Gregory Miller v. Gloria Ann Jones

Plaintiffs Allen and Kathy Worth and defendant

Jones are owners of adjacent properties.1 Plaintiffs

brought an action for declaratory relief against defendant,

seeking (1) a declaration that a 1999 agreement between

plaintiffs' predecessors-in-interest (the Hopkinses) and

defendant's predecessors-in-interest (the Busbys) created

an appurtenant easement granting plaintiffs the right to

use, service, and maintain an irrigation pipeline running

through defendant's property or, alternatively, (2) a

declaration that plaintiffs have an implied easement to the

same effect. The trial court concluded that the agreement

created an appurtenant easement in favor of plaintiffs or,

alternatively, that plaintiffs have an implied easement.

Defendant appeals, contending first that the "court erred in

interpreting the [agreement] as [creating] an appurtenant

easement in favor of plaintiffs.” Specifically, defendant argues

that the agreement unambiguously granted only a personal

license to the Hopkinses and that, even if the agreement

did create an easement in their favor, the easement was not

appurtenant. Defendant also contends that the court erred

in alternatively concluding that plaintiffs have an implied

easement.2 For the reasons set forth below, we conclude

that the agreement unambiguously created an appurtenant

easement granting plaintiffs the right to use, service, and

maintain the pipeline. Accordingly, we affirm.3

The relevant facts are undisputed. The Busbys

originally owned what is now defendant's property, which

lies on the south bank of the Umpqua River. That property

consists of tax lot 400 and tax lot 500. Mr. Busby also owned

two parcels that lie south of defendant's property. Those two

parcels were created as the result of a land partition initiated

by Mr. Busby in 1998; what is now plaintiffs' property—

1 Plaintiffs Miller and Millsap, who also own property adjacent to that of

defendant, are not parties on appeal. Accordingly, all subsequent references to

"plaintiffs” in this opinion refer only to Allen and Kathy Worth.

2 Defendant also requests that we exercise our discretion under ORS

19.415(3)(b) to review this case de novo. To the extent that the underlying claims

are equitable in nature, we decline to do so. See ORAP 5.40(8)(c) (providing that we

exercise de novo review "only in exceptional cases”).

3 Given our disposition of the case, we do not address defendant's contention

that the trial court erred in concluding that plaintiffs have an implied easement.

Cite as 256 Or App 392 (2013) 395

the western parcel—was designated as Parcel 1 of Land

Partition 1998-0103, and a second property—the eastern

parcel—was designated as Parcel 2 of Land Partition 1998-

0103.

In November 1998, Mr. Busby deeded Parcel 1

of Land Partition 1998-0103 to plaintiffs' predecessorsin-

interest, the Hopkinses. That parcel had (and still

has) certificated water rights from the Umpqua River.

Mr. Hopkins was familiar with the parcel because, as the

Busbys' ranch hand, he had irrigated it using the Busbys'

irrigation pipeline. At the time of the sale, that pipeline ran

from the Umpqua River through the Busbys' property (tax

lots 400 and 500) and Mr. Busby's remaining parcel (Parcel

2 of Land Partition 1998-0103) to the Hopkinses' parcel.

About four months after the sale, in March 1999,

the Busbys and the Hopkinses entered into the following

"Irrigation Pipeline and Access Agreement” (IPA Agreement):

"This agreement is entered into this 10th day of March

1999 by and between James Scott Busby and Margaret

Mary Busby, hereafter referred to as Owners, and Jamie

Lee Hopkins and Suzanne Kay Hopkins, hereafter referred

to as Users.

"Whereas Owners shall give Users a non-exclusive right

to service and maintain an existing underground irrigation

pipeline and facility which services User's property known

as Parcel 1 of Land Partition 1998-0103, Partition Platt

records of Douglas County, Oregon. Users shall have the

rights to service and maintain the existing underground

pipeline facilities through Owner's Parcel 2 of Land

Partition 1998-0103, and Parcels 1 and 2, also known as

T-25 R7 S28, Tax Lot 400 and Tax Lot 500.

"The access through Parcel 1 and Parcel 2 (Tax Lot 400

and Tax Lot 500) shall be limited to a 15 ft. non-exclusive

easement, which will run North to South between the two

parcels. Five feet of said easement will be on the Easterly

property line of Parcel 2 and 10 feet shall be on the Westerly

property line of Parcel 1.”

One month later, in April 1999, Mr. Busby deeded

Parcel 2 of Land Partition 1998-0103 to Miller and Millsap.

That same month, the Busbys granted Miller and Millsap

396 Miller v. Jones

an easement over the Busbys' property. Several years

later, in March 2005, the Busbys sold tax lots 400 and

500 to defendant. The Hopkinses then sold their parcel to

plaintiffs in May 2006, and a dispute arose over whether

plaintiffs were entitled—pursuant to the IPA Agreement—

to use, service, and maintain the irrigation pipeline running

through defendant's property.

As noted, plaintiffs brought an action for declaratory

relief, seeking, among other things, a declaration that the

IPA Agreement unambiguously created an appurtenant

easement granting plaintiffs the right to use, service,

and maintain the irrigation pipeline running through

defendant's property. Defendant responded that the IPA

Agreement unambiguously created only "a permission, a

license, between Busby and Hopkins allowing Hopkins * * *,

who is described as the user in the document, to use the

pipeline for his property. It simply doesn't meet the test of

an easement.” Alternatively, defendant argued that, even

if the IPA Agreement did create an easement in favor of

the Hopkinses, it was not appurtenant—that is, it did not

transfer by conveyance to plaintiffs.

The trial court concluded that, "under the terms of

[the IPA Agreement],” plaintiffs have an "easement to use,

service and maintain the existing westerly pipeline and

facility over the Jones Property for the purpose of supplying

water to the Worth Property.” Defendant appeals, largely

reiterating her arguments before the trial court.

As framed by defendant, the issues on appeal are as

follows: (1) whether the IPA Agreement created an express

easement in favor of the Hopkinses and, if so, (2) whether

that easement is appurtenant such that it was transferred

to plaintiffs by conveyance. Those questions require that

we interpret the IPA Agreement. In doing so, "our objective

is to ascertain the meaning that most likely was intended

by the parties who entered into it.” Connall v. Felton, 225

Or App 266, 271, 201 P3d 219, rev den, 346 Or 257 (2009)

(citing ORS 42.240 ("In the construction of an instrument

the intention of the parties is to be pursued if possible[.]”));

see also Tipperman v. Tsiatsos, 327 Or 539, 964 P2d 1015

(1998) (construing deed); Yogman v. Parrott, 325 Or 358, 937

Cite as 256 Or App 392 (2013) 397

P2d 1019 (1997) (construing contract). "We look first to the

language of the instrument itself and consider its text in the

context of the document as a whole. If the text's meaning

is unambiguous, the analysis ends, and we interpret the

provision's meaning as a matter of law.” Connall, 225 Or App

at 272. "[A] contractual provision is ambiguous if it is capable

of more than one sensible and reasonable interpretation; a

term is unambiguous if its meaning is so clear as to preclude

doubt by a reasonable person.” Peace River Seed Co-Op v.

Proseeds Marketing, 253 Or App 704, 724, 293 P3d 1058

(2012) (internal quotation marks omitted). Furthermore,

we are mindful that, "[i]n construing an instrument, the

circumstances under which it was made, including the

situation of the subject and of the parties, may be shown

so that the judge is placed in the position of those whose

language the judge is interpreting.” ORS 42.220; see also

Connall, 225 Or App at 272 ("To determine whether a term

in a document is ambiguous, the court can consider evidence

of the circumstances surrounding its execution.”).

With that framework in mind, we first consider

whether, as the trial court concluded, the IPA Agreement

unambiguously created an express easement. As noted,

defendant argues that there is "no indication that the

pipeline agreement was intended as anything more than a

license for the Hopkins family to access the water irrigation

pipeline while they owned [the property], which was sold to

them by Mr. Busby.” Plaintiffs respond that the use of the

word "easement” twice in the IPA Agreement unambiguously

demonstrates that the " 'right' being granted is intended to

be in the nature of an easement.”

We conclude that the IPA Agreement unambiguously

created a right in the nature of an easement. "An easement

is a right in one person to do certain acts on land of another.”

Bloomfield v. Weakland, 224 Or App 433, 445, 199 P3d 318

(2008), rev den, 346 Or 115 (2009) (citing German Savings

& Loan Soc. v. Gordon, 54 Or 147, 150, 102 P 736 (1909)).

"An express easement is one expressed clearly in writing

containing plain and direct language evincing the grantor's

intent to create a right in the nature of an easement.” Id. As

noted, the second paragraph of the IPA Agreement provides,

398 Miller v. Jones

in part, that "Owners shall give Users a non-exclusive right

to service and maintain an existing underground irrigation

pipeline and facility which services User's property known

as Parcel 1 of Land Partition 1998-0103.” (Emphasis added.)

It further provides that "Users shall have the rights to

service and maintain the existing underground pipeline

facilities through * * * Tax Lot 400 and Tax Lot 500.”

(Emphasis added.) Accordingly, the IPA Agreement plainly

granted "Users” a right "to do certain acts” (to use, service,

and maintain the pipeline and facility) "on land of another”

(tax lots 400 and 500). See Bloomfield, 224 Or App at 445.

Further, examination of those provisions in the

context of the document as a whole provides additional

support for the trial court's conclusion that the IPA

Agreement created an easement in favor of the Hopkinses.

The third paragraph of the IPA Agreement provides that

"[t]he access through * * * Tax Lot 400 and Tax Lot 500[ ] shall

be limited to a 15 ft. non-exclusive easement[.]” (Emphasis

added.) That provision plainly creates an easement granting

the Hopkinses the right to access certain parts of tax lots 400

and 500 in order to effectuate the rights referenced in the

second paragraph of the agreement—that is, the "right[s]

to service and maintain an existing underground irrigation

pipeline and facility which services User's property”

across tax lots 400 and 500.4 Put simply, the fact that the

agreement expressly creates an easement allowing access

to certain parts of tax lots 400 and 500 makes clear that the

parties intended that the partially conterminous "right[s] to

4 Defendant argues that the word "easement” in the IPA Agreement refers to

"an actual easement agreement” that the Busbys executed two weeks later with

Miller and Millsap, "granting to them an easement for the installation of a separate

irrigation pipeline over what is now Defendant Jones's property.” In defendant's

view, the IPA Agreement granted the Hopkinses permission to access tax lots

400 and 500 at the location where the Busbys later granted an express easement

to Miller and Millsap. To the extent that defendant is arguing that the term

"easement” in the third paragraph of the IPA Agreement is ambiguous, we disagree.

The third paragraph clearly provides that the right of access is "limited to a 15 ft.

non-exclusive easement” and then describes the location of that easement. Parole

evidence may only be considered to determine whether a contractual provision

is ambiguous when that evidence relates to the "circumstances underlying the

formation of [the] contract.” Sollars v. City of Milwaukie, 222 Or App 384, 388,

193 P3d 75 (2008), rev den, 346 Or 184 (2009). Here, evidence that the Busbys and

Miller and Millsap executed an agreement creating an express easement to install

a separate pipeline weeks after the IPA Agreement was signed does not relate to

the circumstances of the IPA Agreement's formation.

Cite as 256 Or App 392 (2013) 399

service and maintain the existing underground irrigation

pipeline and facility” also be of the same duration and in the

nature of an easement. Read together, the two paragraphs

are not "capable of more than one sensible and reasonable

interpretation.” See Peace River Seed Co-Op, 253 Or App

at 724. That is, the alternate interpretation—that the IPA

Agreement granted the Hopkinses an easement to access

the pipeline but only a revocable license to use, service, and

maintain that pipeline—is untenable given the document's

plain terms and the circumstances underlying its formation.

Defendant asserts that the IPA Agreement cannot

be interpreted to have created an easement in favor of the

Hopkinses because "the document title itself does not state

that the agreement is to be an easement” and "there is no

language stating that an easement is conveyed or granted.”

That argument is not well taken. Defendant points to no

authority establishing that certain words are required to

create an express easement; rather, as noted, "[a]n express

easement is one expressed clearly in writing containing

plain and direct language evincing the grantor's intent to

create a right in the nature of an easement.” Bloomfield, 224

Or App at 445; see id. at 446 (finding an express easement

where the plat "does not expressly describe an 'easement' ”).

As illustrated above, the plain text of the IPA Agreement

meets that standard.

We must still consider defendant's argument that,

even if the IPA Agreement created an easement in favor of

the Hopkinses, that easement was not appurtenant and,

accordingly, was not transferred to plaintiffs by conveyance.

An appurtenant easement "is one where the land of one

person, the servient tenement, is subjected to some use or

burden for the benefit of the lands of another person, the

dominant tenement.” Id. at 445. "The right is enjoyed by

the owner of the dominant estate by virtue of his ownership

of the land. If the dominant estate is sold or otherwise

transferred to another, the easement over the servient land

is transferred as well.” Braat v. Aylett, 278 Or 549, 552, 564

P2d 1030 (1977). "There is a strong preference for finding

that an easement is appurtenant, especially where the deed

specifically refers to property that could be the dominant

estate.” Verzeano v. Carpenter, 108 Or App 258, 261, 815 P2d

400 Miller v. Jones

1275 (1991), rev den, 312 Or 589 (1992) (citing Hall v. Meyer,

270 Or 335, 339, 527 P2d 722 (1974)).

Defendant argues that there is "no language showing

an intent that the easement be permanent, assignable, or

anything other than personal to the Hopkinses.” Our case law,

however, does not require specific language demonstrating

an intent that an easement be appurtenant.5 Instead,

that intent is assumed in the first instance. As noted, the

preference is for finding that an easement is appurtenant—

especially where the dominant estate is identified—unless

specific language demonstrates a contrary intent. See Hall,

270 Or at 339 (noting the preference for finding that an

easement is appurtenant and stating that, in that case, "[t]he

reservation [did] not contain language sufficient to override

that preference” (footnote omitted)); see also Verzeano, 108

Or App at 261 (concluding that an easement is appurtenant

where, "[a]lthough the property is not precisely defined,”

the language of the conveyance is clear that the property

was intended to be the dominant estate). Here, defendant

has identified no language demonstrating a contrary intent.

More importantly, the IPA Agreement expressly refers to

the dominant estate: Parcel 1 of Land Partition 1998-0103.

Thus, consistently with the "strong preference” described

above, we conclude that the easement is appurtenant.

In sum, we conclude that the IPA Agreement

unambiguously created an appurtenant easement granting

5 Defendant relies on Hunnell v. Roseburg Resources Co., 183 Or App 228, 51

P3d 680, rev den, 335 Or 114 (2002), in advancing her argument that a trial court

errs "in finding [that] an easement was intended to pass to successors and assigns

where those words were not so stated in the document.” Hunnell does not stand for

that proposition. In Hunnell, we were tasked with interpreting an easement that

provided that a company and "its successors and assigns” owned the easement

"for and during such period of time as said [company] shall have ownership of any

interest in or control over any timber [or] timberlands * * *.” Id. at 232 (internal

quotation marks omitted; second brackets in Hunnell). The trial court concluded

that the easement did not end with the dissolution of the company, and we reversed,

concluding that the instrument created an easement for a limited term and that

the easement therefore ended when the company no longer owned or controlled

the timber or timberland and did not pass to the company's successor-in-interest.

Id. at 234. Here, defendant has identified no language in the IPA Agreement that

may be construed to create an easement only for a limited term, and, accordingly,

Hunnell does not apply.

Cite as 256 Or App 392 (2013) 401

plaintiffs the right to use, service, and maintain the pipeline.

Accordingly, the trial court did not err.

Affirmed.