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Marshall v. Cannady

Court of Appeals of Oregon

May 16, 2018

Conly MARSHALL, Gary Marshall, Georgia Marshall, Linda Neale, and Broken Circle Company, an Oregon domestic business corporation, Plaintiffs-Respondents,
v.
Barbara J. CANNADY and Carol Ruth Tullis, Executor of the Estate of Caroline W. Manock, Deceased, Defendants-Appellants.

          Argued and submitted June 2, 2017.

          Harney County Circuit Court 1304139CV W. D. Cramer, Jr., Judge.

          Alan M. Sorem argued the cause for appellants. With him on the briefs was Saalfeld Griggs PC.

          Thomas J. Sullivan argued the cause for respondents. With him on the brief was Brent H. Smith.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendants appeal a judgment granting plaintiffs prescriptive and implied easements over a road that crosses defendants' property. Defendants contend that the trial court erred in concluding that the evidence was sufficient as a matter of law to satisfy the notorious-use and adverse-use elements of plaintiffs' prescriptive easement claim and that the trial court erred in its interpretation and application of the factors set forth in Cheney v. Mueller, 259 Or. 108, 485 P.2d 1218 (1971), when granting plaintiffs implied easements. As part of their argument contesting the interpretation and application of the Cheney factors, defendants contend that the trial court erred in granting one of the implied easements because the trial court failed to make explicit findings regarding each Cheney factor for that easement.

         Held:

         The majority of defendants' arguments were not properly before the Court of Appeals because defendants failed to file an ORCP 54 B(2) motion or a timely equivalent preserving those arguments prior [291 Or. 803] to fling their motion for a new trial. Defendants' lone reviewable argument- that the trial court erred in not making explicit findings on each Cheney factor regarding one of the implied easements-was unavailing, because courts are not obligated to make explicit findings or otherwise discuss each Cheney factor when granting or denying an implied easement.

         Affirmed.

         [291 Or. 804] SHORR, J.

         Defendants appeal a judgment granting plaintiffs prescriptive and implied easements over a road that crosses defendants' property.[1] Defendants assert four assignments of error. We write to address only the first three: (1) that the trial court erred in concluding that the evidence was sufficient as a matter of law to satisfy the notorious-use element of a prescriptive easement; (2) that the trial court erred in concluding that the evidence was sufficient as a matter of law to satisfy the adverse-use element of a prescriptive easement; and (3) that the trial court erred in its interpretation and application of the factors set forth in Cheney v. Mueller, 259 Or. 108, 485 P.2d 1218 (1971) (the Cheney factors), when granting plaintiffs easements by implication.[2] We conclude that defendants' first two assignments of error are unpreserved and the arguments that they advance in support of their third assignment of error are either not properly before us or are unavailing. Accordingly, we affirm.

         Plaintiffs are land owners who own parcels adjacent to defendants' property. Plaintiffs and their predecessors in interest as well as defendants and their predecessors in interest have used a private road, referred to by the parties as the "Jones Road, " as the primary access to their properties for decades. Initially, the Jones Road ran completely over property owned by plaintiff Neale's predecessor in interest, then ran along the property line dividing the Neale property with property that is now owned by defendants, then crossed plaintiffs Marshalls' property before running along the property line dividing the Marshalls' property with defendants' property. Beginning in the 1990s, defendants began the process of acquiring all of the land on the east and south sides of the property lines that the Jones Road follows. That process ended in 2006.

         Around 2006, defendant Cannady began locking a gate on the Jones Road to restrict plaintiffs' and the public's [291 Or. 805] access. In 2009, Cannady built a fence down the middle of the first quarter mile of the Jones Road and removed a cattle guard in the road just ...


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