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Easement Cannot be Defeated by Assertions that it is a License or Contract

Miller v. Jones, 256 Or App 392 (2013), Sercombe, J. Plaintiffs brought a declaratory judgment action to determine the validity of an agreement they claimed created an easement for an irrigation pipeline through Defendants’ property.  Defendants attempted to defeat that claim by asserting that the agreement between the previous property owners was not an easement but a “license” between the two previous property owners.  Alternatively, the defendants argued that if the agreement were an easement, it was not appurtenant (i.e. the easement was not attached with ownership of the land), but rather personal; thus the right to use the easement did not transfer when the property was conveyed to plaintiffs. The court considered the plain language of the document and found that the agreement was indeed an easement because it “granted a right of one person to do certain acts on land of another” as it provided the defendants the right “to service and maintain” an existing underground irrigation pipeline on the property and “access [of the pipeline] through” the subject property.  These provisions plainly created an easement granting rights on property of another.  The court construed the plain language of the agreement, the use of the words consistent with easement language, and the purpose of the agreement and concluded that the agreement was an easement that attached to the land granting plaintiff the right to use, service and maintain its pipeline over defendants property.

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