Sander v. Nicholson

                                        167

  Argued and submitted June 11, 2019; on appeal, reversed and remanded for
   entry of judgment dismissing with prejudice plaintiffs’ claims of breach of
   contract and breach of the implied covenant of good faith and fair dealing,
  otherwise affirmed; on cross-appeal, affirmed August 26; petition for review
                    denied December 10, 2020 (

)


                         Barry J. SANDER
                    and Goldye Wolf, Trustees of
                the Barry J. Sander and Goldye Wolf
                      Revocable Living Trust,
                       Plaintiffs-Respondents
                         Cross-Appellants,
                                  v.
                        Paul NICHOLSON
                       and Cathy Nicholson,
                         husband and wife,
                       Defendants-Appellants
                        Cross-Respondents.
                   Jackson County Circuit Court
                       13CV04065; A161996
                                   

    Plaintiffs brought a variety of claims related to an easement agreement,
alleging that defendants’ improvements within the easement interfered with
plaintiffs’ access. Defendants counterclaimed. The trial court entered a judgment
declaring that plaintiffs have an easement for ingress and egress running the
length of defendants’ eastern boundary, concluding that defendants are interfering with that easement, and ordering removal of defendants’ improvements. The
court also directed a verdict in plaintiffs’ favor as to liability on plaintiffs’ contract claims but dismissed them without prejudice after concluding that issues
as to damages were not ripe. Similarly, the court dismissed without prejudice
plaintiffs’ negligent and intentional trespass claims, but dismissed with prejudice plaintiffs’ fraud, negligent misrepresentation, and private nuisance claims.
The court dismissed defendants’ counterclaims with prejudice. In a supplemental
judgment, the court denied plaintiffs’ request for attorney fees and awarded a
reduced amount of costs. Defendants appeal and plaintiffs cross-appeal. Held: As
to defendants’ appeal, the trial court did not err in granting plaintiffs’ claims for
interference with easement and declaratory judgment, but the court did err in its
rulings concerning plaintiffs’ contract claims. Defendants failed to preserve their
challenge to the court’s denial of their motion for directed verdict on plaintiffs’
claims of negligent and intentional trespass. As to plaintiffs’ cross-appeal, the
trial court did not err in denying plaintiffs’ request for attorney fees and awarding a reduced amount of costs.
     On appeal, reversed and remanded for entry of judgment dismissing with
prejudice plaintiffs’ claims of breach of contract and breach of the implied
covenant of good faith and fair dealing; otherwise affirmed. On cross-appeal,
affirmed.
168                                              Sander v. Nicholson

   Timothy C. Gerking, Judge. (General Judgment)
   Ronald D. Grensky, Judge. (Supplemental Judgment)
   Alicia Marie Wilson argued the cause for appellants-cross-respondents. On the briefs was Frohnmayer, Deatherage,
Jamieson, Moore, Armosino and McGovern, P.C.
   Samuel Kornhauser argued the cause for respondentscross-appellants. Also on the briefs were law offices of
Samuel Kornhauser, Jay Beattie, and Lindsay Hart LLP.
  Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.*
   DeVORE, J.
   On appeal, reversed and remanded for entry of judgment
dismissing with prejudice plaintiffs’ claims of breach of contract and breach of the implied covenant of good faith and
fair dealing; otherwise affirmed. On cross-appeal, affirmed.




______________
   * DeVore, J., vice Hadlock, J. pro tempore.
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         DeVORE, J.
         Plaintiffs brought this action with a variety of
claims related to an easement agreement, alleging that
defendants’ improvements within the easement interfered
with plaintiffs’ access. Defendants counterclaimed. The
trial court entered a judgment declaring that plaintiffs have
an easement for ingress and egress running the length of
defendants’ eastern boundary, concluding that defendants
are interfering with that easement, and ordering removal
of defendants’ improvements. The court directed a verdict in plaintiffs’ favor as to liability on plaintiffs’ contract
claims but dismissed them without prejudice after concluding that issues as to damages were not ripe. The court also
dismissed without prejudice plaintiff’s claims for negligent
and intentional trespass, but the court dismissed with prejudice plaintiffs’ fraud, negligent misrepresentation, and
private nuisance claims. The court dismissed defendants’
counterclaims with prejudice. In a supplemental judgment,
the court denied plaintiffs’ request for attorney fees and
awarded a reduced amount of costs. Defendants appeal, and
plaintiffs cross-appeal.
          We conclude that the trial court erred as to its rulings concerning plaintiffs’ contract claims but otherwise
affirm the judgment. On the primary issue raised by defendants’ first three assignments of error, we conclude that the
trial court did not err in granting plaintiffs’ claims for interference with easement and declaratory judgment. We reject
without further discussion defendants’ fourth assignment
in which they contend that the court erred in considering
parol evidence to interpret the easement. We conclude, as
to defendants’ fifth assignment, that the trial court erred
in denying defendants their motion for directed verdict, and
in granting plaintiffs’ motion for directed verdict as to liability, with regard to plaintiffs’ claims for breach of contract
and breach of the implied covenant of good faith and fair
dealing. We reject as unpreserved defendants’ sixth assignment of error, which challenges the court’s denial of their
motion for directed verdict on plaintiffs’ claims of negligent and intentional trespass on a ground not asserted in
their motion. We reject plaintiffs’ first assignment of error
on cross-appeal—that the trial court erred in dismissing
170                                                  Sander v. Nicholson

their claims for fraud and negligent misrepresentation—
without further discussion. We conclude, as to plaintiffs’
second assignment of error, that the trial court did not err
in denying their request for attorney fees and awarding a
reduced amount of costs in the supplemental judgment.
                          I. BACKGROUND
           In 1994, plaintiffs and an adjacent property owner,
Monosoff, created and recorded a reciprocal express easement running along the eastern boundaries of both properties.1 It provides:
        “The parties hereby grant unto each other, their successors and assigns, a perpetual and non-exclusive easement for
    ingress and egress, as well as the installation and maintenance of underground utilities lines, within 25 feet of the east
    boundaries of the two parcels. It is further agreed between
    the parties that each will dedicate the area described in
    this easement unto the City of Ashland for creation of a
    public roadway, along with such additional land adjoining
    as shall be necessary for creation of the public roadway,
    at such time as the City is willing to accept said dedication, and construct said roadway, and one of these parties
    requests same of the other in writing.”
(Emphasis added.) A county-owned local access road,
Prather Street, runs parallel to the southern portion of the
easement on what became defendants’ property. The parties
do not dispute that the road existed at the time the easement was created.
         In December 2005, Monosoff partitioned his property and sold the parcel containing the easement to defendants. A domestic well was constructed on the southern portion of the easement on defendants’ property, and, over the

    1
      The easement was part of an agreement between Monosoff and plaintiffs
in which they partitioned what was once their jointly owned 27-acre property
into two roughly equal parcels, with Monosoff owning the southern parcel and
plaintiffs owning the northern portion. In conjunction with that partition, they
entered into an agreement for a nonexclusive easement for ingress and egress, as
well as for the installation and maintenance of underground utilities, along the
eastern edge of both parcels. The parties apparently contemplated that Monosoff
and plaintiffs would each, in the future, develop the eastern five acres of their
respective parcels and would need to use the easement for ingress and egress to
the to-be-developed lots.
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years, defendants have added other improvements within
that portion of the easement, including a rock wall, trees,
fencing, and other landscaping.2 Defendants’ house is within
eight to ten feet of the western edge of the easement. The
diagram below is an approximation of the relationship of the
properties.




        Plaintiffs filed this action, asserting claims due to
defendants’ alleged obstruction of the southern portion of
the easement. Plaintiffs alleged interference with easement,
negligent and intentional trespass, declaratory judgment,
breach of contract and of the implied covenant of good faith
and fair dealing, fraud, negligent misrepresentation, and
private nuisance. Defendants counterclaimed for declaratory judgment, quiet title, and attorney fees.
        A jury trial was held, but the trial court ultimately
decided the parties’ claims on motions before the case was
submitted to the jury. The court subsequently entered a general judgment declaring:
   “Plaintiffs have an easement 25 feet wide (which includes
   the five foot strip purportedly dedicated to the City of
   Ashland) along the entire eastern length of Defendants’
   property, and Plaintiffs have the right to use the entire
   length and width of the easement (described in Exhibit
   29 attached hereto and incorporated herein) for ingress
   and egress. This Court specifically rejects Defendants’
   contention that Plaintiffs may only use the portion of the

    2
      The record is unclear whether Monosoff or defendants were responsible for
constructing the well.
172                                                    Sander v. Nicholson

     easement for ingress and egress starting at the northern
     terminus of Prather Street.”
Consistent with that declaration, the court ruled in plaintiffs’ favor on their claim of interference with easement. The
judgment authorizes plaintiffs to remove defendants’ well,
rock walls, landscaping, fences, and trees from the southern
portion of easement, at defendants’ expense if defendants
fail to do so.3 The judgment also enjoins defendants from
building any more structures or placing any obstructions on
the easement.
         A variety of issues were resolved when reaching
that judgment. The court directed a verdict for plaintiffs
on the liability portion of their claims for breach of the
easement agreement and breach of an implied covenant of
good faith and fair dealing. The court, however, dismissed,
on defendants’ motion, the “damages component” of those
claims without prejudice as “not yet ripe.” The court likewise dismissed plaintiffs’ trespass claims without prejudice. The court dismissed with prejudice plaintiffs’ claims
of fraud, negligent misrepresentation, and private nuisance.
The court dismissed defendants’ three counterclaims with
prejudice. Later, the court entered a supplemental judgment
denying plaintiffs’ request for attorney fees and awarding a
reduced amount of costs.
                    II. DEFENDANTS’ APPEAL
A.    Interference with Easement
        In their first three assignments of error, defendants challenge the trial court’s rulings in plaintiffs’ favor
on declaratory judgment and interference with easement.4
     3
       The judgment, however, requires plaintiffs to bear the expense of removing
the trees. As to the well, the judgment provides that, if defendants do not remove
or vault it, obtaining all necessary permits, within 90 days, then plaintiffs may
remove it at defendants’ expense.
     4
       Defendants contend that the trial court erred in (1) “entering a judgment
requiring removal of any tree or manmade obstruction including [defendants’]
well, fencing, landscaping and rock wall within the 25-foot easement and by
injunction preventing any future use or improvement whatsoever in the future”;
(2) granting directed verdict to plaintiffs for interference with easement because
there was evidence from which a jury could find that “plaintiffs as a matter of fact
have ingress or egress [access] to their property over the easement with the use of
Prather”; and (3) denying their motion for directed verdict on their counterclaim
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Those assignments of error present essentially the same
question, although posed in different ways. Did the trial
court err in declaring that plaintiffs have use of a 25-foot-wide easement along the entire eastern boundary of defendants’ property for the purpose of ingress and egress to
plaintiffs’ property, and, therefore, that defendants have
interfered with that easement by obstructing it? Is that true
when plaintiffs have ingress and egress by an alternate
means of Prather Street? Those questions are legal issues
that we review for legal error.5 On those central issues, we
conclude that the trial court did not err.
        “An express easement 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.” Bloomfield v. Weakland, 

,

 (2008), rev den, 

 (2009). It may be
extinguished only by consent, prescription, abandonment,
or merger. Cotsifas v. Conrad, 

, 

 (1996). Here, it is undisputed that plaintiffs have
a nonexclusive, express easement running along the eastern boundary of defendants’ property and that it has not
been extinguished.6 It is also undisputed in this case that
defendants’ obstructions on their southern portion of the
easement—landscaping, rock walls, plants, trees, fences,
and a well—make that portion unusable by plaintiffs for
vehicular ingress/egress to their property.
       In their defense, defendants assert that “an easement holder is not entitled to unrestricted use of an entire

for declaratory judgment “fixing the current use of the easement by defendants as
reasonable and providing for plaintiffs’ existing use for access utilizing Prather
and road over northern section of easement.”
     5
       The parties disputed below whether, as a factual matter, plaintiffs have
reasonable ingress and egress to their property using Prather Street—especially
as may affect their ability to partition their property. The court concluded that
defendants could not obstruct plaintiffs’ access to defendants’ southern section of
the easement and that plaintiffs had the right to use that section of the easement
even if there was a reasonable alternative route, without use of the southern section. As the trial court observed, “The only question is: Is the fact that there’s a
road that runs parallel sufficient such as to essentially eliminate the bottom half
of this easement?”
     6
       Although defendants initially asserted that the express easement was limited to the northern portion of their property, they stipulated before trial that the
easement grant was for the entire length.
174                                                Sander v. Nicholson

easement. Rather, the use must be tempered by what is necessary to accomplish the purpose for which the easement
is granted and the rights of the servient estate holders.” In
defendants’ view, the purpose of the easement in this case
is ingress and egress and that purpose is accomplished by
plaintiffs’ use of Prather Street to reach the northern section
of the easement and, from there, their property. Therefore,
defendants contend that plaintiffs failed to demonstrate
that defendants’ improvements “unreasonably and substantially” interfere with the easement. Defendants conclude
that the trial court, in concluding otherwise, disregarded
defendants’ rights, as the servient estate holder, “to use the
burdened property in ways that do not unreasonably interfere with the dominant estate holder’s reasonably necessary
use of the property.”
         For fundamental reasons, we disagree. We have
previously recounted, with respect to expressly created
easement rights, that
   “ ‘(1) the terms of the granting instrument, if unambiguous,
   define the location and the intended purpose of the easement; (2) the dominant estate holder’s right to use the easement is limited to what is reasonably necessary to accomplish the intended purpose of the easement; and (3) the
   servient estate holder retains the right to use the burdened
   property in ways that do not unreasonably interfere with
   the dominant estate holder’s reasonably necessary use of
   the property.’ ”
Knight v. Nyara, 

, 

 (2011)
(quoting D’Abbracci v. Shaw-Bastian, 

,

 (2005)). In short, “the dominant and servient
estate owner’s right to use an easement is mutually limiting.” Bolduc v. Thompson, 

, 

(2010). It is the dominant estate owner’s burden to demonstrate a “substantial” or “unreasonable” interference with
their right to use the easement, which “turns on whether the
conduct of the servient estate owners deprived the dominant
estate owners of a degree of use to which they were entitled
by the easement.”7 Craft v. Weakland, 

,

 (2001) (internal quotation marks omitted).
    7
      Although that generally is a fact-based inquiry, Bolduc, 

, as noted above, in this case, it reduces to a purely legal issue—whether,
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         As relevant to this case, the principal purpose of the
express easement is “ingress and egress,” the meaning of
which the parties do not dispute.8 Nevertheless, defendants
assert that, because plaintiffs have such ingress and egress
to their property through a parallel route, they cannot
demonstrate a “substantial” or “unreasonable” interference
with their right to use the easement by defendants’ obstruction of a portion of it. In support of that position, they rely
primarily on Craft and Clark v. Kuhn, 

, 

 (2000). Those cases, however, do not assist defendants.
        In Clark, the defendant, the dominant estate owner,
sought to widen and pave a gravel road within the 25-foot
wide easement that the defendant held “for right-of-way
purposes.” 

. Doing so would require the
removal of obstructions that the servient owner had placed
within the easement, including trees, large rocks, and a dirt
berm. We concluded that some of the changes sought by the
defendant—that is, widening of the road in places by removing trees and trimming low-hanging branches—were “reasonably necessary” to allow for safe vehicular passage, but
that use of the entire 25-foot easement for a paved, two-lane
road was not “essential to defendant’s ingress and egress to
his property” and, therefore, was not reasonably necessary
to accomplish the purposes of the easement. 

(emphasis in original).
         In Craft, the plaintiff sought removal of a fence,
gate, and windscreens that the defendant, the servient
owner, had installed within an easement that the plaintiff
held across the defendant’s property for “ingress and egress”
to the beach. 

. The easement was 10 feet
wide and approximately 75 feet long. We concluded that the
plaintiff failed to show that the interference with her easement rights caused by the gated fence and windscreens was
substantial, given the scope and purpose of the easement.

even adopting defendants’ view of the facts, any factfinder could reject plaintiffs’
claim.
     8
       As noted, the easement was also for the purpose of “installation and maintenance of underground utilities lines,” and it provided that the parties would
dedicate the easement area to the city for construction of a road under specified
circumstances. This litigation focuses solely on whether the easement’s purpose
of ingress and egress is satisfied.
176                                                    Sander v. Nicholson

. We explained that the plaintiff could “reasonably
accomplish the easement’s purpose despite the windscreens
and gated fence,” in other words, “removal of those structures [did] not appear to be essential to plaintiff’s ingress
and egress to the beach,” 

 and the structures were, on
the other hand, “reasonably necessary for defendant’s enjoyment of her property,” for security reasons, 

.9
         In neither of those cases, however, did we uphold a
servient estate owner’s use of the easement property so as
to divert the ingress and egress access to which the dominant landowner was entitled entirely away from the ingress
and egress route guaranteed by the easement, as defendants have done here. See generally Clark, 

(“The permissible uses or scope of an easement, as distinguished from its location, may vary depending on what land
is necessary for the fulfillment of the easement’s purpose.”
(Footnote omitted.)); D’Abbracci, 

 (holding that servient estate owner was allowed to unilaterally
relocate a road “within the boundaries of the easement if the
change does not unreasonably interfere with the dominant
estate holder’s reasonably necessary use of the easement”
for ingress and egress (emphasis added)). Clark and Craft
do not suggest that the servient estate owner may compel
the dominant estate owner to use property outside of the
easement. We do not understand those cases to support
extinguishing a portion of a route of an express easement
for which a party bargained, as defendants did here, due to
the possibility of alternate access elsewhere. A pair of cases
instruct otherwise.
         In Cotsifas, the plaintiff held an express easement
across a portion of the defendant’s property for ingress and
egress to the plaintiff’s property from SW Hamilton. 

. The easement paralleled another road, SW
40th Avenue, which at the time of the grant was a gravel
road. After the city paved SW 40th, the defendant objected
to the plaintiff’s continued use of the easement and placed
obstructions in it: parking his car, planting vegetation, and
    9
      In Clark and Craft, our review of the evidence was de novo. In 2009, the legislature amended ORS 19.415 to make de novo review discretionary in equitable
actions. Or Laws 2009, ch 231, § 2. Here, our disposition rests on a legal analysis
alone.
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putting up a mailbox. The plaintiff sought to enjoin the
defendant from interfering with his use of the easement,
and the defendant counterclaimed for extinguishment of
the easement as no longer necessary due to the paving of
SW 40th. The trial court concluded that lack of necessity
could not warrant extinguishment of an express easement,
but that it was “no longer reasonable” to allow the plaintiff vehicular use of the easement. Id. at 471. On appeal,
we agreed with the trial court that “[o]nly an easement by
necessity terminates when the necessity ceases.” Id. (citing
Rose et ux. v. Denn et ux., 

, 30, 

 (1950)).
We also disagreed with the defendant’s argument that the
easement was identical in purpose to a way of necessity and
thus could be extinguished where it was no longer necessary.

 To explain, we reflected on an earlier decision, Abbott v.
Thompson, 

, 

, rev den, 

 (1982). We recalled that, in Abbott, the defendants had
sought to prevent the plaintiffs from using their “easement
of ingress and egress” over the defendants’ property because
the plaintiffs had another way of ingress and egress over a
different landowner’s property. We held that, “because the
language of the grant did not limit the easement to a way of
necessity, the existence of an alternative means of ingress
and egress did not terminate the easement.” Cotsifas, 

 (citing Abbott, 

). In Cotsifas,
we concluded that the paving of the alternate ingress and
egress route was “beside the point,” noting that the alternate route was in existence and available to the plaintiff
for vehicular access at the time the easement was created.
Id. at 473.
         This case is not materially distinguishable from
Cotsifas and Abbott. Essentially, defendants contend that
use of the southern portion of the express easement is not
necessary for ingress and egress to plaintiffs’ property, and
that, therefore, the trial court erred in declaring the easement to include that portion and concluding that defendants’ obstructions are interfering with it. As in Cotsifas
and Abbott, however, the easement grant was not limited
to a way of necessity. As in Cotsifas, the alternative route,
Prather Street, existed at the time plaintiffs nonetheless
bargained for and recorded an express easement running
178                                      Sander v. Nicholson

the entire length of defendants’ eastern boundary. The only
distinction here, perhaps, is that defendants do not seek to
extinguish the entire easement, only the southern section of
it on their property. That is, nonetheless, a distinction without a difference. That plaintiffs could access their property
using, in part, some means other than the easement does not
compel a conclusion that plaintiffs’ use of their express easement for that purpose is not “reasonably necessary” under
the reasoning of Cotsifas and Abbott. Defendants’ obstruction of the southern portion of the easement, denying plaintiffs its use for vehicular ingress and egress to their property, does deny plaintiffs “a degree of use to which they were
entitled by the easement.” Craft, 

; see also
Marsh v. Pullen, 

, 

, rev den,

 (1981) (parked cars blocking the plaintiffs easement, which was for “a means of ingress and egress,” interfered with their “free and unrestricted use of the easement
and deprive[d them] of a degree of use to which they [were]
entitled by the original grant of the easement”).
          To the extent that defendants argue that the trial
court erred because some amount “far less” than the entire
25-foot width of the easement was sufficient to allow plaintiffs’ vehicular ingress and egress using the length of the
easement, we conclude that defendants did not preserve that
argument before the trial court and, for that reason, we do
not address its merits. ORAP 5.45(1); Peeples v. Lampert,

, 

 (2008) (preservation requires
that, for an issue to be considered on appeal, it ordinarily
must first be presented to the trial court). Defendants
argued throughout the litigation that plaintiffs’ reasonably
necessary use of the easement for ingress and egress purposes was limited to the northern section of the easement,
not to a narrower width—less than 25 feet—of the southern
section, where defendants had placed their improvements.
In their counterclaim for declaratory judgment, defendants
contended that “Plaintiffs’ right to use Defendants’ Property
for ingress and egress under the 1994 Easement Agreement
is limited in location to the Undisputed Easement Area
[described and depicted on an attached map as the area
north of the terminus of Prather Street and within 25 feet
of the east boundary of defendants’ property], along which
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vehicular and pedestrian travel has been possible and available since prior to the initiation of this litigation.” In their
trial memorandum, defendants argued:
   “It is defendants’ position that plaintiffs do not require
   the entire length of the easement in order to access their
   property. Further, plaintiffs have vehicular access to their
   property by driving up Prather Street to its northern terminus and then onto the undisputed portion of the easement. The improvements placed on the disputed portion of
   the easement by defendants do not interfere with plaintiffs’
   right to ingress and egress.”
In responding to plaintiffs’ motion for a directed verdict on
their interference claim, defendants did make one passing
reference, for illustrative purposes, to the reasonableness of
the width of the easement. Defense counsel argued:
   “And the law is clear … that you only get to use that portion of the easement that you need to discharge the easement’s grant. For example, they would have to prove that
   they would need the whole 25 feet to build the road and
   not just 12 feet like most roads are. And so the question of
   whether or not my clients’ use of the easement is reasonable,
   there’s sufficient facts to go to the jury on that question.”
(Emphasis added.) To which, the court responded, in part:
   “If you grant a 25-foot easement, it means that you’re entitled to use some part of that 25 feet, not 5 feet of it, not 10
   feet of it; but 25 needs to more or less be unobstructed. You
   may not pave 25, you may not make the road 25, but you
   can’t have a bunch of stuff that goes inside the 25. That’s
   got to be kept more or less clear.”
As the colloquy continued, defense counsel clarified:
   “This is a different case in the sense that we’re not talking
   about the width of the easement; we’re talking about the
   length of the easement. The law is no different.
      “…
      “… The law is no different. So I have offered evidence
   that they have a use of—we’re not blocking—if we were [to]
   block the whole entire easement, then I would agree, but
   we’re not. Half of the easement, they have access to. And the
   question is whether they need to use the rest of it, whether it’s
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     reasonable for them to use the rest of it, or whether they don’t
     need to use the rest of it.
        “It’s no different. And there’s tons of cases where you’ve
     got a 60-foot easement, and they want to pave the whole
     thing, and the Court said, ‘Oh, you don’t need that much.
     You get what you need.’ So the fact that it’s a 25-foot-wide
     easement doesn’t matter. It’s the length of the easement that
     matters.”
(Emphases added.)
         On review of the record, it is clear that neither the
trial court nor plaintiffs were alerted to defendants’ theory
that an expanse of 25 feet, including on the southern portion, is not reasonably necessary for plaintiffs’ ingress and
egress; rather, they argued below only that it was not reasonably necessary for plaintiffs to use the southern portion
of the easement at all because sufficient ingress/egress to
their property was available using Prather Street, in conjunction with the northern portion, instead.10 See Peeples,

 (“What is required of a party to adequately
present a contention to the trial court can vary depending
on the nature of the claim or argument; the touchstone in
that regard, ultimately, is procedural fairness to the parties
and to the trial court.”).
         On the central issues, challenged by defendants’
first three assignments of error, we conclude that the trial
court did not err in declaring plaintiffs’ right to the use of
defendant’s southern section of the easement and in enjoining defendants’ impermissible interference.
B.    Contract Claims
         The trial court’s resolution of plaintiffs’ contract
claims is problematic. Our reversal of those rulings requires
untangling the arguments surrounding the claims.

    10
       We similarly decline to address defendants’ suggestion in their reply brief
that the trial court misconstrued the text of the easement—that is, that the trial
court erred in interpreting the easement language “within 25 feet of the east
boundaries of the two parcels” (emphasis added) to declare a 25-foot-wide easement. Defendants did not preserve that argument below. Nor do they develop any
real argument to that effect on appeal. See Cunningham v. Thompson, 

, 297 n 2, 

 (2003), rev den, 

 (2004) (“Ordinarily, the
appellate courts of this state will decline to address an undeveloped argument.”).
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         In their complaint, plaintiffs asserted claims for
breach of contract and for breach of the implied covenant
of good faith and fair dealing. Read liberally, both contract
claims were based on the easement agreement and the concept
that there was mutual agreement by defendants’ predecessor
and plaintiffs to grant each other an easement for ingress
and egress. Presumably, they expressed an agreement, not
only to create an easement-document of record, but to permit
ongoing access thereafter. Presumably, that agreement also
implied a duty of good faith to refrain from interfering with
that access by placing improvements blocking access.
         The complaint’s preliminary recitals and initial
claim alleged that defendants were assignees and successors of Monosoff, that defendants’ property was subject to
the easement, and that, because there was no adequate remedy at law, plaintiffs were entitled to an injunction. However,
the contract claims did not allege that the obligations of the
easement agreement constituted covenants or servitudes,
nor that such obligations ran with the land so as to bind
successors in interest.
         What was clear was that the complaint sought damages of “at least $200,000” on each of the contract claims.
Plaintiffs later explained that the claimed damages were
not for the cost of removal of obstructions but represented
the reduced value of plaintiffs’ property resulting from limitations on development without access.
         At the close of plaintiffs’ evidence, defendants moved
for directed verdicts as to the contract claims, arguing that
“there [was] no contract” between plaintiffs and defendants,”
that, although they may be bound by an easement, an easement “doesn’t rise to the level of a contract,” and that there
was no “personal promise” that could be the basis of a true
contract claim. They argued that “an encumbrance on the
land” could give rise to an interference claim, but it could
not be treated as “a personal obligation of the landowner”
subject to an ordinary contract claim.
         Plaintiffs responded that the easement agreement
created a mutual obligation to allow ingress and egress.
Plaintiffs added, “[Defendants] are assignees. They took it
over.”
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         The trial court challenged the parties to provide
case authority on enforcement of an easement. After retiring to review the cases offered, the court returned to deny
defendants’ motion for directed verdict on the contract
claims. The court stated:
   “Well, it’s an agreement. It starts by saying it’s an agreement.
      “… There clearly were mutual exchange of consideration for it, and it was executed as a standalone document. So, you know, it kind of looks like and smells like and
   sounds like a duck; so I’m going to call it a duck.
      “I’m going to call that a contract, and so I think you can
   breach it.”
Later, at the close of all the evidence, the court granted a
“partial directed verdict” in plaintiffs’ favor on the contract
claims but only as to liability. Later still, the court granted
defendants’ motion as to the contract claims, ruling that
damages were premature, given the uncertain evidence
about plaintiffs’ ability to develop their property. The judgment recited the court’s determination of liability on both
contract claims, but it dismissed the claims without damages and without prejudice.
         On appeal, defendants contend that the trial court
erred in denying their motions for directed verdict as to
plaintiffs’ breach of contract claim and the related claim of
breach of the implied covenant of good faith and fair dealing and that the court erred in granting directed verdict
on defendants’ contract liability. We review the denial of
defendants’ motion for directed verdict motion by viewing
the evidence in the light most favorable to plaintiffs as the
nonmoving party. Kaste v. Land O’Lakes Purina Feed, LLC,

, 

, rev den, 

(2017). Similarly, we review the grant of plaintiffs’ motion
for a directed verdict, considering the evidence in the light
most favorable to defendants as the party against whom the
ruling was entered. Batzer Construction, Inc. v. Boyer, 

, 

, rev den, 

 (2006).
Ultimately, we review both rulings for legal error. 

         Defendants reiterate that there is no basis for contract claims because “[t]here is no contract between plaintiffs
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and [defendants]” and “[a]lleged interference with an easement does not give rise to a claim for breach of contract or
the ancillary claim of breach of the implied duty of good
faith and fair dealing.” Plaintiffs insist that “[a]n easement
can be, and was[,] created by contract,” and, “[a]s Monosoff’s
successor and assignee of the Easement Agreement, [defendants] assumed and are bound by the same contract obligations as Monosoff, i.e., to provide [plaintiffs] with a 25
foot wide easement along the entire length of the eastern
boundary of their property.” They reason that, because
defendants breached that agreement by blocking plaintiffs’
access, the trial court properly granted a directed verdict in
plaintiff’s favor as to liability on those claims.11
         The problem that the parties present is not that
plaintiffs cannot seek damages for interference with an
easement by asserting a proper claim, or that defendants,
when subjected to proper claim, could not be bound by their
predecessor to obligations in an easement. The problem is,
what is a proper claim? The answer reveals the error in
denying defendants’ motion and granting plaintiffs’ motion
for directed verdict on the contract claims.
         A party who suffers interference with the right to
use an easement may bring a tort claim for damages for
the injury to an interest in property. See, e.g., Landauer v.
Steelman, 

, 

 (1976) (evidence
sufficient to support verdict finding substantial interference with easement and verdict for damages); Stephenson
v. Pierson, 

, 

 (1996) (failure to
separate claims not preserved; plaintiff given injunction to
establish access rights in equitable claim and awarded damages for interference on legal claim).
         A party who suffers interference with the right to
use an easement may bring an equitable claim, seeking an
injunction, or, if an injunction is not sufficient or appropriate, seeking to be awarded monetary relief in addition or in
the alternative. See Andrews v. North Coast Development,

, 

 (1974) (awarding damages
because injunction not appropriate).
    11
       Plaintiffs also contend that the court erred in not directing verdict in their
favor as to damages; however, they do not assign error to that ruling in their
cross-appeal and, accordingly, we do not discuss it.
184                                                      Sander v. Nicholson

         A party who suffers interference with an easement,
contrary to covenants expressed or implicit in an easement,
may bring an equitable action to enforce those obligations as
servitudes that run with the land to bind successors in interest. See Fitzstephens v. Watson, et al, 

, 

 (1959) (affirming injunction to establish easement
for water right; recognizing covenant to maintain reservoir
and pipeline; but affirming judgment based on sufficiency of
the evidence to support court’s refusal to award damages).
         Here, plaintiffs and defendants’ predecessor Monosoff
engaged in an exchange of promises that were mutual covenants to permit ingress and egress. See Restatement (Third)
of Property: Servitudes § 1.2(1) (2000) (“An easement creates
a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere
with the uses authorized by the easement.”). Such an obligation is a servitude that runs with the land and binds successors. See Fitzstephens, 

 (agreement to
maintain reservoir and pipeline was a covenant running
with the land).12
        In this case, however, plaintiffs did not plead a tort
claim for injury to their property interest. Although they
sought an injunction and declaratory relief, plaintiffs did not
plead an equitable claim that sought enforcement of a covenant as a servitude that runs with the land. Instead, they
     12
        More familiar forms of covenants or servitudes are found on property subject to “conditions, covenants, and restrictions” (CCRs), which are routine obligations running with the land. The Supreme Court has elaborated, mentioning
their relationship to easement agreements:
         “The CCRs are ‘servitudes’ with multiple benefits and burdens. The
     rights of the lot owners are reciprocal and mutually enforceable. The beneficiaries of the servitudes are the lot owners whose property is rendered more
     valuable and desirable by the servitudes. The benefited property is called the
     ‘dominant estate’ or ‘dominant tenement.’ The servitude is said to be ‘appurtenant’ to the dominant estate. The burdened property is called the ‘servient
     estate’ or ‘servient tenement.’ Each lot [in the property at issue] is, therefore,
     both the dominant and the servient estate or tenement with respect to the
     CCRs involved; the benefits and burdens of mutual promises attach to the
     ownership of each lot. See Natelson, Law of Property Owner Associations 50,
     § 2.3.3. 1531989) (explaining concept). The servitudes themselves are ‘interests in land in the same family as easements.’ Cunningham, Stoebuck, and
     Whitman, The Law of Property 494, § 8.27 (1984).”
Westwood Homeowners Assn., Inc. v. Lane County, 

, 

 (1993),
adh’d to as modified on recons, 

, 

 (1994) (footnotes omitted).
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added an ordinary claim for breach of contract and a related
claim for breach of the implied covenant of good faith and
fair dealing. In so doing, plaintiffs did not choose to allege a
claim of a familiar sort that renders a successor personally
liable for damages for interference with an easement.
          We recognize that plaintiffs, in the preliminary
paragraphs of their complaint, did allege that defendants
were assignees and successors of Monosoff; alleged that
defendants’ property was subject to the easement; and
broadly incorporated by reference all prior paragraphs of
the complaint. Yet, in the critical claims, they alleged two
claims founded expressly on contract theories. Plaintiffs did
not plead, in any plain way, an equitable claim to enforce
a covenant or servitude. When the trial court asked for
a response to defendants’ motion, plaintiffs responded
obliquely that defendants were assignees—that they took
the land. We have held, however, that merely to say that
a party has succeeded to a predecessor’s interest in land
does not say enough to explain why the successor should
somehow be bound by a predecessor’s agreement. See
LDS Development, LLC v. City of Eugene, 

, 

 (2016), rev den, 

 (2017) (rejecting city’s argument that successor developer was bound simply by reason of becoming owner of the property once owned
by a party to a development agreement).
         Given no better explanation, the trial court adopted
plaintiffs’ view that the easement agreement was a contract,
simply because Monosoff and plaintiffs exchanged promises.
The trial court accepted plaintiffs’ contract theory. We cannot recharacterize the proceedings to avoid a problem. The
court did not invoke ORCP 12 B, so as to disregard pleading
errors that might not affect a substantial right, and thereafter choose to treat the contract claims as equitable claims
that might enforce a servitude and seek monetary relief in
addition to or in lieu of an injunction.13 As a consequence,

    13
       We do not indulge in consideration that the trial court might be right for
the wrong reason. See Outdoor Media Dimensions Inc. v. State of Oregon, 

, 

 (2001) (explaining perquisites for affirming on alternate
grounds not raised below). If nothing else, the issues if developed below could
have developed differently on the question of standards for the award of damages
in an action at law versus monetary relief in an equitable claim.
186                                      Sander v. Nicholson

the trial court erred in denying defendants’ motion for a
directed verdict against the contract claims and, later, in
granting plaintiffs’ contract claims on liability.
C. Negligent and Intentional Trespass
         In their sixth assignment of error, defendants contend that the trial court erred in denying their motions for
directed verdict as to plaintiffs’ negligent and intentional
trespass claims. As we explain, we conclude that defendants
failed to preserve their arguments as to that assignment
of error, and we decline to address it for that reason. See
Harrison v. Hall, 

, 

, rev den,

 (2007) (“[W]e have an independent obligation to
determine whether an argument advanced on appeal was
preserved at trial … even when a failure to preserve an
argument has not been asserted by the opposing party.”
(Internal quotation marks and citations omitted.)). On
appeal, defendants assert that, because an easement is not
a possessory interest in land, plaintiffs do not have a legal
basis for a trespass claim, relying on Rogers v. Donovan, 

, 125 n 1, 

 (1972) (“Trespass lies only for
an interference with a possessory interest in land. 1 Harper
& James, The Law of Torts s 1.2 (1956). An easement is
not a possessory interest in land. Therefore, the complaint
incorrectly alleges that defendants’ interference with the
claimed easement was a trespass. 3 Tiffany, Real Property
s 814, p. 362 (1939).”). However, defendants did not assert
that ground as a basis for directed verdict in the trial court.
Rather, they argued only that they were entitled to directed
verdict because plaintiffs had not established damages
related to those claims. That was insufficient to preserve
their appellate argument. Greenwood Products v. Greenwood
Forest Products, 

, 

 (2012) (denial
of directed verdict motion unpreserved for appeal where
basis for reversal was not argued in the motion below); see
also Wieber v. FedEx Ground Package System, Inc., 

, 

 (2009), rev den, 

 (2011)
(“[I]n determining whether FedEx preserved its argument
that the trial court erred in denying FedEx’s motion for a
directed verdict, we consider only what FedEx argued in
moving for a directed verdict.”). Accordingly, we do not reach
the merits of defendants’ sixth assignment of error.
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               III.    PLAINTIFFS’ CROSS-APPEAL
        In their second assignment of error, plaintiffs challenge the trial court’s denial of their motion for attorney fees
and award of a reduced amount of costs in the supplemental
judgment.14
          After trial in this case, plaintiffs filed a motion for
attorney fees ($124,192), costs ($12,895.87), and an enhanced
prevailing party fee ($5,000). Defendants objected, arguing
that plaintiffs were entitled to $1,530.50 in costs only.15 After
a hearing, the trial court entered a supplemental judgment
rejecting plaintiffs’ request for attorney fees on the ground
that plaintiffs had not pleaded the statute or rule providing
the basis for an award of fees.16 The court sustained defendants’ objections to plaintiffs’ cost bill and awarded plaintiffs $1,530.50 in costs.
         In their opening brief on cross-appeal, plaintiffs
argue that defendants’ defenses and counterclaims warranted an award of attorney fees under ORS 20.105 because
they were objectively unreasonable, but they do not contest
the trial court’s reason for denying attorney fees: that plaintiffs had failed to plead the statute or rule providing the
basis for such an award. The trial court’s reasoning was correct. See ORCP 68 C(2)(a) (“A party seeking attorney fees
shall allege the facts, statute, or rule that provides a basis
for the award of fees in a pleading filed by that party.”). In
their reply brief, plaintiffs add that the court erred because
it denied them leave to amend their complaint to plead such

    14
       As previously noted, we reject plaintiffs’ first assignment of error on cross-appeal without discussion.
    15
       Defendants also filed a motion for sanctions against plaintiffs pursuant
to ORCP 17 C. The trial court granted that motion and ordered plaintiffs to pay
defendants $1,000, which represented “a reasonable attorney fee expended in
responding to plaintiffs’ unwarranted claims.” Although plaintiffs attempt to
include in their second assignment of error on cross-appeal an assertion that the
trial court erred in awarding those sanctions, they did not cross-appeal from the
supplemental judgment containing that ruling, nor do they make any argument
in support of that assertion. Accordingly, the issue is not before us and we do not
discuss it further.
    16
       The supplemental judgment also reflected that, even if ORS 20.105 had
been pleaded as a basis for fees, the request would be denied because “the court
cannot find, as a matter of law, that there was no objectively reasonable basis for
the counterclaims and defenses raised by defendants.”
188                                                    Sander v. Nicholson

a claim. Plaintiffs, however, have not assigned error to that
ruling.17 Accordingly, we affirm the trial court’s denial of
attorney fees.
         As to costs, plaintiffs’ sole argument is that the
trial court should have awarded them their full amount of
costs for the same reason that they assert they were entitled
to attorney fees: in their view, defendants’ defenses were
objectively unreasonable. We reject that argument without
discussion, except to note that, in any event, plaintiffs effectively acquiesced to the amount of costs awarded.
                           IV. CONCLUSION
         In summary, we conclude that the trial court erred
only in denying defendants’ motion and granting plaintiffs’
motion for directed verdict as to the claims for breach of
contract and breach of the implied covenant of good faith
and fair dealing. Otherwise, we affirm the judgment of the
trial court on all other issues presented in the appeal and
cross-appeal.
        On appeal, reversed and remanded for entry of
judgment dismissing with prejudice plaintiffs’ claims of
breach of contract and breach of the implied covenant of
good faith and fair dealing; otherwise affirmed. On cross-appeal, affirmed.




    17
       At the hearing on plaintiffs’ post-trial motion, the court noted that it had
earlier denied plaintiffs’ motion to amend their complaint to allege fees because
it was filed just four days before trial and plaintiffs had had ample opportunity to
add an attorney fee claim in earlier amendments.