Argued and Submitted August 15, 2013.
Columbia County Circuit Court. 062566. Steven B. Reed, Judge.
William C. Cox argued the cause for appellants. With him on the briefs was Gary P. Shepherd.
Robert J. Miller, Sr., argued the cause for respondent. With him on the briefs was Pamela Yee.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[263 Or.App. 723] DUNCAN, P. J.
This dispute between neighbors concerns plaintiff's access to a well located on defendants' adjacent property. It is before us for the second time. In our first decision, we concluded that the trial court had erred in reforming defendants' deed to reflect a waterline easement serving plaintiff's property, because plaintiff, who was not a party to the deed or in privity with any party to the deed, was not in a position to seek its reformation. Manusos v. Skeels, 238 Or.App. 657, 243 P.3d 491 (2010), rev den, 350 Ore. 130, 250 P.3d 922 (2011) ( Manusos I ). We then remanded the case to the trial court to address plaintiff's remaining claims for relief, including her claim that defendants' parcel, which was once part of the same commonly owned land as plaintiff's parcel, was burdened by an implied waterline easement when the parcels were separately conveyed. On remand, the trial court agreed that plaintiff's property benefitted from an implied easement to access the well, and it awarded damages to plaintiff based on defendants' interference with that access.
Defendants now appeal the judgment entered after remand, arguing that the trial court misapplied the law of easement by implication. According to defendants, the court looked at the wrong moment of " severance" of plaintiff's and defendants' parcels to determine whether an implied easement existed between them, and that, in any event, plaintiff failed to demonstrate that the parties' common predecessor-in-interest intended any such easement when the parcels were conveyed separately to plaintiff and to defendants' predecessor. For the reasons that follow, we affirm.
Before describing the relevant facts, we pause to provide a brief summary of the law of implied easements. " When land in one ownership is divided into separately owned parts by a conveyance, an easement may be created * * * by implication from the circumstances under which the conveyance was made alone." Rose et ux. v. Denn et ux., 188 Ore. 1, 19, 212 P.2d 1077 (1949), on reh'g, 188 Ore. 1, 213 P.2d 810 (1950) (quoting Restatement (First) of Property § 474 (1936)). That is, an implied easement is created " 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." [263 Or.App. 724] Bloomfield v. Weakland, 193 Or.App. 784, 795, 92 P.3d 749 (2004), aff'd on other grounds, 339 Ore. 504, 123 P.3d 275 (2005). " A number of factors are used to determine whether an easement has been created by implication, including 'the claimant's need for the easement, the manner in which the land was used before its conveyance, and the extent to which the manner of prior use was or might have been known to the parties.'" Fischer v. Walker, 246 Or.App. 589, 598, 266 P.3d 178 (2011) (quoting Penny v. Burch, 149 Or.App. 15, 19, 941 P.2d 1049 (1997)); see also Cheney v. Mueller, 259 Ore. 108, 118-19, 485 P.2d 1218 (1971) (listing relevant considerations regarding creation of an easement by implication); Jack v. Hunt et ux., 200 Ore. 263, 267-70, 264 P.2d 461 (1953), on reh'g, 200 Ore. 263, 265 P.2d 251 (1954) (same). Implied easements are disfavored and must be established by clear and convincing evidence. Thompson v. Schuh, 286 Ore. 201, 203, 593 P.2d 1138 (1979).
With that overview of the law, we turn to the relevant facts, which we set forth in a manner consistent with the trial court's express and implicit factual findings. See Eagles Five, LLC v. Lawton, 250 Or.App. 413, 415, 280 P.3d 1017 (2012) (describing the standard for reviewing a trial court's ruling that a party proved a claim for an implied easement).
This case involves two parcels, a northern parcel and a southern parcel, that were once owned by Gordon Foster. Foster purchased the adjacent parcels in 1990, and he made various improvements in the early 1990s--most notably, the addition of a koi pond and an irrigation well that served the pond and provided water to gardens on the property. That irrigation well was added because the existing domestic well was insufficient for the needs of the pond and gardens. In April 2000, a year before he died, Foster [263 Or.App. 725] completed a lot line adjustment that changed the dimensions of the northern and southern parcels. The adjustment resulted in a southern parcel that was approximately two acres and a northern parcel that was approximately eight acres. What is most relevant to this case, though, is that the irrigation well was not on the same parcel as the koi pond it served; the koi pond, along with circuit breakers for the electrical pump, were on the southern parcel, while the well itself was on the northern parcel.
In 2001, Foster died and both parcels passed to his estate. Sometime the following year, plaintiff and the Cowleys, who are plaintiff's daughter and son-in-law, discovered the Foster property while looking for rural real estate. Plaintiff and the Cowleys had been interested in property that they could divide so that they could live nearby each other. Plaintiff was drawn to the lush gardens on the property, and a real estate flyer for the southern parcel listed " Irrigation/Koi Pond with Arbor" among the property's features. Plaintiff asked about the irrigation and was told that a well serviced the property. The personal representative of Foster's estate agreed to sell the parcels separately, one to plaintiff and the other to the Cowleys. Plaintiff purchased the two-acre southern parcel, which included the koi pond and a residence, on May 7, 2002. The next day, May 8, 2002, the Cowleys purchased the eight-acre northern parcel, which included the irrigation well but was otherwise undeveloped. Although the deeds refer to access and utilities easements, neither plaintiff's deed nor the Cowleys' deed makes any reference to a well, well easement, or irrigation system.
After plaintiff and the Cowleys purchased their respective parcels, the Cowleys established a second well on the northern parcel (apart from the irrigation well) and put a mobile home on the parcel. Meanwhile, plaintiff expanded the gardens on the southern parcel and used the irrigation well on the northern parcel to water the gardens and supply the koi pond.
That arrangement continued without complication until 2004, when the Cowleys decided to sell their parcel to defendants. The Cowleys wanted to ensure that plaintiff would retain access to the irrigation well after they sold [263 Or.App. 726] their parcel, and they communicated that fact to defendants before the sale closed. The property disclosure statement listed a " water line easement" as a claim affecting the Cowley property, and the sales agreement provided that " [b]uyer agrees to allow current owner of property located to the south access to [irrigation] well." The Cowleys and defendants executed a document entitled " Addendum to Real Estate Sale Agreement," which stated that " [s]eller will comple[te] ...