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Kutz v. Lee

Court of Appeals of Oregon

April 25, 2018

Robert P. KUTZ and Karon V. Johnson Kutz, Plaintiffs-Appellants,
v.
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, Judge.

          Robert 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 District.

          No appearance for respondents Olen H. Lee, Lois E. Lee, Katherine Fetz Hagstrom, and Stephen C. and Carol A. Younger Revocable Trust.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi, Judge.

         Case 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.

         Held: 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.

          [291 Or.App. 472] AOYAGI, J.

         Plaintiffs 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.

         I. FACTS

         On 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.

         Defendants 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.[1] 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.

          [291 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."

         The 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.

         (Image Omitted)

          [291 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 canal path.

         In 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 south.[2]

         At some 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 is ...


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