Last week the Oregon Court of Appeals released it's ruling in Humphrey v. Huls. At issue is an access easement across what was once a 20 acre tract to one of 4 parcels it had been divided into. There is nothing ground breaking about the ruling but the story is illustrative of the laws of creating such an easement.
The subject property, made up of multiple contiguous tax lots, is in a semi-rural area a few miles east of Springfield, Oregon. Springfield is the home of the University of Oregon. The owner of the parent property, named Boehm, seems to have been a serial user of survey services. There are 11 surveys listed in the Lane County Surveyor's records listing his name as client, not all of of them involving this particular property.
In 2004 Boehm, while still the owner of all the lots involved, filed a deed document describing an access easement across one of his lots to access another, the endpoint of that easement ending on what was to eventually become the line of a third lot - which didn't exist at the time. A few months later, in 2005, a similar document was recorded.
In 2006 one of the properties was sold to defendant Huls. Huls made use of the access easement described in both the 2004 and 2005 documents. Noteably, the 2005 easement, as described, was partially over the 2006 property.
In 2011 Boehm recorded a "Partition Plat" (In Oregon a "Partition Plat" is simply a form of subdivision used to create 3 or fewer lots, the difference is mostly in the approval process) dividing his remaining property into 2 parcels. These plats are required to show all plottable charges against title, which in this case includes both the 2004 and 2005 easement documents. On the face of this plat the 2005 easement across one of these properties appears to be an access to the other. The second property, being the apparent dominant estate (Humphreys), was sold off and the original owner retained the servient. The owner of the 2006 property objected to this new owner accessing his property via the easement.
The court of appeals ruled that the 2004 easement was only for the benefit of the 2006 (Huls) property, and that the 2005 easement was void because of merger- at the time it was written both dominant and servient estates were held by the same person. The court may well have ruled that the 2004 easement also was void by merger, for the same reason, but this was not at issue.
By the time of trial the original owner had passed away. Co-owner wife testified that the intention was to create access to all the properties, but the court said that the documents were unambiguous, so the parol evidence of her testimony was without effect.
This leaves the 2006 owner (Huls) in a quandary. The argument that voids the 2005 easement would also void the 2004 easement, leaving the 2006 property without a legal access (it happens that the "dominant estate" (Humphreys) has an alternate legal access).
It also points to an issue for surveyors. There is a recorded plat showing these easements. How is the surveyor of the future going to know that they have been ruled invalid? Will a future title report pick up on the ruling?
I haven't read this case yet but from your description, it sounds consistent with Partney v Russell from a few years ago. That ruling shook things up and there was maybe going to be a legislative fix for that ruling but I haven't seen anything yet. I know that some attorneys stopped making easements from/to the same owner (or sometimes would still do it after having the client sign a release that says they were given legal advice to not do that and they have decided to do it anyway even though it may be invalid).
My understanding is that these can still be done but specifically need to be "CREATED" upon the first conveyance out of common ownership. MENTIONING/REFERENCING the previously recorded document is not sufficient.
How partition plats/subdivisions are magic and not subject to the doctrine of merger baffles me (or perhaps is a question that should not be asked). Unless there are simultaneous conveyances upon recording of the plat, all lots are owned by the declarant. I've heard some attorneys say that easements created by plats are fine because it is specifically enabled by statute and that is what a similar fix for Partney v Russell would look like. I've also heard some attorneys say that to be safe, the first conveyance of a subdivision lot or partition plat parcel, should also create the easements as shown on the plat.
Regardless, there's a whole lot of mess hanging out there waiting to be discovered. This process is a rather common situation in semi-rural homespun development. There are benefits to doing a subdivision if dividing land. People try to avoid subdivisions with serial partition plats, property line adjustments, various easements, and other things and it doesn't always work out. There is a fairly clean and reliable way to divide property with a subdivision. Partition plats too (unless doing more than 3 in which case it can get messy pretty quickly as they stack up on each other every year).
Back to Humphrey v. Huls, does the owner have title insurance that includes access via that easement? Will the title insurance pay out or otherwise acquire access? At least for the neighbors who aren't litigating each other, if they are agreeable, they could certainly create easements now.
Back to Humphrey v. Huls, does the owner have title insurance that includes access via that easement? Will the title insurance pay out or otherwise acquire access? At least for the neighbors who aren't litigating each other, if they are agreeable, they could certainly create easements now.
For the moment, no court has expressly ruled that the Huls easement is invalid. If I was advising the Huls I would argue that since no one would buy a land locked parcel, and representations were made regarding there being a valid access when the sale was made, that there is an implied easement which should now be properly documented. Mrs. Boehm has now stated under oath that there was an intention to provide an access easement. That access has been in common use for 19 years, so there is a prescriptive easement as well. If the Boehms tried to hold them up I'm sure that a court would so rule. There is some work to be done but the Huls should come out all right.
I know that some attorneys stopped making easements from/to the same owner
The earliest case dealing with doctrine of merger (in this form) in Oregon I have found is Witt v. Reavis (1978), and that case references a 1959 Oregon case, an 1898 Massachusetts case, and a couple of legal treatises. Several subsequent cases have ruled consistently. Any attorney that hasn't got the message is out of luck.
I might have mentioned it before but it seems people in Idaho would split their property with a quitclaim deed and then sneak an access easement into the chain of title at the same time by adding a line to the end of the description.
I might propose this as a topic of discussion at the society meeting sometime because I'm still not sure if this was is or ever was a valid method of creating an easement. When I split a property for someone and they ask about creating an access easement I prepare a separate description for them so they have it for whenever they wish to grant the easement to another party.
Another recent Oregon case, Dejardin v. Bonfiglio, refers to creating easements in a deed of transfer as "well settled" law without much discussion.
@norman-oklahoma Makes sense. I never sweated it much because I figured even if the easement wasn't legitimate the person using it probably had a prescriptive right anyway.
The link given did not produce for me the whole text of the opinion.This one worked for me:
https://law.justia.com/cases/oregon/court-of-appeals/2025/a180139.html
In the opening post, Norman_Oklahoma gave us two reasons of interest to surveyors. First is the court's application of facts to the legal argument that led to the opinion.
Second was the question of the possible effect of evidence outside a surveyor's knowledge on future surveys. Stated as follows:
"There is a recorded plat showing these easements. How is the surveyor of the future going to know that they have been ruled invalid? Will a future title report pick up on the ruling?"
One might get confused reading the court's opinion. Humphrey is attempting to establish an easement across all the other parties. If he fails, his tract becomes landlocked, and he is probably bared from re-litigating the issue.
Some notes I made:
Boehms original owner 1970
Boehm 2004 division tract B and track A+C deed?
2006 Boehm to Hulses tract B
2011 Boehm partition plat tract A (includes strip along B) and Tract C
2016 Boehm to Humphreys tract A
This case hinges on the legal argument Humprey makes. Take note of this part of the opinion:
"An express easement—the only type of easement at issue here—”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.”
“An easement is created by grant or reservation, express or implied, or by prescription from which a grant is presumed.” Bloomfield v. Weakland, 224 Or App 433,"
It would appear that only an express easement was claimed in the pleadings. This illustrates how important pleadings are! Humphrey might have been successful with an argument for an implied or presciptive easement, but we'll never know.
I hope this helps to understand the court's opinion.
Note that Humphreys has an alternative legal access, denoted on the plat. It seems that route is a good deal longer trip from the nearest pavement. Also, the entire 30' strip east of the Huls property ("B") is part of the Humphreys Tract "C". It seems that the 30' strip alone is insufficient to make a useable access road. None of this much to do with the law of the case, but it does go to the motivation of the parties.
How is the surveyor of the future going to know that they have been ruled invalid? Will a future title report pick up on the ruling?
I've had affidavits which corrected plats show up in title commitments before, so I would expect a ruling to show up as well. That being said I have a project right now where a water rights ruling was made by a court which affected the property and that ruling did not show up in the commitment I ordered for the property. That commitment was probably the sloppiest one I've seen so far though so I don't know if that makes it a good example of what to expect as far as court rulings go...
Do you get a title report every time you do a boundary? Does the question make you feel more like you should?
I don't know if that makes it a good example of what to expect as far as court rulings go...
We had an example here where our fair city had acquired right of way through an eminent domain process.. so court ruling. 20 years later the street is built and in service and everybody knows there was a court ruling. We even had the case number. But we don't have the document itself and had a devil of a time getting a copy of it. Title Company couldn't manage it. City Attorney finally did but it took several weeks. I don't know what folks that don't have legal on staff would do.
It's a mixed bag here in Arkansas. The clerk here on some things makes a marginal note on documents that have been updated to show the new location, such as subdivision plats that have been revised and mortgages that have been satisfied. But I've never seen a margin note on a deed refer to a court decision or copies of court decisions in the real estate records.
It would really help surveyors if the real estate records had a copy of the court decision or at least a page informing the public of the decision and where to find it. Marginal notes to all deeds of current owners would perfect the record.
Do you get a title report every time you do a boundary? Does the question make you feel more like you should?
Not every time, no. I usually request them if the project is to split or consolidate parcels that aren't in a subdivision, or if the project is some hours away and that county doesn't have a convenient way to look up records online.
I'd like to have a commitment for every boundary project that's not in a subdivision, but that's kind of a steep fee to stick on someone that is just wanting to build a fence, etc.
I don't know if that makes it a good example of what to expect as far as court rulings go...
We had an example here where our fair city had acquired right of way through an eminent domain process.. so court ruling. 20 years later the street is built and in service and everybody knows there was a court ruling. We even had the case number. But we don't have the document itself and had a devil of a time getting a copy of it. Title Company couldn't manage it. City Attorney finally did but it took several weeks. I don't know what folks that don't have legal on staff would do.
In my current project the engineer I'm working for forwarded me a stash of documents that included the court ruling while like I say the title company didn't mention it in their commitment, but yeah, no idea where he got it.
I assumed copies of rulings were recorded and indexed at the relevant county recorder but maybe they're not.
It's a mixed bag here in Arkansas. The clerk here on some things makes a marginal note on documents that have been updated to show the new location, such as subdivision plats that have been revised and mortgages that have been satisfied. But I've never seen a margin note on a deed refer to a court decision or copies of court decisions in the real estate records.
It would really help surveyors if the real estate records had a copy of the court decision or at least a page informing the public of the decision and where to find it. Marginal notes to all deeds of current owners would perfect the record.
Yeah, here in Idaho it seems to have changed over the years. I find handwritten notes on old plats and in original townsite plat books but nothing like that on newer documents.
In fact, I recorded a survey several months ago which had a typo (wrong section number). The GIS people caught it and forwarded it to the county surveyor who then informed me about it. I recorded an affidavit of correction to address the blunder and specifically included language in the affidavit which encouraged the county to make a note on the survey to reflect the correction. I just checked the county website and there's still no such note on the survey.
I assumed copies of rulings were recorded and indexed at the relevant county recorder but maybe they're not.
They can and should be, but it doesn't always happen. At least around here it doesn't.
Around here, clerks don't normally do anything outside of that required by statute. During my career surveys were indexed by the person commissioning the survey and the surveyor. The index was useless to find surveys. Late in my career I would suggest my client's attorney plead and request the court record the opinion in the real estate records and direct the clerk to make a marginal note to affected deeds.
What's really needed is for the legislature to pass a law requiring clerks to use a system that fixes the problem. The law should also direct the duties of the judge in this matter.
Had a case where a fellow wanted a survey to confirm the boundaries appearing on his deed for what was an island in the middle of an 80 acre aliquot tract. He asked if I could find out if he had, in fact, access through some document. He said his title insurance company claimed there was no document. I read every document for his island and the surrounding tract from current day to about 1870 before finding that "non-existent" document. It was from the owner of the entirety to the purchaser of the surrounding tract, less the description of the five acre island and less a strip reserved to provide access from the county road on the north side of the section to the island being created. The "and less a strip" never appeared again in the chain of title.