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Relling v. Khorenian

Court of Appeals of Oregon

February 12, 2014

FRED E. RELLING, Plaintiff-Appellant,
v.
LESLIE KHORENIAN, individually and as Trustee of the Alexander Page Khorenian Trust and the Eriq Edward Khorenian Trust; and ROBERT MILLER and BARBARA MILLER, husband and wife, Defendants-Respondents, and TERESA L. HOLTZAPPLE; and RANDY SELBY and TANYA C. SELBY, husband and wife, Defendants

Argued and Submitted June 7, 2012

Crook County Circuit Court. 09CV0011. Gary S. Thompson, Senior Judge.

J. C. Van Voorhees argued the cause and filed the briefs for appellant.

Jeffrey M. Wilson argued the cause for respondent Leslie Khorenian. With him on the brief was Miller Nash LLP.

No appearance for respondents Robert and Barbara Miller.

Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.

OPINION

Page 294

[261 Or.App. 3] ARMSTRONG, P. J.       

Plaintiff owns a parcel of real property in Crook County. He filed a declaratory judgment action in February 2009 against adjoining landowners seeking to establish that he has an easement over their property for access to his property. He appeals a general judgment declaring that express easements exist on the property of two defendants, that those easements are not appurtenant to plaintiff's property, and that no common-law easement of necessity exists across a lot that is adjacent to plaintiff's property. Plaintiff raises four assignments of error. We write to address only plaintiff's contention that, at the time that the adjacent lot was sold by plaintiff's predecessor, N-C-W, Inc. (NCW), NCW held legal title to plaintiff's property and, as a consequence, that a common-law easement of necessity for access to plaintiff's property was created over the adjacent lot when NCW sold it. For the reasons that follow, we affirm.

Plaintiff purchased the Crook County property from NCW in 1972 under an installment land-sale contract. Plaintiff's property is located on a steep hillside within a larger tract of land that NCW had acquired in 1970 and subdivided. At the time of the sale to plaintiff, plaintiff's property was accessible from McKay Creek Road by means of an existing logging road through NCW's retained property. An unrecorded warranty deed, which granted plaintiff " an easement for road purposes to McKay Creek Road," was held in escrow during the term of the land-sale contract. The deed was recorded in 1978 after plaintiff fulfilled his payment obligations.

In the interim, approximately three months after plaintiff had purchased his property, NCW sold an adjoining parcel of

Page 295

land, tax lot 700, to Crowe outright, along with an easement for access to McKay Creek Road.[1] Lot 700 is located directly west of plaintiff's property and was also accessible by means of the logging road, which bisected lot [261 Or.App. 4] 700 before reaching plaintiff's property. Shortly thereafter, NCW sold a second parcel to Crowe outright. The deed to that lot, which forms a triangle adjacent and to the west of lot 700, identified a thirty-foot road easement along its southern border, which fell on the centerline of the logging road.

Subsequently, NCW sold three additional properties located between lot 700 and McKay Creek Road. Those properties, owned at the time of trial by Selby, Holtzapple, and Miller, respectively, each bordered on the centerline of the logging road, and each was subject to a 30-foot road easement along that border. In addition, although the record is unclear whether pre- or postdating the sale of plaintiff's property, NCW sold two other properties between plaintiff's lot and McKay Creek Road, owned at the time of trial by Glass and Neill. In 2005, defendant Khorenian purchased both of Crowe's lots ...


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