Appeal from Circuit Court, Clackamas County. Winston L. Bradshaw, Judge.
Gerald R. Pullen, Portland, argued the cause for appellant. With him on the brief was Vernon L. Richards, Sandy.
James C. Tait, Oregon City, argued the cause for respondents. With him on the brief were Hibbard, Caldwell, Canning, Bowerman & Schultz, Oregon City.
This is a declaratory judgment proceeding in which plaintiff seeks to have a roadway declared to be a public roadway as a result of an alleged dedication. The trial court found no evidence of a dedication and held for defendants. Plaintiff appeals.
On May 9, 1967 Paul and Margaret Venable sold, by land sale contract, a parcel of land consisting of a quarter section, to Roy Chambers. In April, 1968 the Venables executed a deed which designated "The Public" as grantee and which apparently was intended to describe a strip of land running north and south through the center of the southern half of the parcel sold to Chambers.*fn1 In March, 1968 Chambers sold to plaintiff, by land sale contract, the north half of the parcel purchased from the Venables. There was evidence
that as a part of this transaction, Chambers agreed with plaintiff to construct a roadway across the south half of the parcel which Chambers retained. In July, 1969 Chambers conveyed to defendants a parcel of land which bounded the southern line of the parcel sold to plaintiff. In this deed no mention is made of an easement across the parcel purchased by defendants. In 1972 the Venables and Chambers executed and recorded a deed designating "The Public" as grantee and describing the same strip purported to have been conveyed by the Venables.
When defendants made their purchase in 1969 there was a roughly outlined roadway across their property which defendants described as a "cat track" or "cat path" with exposed roots and having the appearance of either a temporary or undeveloped way. Mrs. Owens testified that Chambers informed her that the roadway was to serve plaintiff until he could construct another means of access to his property. There was conflicting evidence with respect to the appearance of the way and plaintiff's use of it, bearing upon the question of whether these facts would put a reasonable person on notice of the existence of an easement.
The trial court refused to consider the evidence adduced by plaintiff to show that he had acquired a private easement by implied grant (as distinguished from the evidence purporting to show the creation of a public easement by way of dedication). The trial court was justified in so limiting plaintiff's case.
Plaintiff's complaint is based solely upon the existence of a public easement created by dedication. In his opening statement, plaintiff states this to be the theory of his case. Moreover, the case was tried upon the theory set forth in the complaint and the trial court made it abundantly clear by its rulings that
the case was being so tried.*fn2 Plaintiff made no attempt to amend his complaint to embrace the theory that a ...