Opinion
A165995
05-13-2020
Scott W. WATERS; Rodney Lee Campuzano; Judy Campuzano; Andrew J. Niedzwiecke; Judith D. Niedzwiecke; Cadwell Family Trust ; and KC Development Group LLC, an Oregon limited liability company, Plaintiffs-Appellants, v. KLIPPEL WATER, INC., an Oregon domestic non-profit corporation, Defendant-Respondent.
Sara Kobak, Portland, argued the cause for appellants. Also on the briefs was Schwabe, Williamson & Wyatt, P.C. Megan K. Burgess argued the cause for the respondent. Also on the brief was Peterkin & Associates.
Sara Kobak, Portland, argued the cause for appellants. Also on the briefs was Schwabe, Williamson & Wyatt, P.C.
Megan K. Burgess argued the cause for the respondent. Also on the brief was Peterkin & Associates.
Before DeHoog, Presiding Judge, and Kamins, Judge, and Landau, Senior Judge.
Kamins, J., vice Hadlock, J. pro tempore.
KAMINS, J. This dispute involves plaintiffs' access (or lack thereof) to an unfinished road on defendant's property. Plaintiffs, a group of defendant's neighbors, sought a judgment declaring that they enjoy a prescriptive or, in the alternative, implied easement to use the road, and granting an injunction preventing defendant from blocking it. The trial court dismissed the complaint for failure to state a claim and awarded partial attorney fees to defendant because it concluded that the majority of the plaintiffs' claims were objectively unreasonable. We affirm the trial court's decision that the complaint fails to allege sufficient facts to support a declaratory judgment but reverse the award of attorney fees. We further remand so that the trial court may enter a declaration stating the rights of the parties in accordance with this opinion.
Because the case is before us on a motion to dismiss under ORCP 21 A(8), "we accept as true all well-pleaded factual allegations in the complaint and make reasonable inferences from those allegations in favor of plaintiffs." Kutz v. Lee , 291 Or. App. 470, 472, 422 P.3d 362 (2018). To decide whether plaintiffs are entitled to declaratory relief, we must determine if those allegations are legally sufficient to establish the existence of a justiciable controversy. Hays v. Dept. of Corrections , 280 Or. App. 173, 174, 380 P.3d 1159 (2016). When a trial court dismisses a declaratory judgment action based on a determination of the merits of the claim, we review that determination as a matter of law. Doe v. Medford School Dist. 549C , 232 Or. App. 38, 46, 221 P.3d 787 (2009).
According to the complaint, Carl and Letha Klippel owned a large plot of land in Deschutes County that they partitioned and sold to different buyers over the course of the 1960s and 1970s. The Klippels did not sell their entire plot at that time, but rather maintained ownership over a small portion that included the unfinished roadway at the center of this dispute. In 1982, the Klippels transferred ownership of that piece of land to the defendant, Klippel Water, Inc.
Although none of them purchased the property directly from the Klippels, plaintiffs are the current owners of the properties the Klippels sold. Each of the plaintiffs—and many of the plaintiffs' predecessors—regularly used the unfinished road as the only direct connection between two larger roads, Buck Drive and Palla Lane. Buck Drive and Palla Lane essentially form a "V" that does not connect at the bottom, and plaintiffs have been using the unfinished roadway on defendant's property as a connector to those roads. Only one of the plaintiffs' properties borders defendant's property—the other plaintiffs have used the roadway as a shorter route to their properties than other available roads. In 2014, defendant erected a fence blocking plaintiffs' access to the unfinished road, spurring this lawsuit.
Plaintiffs' complaint alleged that they are entitled to an easement to the road on defendant's property, either by prescription or implication. After plaintiffs filed the operative complaint, the Oregon Supreme Court issued its decision in Wels v. Hippe , which clarified the standard applicable to prescriptive easements. 360 Or. 569, 580, 385 P.3d 1028 (2016), adh'd to as modified on recons. , 360 Or. 807, 388 P.3d 1103 (2017) (holding that, when seeking an easement in a preexisting road, the plaintiff must affirmatively establish adversity). Applying that standard, the trial court dismissed the complaint because plaintiffs had failed to allege facts that, even if true, would be sufficient to establish that they were entitled to either a prescriptive or an implied easement. The trial court also did not allow plaintiffs leave to amend their complaint and awarded partial attorney fees to defendant.
In evaluating whether the plaintiffs are entitled to an easement, we recognize that easements that do not explicitly arise from a property deed are generally disfavored. Dressler et al. v. Isaacs et al. , 217 Or. 586, 596, 343 P.2d 714 (1959) (concluding that implied easements are disfavored); Wels , 360 Or. at 578, 385 P.3d 1028 (concluding that prescriptive easements are disfavored).
We turn first to plaintiffs' contention that they obtained an easement to the roadway by prescription. A prescriptive easement arises when a plaintiff can demonstrate open, notorious, and adverse use of another's property that is continuous for a period of 10 years. Thompson v. Scott , 270 Or. 542, 546, 528 P.2d 509 (1974). Generally, open and notorious use of another's property gives rise to the presumption that the use is adverse. Wels , 360 Or. at 579, 385 P.3d 1028. However, if a plaintiff claims an easement to a road that already exists, the plaintiff's "use of the road—no matter how obvious—does not give rise to a presumption that it is adverse to the owner." Id . Rather, "it is more reasonable to assume that the use was pursuant to a friendly arrangement between neighbors *** than to assume that the user was making an adverse claim." Id . (quoting Woods v. Hart , 254 Or. 434, 436, 458 P.2d 945 (1969) (internal quotation marks omitted). Accordingly, plaintiffs bear the burden to demonstrate that their use of the preexisting road is adverse. To meet that burden, the question is whether plaintiffs' use "interfered with the owner's own use of the road , not *** the extent to which [plaintiffs'] use of the road somehow interfered with the owner's use or enjoyment of the property generally." Id. at 580, 385 P.3d 1028 (emphasis in original).
Here, there is no question that the road was preexisting—according to the complaint, Carl Klippel established the road himself. As a result, plaintiffs bear the burden of establishing adversity; that is, they must allege facts that would demonstrate that their use of the road on defendant's property interfered with defendant's use of that road. The complaint, however, fails to allege sufficient facts to support that conclusion. Plaintiffs allege that they have used the road for a number of nonintrusive activities, including driving home, visiting neighbors, running, and riding horses. Nothing about those activities suggests interference with defendant's use. Cf. Wels , 360 Or. at 581, 385 P.3d 1028 (creating noise and dust observable from landowners' home did not amount to interference with landowners' use of road). Absent any allegation establishing that plaintiffs' use interfered with defendant's, the trial court correctly concluded that the complaint failed to establish adversity.
On appeal, plaintiffs contend that they need not make that showing. Rather, according to plaintiffs, they must only allege that defendant "knew or should have known that the [plaintiffs] believed that [they] had a right to use the road." In support, plaintiffs point to language in Wels stating that one way a plaintiff can meet its burden to show that its use of a preexisting road is adverse is to prove that the plaintiff "used the road under a claim of right." 360 Or. at 580, 385 P.3d 1028. According to plaintiffs' argument, allegations reflecting the fact that defendant knew that plaintiffs and others were using the road for many years creates the inference that defendant was on notice that these plaintiffs believed they had a legal right to the road. That reflects a misunderstanding of Wels .
In Wels , the plaintiff also sought a prescriptive easement to a preexisting road on the defendant's property. Id. at 571, 385 P.3d 1028. The parties agreed that the plaintiff had been—and believed he had the right to—use the preexisting road openly for many years, but they disagreed over the import of that fact. Id. at 573-74, 385 P.3d 1028. The plaintiff argued that he had met his burden to establish adversity because of his belief that he had the right to use the road with or without defendant's permission. Id. at 574, 385 P.3d 1028. The defendant countered that the plaintiff's uncommunicated belief failed to put the defendant on notice of adversity. Id. at 575, 385 P.3d 1028. In a divided opinion, we sided with the plaintiff, concluding that the plaintiff's belief that he had the right to use the road was adequate to demonstrate adversity. Wels v. Hippe , 269 Or. App. 785, 804, 347 P.3d 788 (2015), rev'd , 360 Or. 569, 385 P.3d 1028 (2016).
The Oregon Supreme Court reversed. 360 Or. at 583, 385 P.3d 1028. The court explained that a "principal justification" for the doctrine of a prescriptive easement is that "a diligent occupant should be rewarded at the expense of a careless owner." Id. at 577, 385 P.3d 1028. Because the creation of a prescriptive easement "penalizes the property owner who sleeps on his or her rights," the Supreme Court reasoned that it is essential that the owner "must have reason to know of the adverse use of his or her property before being held responsible for failing diligently to take action to protect it." Id. Accordingly, "an uncommunicated belief in a right to use property provides no notice to the owner of such a belief. It therefore cannot satisfy the essential requirement of adverse use, that is, that it inform the owner of the servient property that the claimant is asserting a right of use hostile to the rights of that owner." Id .
That reasoning resolves plaintiffs' claim. Their uncommunicated belief that they had a legal right to the road on defendant's property "is legally insufficient, in the absence of evidence that [plaintiffs] communicated that belief to defendant[ ]." Id. at 583, 385 P.3d 1028. Plaintiffs did not communicate that belief to defendant, and there is no reason for defendant to conclude that years of permissive nonexclusive use of the preexisting roadway had converted into a claim of right dominant to defendant's. Cf. Davis v. Gassner , 272 Or. 166, 168-69, 535 P.2d 760 (1975) (adversity established when plaintiffs "frequently protested defendants' flooding of the road under a claim of right to use the road" and had previously cut the wire the defendants strung across the road to prohibit their use); see also Baum et ux. v. Denn et al. , 187 Or. 401, 406, 211 P.2d 478 (1949) ("A prescriptive easement can never ripen out of mere permissive use no matter how long exercised.").
If they cannot establish an easement by prescription, plaintiffs' alternate theory is that an implied easement arose when their predecessors purchased the land. An easement may be implied "when the circumstances that exist at the time of severance of a parcel establish that the grantor of the parcel intended to create an easement." Manusos v. Skeels , 263 Or. App. 721, 730, 330 P.3d 53 (2014) (emphasis in original). We consider several factors to inform that analysis: (1) whether the plaintiff is the conveyor or the conveyee; (2) the terms of the conveyance; (3) the consideration given for it; (4) whether the claim is made against a simultaneous conveyee; (5) the extent of necessity of the easement; (6) whether reciprocal benefits result to the conveyor and the conveyee; (7) the manner in which the land was used prior to its conveyance; and (8) the extent to which the manner of prior use was or might have been known to the parties. See Cheney v. Mueller , 259 Or. 108, 118–19, 485 P.2d 1218 (1971) (citing Restatement (First) of Property § 476 (1944) ). Those factors are designed to elucidate "the essential question[:] * * * whether a reasonable purchaser would be justified in expecting the easement under the circumstances in which he or she purchased the land." Garrett v. Mueller , 144 Or. App. 330, 341, 927 P.2d 612 (1996), rev. den. , 324 Or. 560, 931 P.2d 99 (1997).
To answer that essential question, we must travel through time—in this case, fifty years in the past—to evaluate whether a reasonable property purchaser would have expected to have acquired an easement to use the roadway. The complaint, however, does not take us where we need to go. Indeed, it is sparse on any allegations relating to the terms and facts surrounding the sale of land in the 1960s and 1970s. That renders our analysis of the Cheney factors nearly impossible. For example, there are no factual allegations relating to the conveyance itself, such as its terms or consideration. Nor are there any allegations about the initial purchasers that would evince their understanding of the sale. Although the complaint contains copious descriptions of the plaintiffs' and some of their predecessors' use of the roadway, there are no allegations supporting a conclusion that the original buyers believed they acquired an easement.
The only relevant allegation is that Klippel filed a survey in 1975 that contained the words "road easement" at the site of the unfinished road. That fact, however, cannot by itself answer the "essential question" of the property buyers' expectations. There is no allegation that the buyers knew of that survey when they made their property purchase; indeed, it postdates several of the purchases. There is, quite simply, no allegation of what the buyers knew at all. Taking all inferences in favor of plaintiffs—including that Klippel was aware of some form of easement—that allegation does not resolve the question of whether the purchasers reasonably expected that they acquired an easement to use a roadway on another plot of land. Cf. Manusos , 263 Or. App. at 732, 330 P.3d 53 (implied water easement existed because parcel was advertised as having a koi pond and lush gardens with irrigation and plaintiff confirmed the availability of irrigation before purchasing).
Plaintiffs' reliance on an allegation relating to another Cheney factor—the "necessity" of the easement—is misplaced. Again, the allegations focus on recent use of the land, and therefore cannot elucidate the original buyers' understanding. Even if plaintiffs' necessity allegations were not temporally problematic, they fall short of establishing reasonable necessity as we interpret the term. Plaintiffs contend that the easement is necessary because it is "the only direct access" between Buck Drive and Palla Lane. Specifically, the complaint alleges that "[t]he Easement is necessary as a secondary ingress and egress, and substantially more convenient as a primary route." A secondary egress, even if more convenient, is by definition not necessary because a primary egress exists. Manusos , 263 Or. App. at 733, 330 P.3d 53 ("[R]easonable necessity should not be grounded in mere convenience, but rather in the necessity appearing from the apparent purpose, the adaptability, and the known use to which the property is to be put.").
At its core, plaintiffs' argument is that they have used the road without complaint for many years. And yet that fact is irrelevant to an analysis of whether an implied easement exists. That analysis involves a historical inquiry and plaintiffs have failed to allege historical facts to inform it. Accordingly, we agree with the trial court that plaintiffs are not entitled to an easement. We next turn to the trial court's decision to award attorney fees. Under ORS 20.105(1) a trial court shall award reasonable attorney fees to a party who prevails against a claim if the court determines that there "was no objectively reasonable basis for asserting the claim." We review a trial court's decision to award fees under ORS 20.105(1), for errors of law. Cejas Commercial Interiors, Inc. v. Torres-Lizama , 260 Or. App. 87, 111, 316 P.3d 389 (2013).
We reject plaintiffs' assignment of error to the trial court's decision to dismiss the second amended complaint with prejudice without discussion.
Because plaintiffs' claim was not "entirely devoid of legal or factual support," we reverse the trial court's award of attorney fees. See Williams v. Salem Women's Clinic , 245 Or. App. 476, 482, 263 P.3d 1072 (2011) ("A claim lacks an objectively reasonable basis only if it is entirely devoid of legal or factual support." (internal quotation marks omitted)). For the implied easement claims, the complaint alleges the existence of a recorded survey around the time frame of the property conveyances. Although the recorded survey falls short, on its own, of establishing an easement by implication, it does amount to "factual support" sufficient to render the claims more than objectively unreasonable. See also Cejas , 260 Or. App. at 111, 316 P.3d 389 (reversing award of attorney fees because even though "the court ultimately found defendants' evidence unpersuasive, there was some evidence in the record supporting defendants' position").
For the prescriptive easement claims, the trial court found those objectively unreasonable as to several of the plaintiffs that had not alleged a full 10 years of open and continuous use of the roadway. However, the complaint alleges that all plaintiffs have used the road for years, and that some plaintiffs, their predecessors, and others used the road for as many as 40 years. Although the complaint fails to allege the specifics of the use of two of plaintiffs' predecessors, at this stage of the proceedings we must resolve all inferences in favor of plaintiffs. Years of use by all current property owners and more than 10 years of continuous use by neighboring property owners, gives rise to a possible inference that the road was in continuous use by owners of all the plaintiffs' properties. Because that evidence provides "some basis" for the implied easement claim, it was not " ‘entirely devoid’ of support when it was made." Williams , 245 Or. App. at 484, 263 P.3d 1072. Accordingly, we reverse the trial court's award of attorney fees.
Finally, although not raised by the parties, we address the procedure that brought the case before us. The trial court dismissed a complaint seeking a declaratory judgment for failure to state a claim for relief. That was error. A complaint for declaratory judgment states a claim for "relief" if it properly requests the relief of a declaration, even if the declaration is ultimately not the one the plaintiff wanted. Harrison v. Port of Cascade Locks , 27 Or. App. 377, 379 n. 1, 556 P.2d 160 (1976). Accordingly, in a declaratory judgment action, "[t]he proper procedure is for the defendant to answer and for the parties then to submit the matter to the court for a declaration as to the merits of the claim." Doe, 232 Or. App. at 46, 221 P.3d 787 (citing Advance Resorts of America, Inc. v. City of Wheeler , 141 Or. App. 166, 180, 917 P.2d 61, rev. den. , 324 Or. 322, 927 P.2d 598 (1996) ). However, "[w]hen the dismissal of a declaratory judgment action was clearly based on a determination of the merits of the claim, *** our practice has been to review that determination as a matter of law and then remand for the issuance of a judgment that declares the rights of the parties in accordance with our review of the merits." Id . Accordingly, although we agree with the trial court's resolution of the claim, we remand for the court to enter a declaration of the parties' rights in accordance with this opinion.
At times, we have refused to consider the merits in a case, such as this one, where a defendant filed a motion to dismiss for failure to state a claim rather than file an answer and motion for judgment on the pleadings. Reynolds v. State Board of Naturopathic Exam. , 80 Or. App. 438, 442, 722 P.2d 739 (1986) (expressing "no opinion on the merits of this case, because defendants have not yet answered and moved for a judgment on the pleadings"); id . at 443, 722 P.2d 739 ("decry[ing] that we must send this case back to the trial court, even though plaintiff obviously is not entitled to relief") (Warden, J., concurring).
Our practice postDoe has been to address the merits and remand to the trial court to enter a declaration of rights, alleviating the requirement that a defendant file an answer. See e.g. , Curry v. Clackamas County , 240 Or. App. 531, 536, 248 P.3d 1, rev. den. , 350 Or. 573, 258 P.3d 1239 (2011). Indeed, there is no value in remanding to demand a defendant file an answer where the defendant asserts that, even if that answer admitted all the complaint's allegations, a plaintiff would not be entitled to the declaration sought. See ORCP 21 A(8).
Vacated in part and remanded for entry of judgment declaring parties' rights; award of attorney fees reversed.