Schoeneman v. Meyer

715 P.2d 100, 78 Or. App. 89

• Court: Court of Appeals of Oregon
• Decided: February 26, 1986
• Docket: 83-1191; CA A34300
• Status: Published

Opinions

WARREN, J.

This is a declaratory judgment action in which plaintiffsj the Schoenemans, seek a declaration of their rights and those of defendants in a gateway established in 1978 as a statutory way of necessity pursuant to former ORS 376.105 et seq¹ (repealed by Or Laws 1979, ch 862, § 12). The gateway² served defendants Sorensen’s landlocked property and ran across defendants Meyer’s and the Schoenemans’ properties. In addition, plaintiffs seek to enjoin the Sorensens from expanding the use of the gateway to serve additional residences to be constructed on their subdivided property and to enjoin the Meyers from using that portion of the gateway which ran over plaintiffs’ property for access to the Meyers’ farm property adjacent to the gateway. Plaintiffs also seek damages from the Meyers for trespass.

The trial court entered a default judgment against the Sorensens for their failure to appear. The court later granted the Sorensens relief from the default judgment on the ground of excusable neglect or mistake, ORCP 71B(l)(a), on the basis of their affidavit that they thought a separate proceeding to subdivide the property would resolve the issue. All defendants moved for summary judgment. The trial court granted defendants’ motions and entered final judgment against plaintiffs. On appeal, plaintiffs challenge the court’s orders granting the Sorensens relief from the default and granting defendants summary judgment.

The court acted properly within its discretion to order relief from the default judgment. Even if ordering relief from default had been improper, that is immaterial because, as a matter of law, plaintiffs are not entitled to have their rights declared as they contend.

A statutory way of necessity must be open to the public for the use of all who desire to use it. Chapman v. Perron, 69 Or App 445, 448, 685 P2d 492 (1984); Aylett v. Mardis, supra, n 2, 212 (1982). The Supreme Court has held that a statute authorizing the creation of a way of necessity not open to the public would be invalid as providing for an unconstitutional governmental taking of property for private use. Towns v. Klamath County, 33 Or 225, 232-33, 53 P 604 (1898). Under Aylett v. Mardis, supra, 59 Or App at 116, any way of necessity created under former ORS 376.105 et seq, whether a public road or a gateway, may be used for access to residences and farms. See n 2, supra. The Sorensens were clearly entitled to expand the use of the way of necessity to serve additional residences on their property. Aylett v. Mardis, supra, 59 Or App at 116. The Meyers, as members of the public and abutting landowners, were also clearly entitled to use the way of necessity established over the Schoenemans’ property to serve their farm.

The dissent claims that the Meyers’right to use the statutory way of necessity for access to their farm is somehow more limited than the right of the public to use any other public way. We know of no statutory or common law basis for such a distinction. The order creating the way of necessity at issue in this case stated “that the Way of Necessity shall be a perpetual right-of-way and referred to as a Gateway, and that the granting of the Way of Necessity shall not create a County Road or Public Useage [sic] Road.” Plaintiffs contend that by creating a gateway and perpetual right-of-way as opposed to a public road, the county intended to limit the type of use to which the way may be subjected to that applicable to a private easement; they claim that the way can only be used for access to a single residence on the Sorensons’ property. Aylett v. Mardis, supra, 59 Or App at 115, unequivocally states that “[w]hether termed a public road or a perpetual right of way [under former ORS 376.115], the way must be open to public use.” Plaintiffs are not entitled to have the use of the statutory way of necessity restricted so as to create a private easement or otherwise limited as they would like. There being no genuine issue of material fact, the court properly granted defendants summary judgment.

Affirmed.

1 Former ORS 376.105 provided, in pertinent part:

“Whenever it appears to any county court by the sworn petition of any person that the farm or residence of such person is not reached conveniently by any public road provided by law, and that it is necessary that the public and such person have ingress to and egress from the farm or residence of such person, the county court shall:

“(1) Appoint a board of county viewers * * (Emphasis supplied.)

Former ORS 376.110 provided, in pertinent part:

“The board of county viewers shall:

«* * * * *

“(2) View out, locate and mark out either a suitable public road not exceeding 60 feet wide, or a gateway not less than 10 nor more than 30 feet wide, or both, as may be found best by the viewers, having regard to all surrounding circumstances and conditions of the case and so as to do the least damage to the land through which the road or gateway is located, from the farm or residence of such person to the nearest point practicable on another public road, gateway, steamboat landing or railroad station * * (Emphasis supplied.)

Former ORS 376.115(3) provided that the county court shall “declare the road or gateway to be a public road or a perpetual right of way. ” (Emphasis supplied.)

These three sections somewhat inconsistently refer to the way of necessity as either a public road or gateway (former ORS 376.110) or as a public road or perpetual right of way (former ORS 376.115). Regardless of the inconsistency, the law is clear, as stated later in this opinion, that all statutory ways of necessity share one common feature: they must be open to the public.

2 A gateway differs from a public road in that a gateway may not exceed 30 feet in width while a road may reach 60 feet in width and by the fact that a road must be fenced. See Aylett v. Mardis, 59 Or App 109, 113, 650 P2d 165, rev den 294 Or 212 (1982). Other than these differences, both gateways and public roads are statutory ways of necessity.