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Kalfas v. Adams

Court of Appeals of Oregon

June 19, 2013

OLAF A. KALFAS and NINA E. KALFAS, Trustees of the Olaf A. Kalfas and Nina E. Kalfas Revocable Living Trust dated January 19, 2004, Plaintiffs-Respondents Cross-Appellants,
v.
CAROL ADAMS, Defendant-Appellant Cross-Respondent.

Argued and submitted on November 15, 2012.

Jackson County Circuit Court 073257E2 Daniel Leon Harris, Judge.

Clayton C. Patrick argued the cause and filed the briefs for appellant-cross-respondent.

Joseph E. Kellerman argued the cause for respondents-cross-appellants. With him on the briefs were Eric B. Mitton and Hornecker, Cowling, Hassen & Heysell, L.L.P.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Hadlock, Judge.

SCHUMAN, P. J.

Plaintiffs brought this action seeking a determination that, pursuant to the terms of a written agreement, they have an express easement over defendant's property. They also sought to enjoin defendant from interfering with the easement and damages for defendant's interference. Defendant denied that plaintiffs have such an easement or, if they do, that defendant has interfered with it. Defendant also counterclaimed for a determination that, if plaintiffs have an easement, it is subject to reasonable restrictions. The trial court determined that, pursuant to the terms of a written easement agreement, plaintiffs have an easement over defendant's property, but that they cannot use an existing road over defendant's property for that purpose and, instead, must build a new road in a different location at their own expense. The trial court also declined to award attorney fees to either party. Defendant appeals, contending that she is the prevailing party and entitled to attorney fees under the terms of the easement agreement. Plaintiffs cross-appeal, asserting that, under the unambiguous terms of the easement agreement, they are entitled to use the existing road on defendant's property for access to the northwestern part of their property. We agree with plaintiffs' argument on cross-appeal and therefore reverse the trial court and remand, obviating the need to address defendant's appeal concerning attorney fees.

Plaintiffs have asked the court to exercise its discretion to review the record de novo. ORS 19.415(3); ORAP 5.40(8). See Knight v. Nyara, 240 Or.App. 586, 248 P.3d 36 (2011) (claim for declaration of rights under easement and injunction subject to de novo review under ORS 19.415(3) (2007)); Hammond v. Hammond, 246 Or.App. 775, 777, 268 P.3d 691 (2011) (quiet-title actions are equitable in nature). We have agreed to do so in exceptional cases. See ORAP 5.40(8)(c) ("The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases.").[1] Because we conclude that the trial court based its ruling on findings that are not supported by the evidence in the record and, further, that a correct outcome in this case is dependent on additional findings that the trial court did not make, we exercise our discretion to review de novo, deferring to the trial court's credibility judgments insofar as they are based on demeanor. Uwimana and Gwangano, 209 Or.App. 693, 696, 149 P.3d 257 (2006).

We summarize the facts, which are largely undisputed, based on our de novo review of the record. Plaintiffs and defendant own neighboring parcels in rural Jackson County. Defendant's parcel is 40 acres. It is improved with a house in its northeastern corner and is landlocked. Defendant's only access to her property is through a road on plaintiffs' property. Rugged terrain prevents plaintiffs from reaching the northwestern 200 acres of their property by vehicle, except through defendant's property. Thus, defendant's access to her property must be through plaintiffs' property, and plaintiffs' access to the northwestern corner of their property must be through defendant's property.[2]

At one time, both plaintiffs' and defendant's property were held in common ownership. In 1989, Patricia and Steven Cutler owned the entire 320 acres, and lived at the homesite currently owned by plaintiffs, to the east of what is now defendant's property. In 1990, the Cutlers partitioned the property to carve out a 40-acre parcel and obtained conditional approval for a homesite from Jackson County. The conditional approval described the location for the approved homesite. In 2000, the Cutlers sold the 280-acre parcel to plaintiffs' predecessors, the Furrows, and retained the 40-acre parcel, later sold to defendant, for the purpose of development as a homesite.

Currently, a private roadway runs through both parcels. Its path is irregular and it begins generally at an eastern boundary of plaintiffs' property, and runs generally in a southwesterly direction to the eastern boundary of defendant's property, where defendant has placed a gate. Aerial maps in evidence dating from 1969 show that from that point, the road continues north to the location of defendant's house. Additionally, more recent maps shows that from the gate installed by defendant, a new road--defendant's driveway--splits to the west of the roadway and heads in a northwesterly direction to her homesite. But the roadway itself also continues north to defendant's homesite and passes defendant's home on its eastern side. The trial court referred to the portion of the roadway from plaintiffs' homesite to defendant's homesite as the "Adams Road." From defendant's homesite, the roadway continues north through the northeastern corner of defendant's property and into the northwestern portion of plaintiffs' property, along the top of a ridge. The trial court referred to this portion of the roadway as the "Ridge Road."

It is undisputed and the trial court found that, although aerial photos dating back at least to 1969 show the described roadway in its present locations (with the exception of defendant's driveway), at the time the Cutlers acquired their property in 1989 and when they sold the 280-acre parcel to the Furrows in 2000, the roads to the west of plaintiffs' homesite and on defendant's property were in a state of disrepair--rutted, overgrown with shrubs--and for the most part impassable by vehicles larger than a motorcycle. In fact, the roads had fallen into such disrepair that Patricia Cutler--a party to the disputed easement agreement--testified that, other than the access road to the Cutler's homesite, there were no roads on the property at the time she lived there. The trial court found Patricia Cutler, who testified by telephone, to be a credible witness, but it is not clear whether that credibility determination was demeanor based. In any event, Patricia Cutler's testimony regarding the absence of roads is inconsistent with the overwhelming evidence in the record that there were many roads over the property but that they were mostly impassable due to rutting and overgrowth of Manzanita. Accordingly, we give her testimony concerning the absence of roads less weight than did the trial court.

Before closing on the 2000 sale to the Furrows, the Cutlers and Furrows executed an easement entitled "Private Roads Maintenance and Access Agreement." The agreement, drafted by the Cutlers, provided, in relevant part:

"THIS DECLARATION of agreement is made this 9[th] day of August, 2000, by Steven Cutler and Patricia Cutler, husband and wife and William Furrow and Laurellyn M. Furrow, husband and wife, hereinafter called Declarants, for themselves, their heirs, personal representatives, successors, grantees and assigns.
"A. WHEREAS, the Declarants are the owners of land located in Jackson County, Oregon, over which a private road and logging roads are currently located, and which are more particularly described as follows:
"Declarants hereby grant each other non-exclusive easements allowing unrestricted ingress and egress across all existing roads (logging, main roads and any others) as well as any roads that may be built in the future, including the right to improve those roads and add services at their own expense to permit future development of the declarants' lands which may be allowed and approved by the City, County or state.
"B. WHEREAS, the parties desire to utilize the private roads for common ingress and egress to their respective properties and to maintain same according ...

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