Home/Court of Appeals of Oregon/Witten v. Murphy

Witten v. Murphy

692 P.2d 715, 71 Or. App. 511
CourtCourt of Appeals of Oregon
DecidedDecember 19, 1984
Docket8589; CA A27786
StatusPublished
Cited by6 cases

This text of 692 P.2d 715 (Witten v. Murphy) 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
Witten v. Murphy, 692 P.2d 715, 71 Or. App. 511 (Or. Ct. App. 1984).

Opinion

*513 YOUNG, J.

This is a proceeding to establish a statutory way of necessity. ORS 376.150-376.200. The county court granted petitioners a way across defendants’ land. 1 The Circuit Court affirmed, ORS 376.175(4), and defendants appeal. The question is whether petitioners have carried their burden to show that they have no “existing enforceable access to a public road,” 376.180(8), and that they could not “acquire an easement for access to a public road through other legal action.” ORS 376.180 (9). We review de novo, ORS 5.120(2) and ORS 19.125(3), and affirm.

Petitioners and defendants separately own several acres of adjoining hay and grazing land near Monument in Grant County. The lands are south of the John Day River and lie between county road 37 on the west and a state highway, referred to as the Long Creek-Monument Highway, on the east. Only defendants’ land abuts county road 37, and is (or was) crossed by a dirt road, which begins at the county road and goes easterly to the east line of defendants’ land. The road then runs northeasterly across lands owned by petitioners Smith, Witten and the Shrofes, then crosses land owned by the Potters and continues onto land owned by McPherson, where it connects with the state highway. The Potters and McPherson are not parties. The diagram on page 518 shows the location of the road, the ownership of the land and the way of necessity.

Originally, defendants owned all the subject land lying between the county road and the state highway, except the land owned by McPherson. They sold part of their land to Terry, who then sold to the Potters. Potters in turn sold to petitioners Smith, Witten and the Shrofes. The Potters, in connection with their sale to Smith, executed a “notice of road use” that gave Smith the right to use the road through Potter’s land. Smith divided his land and sold part of it to Carl. 2

In 1981, defendants closed the road on their land, *514 which prevented access to the county road. Petitioners (except Carl) and the Potters commenced a declaratory judgment action against defendants seeking a declaration that the road on defendants’ land and the road on petitioners’ and on the Potters’ lands are public roads. 3 Alternatively, they claimed that they had acquired a prescriptive easement. After defendants answered the complaint, the parties stipulated to a judgment of dismissal with prejudice. The record does not explain why the action was voluntarily dismissed. After the action was dismissed, the Potters obtained a private easement over the road through McPherson’s land for access to the state highway.

The Potters and McPherson have never prevented petitioners from using the road across the Potter and McPherson lands to reach the highway. However, due to the terrain, weather conditions and the occasional flooding of Cottonwood Creek, the road across the McPherson land is not usable by motor vehicles during every time of the year. The parties stipulated that “petitioners have no legal access of record across any other properties in the vicinity that would provide access to their respective properties.” Petitioners Witten and Mrs. Shrofe testified that they had no written agreement with McPherson for an easement through his land, and the parties stipulated that Carl’s testimony would be the same.

A statutory way of necessity 4 is defined as “a road established under ORS 376.150 to 376.200 to provide motor vehicle access from a public road to land that would otherwise have no motor vehicle access.” ORS 376.150(2). Certain conditions must exist before a way can be established. ORS 376.180 enumerates the conditions and provides in part:

“A way of necessity established under ORS 376.150 to 376.200 shall:
ii* * * * *
“(8) Not be established if the property for which the way *515 of necessity is sought has an existing enforceable access to a public road;
“(9) Not be established if the petitioner for the way of necessity could acquire an easement for access to a public road through other legal action * * *.”

Defendants assign as error the trial court’s findings that petitioners met the requirements of ORS 376.180(8) and (9). 5 Defendants’ argument is that petitioners failed to show by a preponderance of the evidence that they have satisfied either subsection.

Before we can begin to determine whether there is substantial evidence to satisfy subsection (8) and (9), we must first determine what those two subsections mean. Without that knowledge, we cannot review this record for substantial evidence.

The task of statutory interpretation is not easy. Subsection (8) speaks of “an existing enforceable access to a public road”; subsection (9) of “an easement for access to a public road [that could be acquired] through other legal action.” Because any “easement for access to a public road” under subsection (9) would be, by definition, “an existing enforceable access to a public road” under subsection (8), the latter subsection could be read as swallowed up by the former. We assume the legislature intended something different by each subsection. 6

We turn to ORS 378.180(8) and its critical phrase, “existing enforceable access to a public road.” “Access” has *516 been construed narrowly as referring to the common law right of access to a “conventional road or highway” from land that abuts the highway. Douglas County v. Briggs, 34 Or App 409, 413, 578 P2d 1261 (1978), aff’d 286 Or 151, 156, 593 P2d 1115 (1979); Black’s Law Dictionary 28 (4th ed 1968). In earlier cases the common law right of access has been called an “easement of access.” Holland et al v. Grant County et al,

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Cite This Page — Counsel Stack

Bluebook (online)
692 P.2d 715, 71 Or. App. 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witten-v-murphy-orctapp-1984.