Gordon J. ZIELINSKI and Kristy L. Zielinski, Plaintiffs-Respondents,
STATE OF OREGON, Defendant-Appellant
Argued and submitted January 6, 2015.
Marion County Circuit Court 11C24561. Albin W. Norblad, Judge.
Patrick M. Ebbett, Senior Assistant Attorney General, argued the cause for appellant. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Jonathan M. Radmacher argued the cause for respondents. With him on the brief were Katie Jo Johnson and McEwen Gisvold LLP.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[269 Or.App. 144] GARRETT, J.
In this declaratory judgment action, plaintiffs seek to compel the state to construct a railroad crossing on their property according to the terms of a 1906 deed. The trial court granted plaintiffs' motion for summary judgment. Because we agree with the state that plaintiffs' claim is untimely, we reverse and remand.
This case concerns a parcel of real property located in Marion County. In 1906, the owner, Egan, conveyed to the Oregon Electric Railway Company a 50-foot wide strip of the land (the " right-of-way" ) in exchange for $200. The deed contained the following provision:
" The railroad company agrees to erect and maintain a lawful fence on both sides of the right of way also to construct and maintain one crossing when wanted by the grantor and it is further agreed that said railroad will be operated by overhead electric power only[.]"
It is undisputed that a crossing and fence at some point were constructed, as contemplated by the deed. It is also undisputed that, by the 1960s, both the fence and the crossing were in a state of complete neglect and disrepair, and that, by 2000, they had ceased to exist altogether.
The state acquired the right-of-way in 1998. Plaintiffs acquired the Egan property in 2008. In 2009, plaintiffs contacted the Oregon Department of Transportation (ODOT) and demanded construction of a crossing and fence pursuant to the 1906 deed. After ODOT refused, plaintiffs brought this action seeking a declaration that the state is obligated to reconstruct and maintain a crossing and fence. Both parties moved for summary judgment. In a letter ruling, the trial court granted plaintiffs' motion:
" It is agreed by the parties that a fence was built and a crossing constructed. It is further agreed that prior to the 1960s both the fence and the crossing were neglected and came into complete disrepair. Nobody seemed to know how or why this happened or if this was done with or without everybody's agreement.
" The defendant suggests that its predecessor breached the agreement and the statute of limitations would have run and this would affect the doctrine of laches. At this [269 Or.App. 145] point the court has no evidence that the defendant predecessor breached the agreement. For all we know the plaintiffs' [predecessor] abandon[ed] the crossing or agreed with defendant's predecessor that it was not needed at that ...