an easement, the deeds to which had been duly recorded, took their title with constructive notice of the grant of the easement: Patterson v. Chambers-Power Co., 81 Or. 328, 341 (159 P. 568).

The majority rule is stated in 16 A.L.R. in an annotation at page 1013, thus:

"The weight of authority is to the effect that if a deed or a contract for the conveyance of one parcel of land, with a covenant or easement affecting another parcel of land owned by the same grantor, is duly recorded, the record is constructive notice to a subsequent purchaser of the latter parcel."

See, also, Holt v. Fleischman, 75 A.D. 593 (78 N.Y. Supp. 647); Lowes v. Carter, 124 Md. 678 (93 A. 216).

The decree of the Circuit Court is reversed and one will be entered in favor of plaintiffs as prayed for in their complaint.

REVERSED AND DECREE ENTERED.