College Inns of America, Inc. v. Cully

460 P.2d 360, 254 Or. 375, 1969 Ore. LEXIS 385

• Court: Oregon Supreme Court
• Decided: November 5, 1969
• Status: Published

Opinion

SLOAN, J.

Plaintiff seeks to restrain defendant from inter fering with plaintiff’s use of an easement over a private street or way in Eugene, designated as Perry Lane. The easement was created by a deed executed by one Bertha A. Dorris in 1945. The easement granted to all of the owners of property abutting on Perry Lane a right to use the lane for vehicular and pedestrian traffic. Both plaintiff and defendant later acquired property abutting on Perry Lane and, of course, acquired the right to use it. Plaintiff acquired other property adjacent to its abutting lot and constructed a large dormitory facility on his entire property. A small part of the dormitory building rests on the Perry Lane property.

The operation of the dormitory has caused Perry Lane to be used by garbage trucks and other heavy equipment to the distress of other easement holders along Perry Lane. All of this traffic passed over Perry Lane to and from the non-dominate property to which the easement is not appurtenant. As a result, defendant blocked plaintiff’s use of the property. Plaintiff filed this suit to restrain her interference with its use. The trial court refused the injunction. Plaintiff appeals.

It is well established law that “a right of way appurtenant to the land conveyed cannot be used by the owner of the dominant tenement to pass to or from other land adjacent to or beyond that to which the easement is appurtenant.” Murphy v. Mart Realty of Brockton, Inc., 1965, 348 Mass 675, 678, 679, 205 NE2d 222 at 225; Gale, Law of Easements (12th ed, 1950), pp 325, 326; 46 ALR2d 461 at 490; Beloit Foundry Co. v. Ryan, 1963, 28 Ill2d 379, 192 NE2d 384; Penn Bowling R. Center v. Hot Shoppes (CCA, DC, 1949), 179 F2d 64, 16 ALR2d 602.

The decree is affirmed.