Penny v. Burch

941 P.2d 1049, 149 Or. App. 15, 1997 Ore. App. LEXIS 797
CourtCourt of Appeals of Oregon
DecidedJuly 2, 1997
Docket93-01879-CV; CA A91553
StatusPublished
Cited by5 cases

This text of 941 P.2d 1049 (Penny v. Burch) 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
Penny v. Burch, 941 P.2d 1049, 149 Or. App. 15, 1997 Ore. App. LEXIS 797 (Or. Ct. App. 1997).

Opinion

WARREN, P. J.

This case concerns the propriety of the trial court’s grant of summary judgment on plaintiff’s1 claim to a 30-foot easement for a roadway across defendant’s property. Specifically, defendant appeals from a final “judgment-order”2 granting plaintiff an implied easement across the east 30 feet of defendant’s property and permanently enjoining defendant from obstructing or interfering with the use of the easement. We reverse and remand.

The following facts are- undisputed. Plaintiff Penny and defendant Burch are purchasers of two adjoining tracts of land situated on the north side of Highway 140 in Klamath County. The southwest end of plaintiffs parcel borders the northeast end of defendant’s parcel. Each party purchased its parcel from plaintiffs parents, Robert (deceased) and Barbara Penny (the common grantors), who originally owned the property as a single parcel.3 Plaintiff purchased her parcel in 1988 (Penny parcel) and defendant purchased his parcel (the Burch parcel) in 1992. The dispute centers on a 30-foot wide strip of land running the length of the east side of defendant’s property from Highway 140 to plaintiffs property.

Regarding the Penny parcel, in 1980 the common grantors transferred the property to Dudgeon (an intermediate holder of the property) by warranty deed while retaining the balance of the property at issue here. The deed contained an express grant of an easement over the east 30 feet of the retained property for the benefit of the property sold to Dudgeon. Dudgeon executed a bargain and sale deed reconveying the property to the grantors in 1988. The grantors then conveyed the parcel to the plaintiff here, their son, [18]*18Patrick (deceased), and his wife, Roxanna, by way of a bargain and sale deed. That deed did not refer to any easement across the retained property. Plaintiff maintains her family home on the property.

In 1992, the grantors conveyed the retained property to defendant by warranty deed. They did not expressly reserve an easement over the east 30 feet of the property in the conveyance to Burch. The deed to Burch did, however, provide that the property was “free from all encumbrances except those of record and those apparent upon the land, if any, as of the date of this deed.”

In May 1993, Burch blocked access to plaintiffs claimed roadway easement by parking a school bus and a truck across it. Following that incident, plaintiff brought this action alleging, inter alia, that she was entitled to an easement across Burch’s property and a permanent injunction enjoining him from interfering with or obstructing her access to it.

Before trial, plaintiff moved for partial summary judgment, claiming entitlement to an easement across Burch’s property under three theories. Under the theory of easement by implication, plaintiff argued that direct evidence of the grantors’ intent and the circumstances at the time of the conveyance of the parcel to her establish the creation of an implied easement as a matter of law. Burch countered that summary judgment was not appropriate because the circumstances at the time of the sale raise a genuine issue of material fact about whether the grantors intended to create an easement across his property. The trial court granted plaintiffs motion to recognize the easement after giving “great weight” to the manner in which the land was used before the conveyance and the extent to which the manner of prior use was or might have been known to the parties. Later, after a trial, the court granted plaintiffs request for a permanent injunction against defendant and entered final judgment. This appeal followed.

On appeal, Burch assigns error to both rulings. We turn first to the propriety of the trial court’s grant of summary judgment.

[19]*19 An implied easement may arise when the owner of land held under one title conveys part of the land to another:

“If there was a previous apparent and permanent use of the land that is important for the enjoyment of the parcel that the common owner sold, the courts may imply that the purchaser received an easement, measured by the pre-existing use, over the parcel that the common owner retained. Although there are many factors to consider, the essential question is whether a reasonable purchaser would be justified in expecting the easement under the circumstances in which he or she purchased the land. There must be a reason for assuming that a right to continue using the quasi-easement is part of the bargain.” Garrett v. Mueller, 144 Or App 330, 341, 927 P2d 612 (1996), rev den 324 Or 560 (1997).

In Rose et ux v. Denn et ux, 188 Or 1, 19, 212 P2d 1077, 213 P2d 810 (1950), the court referred to a number of factors from Restatement of Property § 476 (1944) to consider in deciding whether an easement should be implied. Those factors include the claimant’s need for the easement, the manner in which the land was used before its conveyance, and the extent to which the manner of prior use was or might have been known to the parties. However, those factors do not have fixed values, see Cheney v. Mueller, 259 Or 108, 113, 485 P2d 1218 (1971), but merely aid in determining whether an easement should be implied. Dressier et al v. Isaacs et al, 217 Or 586, 598, 343 P2d 714 (1959).

Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 139 Or App 244, 911 P2d 1243 (1996), affd 325 Or 404, 939 P2d 608 (1997).

The summary judgment record before us consists of the affidavits of Barbara and Roxanna Penny4 and Robert Burch and the numerous deeds tracing the chain of title in the two properties back to the common ownership of the property by the grantors. There is evidence (1) that the grantors [20]*20knew how to reserve an express easement, as they did when they conveyed the plaintiff’s parcel to Dudgeon, (2) that there is alternate access to the plaintiffs parcel, (3) of the prior use of the disputed area for access to plaintiffs parcel, and (4) that the deed the grantors used to convey the property to Burch provided that his parcel was burdened by those encumbrances “apparent upon the land.”

First, plaintiffs deed does not provide an express reservation of an easement across the Burch parcel. In fact, of all of the conveyances of the two properties, only the grantors’ conveyance to Dudgeon expressly includes “an easement over the East 30’ of [the Burch parcel].” It follows that the grantors knew how to reserve an easement across the Burch property but did not do so in conveying the property to plaintiff.

Second, the record shows that plaintiffs parcel is accessible by alternate routes.5 Plaintiff, however, is not required to show an absolute necessity for an implied easement. Jack v. Hunt et ux, 200 Or 263, 269, 264 P2d 461, 265 P2d 251 (1954).

Third, as far as the record shows, the only evidence of the prior use of the claimed easement goes to the incident in which Burch blocked plaintiffs access to her property by parking a school bus in her path. All that evidence establishes is that plaintiff, at least to some extent, gained access to her property by crossing Burch’s property. That evidence, however, does not materially aid our inquiry here.

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Bluebook (online)
941 P.2d 1049, 149 Or. App. 15, 1997 Ore. App. LEXIS 797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penny-v-burch-orctapp-1997.