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Eugene Water & Electric Board v. Miller

Court of Appeals of Oregon

March 14, 2018

EUGENE WATER & ELECTRIC BOARD, an Oregon municipal corporation, Plaintiff-Respondent,
v.
Michael P. MILLER, an individual, Defendant-Appellant.

          Argued and submitted September 7, 2016

         Lane County Circuit Court 161417326, Karsten H. Rasmussen, Judge.

          Rohn M. Roberts argued the cause for appellant. With him on the briefs was John R. Roberts.

          Jon W. Monson argued the cause for respondent. With him on the brief were James S. Kincaid, Nicole A. W. Abercrombie, and Cable Huston LLP.

          Before Lagesen, Presiding Judge, and Egan, Chief Judge, and Edmonds, Senior Judge.

         Case Summary:

         Plaintiff Eugene Water and Electric Board (EWEB) brought this declaratory judgment action seeking to establish its rights under an easement over defendant Miller's property for the excavation, construction, and maintenance of a waterway channel for "salmon" passage. The trial court granted EWEB's motion for summary judgment and entered the requested declaration, and defendant appeals, contending that the court erred because there are genuine issues of material fact as to whether EWEB's activities, including the removal of 2, 000 cubic yards of gravel from the channel, are reasonably necessary. Defendant also contends that the judgment permits uses that exceed the scope and purpose of the easement. Held: The trial court correctly held that there is no genuine issue of material fact as to whether the removal of gravel is reasonably necessary to achieve adequate water flow for fish passage, and that EWEB was entitled to summary judgment on that issue. The Court of Appeals also rejected defendant's multiple arguments that the judgment exceeds the scope or purpose of the easement: Contrary to defendant's contention, the judgment, which permits EWEB to conduct its work on the channel within its "reasonable discretion, " does not grant EWEB unfettered discretion, because EWEB's work must be exercised [290 Or. App 722] in a way that is reasonably necessary to accomplish the easement's intended purpose. The judgment's requirement that defendant sign a permit application to authorize the work on the channel does not exceed the scope of the easement, because defendant's signature on the permit application authorizing the work is reasonably necessary to carry out the terms of the easement. The judgment's use of the term "fish, " rather than "salmon, " does not exceed the purpose of the easement, because the evidence in the record is that only species of "salmon" will use the channel; additionally, there is no evidence that permitting use of the easement for the passage of "fish" unreasonably burdens the servient estate. The Court of Appeals also rejected defendant's contention that the judgment exceeds the scope of the justiciable controversy; the judgment is correctly limited to issues relating to the scope of the easement and EWEB's rights under the easement.

         Affirmed.

         [290 Or. App 723] EGAN, C. J.

         Plaintiff Eugene Water and Electric Board (EWEB) is a municipal utility company that generates electricity from the McKenzie River at its Leaburg-Walterville hydroelectric plant. EWEB owns an easement over defendant's property to excavate, construct, and maintain a waterway channel that allows fish to migrate around the Walterville plant. EWEB brought this declaratory judgment action seeking to establish its rights under the easement and to prohibit defendant's interference. The trial court granted EWEB's motion for summary judgment and issued the disputed declaratory judgment, from which defendant appeals, assigning several errors. We conclude that the trial court did not err and therefore affirm.

         EWEB's original license with the Federal Energy Regulatory Commission (FERC) to generate electricity from the Walterville plant required EWEB to construct, inspect, operate, and maintain a "fish return channel" to mitigate the plant's effects on fish populations native to the McKenzie River. In doing so, EWEB is required to coordinate with several agencies, including FERC, the Oregon Department of Fish and Wildlife, the United States Army Corps of Engineers, and the Oregon Department of State Lands.

         In 1968, EWEB obtained an easement over what is now defendant's property. The easement provides, as relevant:

"WHEREAS, The Fish Commission of the State of Oregon has required [EWEB] to erect a salmon fish rack or barrier across said Tail Race to prevent salmon from migrating up [the 'Tail Race' toward the Walterville plant] and forcing said salmon to proceed up the McKenzie River,
“* * * *
"[Defendant's predecessors] *** hereby grant unto [EWEB] the right to excavate, construct and reconstruct the channel of said waterway *** from time to time in order to keep a sufficient flow of water which will attract and permit salmon to migrate through said waterway to the McKenzie River[.]"

         [290 Or. App 724] The easement also grants to EWEB "a way along the channel of the waterway along the most practical route." The easement further requires EWEB to construct and maintain a dike with culverts across the waterway "for access to and from both sides of the waterway." The easement states that ...


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