WILLIAM J. HOWE, III; MARVIN J. LA PORTE; and SUSAN J. LA PORTE, Plaintiffs-Appellants,
JONATHAN GREENLEAF and WESLEY A. LEWIS, Defendants-Respondents
Argued and Submitted: September 10, 2012.
Clackamas County Circuit Court. CV09050374. Steven L. Maurer, Judge.
George W. Kelly argued the cause and filed the briefs for appellants.
Jonathan M. Radmacher argued the cause for respondents. With him on the brief for respondent Wesley A. Lewis was McEwen Gisvold, LLP. Thomas W. Sondag and Lane Powell PC filed the brief for respondent Jonathan Greenleaf.
Before Armstrong, Presiding Judge, and Duncan, Judge, and Hadlock, Judge.
[260 Or.App. 694] ARMSTRONG, P. J.
This case involves a dispute between landowners about their respective ownership rights in a vacated Clackamas County road--Skyland Drive. Defendants are owners of lots within a platted subdivision that contained the original dedication of Skyland Drive. Plaintiffs own parcels of property located across Skyland Drive from defendants' lots, but plaintiffs' parcels were not part of the platted subdivision. Plaintiffs claim that they are the legal owners up to the centerline of the vacated roadway that abuts their parcels because, at the time of the dedication of the road, the same owners held title to both defendants' and plaintiffs' property. Plaintiffs also sought to enjoin defendant Lewis from violating a 1982 easement agreement. The trial court concluded that defendants hold title to the entire width of the vacated road, rejected plaintiffs' other theories of ownership, and denied plaintiffs' request for injunctive relief. For the reasons
set forth below, we reverse and remand to the trial court to quiet title to the disputed property in plaintiffs. However, we affirm the trial court's rejection of plaintiffs' claims based on the easement agreement and the concomitant award of attorney fees to defendants.
The following background facts are undisputed and entirely based on the recorded instruments that make up the chain of title to the parties' respective properties. Any additional facts necessary to our opinion are set out in the discussion of plaintiffs' assignments of error. In 1949, Ferry and Cora Smith purchased 36 acres of land in Clackamas County, Oregon. In 1950, the Smiths recorded a plat map for a subdivision called " The Skylands of Oswego," which included only a portion of the 36 acres. In the plat map, the Smiths dedicated the roads in the subdivision to Clackamas County, including Skyland Drive, which runs in a curve to form part of the eastern and northern boundaries of the subdivision. Lot 1 in the subdivision, which has since been further subdivided, is owned by defendants Lewis and Greenleaf Plaintiffs, Howe and LaPorte, own parcels that are located to the east and north of Skyland Drive, which [260 Or.App. 695] were part of the original 36 acres owned by the Smiths but were not part of the subdivision. The area in dispute is the area to the centerline of Skyland Drive that abuts plaintiffs' properties. The juxtaposition of the parties' properties is roughly as is shown on the following map:
In May 1969, Clackamas County vacated the dedication of the southern portion of Skyland Drive, which had never been developed into a road. Skyland Drive instead ended in a cul-de-sac turnaround, which is depicted in the above map and was formed in part by a small crescent-shaped piece carved out of a 1953 transfer for " turnaround purposes" from the Smiths to the Linns, predecessors in interest to Howe. The crescent-shaped piece was outside the subdivision boundaries, bordered Skyland Drive, and otherwise was surrounded by the property conveyed to the Linns. In 1958, the Smiths conveyed the crescent-shaped piece to the " public" for " road purposes." In 1981, the
then-owners of Lot 1 attempted to again convey that piece to Clackamas [260 Or.App. 696] County for " road purposes." At the time of the 1969 vacation order, Lot 1 was owned by either Tarola or the Smiths, tax lot 600 was owned by the Steidles, and tax lot 700 was owned by the Smiths.
In December 1982, Clackamas County vacated the remainder of the portion of Skyland Drive to which the parties' parcels abut. At the time of the 1982 vacation, Lot 1 was owned by the Caffalls, tax lot 600 was owned by the Freemans, tax lot 700 was owned by Byles, and the LaPorte property was owned by the Keggs. Howe obtained title to tax lot 600 in 1988 and tax lot 700 in 1989. LaPorte obtained title to his property in 1993. Lewis obtained title to Lot 1 in 1992 and 1996, and sold a portion of Lot 1 to Greenleaf in 2008.
Before Clackamas County issued its 1982 vacation order, Lot 1 had been transferred solely by reference to lot number as follows: " Lot One (1), SKYLANDS OF OSWEGO." Before the 1982 vacation, with the exception of tax lot 700, the properties that would make up plaintiffs' respective parcels were described by metes and bounds with reference to the right-of-way line of Skyland Drive as a boundary. Tax lot 700 was transferred in 1982 from Cora Smith's estate to Byles by reference to section, township, and range as " [a] certain 0.47 acres" and " also known as Tax lot 700." The tax lot maps show tax lot 700 as being bound by the vacated Skyland Drive.
Also in 1982, the landowners who owned property abutting the 1982 vacated portion of Skyland Drive, including the predecessors in interest to plaintiffs' parcels, entered into a " Grant of Mutual Private Roadway and Utilities Easement." The main purpose of the easement agreement was to grant a reciprocal easement to each abutting landowner to use the vacated roadway for access and utilities. Recital C in the agreement provided:
" The Declarants have filed before the Board of County Commissioners of Clackamas County, Oregon a petition [260 Or.App. 697] for the vacation of the Private Roadway. As a result of the vacation, the ownership of portions of the Benefited Parcels within and to the center line of the Private Roadway will revert to the Declarants."
This litigation arose when Lewis subdivided Lot 1 in 2008. Lewis originally sought to include the entire width of the vacated Skyland Drive in the area to be subdivided. Plaintiffs asserted, however, that they owned up to the centerline of Skyland Drive (the disputed area) and initiated this litigation. Plaintiffs sought to quiet title in their favor in half of Skyland Drive based on ORS 93.310(4) and ORS 368.366, which provide rules of construction for real property conveyances and vesting rules upon vacation of public property, respectively. Plaintiffs argued that, because the Smiths had owned all of the parties' respective parcels at the time that Skyland Drive was dedicated and because none of the deeds of conveyance from the Smiths indicated an express intention not to convey to the centerline of Skyland Drive with the adjoining parcels, those statutes operated to vest title in plaintiffs to the center of Skyland Drive. Alternatively, plaintiffs sought to estop defendants from claiming an interest in the disputed area of the 1982 vacation based on Recital C in the easement agreement and ORS 42.300, and Howe sought to gain title to the disputed area from the 1969 vacation through adverse possession. Plaintiffs also sought an injunction against Lewis to prevent him from taking future actions that would violate a provision in the easement agreement that requires consent from all easement holders before structures can be placed in the easement area.
Defendants counterclaimed for a declaration that plaintiffs did not own any interest in
Skyland Drive. Defendants argued that the Smiths did express their intention not to convey to the centerline of Skyland Drive to plaintiffs based on the exclusion of plaintiffs' parcels from the platted subdivision that created Skyland Drive and based on the property descriptions transferring tax lot 600 and tax [260 Or.App. 698] lot 700 from the Smiths to Howe's predecessors. Defendants also argued that (1) plaintiffs' estoppel claim failed because the recital in the easement agreement was not material to the agreement, (2) Howe could not establish the elements for adverse possession, and (3) plaintiffs were not entitled to injunctive relief based on the easement agreement.
After a bench trial, the trial court found for defendants on each of the parties' respective claims. With respect to plaintiffs' quiet title and declaratory relief claims, the trial court concluded that, by platting only a portion of the property that they owned, " the Smiths understood, and intended, that the nature of their ownership in the platted portion would be qualitatively somewhat different from their ownership of the rest of the tract." The trial court concluded:
" This platting process clearly indicated an intent on the part of the Smiths to separate their fee ownership in the land within the boundary of the plat, from their fee ownership of land surrounding, but outside the plat. Conceptually, this was analogous to a conveyance by the Smiths, albeit to themselves, of the platted portion of their land to be held in a different fashion from that land outside the plat. The location of the plat boundary is evidence of an intent as to how the land within and without the platted area would be ultimately conveyed, as well as having independent legal significance.
" * * * *
" It is only by ascribing no legal significance to the plat boundary of The Skylands of Oswego that Plaintiff's position can have any vitality. I do not believe ignoring the plat boundary is legally tenable. As stated above, the platting process and creation of that boundary changed the nature of the Smith's ownership of the property within the plat versus their ownership of their land outside the boundaries of the plat. I believe the location of the dedicated roadway for Skyland Drive entirely within the plat of The Skylands of Oswego, by analogy places our situation within the third example of the application of the common law in the quotation from Neil [v. Independent Realty Co., 317 Mo 1235, 298 S.W. 363 (1927),] above, and within the operation of ORS 368.366(1)(c).
" The 1950 platting process essentially created distinct parcels of property though in common ownership. The [260 Or.App. 699] entirety of Skyland Drive was within but one of those parcels. There is no evidence, in any of the subsequent conveyances of import, that suggests any intention to convey any property within the platted parcel as part of a conveyance of property outside the platted parcel. That would be a necessary factual circumstance to overcome the earlier expression of intent evidenced by the platting process, if Plaintiff's position were to be sustainable."
(Emphases added.) As the emphasized language indicates, the court concluded that the platting process essentially put the subdivision under different ownership from the Smiths' remaining parcels such that the entirety of Skyland Drive was dedicated from, and thus owned by, the owners of the subdivision lots only. The court further concluded that two subsequent transfers by the Smiths further indicated their intention that the entire width of Skyland Drive would transfer with the subdivision lots--the 1953 deed to Howe's predecessors, the Linns, which carved out the crescent-shaped piece for turnaround purposes, and the 1982 transfer ...