Haystack Rock, LLC v. Roberts

244 September 4, 2025 No. 793

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

HAYSTACK ROCK, LLC,

a Delaware limited liability company,

Plaintiff-Appellant,

v.

Rebecca ROBERTS,

an individual; Stanley Roberts, an individual;

and City of Cannon Beach, a municipality,

Defendants-Respondents.

Clatsop County Circuit Court

22CV07199; A182356

Kirk C. Wintermute, Judge.

Argued and submitted May 12, 2025.

Iván Resendiz Gutierrez argued the cause for appellant.

Also the briefs were William L. Rasmussen, Steven G. Liday,

John C. Clarke, and Miller Nash LLP.

Joseph L. Franco argued the cause for respondent. Also

on the brief were J. Matthew Donohue, Sarah Molinoff, and

Holland & Knight LLP.

Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,

Judge.

AOYAGI, P. J.

Reversed and remanded.

Cite as 343 Or App 244 (2025) 245

246 Haystack Rock, LLC v. Roberts

AOYAGI, P. J.

This case involves a dispute between neighboring

landowners regarding the City of Cannon Beach’s author-

ity to grant private property owners an easement to build

a driveway on a public right-of-way. Plaintiff Haystack

Rock, LLC, and defendants Rebecca and Stanley Roberts

own adjacent properties on a hillside in Cannon Beach.

Running in front of both properties is Nenana Avenue, an

undeveloped path that was dedicated as a public avenue in

1908. The City is considering granting the Robertses an

easement to build a driveway on Nenana Avenue to access

their property. Plaintiff disputes the City’s authority to

do so and brought this declaratory relief action. On cross-

motions for summary judgment, the trial court granted

summary judgment for the Robertses and denied it for

plaintiff, concluding that the City holds fee title to Nenana

Avenue as a result of the 1908 dedication and therefore has

authority to grant an easement to the Robertses so long as

it does not interfere with public use. Plaintiff appeals the

resulting judgment. For the reasons that follow, we reverse

and remand.

FACTS

“On review of cross-motions for summary judgment,

we view the record for each motion in the light most favor-

able to the party opposing it to determine whether there is

a genuine issue of material fact and, if not, whether either

party is entitled to judgment as a matter of law.” O’Kain v.

Landress, 299 Or App 417, 419, 450 P3d 508 (2019). The par-

ties agree that there is no dispute here as to the historical

facts.

In 1908, M. S. Warren filed a plat for a development

that he called Tolovana Park. The plat provided for the divi-

sion of a large property into five sections and each section

into multiple lots. Between each section runs a named ave-

nue. One of those avenues is Nenana Avenue, which runs

between the first and second sections. The plat states, “I

hereby dedicate to the public for its use as thoroughfares

forever, the streets and avenues therein.” The following is an

excerpt from the plat:

Cite as 343 Or App 244 (2025) 247

In 1911, Warren sold all of the property in the first

section of Tolovana Park to Oswald West (then governor of

the State of Oregon), except lot 13. The recorded deed from

Warren to West referenced the filed plat:

“KNOW ALL MEN BY THESE PRESENTS, that I, M.

S. Warren married man and Edra Warren his wife of

the county of Clatsop, state of Oregon, in consideration of

Fifteen Hundred ($1500.00) Dollars to me paid by Oswald

West of the county of Marion, state of Oregon have bar-

gained and sold and by these presents do grant, bargain,

sell and convey unto said Oswald West his heirs and assigns

all of the following bounried [sic] and described real prop-

erty, situated in the county of Clatsop and state of Oregon

Lots numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16,

17, 18, 19, 20, 21, and 22 all in Block numbered One (1) in

Tolovana Park as laid out and recorded by M. S. Warren[.]”

248 Haystack Rock, LLC v. Roberts

(Emphasis added.)

Rolling forward one hundred plus years, plaintiff is

the current owner of lots 8, 9, 10, 11, 12, 14, and 15 in the first

section of the Tolovana Park development. The Robertses

are the current owners of lot 13 in the same section. The

City is the current owner of property in the second section

of the Tolovana Park development, which lies directly across

Nenana Avenue from plaintiff’s and the Robertses’ proper-

ties. All of the properties lie west of Hemlock Street, which

is the closest public road.

Currently, the part of Nenana Avenue abutting the parties’

lots is an undeveloped path on a steep and vegetated hill-

side. It is accessible only by pedestrians.

The Robertses’ property, lot 13, is an undeveloped

hillside lot. The Robertses have been trying to get approval

to build a house there for a number of years. The City denied

their first permit application in 2020, based on the plans vio-

lating ocean setback requirements. Roberts v. City of Cannon

Beach, 316 Or App 305, 504 P3d 1249 (2021), rev den, 370 Or

56 (2022) (affirming the Land Use Board of Appeals order

upholding the City’s denial). The Robertses submitted a sec-

ond permit application in 2021, proposing a smaller house

to comply with the ocean setback requirements. At the same

time, the Robertses submitted a right-of-way application for

a proposed “private driveway” to provide vehicular access

Cite as 343 Or App 244 (2025) 249

from Hemlock Street. The City took the position that it

could not approve the right-of-way application unless the

City granted the Robertses a private access easement over

Nenana Avenue. The issue was discussed at several City

Council meetings. The Robertses initially disagreed that

an easement was necessary but acceded to the City’s posi-

tion. Plaintiff objected to any easement, asserting that the

City did not hold fee to the property and could not grant an

easement. The City Council agreed to table the issue while

plaintiff sought an answer from the courts.

Plaintiff then filed this declaratory judgment action,

requesting declarations that (1) the City may not grant the

requested easement; and (2) the Nenana Avenue right-of-

way may not be used other than as a public thoroughfare.

We understand the “requested easement” to mean the ease-

ment described in a proposed “Driveway Access Easement

Agreement” in the summary judgment record. That unsigned

agreement recites that the City owns Nenana Avenue, recites

that the Robertses have requested an easement for a drive-

way to access their property, and provides in relevant part:

• The real property at issue is the portion of Nenana

Avenue lying west of Hemlock Street, which is

described as “West Nenana Avenue.”

• The Robertses are granted a “nonexclusive ease-

ment” over and across West Nenana Avenue, “solely

for the purpose of the construction and use of the

Driveway to provide vehicular, bicycle, and pedes-

trian access from Hemlock Street to the Roberts

Property.”

• The driveway must be constructed in accordance

with plans and specifications approved by the City.

It “shall be as close to the existing grade as possi-

ble.” Its design and construction “shall not prevent

or interfere with the potential future opening of

West Nenana Avenue to public access.”

• All construction costs for the driveway will be paid

by the Robertses. The Robertses also are respon-

sible to maintain the driveway and keep it in good

repair.

250 Haystack Rock, LLC v. Roberts

• The Robertses are not to place any gate or sig-

nage on the completed driveway, unless the City

determines that it is necessary, in which case the

Robertses will pay for a gate and/or a sign “For

Private Driveway Access Purposes Only.”

• Other abutting property owners “shall have free

and unencumbered access” to West Nenana Avenue,

including the driveway.

• The Robertses acknowledge that West Nenana

Avenue is a dedicated right-of-way that the City

manages for the public. The City may allow public

access to and along West Nenana Avenue for pedes-

trian, bicycle, and other access.

• The term of the easement is “perpetual.” However,

the City reserves the right at any time to construct

and maintain a city street on Nenana Avenue, in

which case the Robertses shall remove some or all

of the driveway as requested by the City.

• The easement runs with the land. It benefits and

binds the Robertses and the City and their respec-

tive heirs, successors and assigns, etc.

The parties cross-moved for summary judgment.

Plaintiff asserted in its motion that it was entitled to its

requested declarations. The Robertses asserted in their motion

that they were entitled to declarations that (1) the City owns

the fee underlying Nenana Avenue and may grant easements

over it, and (2) the proposed easement is consistent with the

dedicated use of Nenana Avenue as a public thoroughfare.

In deciding the motions, the trial court first

addressed the issue of ownership of Nenana Avenue. Relying

on Landis v. Limbaugh, 282 Or App 284, 385 P3d 1139

(2016), rev dismissed, 361 Or 351 (2017), it concluded that the

1908 plat transferred fee ownership of Nenana Avenue to

the City. The court stated, “Under the totality of the circum-

stances, and under the Landis/RealVest factors, it appears

that the Tolovana Park dedication granted a fee interest

to the public, via the City of Cannon Beach, not simply an

easement for use as a thoroughfare.” As fee owner, the court

Cite as 343 Or App 244 (2025) 251

continued, the City “can grant appropriate easements over

that land, so long as such easements do not run afoul of use

of Nenana Avenue as a public thoroughfare.”

The court next addressed whether the proposed

easement interfered with use of Nenana Avenue as a public

thoroughfare, and it concluded it did not. The court empha-

sized that its decision was based solely on the proposed

easement agreement, not any specific driveway design, as

design was a separate issue that would be subject to City

approval. The court viewed itself as “tasked only with deter-

mining whether the terms of the easement are appropriate,

not whether specific designs should be granted.”1 As for the

proposed easement, the court reasoned that the agreement’s

terms “give sufficient protection for the use of the property

as a public thoroughfare” in accordance with the 1908 grant.

The court pointed to terms requiring the driveway to be con-

structed as close to the existing grade as possible, requiring

that it to be designed and constructed so as not to prevent or

interfere with potential future opening of Nenana Avenue to

public access, barring exclusionary gates or signage without

city approval, granting the City access at all times, guar-

anteeing access for abutting property owners, acknowledg-

ing that the City may allow public access at any time, and

reserving to the City the right to construct a city street and

require removal of some or all of the Robertses’ driveway

in that event. Lastly, the court noted that, because Nenana

Avenue is currently unimproved and passable only by pedes-

trians, the Robertses’ driveway, if properly designed, “may

actually increase public access to the property and adjacent

properties, and any improvements to the roadway or grade

may be used for public access in the future.”

Based on the foregoing reasoning, the trial court

granted the Robertses’ motion for summary judgment, and

it denied plaintiff’s motion. The court entered a general

judgment containing declarations that (1) the City owns the

fee underlying Nenana Avenue and may grant easements

over Nenana Avenue, so long as they do not run afoul of its

1

Plaintiff is particularly concerned that the Robertses want to build an “ele-

vated” driveway to accommodate the terrain, which plaintiff views as inherently

incompatible with a public thoroughfare.

252 Haystack Rock, LLC v. Roberts

use as a public thoroughfare, and (2) the proposed drive-

way easement to the Robertses is consistent with the use of

Nenana Avenue as a public thoroughfare.

Plaintiff appeals, challenging the summary judg-

ment rulings.

OWNERSHIP OF NENANA AVENUE

The first question before us is who owns Nenana

Avenue. Did the 1908 plat transfer fee ownership to the

City, as the trial court concluded, or did fee remain with the

grantor and his successors, as plaintiff argues? We begin

our discussion with an overview of key principles from the

case law on common law dedication.2

A dedication is “an appropriation of land by the

owner for public use.” Security & Invest. Co. v. Oregon City,

161 Or 421, 432, 90 P2d 467 (1939). A dedication may be

express or implied, but the owner’s intention to dedicate the

land to the public must be “clearly and unequivocally mani-

fested.” Harris v. City of St. Helens, 72 Or 377, 388, 143 P 941

(1914) (emphasis omitted). Land may be expressly dedicated

by the filing of a plat. Id. If the public accepts a dedication,

the dedication becomes irrevocable—and, “[i]n Oregon, * * * a

dedication to the public is impliedly accepted when * * * lots

are sold with reference to a plat which shows the dedication.”

Douglas County v. Umpqua Valley Grange, 45 Or App 739,

742-43, 609 P2d 415 (1980). Further, upon acceptance of the

dedication, “the governing body of a county or municipality

becomes the trustee for the public to assure that the land is

used for the dedicated purpose or purposes.” Id. at 743. But

see Esquire Investments, Inc. v. Firestone, 341 Or App 510,

514-15, ___ P3d ___ (2025) (recognizing that, in some cases,

a dedication may be accepted by the public, but not by the

county or city, as relevant to maintenance responsibilities).

The actual ownership of the dedicated land remains

with the dedicator, however, under longstanding case law.

2

The parties’ arguments and the trial court’s ruling are all tied to common

law dedication. The parties do not discuss, and we do not address, the dedication

statute. See The Codes and Statutes of Oregon, title V, ch I, §§ 2736-38 (Bellinger

& Cotton 1901) (dedication statute in effect in 1908); Dayton v. Jordan, 279 Or

App 737, 746 n 1, 381 P3d 1031 (2016) (declining to address statutory dedication

where the parties did not).

Cite as 343 Or App 244 (2025) 253

See, e.g., Carter v. City of Portland, 4 Or 339, 348 (1873) (the

owner of property dedicated to the public “has the naked fee”

but “has no right whatever to interfere with the premises”);

see also Sheldon W. Parks, The Law of Dedication in Oregon,

20 Or L Rev 111, 114 (1941) (“[T]he purpose and effect of a

common-law dedication is to create a right of user in the

public in the nature of an easement, with the fee of the land

remaining in the owner.”). Once platted lots are sold, each

owner of a lot abutting a dedicated public street owns to the

center of the street, subject to the public easement. Miller v.

Roy W. Heinrich & Co., 257 Or 155, 157, 476 P2d 183 (1970)

(“When the dedicator sells the land abutting the street, the

abutting owners own to the center of the street subject to the

public easement.”); Kurtz v. Southern Pacific Co., 80 Or 213,

216-17, 155 P 367, reh’g den, 80 Or 213, 156 P 794 (1916) (“[N]

otwithstanding the dedication of a city street, the title in fee

to the highway remains in the dedicator until it passes by

a conveyance of a lot, when the grantee takes and holds the

title to the middle of the street upon which the land abuts,

subject, however, to the public easement therein.”).

The Robertses argue that, notwithstanding those

well-established principles, our 2016 decision in Landis dic-

tates a different result. In Landis, the plaintiff was jogging

on a sidewalk in Washington County when she tripped on

a pitched section and was injured. 282 Or App at 286. She

brought a negligence action against the county and oth-

ers. Id. The trial court granted summary judgment for the

county on recreational immunity grounds. Id. On appeal,

the county defended that ruling and also proposed as an

alternative basis to affirm that it did not own fee to the land,

because the public dedication had given it only an easement.

Id. at 287. We were unpersuaded in both regards, concluding

that the recreational immunity ruling was in error and also

rejecting the alternative basis to affirm. Id.

As to the latter, we explained that, in 1992, by a

recorded deed titled “dedication deed and temporary con-

struction easement,” the then-owner of the property had

“grant[ed] to Washington County * * *, for the use of the public

as a public way forever, all that certain real property situated

in the County of Washington and State of Oregon, shown on

254 Haystack Rock, LLC v. Roberts

[an attached exhibit] and being more particularly described

[in the deed].” Id. at 297-98 (some brackets in original). We

interpreted that deed as intended to convey fee, not just an

easement, to the county. Id. at 298. Regarding the “dedica-

tion” reference in the document title, we noted that “[a] dedi-

cation may, but does not necessarily, indicate the creation of

an easement.” Id. at 299. Based on the body of the deed, we

concluded that, notwithstanding the “dedication” reference in

the document title, the grantor’s actual intent was to convey

fee to the county. Id. at 298. We viewed the deed as similar to

the deed in RealVest Corp. v. Lane County, 196 Or App 109,

100 P3d 1109 (2004). Landis, 282 Or App at 298.

In RealVest, as part of resolving a larger issue, we

interpreted a 1946 warranty deed that did “hereby grant,

bargain, sell and convey” to Lane County “all the following

real property * * * described as follows, to wit: All that portion

of an 80 foot right-of-way * * *.” 196 Or App at 116 (empha-

sis omitted). We acknowledged existing Supreme Court case

law regarding the meaning of “right-of-way”: “ ‘In common

parlance the term “right of way” signifies an easement. In

the absence of special circumstances indicating a contrary

meaning, the courts have generally construed the term

in accordance with common usage.’ ” Id. (quoting Cappelli

v. Justice, 262 Or 120, 128-29, 496 P2d 209 (1972)). At the

same time, we recognized our overriding obligation to deter-

mine the particular grantor’s intent in executing a particu-

lar deed. Id. at 117. Examining the 1946 deed, we were ulti-

mately persuaded that it was intended to convey fee to the

property, not an easement. Id. at 118. We explained, “[T]he l

anguage of the deed as a whole indicates that it is more

likely that the words ‘right of way’ are surplusage and refer

to the purpose for which the land conveyed will be used by

the grantee rather than as a limitation by the grantor on

the nature of the estate conveyed.” Id. (footnote omitted).

In Landis, we observed that all of the considerations

that led us to our conclusion in RealVest were also present

in Landis. Landis, 282 Or App at 298. First, the conveyance

was to a public body for a public right-of-way—a deed to

Lane County in RealVest and a deed to Washington County

in Landis. Id. Second, the deed used inclusive language—the

Cite as 343 Or App 244 (2025) 255

deed in RealVest granted to the county “all the following real

property” and “all that portion” of the property, and the deed

in Landis granted to the county “all that certain real prop-

erty.” Id. Finally, neither deed used the word “easement” or

otherwise “purport[ed] to limit the nature of the estate being

conveyed, with the possible exception of the use of the words

‘right of way.’ ” Id.; see RealVest, 196 Or App at 117 (discussing

those as a single factor). All those similarities led us to con-

clude that the 1992 deed was intended to transfer—and did

transfer—fee to the sidewalk property to the county. Landis,

282 Or App at 298.

Returning to this case, the Robertses successfully

argued on summary judgment that, under Landis, the 1908

plat was intended to transfer fee ownership, not an ease-

ment.3 The Robertses maintain that position on appeal.

We are unpersuaded, as this case is distinguishable from

Landis in numerous regards.

This case involves a plat, not a deed. See Parks, 20

Or L Rev at 114-15 (“Since dedication is in favor of the pub-

lic generally, it would seem that a true dedication could not

be made by deed because there would be no grantee in esse

capable of taking legal title. Moreover the theory of dedica-

tion seems to rest more upon a divestment of the owner of

the use of his property than upon any transfer of an interest

in his property to the public as a grantee.”). There is no spe-

cific grantee named for the dedicated avenues. See Herbert

Thorndike Tiffany, 4 Tiffany Real Prop § 1099 (3d ed 2024)

(“The purpose and effect of a common law dedication is to

create a right of user in the public, or at least in some par-

ticular class of the public and not in some particular per-

son or persons, natural or legal. And for this reason, not

only is a particular grantee or beneficiary unnecessary, but

there is, it seems, no dedication when there is a particular

grantee or beneficiary.”); Parks, 20 Or L Rev at 117 (“[T]he

beneficiaries of a dedication are, generally speaking, the

whole public, a class which, of necessity, is indefinite.”). Nor

does the plat use so-called “inclusive” language. See Landis,

3

The City of Cannon Beach was not incorporated until 1957, which raises

some additional issues over which the parties argue. Given our disposition, we

need not get into those issues here.

256 Haystack Rock, LLC v. Roberts

282 Or App at 298 (describing “all the following real prop-

erty,” “all that portion,” and “all that certain real property”

as “inclusive” language). Instead, the plat uses classic dedi-

cation language—“I hereby dedicate to the public for its use

as thoroughfares forever, the streets and avenues therein.”

The plat does not contain the word “easement,” but,

on its own, that does not tell us much, as many plat dedica-

tions do not use that specific word and still create an ease-

ment. See, e.g., Spencer v. Peterson, 41 Or 257, 259, 68 P 519,

reh’g den, 41 Or 257, 68 P 1108 (1902) (although “the ‘dedi-

cation’ does not in express terms grant an easement in the

roads, * * * we think the proprietors intended thereby to ded-

icate them to the use of the public; for the rule is well settled

that when an owner of real property lays out a town upon it,

and divides the land into lots and blocks, with streets and

alleys between, and sells any of the lots reference to such

plan, he thereby irrevocably dedicates the streets and alleys

to the use of the public”); McCoy v. Thompson, 84 Or 141, 149,

164 P 589 (1917) (“The plat and writing clearly manifest an

intention on the part of [the landowner] to dedicate the dis-

puted land as a street; and, indeed, the 40-foot strip appears

upon the plat in such a manner as to be entirely inconsistent

with any other theory.”). With it being a plat rather than a

deed, the absence of the term “easement” or other limiting

language does not carry the same significance.

We therefore disagree that this situation is analo-

gous to that in Landis. Rather, we view it as squarely con-

trolled by longstanding Supreme Court case law regarding

who holds fee title to property dedicated for a public thor-

oughfare, which we have already described. Landis did not

purport to overrule that case law—nor could it—but was

instead decided on its particular facts, which, for the rea-

sons explained, are not comparable to the facts of this case.

On this record, as a matter of law, plaintiff owns to

the center of Nenana Avenue in front of lots 14 and 15, the

Robertses own to the center of Nenana Avenue in front of

lot 13, and the City owns to the center of Nenana Avenue in

front of its lot.4 The trial court therefore erred in ruling on

4

As part of their summary judgment motion, the Robertses sought summary

judgment on their affirmative defense of waiver. The trial court did not reach

Cite as 343 Or App 244 (2025) 257

summary judgment, and consequently declaring, that the

City is the fee owner of Nenana Avenue. The City holds fee

in only part of the avenue, and it does so as an abutting

landowner, not due to a fee transfer in the 1908 plat.

OTHER AUTHORITY TO GRANT EASEMENT

Having concluded that the abutting landowners

hold fee to Nenana Avenue, we next consider the Robertses’

arguments that, even if the City does not hold fee, it still has

authority under the Cannon Beach Municipal Code (CBMC)

and ORS 271.310 to grant the requested easement. Those

arguments were made in the Robertses’ summary judgment

motion, so they are properly before us, even though the trial

court did not reach them.5 Sherertz v. Brownstein Rask, 314

Or App 331, 341 & n 8, 498 P3d 850 (2021), rev den, 369 Or

338 (2022). Ultimately, we find neither argument persuasive.

CBMC 12.36.014 provides:

“The city has jurisdiction and exercises regulatory control

over each public right-of-way whether the city has a fee,

easement, or other legal interest in the right-of-way. The

city has jurisdiction and regulatory control over each right-

of-way whether the legal interest in the right-of-way was

obtained by grant, dedication, prescription, reservation,

condemnation, annexation, foreclosure or other means.”

that issue. The Robertses raise it again on appeal, framing it as an alternative

basis to affirm the summary judgment in their favor. The gist of their argument

is that plaintiff lost any fee interest in Nenana Avenue by failing to assert it in

the early 2000s. At that time, the City asked plaintiff for an easement allowing

the City to place dewatering pipes under parts of lots 14 and 15, and plaintiff

agreed, without saying anything about the City also needing one to place pipes

under Nenana Avenue. Waiver is the “intentional relinquishment of a known

right.” Ceaser v. Dept. of Human Services, 311 Or App 702, 710, 493 P3d 66 (2021)

(internal quotation marks omitted). We agree with plaintiff that silently allowing

the City to place dewatering pipes under Nenana Avenue as part of a City project

to stabilize the hillside—which the City almost certainly had authority to do in

any event, as trustee of the public easement—did not constitute a waiver of any

fee claim to the avenue.

5

We do not consider any issues that were not raised below. For example,

the Robertses suggest on appeal that the City could have some other authority

to grant them an easement, even if it lacks authority as the fee owner or under

CBMC 12.36.014 or ORS 271.310. Summary judgment cannot be granted on a

basis that was not raised below. See Adelsperger v. Elkside Development LLC, 371

Or 61, 65, 529 P3d 230 (2023) (“The contours of summary judgment review are

set by the operative complaint and the specific arguments for summary judgment

advanced by a party.”).

258 Haystack Rock, LLC v. Roberts

That provision simply recognizes the City’s jurisdic-

tion and regulatory authority over public rights-of-way. As

relevant here, “regulatory” means “[r]esponsible for estab-

lishing and implementing rules for some activity; having the

official power to control an activity and to ensure that it is

carried out satisfactorily.” Black’s Law Dictionary 1540 (12th

ed 2024). Such recognition is entirely consistent with the

City’s role as trustee of real property dedicated to the pub-

lic for use as a thoroughfare, such as Nenana Avenue. See

Douglas County, 45 Or App at 742-43 (as to accepted public

dedications, “the governing body of a county or municipality

becomes the trustee for the public to assure that the land is

used for the dedicated purpose or purposes”). The code pro-

vision does not address in any way the transfer of property

interests, however, let alone the transfer of public easements

over which the City is trustee. The Robertses were not enti-

tled to summary judgment based on CBMC 12.36.014.6

As for ORS 271.310(1), it provides, subject to certain

exceptions:

“[W]henever any political subdivision possesses or con-

trols real property not needed for public use, or whenever

the public interest may be furthered, a political subdivi-

sion may sell, exchange, convey or lease for any period not

exceeding 99 years all or any part of the political subdivi-

sion’s interest in the property to a governmental body or

private individual or corporation. The consideration for the

transfer or lease may be cash or real property, or both.”

Although it is undisputed that the City controls

Nenana Avenue in its role as trustee for the public, it does

not follow that the City has a property interest in Nenana

Avenue that may be sold, exchanged, conveyed, or leased to

a public or private party, in exchange for payment in cash or

real property or both. Nor is that the type of transaction at

issue in this case. The Robertses’ arguments regarding ORS

271.310(1) are minimally developed, but, based on those

made, we are unpersuaded that that statute is relevant

here. The Robertses were not entitled to summary judgment

based on ORS 271.310(1).

6

We note that the City opposed plaintiff’s summary judgment motion, argu-

ing that “as the owner of fee title in the City’s streets and avenues, the City has the

right to grant easements.” The City did not take a position on CBMC 12.36.014.

Cite as 343 Or App 244 (2025) 259

Because the City does not hold fee in Nenana

Avenue (except to the center of the avenue in front of its own

property), and because neither CBMC 12.36.014 nor ORS

271.310(1) gives the City authority to grant an easement over

Nenana Avenue to a private party, the trial court erred in

ruling on summary judgment, and consequently declaring,

that the City “may grant easements over Nenana Avenue.”

CONSISTENCY WITH PUBLIC THOROUGHFARE

The last issue for consideration is the trial court’s

summary judgment ruling, and resulting declaration, that

the proposed driveway easement to the Robertses is consis-

tent with the use of Nenana Avenue as a public thorough-

fare. We understand the court to have reached that issue

only because it had concluded that the City, as fee owner of

Nenana Avenue, had authority to grant easements. Given

our conclusion that the City is not the fee owner, and our

rejection of the Robertses’ alternative arguments as to the

City’s authority to grant easements, we need not address

whether the particular proposed easement is consistent

with the public dedication.

CONCLUSION

The trial court erred in ruling on summary judg-

ment, and consequently declaring, that (1) the City owns the

fee underlying Nenana Avenue and may grant easements over

Nenana Avenue, so long as they do not run afoul of its use as

a public thoroughfare, and (2) the proposed driveway ease-

ment to the Robertses is consistent with the use of Nenana

Avenue as a public thoroughfare. Accordingly, we reverse the

grant of summary judgment for the Robertses and the denial

of summary judgment for plaintiff, and we remand for fur-

ther proceedings consistent with this opinion. In doing so,

we emphasize the narrow issue presented on summary judg-

ment. The question is not whether the City has authority in

its capacity as trustee of the public easement to allow the

Roberts to pay for the cost of improving Nenana Avenue in a

manner consistent with it being a public thoroughfare. The

only question is whether the City has authority to grant an

easement to the Robertses, which we answer in the negative.

Reversed and remanded.