Block v. DEA Properties-2 LLC

525

Argued and submitted February 26, 2020, reversed and remanded on appeal

and cross-appeal November 3, 2021

Ernest W. BLOCK, Jr.,

Plaintiff-Respondent

Cross-Appellant,

and

Marvin C. LEACH

and Debra J. Leach,

Plaintiffs-Respondents,

and

Ron D. HILLER et al.,

Plaintiffs,

v.

DEA PROPERTIES-2 LLC,

Defendant-Appellant

Cross-Respondent.

Tillamook County Circuit Court

17CV37076; A169127

501 P3d 545

Plaintiff Block owns two properties that benefit from a beach-access ease-

ment over the property of defendant, DEA Properties-2, LLC (DEA). Block

assigned his easement—but neither of his properties—to plaintiffs Marvin and

Debra Leach in an effort to allow the Leaches to use the beach-access easement.

Block and the Leaches then sought a declaration that that assignment, among

others, was valid and effective, and the trial court agreed. DEA appealed a gen-

eral judgment entered following a bench trial, contending that the trial court

erred in holding that the easement can validly be assigned to someone who does

not own the dominant or servient estate. Block cross-appealed, contending that

the court erred in granting relief on DEA’s counterclaim for an implied easement

over a road on Block’s parcel. Held: The deed unambiguously created an ordi-

nary appurtenant easement, which cannot be severed and transferred separately

from the dominant estate. On appeal, therefore, the trial court erred in declaring

that the easement assignment agreements were valid and enforceable. On cross-

appeal, the question that the trial court was required to answer was whether an

easement arose as an inference of the intention of the parties to a conveyance

of land based on the circumstances existing at the time of the conveyance in

December 1997. The Court of Appeals reversed and remanded for the trial court

to reevaluate the evidence under the correct legal standard.

Reversed and remanded on appeal and cross-appeal.

526 Block v. DEA Properties-2 LLC

Jonathan R. Hill, Judge.

Steve C. Morasch and Landerholm, P. S. filed the briefs

for appellant-cross-respondent.

Gregory S. Hathaway argued the cause for respondent-

cross-appellant and respondents. Also on the briefs was

Hathaway Larson LLP.

Before DeVore, Presiding Judge, and DeHoog, Judge, and

Mooney, Judge.

DeHOOG, J.

Reversed and remanded on appeal and cross-appeal.

Cite as 315 Or App 525 (2021) 527

DeHOOG, J.

This appeal arises from a dispute between neigh-

bors. Plaintiff Block owns two properties that benefit from a

beach-access easement over the property of defendant, DEA

Properties-2, LLC (DEA). Block assigned his easement—but

neither of his properties—to plaintiffs Marvin and Debra

Leach in an effort to allow the Leaches to use the beach-

access easement. Block and the Leaches then sought a dec-

laration that that assignment, among others, was valid and

effective, and the trial court agreed.

DEA appeals a general judgment entered following

a bench trial, contending that the trial court erred in hold-

ing that the easement can validly be assigned to someone

who does not own the dominant or servient estate. Block

cross-appeals, contending that the court erred in granting

relief on DEA’s counterclaim for an implied easement over

a road on Block’s parcel.1 As explained below, we conclude

that the court erred in holding that the grant of an appur-

tenant easement to owners of certain property and their

“heirs, successors, and assigns” indicates an intention to

make the appurtenant easement assignable separately from

ownership of the dominant estate. We also conclude that the

trial court erred in determining that DEA has an implied

easement over the road on Block’s parcel. Accordingly, we

reverse and remand.

We begin by providing some basic background facts

and the specific facts relevant to DEA’s appeal. The follow-

ing facts are undisputed.

In 1994 and 1995, the Hatch heirs partitioned a

piece of beachfront property into several parcels. In 1997,

they sold parcel 2 to DeCarrico, reserving “A beach access

Easement along the Southerly 5 feet of Parcel 2 * * *, in favor

of the owners, their heirs, successors and assigns, of the fol-

lowing described property, in Tillamook County, Oregon[.]”

The “following described property”—the property to whose

owners the easement is reserved—is a list of four proper-

ties. Two of those properties are other parcels in the Hatch

1

The judgment also denied the Leaches’ claim for a prescriptive easement

for beach access. That claim is not at issue on appeal.

528 Block v. DEA Properties-2 LLC

heirs’ partition; the other two are other neighboring proper-

ties. We refer to parcel 2 as the servient estate and the four

properties in whose favor the easement was reserved as the

dominant estates.2

As a general matter, DeCarrico allowed neighbors

to use the beach-access path on parcel 2. In approximately

2015, DeCarrico sold parcel 2 to DEA. Anderson, the prin-

cipal of DEA, took steps to limit the use of the easement to

the owners of the dominant estates.

Plaintiff Block owns two of the dominant estates

and one other nearby property, which is known as the

green house. In 2017, in documents entitled “Easement

Assignment Agreement for Beach Access,” he purported to

assign the easement to four couples who do not own domi-

nant estates, including the Leaches. At the same time, the

owner of another of the dominant estates, the Hiller Family

Trust, executed an Easement Assignment Agreement for

Beach Access in favor of Block as the owner of the green

house.

Block, the trustee of the Hiller Family Trust, the

Leaches, and the other couples to whom Block assigned

the easement brought this declaratory-judgment action,

seeking, among other things, a declaration that they had

the right to use the easement under the assignment agree-

ments. In cross-motions for summary judgment, the parties

disputed the validity of the Assignment Agreements for

Beach Access. DEA contended that the beach-access ease-

ment was an appurtenant easement and, therefore, could

not be assigned or otherwise transferred to anyone other

than the owners of the dominant estates. DEA asserted that

the term “assigns” in the text of the reservation—which, as

set out above, reserves the easement “in favor of the own-

ers, their heirs, successors and assigns, of the following

described property”—is standard text indicating that the

easement runs with the land.

2

At trial, there was testimony that the deed to a fifth property granted the

beach access easement to that property even though that property was not listed

as a dominant estate in the deed to parcel 2. That fifth dominant estate is not at

issue in DEA’s appeal, so we do not discuss it further.

Cite as 315 Or App 525 (2021) 529

Plaintiffs did not dispute that the beach-access

easement was an appurtenant easement. They contended,

however, that the inclusion of the word “assigns” in the text

unambiguously indicated the parties’ intention to allow the

easement to be assigned separately from ownership of the

dominant estates.

Relying on cases involving easements in gross, the

trial court agreed with plaintiffs. However, relying on the

same cases, the court held that, although the purported

assignments were valid, there remained a genuine issue

of material fact as to whether, given the number of assign-

ments made, they collectively exceeded the scope of the orig-

inal easement, which was limited to reasonable use of the

property.

The trial court therefore denied both motions for

summary judgment and held a trial to determine whether

the assignments would result in unreasonable use of the

property. Before trial, Block rescinded three of his assign-

ments, and the plaintiffs whose assignments were rescinded

before trial, as well as the trustee of the Hiller Family Trust,

were removed from the case. Thus, at trial, and again on

appeal, the only assignments at issue are Block’s assign-

ment to the Leaches and the Hiller Family Trust’s assign-

ment to Block as owner of the green house.

At trial, DEA again contended that the easement

could not be assigned separately from the dominant estates,

and the court again rejected that argument. Ultimately,

the trial court held that the use of the easement that would

result from the remaining assignments was reasonable

and entered judgment on the beach-access easement claim

in favor of Block and the Leaches, declaring that the two

assignments at issue “are valid and enforceable.”

DEA appeals, asserting that “[t]he owner of the

beneficial rights under an appurtenant easement cannot

unilaterally expand the easement by assigning the benefi-

cial rights to additional properties.” DEA also argues that

the word “assigns” in the deed refers to assignees of the

property, not assignees of the easement separately from

ownership of the property. Thus, DEA contends, the trial

court erred in declaring the assignments to be valid and

530 Block v. DEA Properties-2 LLC

enforceable. For their part, Block and the Leaches contend

that the trial court correctly concluded that the inclusion

of the word “assigns” unambiguously indicates the parties’

intention to allow separate assignment of the beach-access

easement.

As explained below, we agree with DEA that the

easement created in the deed to parcel 2 is an appurte-

nant easement that cannot be assigned separately from

an interest in the dominant estates. Accordingly, the trial

court erred in holding that the assignments were valid and

enforceable.

“In reviewing a trial court’s determinations follow-

ing a bench trial, we review the trial court’s explicit and

implicit findings of fact for any evidence in the record to

support them, and the legal consequences of those facts for

legal error.” Pistol Resources, LLC v. McNeely, 312 Or App

627, 629, 496 P3d 28 (2021) (internal quotation marks omit-

ted). As noted above, the facts relevant to DEA’s appeal are

undisputed; accordingly, our task here is to review the trial

court’s legal conclusions for legal error.

“ ‘An easement is a right in one person to do certain

acts on land of another.’ ” Miller v. Jones, 256 Or App 392,

397, 302 P3d 812 (2013) (quoting Bloomfield v. Weakland,

224 Or App 433, 445, 199 P3d 318 (2008), rev den, 346 Or

115 (2009)). “An appurtenant easement ‘is one where the

land of one person, the servient [estate], is subjected to some

use or burden for the benefit of the lands of another per-

son, the dominant [estate].’ ” Id. at 399 (quoting Bloomfield,

224 Or App 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.’ ” Id. (quoting Braat v. Aylett, 278 Or 549, 552, 564

P2d 1030 (1977)).

In Sunset Lake v. Remington, 45 Or App 973, 977,

609 P2d 896 (1980), we held that, if an easement does not

subject the land to a use or burden for the benefit of another

piece of land but, instead, subjects land to a use or burden

that is personal—separable from the creator’s ownership

Cite as 315 Or App 525 (2021) 531

of any particular land—it is not an appurtenant easement;

rather, it is an easement in gross:

“[T]he easement was not created to benefit the dedicator

as the possessor of a particular tract of land. Absent that

element, the easement is not appurtenant. Rather, the

easement was reserved to the dedicator for commercial

purposes, and was personal to him in the sense that it was

not an incident of his possession of a dominant [estate]. As

such it is an easement in gross.”

Id. (internal citations omitted; citing 5 Restatement (First)

of Property §§ 453, 454 (1944); A. James Casner ed.,

2 American Law of Property 286, § 8.75 (1952)).

Here, the trial court concluded—and the parties do

not dispute—that the reservation in the deed to parcel 2

creates an appurtenant easement. We agree. As explained

above, an appurtenant easement creates a right that is

“enjoyed by the owner of the dominant estate by virtue of

his ownership of the land.” Miller, 256 Or App at 399 (inter-

nal quotation marks omitted); see also Sunset Lake, 45 Or

App at 977 (an easement was in gross rather than appurte-

nant because it “was personal to [the creator] in the sense

that it was not an incident of his possession of a dominant

tenement”). The easement at issue here is reserved “in favor

of the owners, their heirs, successors and assigns, of the

following described property.” The benefit of the easement

is enjoyed by the owners of the dominant estates by virtue

of their ownership of the land; thus, it is an appurtenant

easement.

The deed’s creation of an appurtenant easement

is incompatible with the trial court’s conclusion that the

easement can be assigned separately from ownership of the

dominant estates. See Jantzen Beach Associates v. Jantzen

Dynamic Corp., 200 Or App 457, 464, 115 P3d 943 (2005),

adh’d to as modified on recons, 204 Or App 68, 129 P3d 186,

rev den, 341 Or 244 (2006) (holding that, because “the prop-

erty interest reflected in the restrictive covenant” was an

appurtenant easement, it “is not severable from the land, nor

is it personal to plaintiff”). If the easement were assigned

separately from the land, it would cease to be an appurte-

nant easement, because the benefit of the easement would

532 Block v. DEA Properties-2 LLC

not be enjoyed by the assignees by virtue of their ownership

of the land. As to the assignees, the easement would be in

gross, while it would remain appurtenant as to the owners

of the dominant estates. The parties have not identified

any Oregon case that contemplates a hybrid appurtenant/

in gross easement of that kind, nor are we aware of such

authority.3

However, this case does not require us to decide

whether a hybrid appurtenant/in gross easement can exist

under Oregon law, because, as explained below, the deed to

parcel 2 does not express any intention to create that type of

servitude.4 Rather, it unambiguously expresses the parties’

intention to create a standard appurtenant easement.

3

As New Jersey’s intermediate appellate court explained in a case present-

ing the same issue,

“Treatises dealing with the topic are in universal agreement that, absent

a clear intent to the contrary in the instrument creating the easement, an

easement appurtenant benefits only those with a possessory interest in the

dominant estate, and such benefit cannot be assigned to third parties inde-

pendent of the dominant land to which it is appurtenant: 4 Powell on Real

Property § 34.15 at 34-161-161-62 (Wolf ed. 2009) (In discussing the effect of

subdividing the dominant tenement, ‘[s]ome increase in burden can result

from the increase in the number of users, but such increase in burden is

kept within limits by the fact that any easement appurtenant has its total

extent defined by the needs of the dominant estate.’); Restatement (Third) of

Property: Servitudes § 4.11 (2000) (‘Unless the terms of the servitude deter-

mined under § 4.1 provide otherwise, an appurtenant easement or profit may

not be used for the benefit of property other than the dominant estate.’); Roger

A. Cunningham et al., The Law of Property § 8.10 at 461 (1984) (‘The word

“appurtenant” signifies that an easement appurtenant is attached to and a

part of the right of possession of its dominant tenement. * * * Therefore, any

act that is sufficient to transfer title or even rightful possession of the domi-

nant tenement will carry the easement rights with it. * * * Nor may the ease-

ment be transferred separately from the dominant tenement, for “appurtenant”

also signifies that the easement may serve only the dominant tenement, as we

have seen.’); 2 American Law of Property § 8.73 at 285 (1952) (‘Even rarer

are cases in which the intention appears to permit what was created as an

easement appurtenant to be changed into an easement in gross. Hence it will

be assumed, in the absence of an affirmative showing to the contrary, that an

appurtenant easement cannot be divorced from the dominant tenement in such

a way as to permit it to become an easement in gross or become appurtenant to

another tenement.’) (Emphasis added).”

Rosen v. Keeler, 411 NJ Super 439, 452-53, 986 A2d 731, 740 (NJ App Div 2010)

(internal footnote omitted).

4

The Restatement (Third) of Property (Servitudes) (2000) contemplates that

parties may create such a hybrid easement, although it applies a presumption

that that is not what parties intend. Id. § 5.6 (“Except as provided in subsec-

tions (1) through (3), an appurtenant benefit may not be severed and transferred

Cite as 315 Or App 525 (2021) 533

“In construing an easement, our task is to discern

the nature and scope of the easement’s purpose and to give

effect to that purpose in a practical manner.” Bloomfield, 224

Or App at 446-47. “To determine an easement’s purpose, we

first look to the words of the easement, viewing them in the

context of the entire document; if the words clearly express

the easement’s purpose, our analysis ends.” Knight v. Nyara,

240 Or App 586, 595, 248 P3d 36 (2011). “If the wording at

issue is uncertain or ambiguous, then the court must deter-

mine the intent of the original parties by examining the rel-

evant surrounding circumstances.” Tipperman v. Tsiatsos,

327 Or 539, 545, 964 P2d 1015 (1998). “The goal is always to

give effect to the parties’ intentions.” Bloomfield, 224 Or App

at 447.

As set out above, the deed to parcel 2 reserves “A

beach access Easement along the Southerly 5 feet of Parcel

2 * * *, in favor of the owners, their heirs, successors and

assigns, of the following described property[.]” The trial

court concluded, and plaintiffs contend on appeal, that the

easement was assignable separately from ownership of the

dominant estates because the reservation refers to the own-

ers’ “assigns.” Plaintiffs reason that the reference to the

owners’ “successors” is sufficient on its own to make the

easement run with the land and, therefore, the inclusion of

the term “assigns” must have been intended to convey a dif-

ferent meaning. They posit that the different meaning that

the parties intended for “assigns” was to allow the easement

to be severed from the land and assigned separately from

the dominant estates.

separately from all or part of the benefited property. * * * (3) Appurtenant benefits

made severable and transferable by the terms of the servitude may be severed and

transferred.”); id. § 5.6 comment a. (“Permitting severance and separate transfer

of the benefit would generally permit conversion of an appurtenant benefit into

a benefit in gross, imposing a greater burden on the property. Accordingly, the

basic rule stated in this section is that appurtenant benefits may not be severed

and transferred separately from all or part of the benefited property. The rule

reflects a presumption as to the likely intent of the parties who created the servi-

tude rather than a public policy against conversion of appurtenant benefits into

benefits in gross.”); see also Rosen, 986 A2d at 739, 741 (in New Jersey, where the

courts have adopted the approach set out in the Restatement (Third) of Property

(Servitudes), “an easement appurtenant cannot be transferred or assigned for the

benefit of another tenement separate from the dominant estate unless the instru-

ment creating it demonstrates a clear intent to grant such a right”).

534 Block v. DEA Properties-2 LLC

For several reasons, we reject that argument.

First, “successors and assigns” is standard language that

is often included in easements and servitudes as part of

a habendum clause defining the scope of the easement or

servitude—specifically, making the easement or servitude

run with the land. See, e.g., Westwood Homeowners Ass’n,

Inc. v. Lane County, 318 Or 146, 149, 152, 864 P2d 350 (1993)

(Covenants, Conditions, and Restrictions are appurtenant

servitudes; the declaration provided that they “shall run

with * * * the real property and be binding on all parties

having any right, title or interest in the * * * properties

or any part thereof, their heirs, successors and assigns”);

Fischer v. Walker, 246 Or App 589, 592, 595, 266 P3d 178

(2001) (an instrument that granted an easement to speci-

fied people, “their heirs, successors and assigns” that was

“for the use and benefit of” Tax Lot 600 and “appurtenant

thereto” created an appurtenant easement for the benefit of

Tax Lot 600).

To the extent that each word in a habendum clause

must have independent meaning—a premise on which we

express no opinion—“assigns” does have meaning indepen-

dent of the terms “heirs” and “successors.” In response to the

same argument in a very similar context—where a party

argued that the term “assigns” in the grant of an appur-

tenant easement made the easement assignable separately

from the dominant estate—New Jersey’s intermediate

appellate court explained as follows:

“On this point, an example from the Restatement (First) of

Property § 487 comment h, illustration 6 (1944) * * * pro-

vides a concrete example of how one might be an ‘assign’

under the terms of the Declaration without being a ‘suc-

cessor in title.’ The illustration states that if the owner of

a dominant estate entered into a lease for a term of years

with a tenant, the lease document would entitle the tenant

to possession of the land and thus also entitle the tenant to

use of the easement. The tenant would gain an assignment

of the easement rights through his or her leasehold inter-

est while not succeeding to the fee simple title held by the

owner. Thus, courts need not interpret one or the other of

the two terms to be without meaning because effect can be

given to each.”

Cite as 315 Or App 525 (2021) 535

Rosen v. Keeler, 411 NJ Super 439, 454-55, 986 A2d 731,

741-42 (NJ App Div 2010). We agree with the Rosen court

that, as the Restatement example illustrates, a property

owner’s “assigns” refers to a different group from the own-

er’s “successors.” Thus, reasoning that the parties intended

the reference to the owners’ “heirs, successors and assigns”

simply to make the easement run with the land does not

result in surplusage.

Those considerations alone are enough for us to

conclude that the parties unambiguously expressed their

intention to create an ordinary appurtenant easement,

not a hybrid appurtenant/in gross easement. However, we

also note that the text of the reservation indicates that the

“assigns” that it refers to are assignees “of the property,” not

assignees of the easement alone. Again, the deed reserves “A

beach access Easement along the Southerly 5 feet of Parcel

2 * * *, in favor of the owners, their heirs, successors and

assigns, of the following described property[.]” The phrase “of

the following described property” appears after “the owners,

their heirs, successors and assigns”; that placement strongly

suggests that the phrase applies to all of the items in the

list. If the parties had intended the qualifier “of the follow-

ing described property” to apply only to the owners, they

would likely have—at a minimum5 —placed “of the following

described property” directly after “owners”; the reservation

would then have been “in favor of the owners of the follow-

ing described property, their heirs, successors and assigns,”

providing at least some support for plaintiffs’ reading.

In sum, the deed unambiguously creates an ordi-

nary appurtenant easement, which cannot be severed and

transferred separately from the dominant estate. Jantzen

Beach Associates, LLC, 200 Or App at 464 (an appurtenant

easement “is not severable from the land”). The trial court

erred in relying on cases concerning easements in gross,

which are personal and transferrable separately from inter-

ests in land. Sunset Lake, 45 Or App at 977 (“Easements

5

As noted above, we have concluded that the inclusion of the terms “suc-

cessors and assigns” indicates an intention to create an ordinary appurtenant

easement. If the parties to an easement intended to create a novel hybrid appur-

tenant/in gross easement, we doubt they would express that intention merely

through placing “of the property” after “owners.”

536 Block v. DEA Properties-2 LLC

in gross which have commercial value are assignable.”).

Accordingly, the court erred in declaring that the easement

assignment agreements were valid and enforceable.

We turn, briefly, to Block’s cross-appeal. At trial, the

court heard evidence on DEA’s counterclaim for an implied

easement over a driveway on parcel 1, which is now owned

by Block. The court held that DEA had established the exis-

tence of an implied easement by clear and convincing evi-

dence and entered judgment in favor of DEA on its coun-

terclaim. Block appeals, contending that the court erred in

determining that DEA has an implied easement over the

driveway.

“When land in one ownership is divided into separately

owned parts by a conveyance, an easement may be created

* * * by implication from the circumstances under which

the conveyance was made alone. That is, an implied ease-

ment is created when the circumstances that exist at the

time of severance of a parcel establish that the grantor of

the parcel intended to create an easement.”

Manusos v. Skeels, 263 Or App 721, 723-24, 330 P3d 53

(2014) (omission in Manusos; internal quotation marks and

citations omitted). “[S]everance of a parcel refers to the divi-

sion of ownership of land[.]” Id. at 730 (internal quotation

marks omitted).

In this case, the relevant severance took place in

1997, when the Hatch heirs sold parcel 2 to DeCarrico and

retained ownership of parcel 1. However, in reaching its

determination that an implied easement exists, the trial

court relied significantly on events and circumstances that

took place later. For example, it relied on the beliefs and

actions of Block and Anderson, who purchased their prop-

erties after 1997; it evaluated the necessity of the easement

based on the circumstances at the time of trial, rather than

the circumstances that existed in 1997; and it considered

the use of the property and the parties’ knowledge of that

use since 1997, rather than at the time of the Hatch heirs’

1997 conveyance to DeCarrico. That was error.

The question before the court was whether an

easement arose “as an inference of the intention of the par-

ties to a conveyance of land”—here, the Hatch heirs and

Cite as 315 Or App 525 (2021) 537

DeCarrico—“based on the circumstances existing at the

time of the conveyance”—here, in December 1997. Eagles

Five, LLC v. Lawton, 250 Or App 413, 424, 280 P3d 1017

(2012). As a result of the court’s incorrect legal analysis, it

did not make explicit or implicit findings of fact on many of

the relevant issues. Accordingly, we reverse and remand for

the trial court to reevaluate the evidence under the correct

legal standard.

Reversed and remanded on appeal and cross-appeal.