Home/Oregon Supreme Court/Feldman Et Ux. v. Knapp Et Ux.

Feldman Et Ux. v. Knapp Et Ux.

250 P.2d 92, 196 Or. 453, 1952 Ore. LEXIS 261
CourtOregon Supreme Court
DecidedNovember 6, 1952
StatusPublished
Cited by61 cases

This text of 250 P.2d 92 (Feldman Et Ux. v. Knapp Et Ux.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Feldman Et Ux. v. Knapp Et Ux., 250 P.2d 92, 196 Or. 453, 1952 Ore. LEXIS 261 (Or. 1952).

Opinion

TOOZE, J.

This is a suit to establish the existence of a permanent easement of way across certain lands, and for injunctive relief, brought by Cus L. Feldman and Madeline L. Feldman, husband and wife, as plaintiffs, against Joseph B. Knapp and Helene D. Knapp, husband and wife, as defendants. The trial court entered a decree in favor of plaintiffs as prayed for in their complaint; defendants appeal.

*456 In the year 1925 one W. J. Zimmerman, now deceased, purchased on contract the following described property situated in Dunthorpe:

‘ ‘ Beginning at a point on the center line of Edge-cliff Road on the Westerly boundary of Block 88, said point being southwesterly 0.86 ft. from the northwest corner of said Block 88, thence northeasterly along the said Westerly boundary of blocks 88 and 89 for a distance of 116.00 ft.; thence S. 59° 26' 40" E. 494.43 ft. more or less to an intersection with the easterly boundary of said block 89 at a point 166.47 ft. from the northeast corner of said block 89; thence southwesterly along the easterly boundary of Block 89 and 88 for a distance of 383.85 ft. more or less to a point 99.50 ft. northeasterly from the B. C. on the easterly boundary of block 88; thence N. 28° 54/ 30" W. 512.60 ft. more or less to beginning, containing 2.86 acres more or less; all in Dunthorpe, a townsite in the Counties of Multnomah and Clackamas, State of Oregon, according to the duly recorded maps and plats thereof on file and of record in the office of the County Clerk of Multnomah County, Oregon, in Book 622 of the records of Plats, at pages 3 and 4 thereof, and also on file and of record in the office of the County Clerk of Clackamas County, State of Oregon, in Book 15 of the Records of Plats at page 5 thereof.”

The said W. J. Zimmerman died on November 2, 1926, and his estate was duly admitted to probate in the probate department of the circuit court for Multnomah county, Oregon. At the time of his death he left surviving him as his sole heirs at law his widow, Prances C. Zimmerman, and three sons, William Earl Zimmerman, Wilson Stuart Zimmerman, and Ralph Coburn Zimmerman, all over the age of twenty-one years, and all residing in Portland, Multnomah county, Oregon.

*457 On July 8,1927, the Oregon Iron & Steel Company, an Oregon corporation, as grantor, duly executed and delivered to Frances C. Zimmerman, widow of W. J. Zimmerman; William Earl Zimmerman, Wilson Stuart Zimmerman, and Ralph C. Zimmerman, as grantees, its warranty deed conveying to said grantees title in fee simple to the above-described real premises. On July 18, 1927, William Earl Zimmerman and Hariette E. Zimmerman, his wife; Wilson Stewart Zimmerman and Virginia C. Zimmerman, his wife; and Ralph Co-burn Zimmerman, unmarried; as grantors, duly executed and delivered to Frances C. Zimmerman, as grantee, their bargain and sale deed, conveying to said grantee title in fee simple to the said premises. It follows, therefore, that on July 18, 1927, the said Frances C. Zimmerman, widow of W. J. Zimmerman, deceased, became the sole owner of all of said tract of land.

On July 20, 1927, Frances C. Zimmerman, by bargain and sale deed, conveyed the northerly portion of this tract of land to her son Wilson Stuart Zimmerman. This conveyance represented a wedding gift from the mother to her son. Although at a later time Frances C. Zimmerman again became the owner of this northerly portion of the whole tract of land particularly described above, yet the division of the tract into two parts, occasioned by the conveyance to the son, thereafter caused the original property to be considered as constituting two separate parcels of land.

For the purposes of this opinion, we shall hereafter refer to the northerly tract of land so deeded to Wilson Stuart Zimmerman as the “Knapp tract”, and to the southerly portion as the “Feldman tract.” Upon the trial, there was introduced into evidence a map drawn to scale, showing the location and descriptions of the *458 two tracts. We have caused a portion of that map to be reproduced, making some notations of our own, and have inserted a copy thereof in this opinion. We added the name “Knapp” in connection with the word “residence”, and also the name “Feldman” in connection with the word “residence”. We also caused the word “garage” to be spelled out instead of being abbreviated as it is on the original exhibit.

The record discloses that W. J. Zimmerman purchased the original tract of land as a present to his wife. In 1926, prior to the death of W. J. Zimmerman, husband and wife made their plans to erect a dwelling house on the land for their use as a home. They located the proposed site of the structure and planned the landscaping and the entrance way from Edgecliff road, in the light of such location. The entire tract of land was designed to constitute their home-place. There was then no intention of subdividing the tract. The site decided upon for the dwelling house was that later used by Frances C. Zimmerman in the construction of what is now designated as the Feldman residence.

Also, in 1926, W. J. Zimmerman and his wife took some preliminary steps toward carrying their program into execution. In addition to procuring plans for the dwelling house, they caused certain timber to be cut and removed from the site of the proposed driveway leading from Edgecliff road to the residence. The route selected for such driveway is that upon which it was later constructed as shown upon the attached map.

In 1927, after the death of W. J. Zimmerman, Frances C. Zimmerman decided to carry out the plans agreed upon between herself and her husband in 1926. About the same time she decided to deed a portion *460 of the premises to her son Wilson Stnart Zimmerman, as previously mentioned. It also was decided to build a dwelling on the Knapp tract for the use of Wilson and his wife. Construction of the two houses commenced in the summer of 1927, the work being carried on simultaneously, and both structures were completed in November of that year. No garage was constructed as an adjunct to the Knapp tract. Attached to and as a part of the dwelling house on the Feldman tract, a three-car garage was erected.

*459

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Bluebook (online)
250 P.2d 92, 196 Or. 453, 1952 Ore. LEXIS 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feldman-et-ux-v-knapp-et-ux-or-1952.