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Who Owns a Dedicated Roadway After the County Vacates the Dedication?

Is it worth the time and expense to find out?

Seemingly simple disputes over roadways and driveways between neighboring property owners can often explode into complicated (and expensive) legal battles that require the courts to blend the laws relating to easements, adverse possession, the creation of subdivisions, and the power of a county or city to accept or vacate the dedication of a roadway.  The resulting litigation often results in the litigants incurring expenses far in excess of the value of the underlying property.  Moreover, the litigation can tie up the subject properties for years, depriving the property owners of the ability to convey or develop those properties.  This was almost certainly the case in the recent decision in Howe v. Greenleaf, 2014 WL 324562 (Or App 2014), in which the Court of Appeals was asked to decide who owned Skyland Drive in Lake Oswego after Clackamas County vacated the road dedication.

The complicated facts can be summarized as follows.  In 1950, the Smiths subdivided a portion of their 36 acres of land in Lake Oswego.  The subdivision plat included the dedication of Skyland Drive to Clackamas County and used the roadway as the boundary between the subdivision and the remainder of the Smiths’ property.  The remainder of Smiths’ property was divided into two lots located to the north and east of Skyland Drive.  In 1969, Clackamas County vacated the southern portion of Skyland Drive.   In 1982, Clackamas County vacated the remainder of the Skyland Drive. Also in 1982, the then owners of the various parcels of the land entered into an easement agreement to create reciprocal rights to use Skyland Drive for utility and roadway purposes.  The easement included a recital indicating that the vacation of the roadway would result in the ownership of Skyland Drive reverting to the parties of the easement agreement with the centerline of Skyland Drive serving as the property line.  The litigation did not arise until 2008 when one of the property owners within the subdivision sought to claim ownership of the entirety of Skyland Drive as part of his attempt to further subdivide his lot.

The case quickly became a complicated morass of legal claims and issues.  The plaintiffs, owners of the properties outside the subdivision, filed a lawsuit against the owners inside the subdivision, seeking to quiet title in one-half of Skyland Drive based on the statutes governing interpretation of conveyances and vesting rules applicable upon vacation of public property (ORS 93.310 and 368.366, respectively). The plaintiffs also sought to estop the Defendants from claiming ownership of the entire road based on the recital that contained the 1982 easement agreement.  In addition, the plaintiffs sought to enjoin the Defendants from any future interference with their easement rights to Skyland Drive.  One of the plaintiffs also sought to claim the southern portion of Skyland Drive through adverse possession.  Defendants argued that the original subdivision plat reflected that the Smiths (the original owners of all the property) intended that ownership to the entirety of Skyland Drive would revert only to property owners within the subdivision and sought declaratory relief to that effect.  Defendants claimed that the recital in the 1982 easement agreement was immaterial and was insufficient to convey title to plaintiffs. The case was decided in favor of defendants on all claims after a bench trial.  The defendants were awarded a portion of their attorney fees pursuant to the easement agreement. The plaintiffs appealed.

After five years of litigation, the Court of Appeals reversed the trial court’s decision on plaintiffs’ quiet title claim finding that plaintiffs became the owners of one-half of Skyland Drive after the County vacated the road and that the property line between the properties was at the road’s centerline.  The trial court's decision in favor of the defendants on the adverse possession and easement claims, including the award of attorney fees, was affirmed.  The most interesting portion of the holding, the reversal on plaintiffs’ claim to quiet title, was primarily based on the Court’s application of the statutory presumptions for conveyances of property contained in 93.310(4) and ORS 368.366(1)(d).  In a situation where a road serves as the boundary between two properties, ORS 93.310(4) creates a presumption that the centerline of the roadway is the property line and that the grantor conveys his or her rights up to the centerline.  The presumption continues through subsequent conveyances.  ORS 368.366(1)(d) presumes that title to a vacated county road vests in the abutting property owners to the centerline of the road.  The only exceptions to these presumptions occur (1) when, at the time of conveyance of the abutting property, the road is owned by someone other than the grantor, or (2) when the grantor expressly provides in the conveyance that he or she does not intend to convey title to the centerline of the road.  The Court found that the statutory presumptions applied because the original subdivision plat and subsequent deeds conveying the properties were essentially silent with respect to the ownership of the Skyland Drive.  Thus, the Court reversed the trial court’s ruling on plaintiffs’ quiet title claim finding that title to one-half of Skyland Drive vested in the plaintiffs when the county vacated the road (which also rendered the adverse possession claim moot).

At the end of the day, neither the plaintiffs nor the defendants in this case appear to be winners.  Their properties have been sitting under the cloud of litigation for over five years.  Both sides must have incurred substantial attorney fees during the course of litigation.  These fees likely exceed the land value of Skyland Drive.  Moreover, the end result appears to leave the parties in almost the same position they were in at the time the litigation started with both sides having easement rights to use Skyland Drive for roadway and utility purposes.  No doubt there is more to the story that explains what motivated the parties to litigate the case so vigorously and for so long.  However, this case, perhaps more than others, is a prime example of why real estate practitioners should actively encourage their clients to seek a reasonable and early settlement of these seemingly simple land disputes.  The cost in time and money of finding out who is right in real estate litigation will too often exceed the value of the property in dispute.

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We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.
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