Marshall v. Cannady

423 P.3d 143, 291 Or. App. 802
CourtCourt of Appeals of Oregon
DecidedMay 16, 2018
DocketA160616
StatusPublished
Cited by1 cases

This text of 423 P.3d 143 (Marshall v. Cannady) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall v. Cannady, 423 P.3d 143, 291 Or. App. 802 (Or. Ct. App. 2018).

Opinion

SHORR, J.

*804Defendants appeal a judgment granting plaintiffs prescriptive and implied easements over a road that crosses defendants' property.1 Defendants assert four assignments of error. We write to address only the first three: (1) that the trial court erred in concluding that the evidence was sufficient as a matter of law to satisfy the notorious-use element of a prescriptive easement; (2) that the trial court erred in concluding that the evidence was sufficient as a matter of law to satisfy the adverse-use element of a prescriptive easement; and (3) that the trial court erred in its interpretation and application of the factors set forth in Cheney v. Mueller , 259 Or. 108, 485 P.2d 1218 (1971) (the Cheney factors), when granting plaintiffs easements by implication.2 We conclude that defendants' first two assignments of error are unpreserved and the arguments that they advance in support of their third assignment of error are either not properly before us or are unavailing. Accordingly, we affirm.

Plaintiffs are land owners who own parcels adjacent to defendants' property. Plaintiffs and their predecessors in interest as well as defendants and their predecessors in interest have used a private road, referred to by the parties as the "Jones Road," as the primary access to their properties for decades. Initially, the Jones Road ran completely over property owned by plaintiff Neale's predecessor in interest, then ran along the property line dividing the Neale property with property that is now owned by defendants, then crossed plaintiffs Marshalls' property before running along the property line dividing the Marshalls' property with defendants' property. Beginning in the 1990s, defendants began the process of acquiring all of the land on the east and south sides of the property lines that the Jones Road follows. That process ended in 2006.

Around 2006, defendant Cannady began locking a gate on the Jones Road to restrict plaintiffs' and the public's *805access. In 2009, Cannady built a fence down the middle of the first quarter mile of the Jones Road and removed a cattle guard in the road just south of that fence, effectively making the road impassable. This suit followed.

Plaintiffs sued defendants, seeking an easement over the portions of the Jones Road that cross defendants' property. Specifically, *145the Marshalls sought a prescriptive easement over the portions of the Jones Road on defendants' property that cross property that the Marshalls have never owned and an easement by implication over the portion of the road that crosses portions of defendants' property that was conveyed to defendants by the Marshalls. Neale sought an easement by implication over the portion of the Jones Road that crosses property conveyed to defendants by Neale's predecessor in interest.

A bench trial was held on those claims. Because this appeal largely turns on whether defendants preserved before the trial court the arguments that they now make on appeal, we discuss defendants' arguments before the trial court in some detail.

Defendants first addressed plaintiffs' easement-by-implication claims in their trial memorandum. In that memorandum, defendants argued that the evidence indicated that all of the Cheney factors weighed in favor of not granting an easement when considering the Marshalls' easement-by-implication claim. However, defendants did not argue that the evidence would be insufficient as a matter of law to rule in favor of the Marshalls on any of those factors. Further, defendants did not specifically discuss how the Cheney factors related to Neale's easement-by-implication claim. Instead, defendants merely adopted their arguments regarding the Marshalls' claim.

In their closing argument, defendants' counsel also addressed the easement-by-implication claims. Regarding Neale's claim, counsel argued that the evidence was insufficient as a matter of law to grant an easement because there was no direct evidence as to "what was in [Neale's predecessor-in-interest's] mind" when he sold his land to defendants, other than the fact that "he made no effort to reserve an express easement" and all that he knew of Neale's *806property was that "there[ ] [was] no evidence that there was any economic use of that land being put" at the time of the sale. However, counsel did not make a similar sufficiency of the evidence challenge to the Marshalls' claim.

Further, regarding both easement-by-implication claims, defendants' counsel did not argue in his closing statement that the evidence was insufficient as a matter of law to support a finding for plaintiffs on any of the Cheney factors. In fact, counsel barely referenced the Cheney factors in his argument.

Defendants also argued in their trial memorandum and at closing argument that the Marshalls' claim for a prescriptive easement should be denied. However, those arguments were all framed in terms of the weight, not the sufficiency, of the evidence.

Approximately two months after the trial, the trial court filed a letter opinion in which it granted the Marshalls a prescriptive easement over the portion of defendants' property encumbered by the Jones Road. In that letter, the court also granted Neale an easement by implication over the portion of the Jones Road located on defendants' property where the road runs along the property line dividing Neale's and defendants' property. Two weeks after that letter opinion was filed, and approximately two and a half months after the trial, defendants filed a request that the trial court make special findings of fact. Defendants did not request that the court make explicit findings on each element of the prescriptive-easement claim or each factor of the easement-by-implication claims.3

The trial court responded to defendants' request for findings with a second letter opinion approximately three months later, in which it refused to make a majority of defendants' requested findings and made some findings requested by plaintiffs. In that second letter opinion, the court also explicitly granted the Marshalls an easement by *807implication, noting only that "the case for an easement is even stronger than for plaintiff Neale on this portion of the road," without providing much more elaboration.

Approximately two months later-and approximately five months after the original letter opinion was filed and over seven *146months after the close of trial-defendants filed an objection to plaintiffs' proposed limited judgment, in which, for the first time, they raised the issue of the legal sufficiency of the evidence regarding the prescriptive-easement claim and challenged the lack of specific findings of fact and conclusions of law regarding the easement-by-implication claims.

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Cite This Page — Counsel Stack

Bluebook (online)
423 P.3d 143, 291 Or. App. 802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-cannady-orctapp-2018.