Robert P. KUTZ and Karon V. Johnson Kutz, Plaintiffs-Appellants,
Olen H. LEE, Lois E. Lee, Katherine Fetz Hagstrom, Central Oregon Irrigation District, Stephen C. and Carol A. Younger Revocable Trust Defendants-Respondents, and Marcia LEGG, et al., Defendants.
Submitted January 6, 2017
Deschutes County Circuit Court 15CV0082 A. Michael Adler,
P. Kutz and Karon V. Johnson Kutz fled the briefs pro se.
Matthew Singer, Garrett S. Garfeld, and Holland & Knight
LLP fled the brief for respondent Central Oregon Irrigation
appearance for respondents Olen H. Lee, Lois E. Lee,
Katherine Fetz Hagstrom, and Stephen C. and Carol A. Younger
DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi,
Summary: Plaintiffs appeal from the trial court's
judgment dismissing their claims for declaratory relief and
private nuisance. Plaintiffs alleged the existence of a
public easement across 15 privately owned lots in Bend. The
owners of two of the lots constructed gates and fences that
inhibit public use of the alleged easement. In addition to
the landowners, Plaintiffs asserted their [291 Or.App. 471]
claims against the Central Oregon Irrigation District (COID),
which plaintiffs alleged had affirmatively permitted the
construction of the gates and fences. On defendants'
motions under ORCP 21, the trial court dismissed
plaintiffs' claims on the basis that plaintiffs lack
standing, that plaintiffs failed to give timely notice to
COID under the Oregon Tort Claims Act (OTCA), and that the
OTCA's statute of limitations bars plaintiffs'
claims. Plaintiffs assign error to the trial court's
dismissal on all three grounds.
The trial court erred in dismissing plaintiffs' claims.
Plaintiffs sufficiently alleged access to the purported
public easement to survive a motion to dismiss on standing
grounds. Plaintiffs also alleged facts from which a
reasonable factfinder could find that plaintiffs gave timely
notice under the OTCA, and, for similar reasons, the
complaint was not time-barred on its face.
Or.App. 472] AOYAGI, J.
filed this action for declaratory and injunctive relief
against a group of private landowners and the Central Oregon
Irrigation District (COID), asserting the existence of a
public easement on land that defendant landowners own and on
which defendant COID has its own easement. Defendants filed
motions to dismiss under ORCP 21 A(8) for failure to state a
claim. The trial court dismissed plaintiffs' claims on
three independent grounds: plaintiffs lack standing,
plaintiffs failed to give timely notice under the Oregon Tort
Claims Act (OTCA), and plaintiffs' claims are barred by
the OTCA statute of limitations. Plaintiffs appeal. For the
reasons set forth below, we reverse.
review of the grant of a motion to dismiss under ORCP 21
A(8), we accept as true all well-pleaded factual allegations
in the complaint and make reasonable inferences from those
allegations in favor of plaintiffs. Yanney v.
Koehler, 147 Or.App. 269, 272, 272 n 1, 935 P.2d 1235,
rev den, 325 Or. 368 (1997). That includes documents
that the complaint incorporates by reference, see
BoardMaster Corp. v. Jackson County, 224 Or.App. 533,
535, 198 P.3d 454 (2008), which, in this case, the parties
agree includes certain plat maps. We state the facts in
accordance with that standard.
Olen and Lois Lee, Katherine Hagstrom, and the other
individual defendants (collectively landowners) own
residential lots in the Orion Estates neighborhood in Bend.
Their lots are located adjacent to the Central Oregon
Irrigation Canal. A 20-foot-wide dirt path, hereinafter
"the canal path, " runs along the canal through the
15 canal-front lots in Orion Estates and continues an
unspecified distance north and south of Orion
Estates. Defendant COID has an easement for right
of way on the canal path to facilitate the operation,
maintenance, and repair of the canal. COID personnel and
vehicles use the canal path for those purposes.
Or.App. 473] The Orion Estates plat was recorded in 1980. The
plat map shows a "canal easement line" running
parallel to the canal through Orion Estates lots 12 through
26. The plat contains a dedication "to the public
forever, all streets and easements as shown."
only easements shown on the plat map are the canal easement
line and utility easements. Fifty-six people, whom plaintiffs
identify as the then-owners of the Orion Estates lots, signed
the dedication on the plat. Multiple governmental officials
approved the plat, including the then-chairman of COID. The
following excerpt from the Orion Estates plat map shows the
location of the canal-front lots, the "canal easement
line, " and the canal. Annotations have been added to
indicate the lots currently owned by the Lees (lot 16) and
Hagstrom (lot 19). The canal path is located in the area
between the canal easement line and the canal.
Or.App. 474] According to the complaint, from at least 1980
(or earlier) until 2007 (or later), members of the public
residing in Orion Estates and surrounding neighborhoods used
the canal path, including the portions located on defendant
landowners' lots, for recreational activities such as
walking, bicycling, jogging, and exercising dogs. Dozens of
members of the public used it on a daily basis and hundreds
on a yearly basis. The Bend High School track team used it
for training runs. From 1982 until 2006, members of the
public also used the canal path to reach a public golf course
and golf course restaurant located immediately north of Orion
Estates. One of the golf course greens was adjacent to the
canal path, and a path led directly from the green onto the
2006, a developer purchased the golf course property and
thereafter built the Orion Greens neighborhood in its place.
As in Orion Estates, the canal path runs through the
canal-front lots in Orion Greens. Heading north from Orion
Estates, the canal-front lots in Orion Greens are numbered
24, 25, 26, and 27. (Orion Estates lot 12 abuts Orion Greens
lot 24.) The City of Bend required the developer of Orion
Greens to provide public access to the canal path as a
condition of development, specifically a "12'
pedestrian access easement" and a "50' primary
trail easement to B.M.P.R.D. [Bend Metro Parks and Recreation
District]." As a result, a 12-foot-wide paved pedestrian
path currently runs across Orion Greens lot 27 from a public
street to the canal path. Plaintiffs allege that the BMPRD
easement runs along the back of Orion Greens lots 24, 25, and
26, coextensive with the canal path, and provides for public
use and access to the canal path to the north and
point after 2007, three things happened, not necessarily in
this order. First, defendant COID entered into two
"joint road use agreements" with, respectively, the
Lees and Hagstrom. The complaint describes the agreements
[291 Or.App. 475] as "permitting" the Lees and
Hagstrom to construct gates on their properties "subject
to conditions imposed by COID." The agreements were
recorded in Deschutes County in 2009. Second, the Lees built
a five foot high chain link fence and gate at the northern
end of their property that completely blocks public passage
on the canal path. Third, Hagstrom built a five foot high
chain link fence and gate wrapped in barbed wire at the
southern end of her property that also completely blocks
public passage on the canal path. As a result, the canal path