No. 850 October 1, 2025 683
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Brian HUMPHREYS
and Sara Humphreys,
Plaintiffs-Respondents,
v.
Robert HULS
and Racquel Huls, individually and as Trustees for the
RA Huls and RA Ventura-Huls Family Trust;
Frank J. Folino; and Angelica S. Calderon,
Defendants-Appellants,
and
Randy ONYSKO et al.,
Defendants.
Lane County Circuit Court
20CV17274; A180139
Karrie K. McIntyre, Judge.
Argued and submitted December 4, 2024.
D. Rahn Hostettter argued the cause for appellants. Also
on the opening brief was Hostetter Law Group, LLP. Also on
the reply brief was Benjamin Boyd.
Erin E. Gould argued the cause for respondents. Also on
the brief was Erin E. Gould, LLC.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
AOYAGI, P. J.
Reversed and remanded.
684 Humphreys v. Huls
Cite as 343 Or App 683 (2025) 685
AOYAGI, P. J.
Leroy and Marlene Boehm (the Boehms) owned
approximately 20 acres of rural land in Lane County. Over
time, they divided it through a series of property line adjustments and partitions, ultimately resulting in four tracts, all
of which they eventually sold. Along the way, the Boehms
filed documents purporting to create access easements
for existing and future tracts. The present litigation is an
easement dispute among the Boehms’ successors, including plaintiffs Brian and Sara Humphreys and defendants
Robert and Raquel Huls, John and Cynthia Koza, Frank
Folino and Angelica Calderon, and Randy and Mary Onysko.
Only the Hulses, Folino, and Calderon appear on appeal, so,
going forward, we use “defendants” to refer only to them.1
Plaintiffs brought claims seeking a declaration that
their property is benefited by an access easement meeting Stephens Road, as well as nuisance damages and an
injunction. Defendants responded with various affirmative
defenses and counterclaims. The equitable claims were
tried to the court, and the legal claims were tried to a jury,
after which a judgment was entered in plaintiffs’ favor on
all claims.
Defendants appeal, raising six assignments of error.
We begin and end our analysis with the first assignment of
error, in which defendants challenge the trial court’s ruling
that plaintiffs have an express easement over the Hulses’
property, as it is dispositive. We agree that the trial court
erred in that regard. That conclusion requires reversal of
the judgment and remand for further proceedings consistent with this opinion, including revisiting other claims and
counterclaims affected by the erroneous express easement
ruling. Accordingly, we reverse and remand.
I. FACTS
We limit our discussion to the key facts, which are
undisputed. The Boehms bought an approximately 20-acre
parcel in the 1970s. At some point, they divided the southernmost four acres into a separate tract, which we call tract
1
The Hulses sold their property to the Kozas during this litigation. For ease
of reference, we continue to refer to that parcel as the Hulses’ property.
686 Humphreys v. Huls
D, and transferred that tract into joint ownership with their
son and his wife. Then, in 2004, they divided the northern
16-acre parcel into two tracts: a rectangular tract containing the existing house and barn, which we refer to as tract
B, and a tract consisting of two roughly rectangular areas
connected by a very long 30-foot-wide strip, which we refer
to as tract AC. Tract AC would later be partitioned into two
parcels, A and C, but, in 2004, it was a single tract. For ease
of reference, we provide the following sketch, adapted from
an exhibit and labeled to show how the 20 acres were ultimately divided into four parcels:
In December 2004, when there were a total of three
tracts—tract AC (which included the areas marked A and C
above), tract B, and tract D—the Boehms and their son and
his wife executed and recorded a “Declaration of Private
Cite as 343 Or App 683 (2025) 687
Access Easement.” The declaration recites, “This private
access easement is being prepared to allow access to [tract
B] across [tract AC] and [tract D] from Stephens Road.” That
purpose is also reiterated in a later provision: “The purpose
of this easement is to allow ingress and egress across [tracts
AC and D] to serve [tract B].” The location of the described
easement, which was to run with the land, is indicated in
hashmarks on the above sketch.
A few months later, in March 2005, the Boehms
and their son and his wife executed and recorded another
“Declaration of Private Access Easement.” Its recitals
include that the Boehms “are in the process of partitioning”
tract AC into two parcels, one of which will be a five-acre
parcel (parcel A), and that “[t]his private access easement is
being prepared to allow access to the future [parcel A] across
[tract B] and [future parcel C] and [tract D].” The location of
the described easement, which was to run with the land, is
the same as that in the December 2004 easement.
It should be noted that the described easement
includes the easternmost 10 feet of tract B. Due to terrain,
the 30-foot-wide strip of land in the middle of tract AC would
not provide vehicle access on its own.
In January 2006, the Boehms sold tract B to the
Hulses. The deed does not mention any easements, referring only generally to the chain of title. It states, “This property is free from encumbrances, EXCEPT: All those items of
record, if any, as of the date of this deed, including any real
estate taxes due, but not yet payable.”
In 2011, the Boehms divided tract AC into two parcels, A and C, through a partition plat. Parcel A consists of
the upper rectangle of what used to be tract AC, plus the
30-foot-wide strip lying east of tract B, and parcel C consists of the lower portion of what used to be tract AC. Leroy
Boehm died in 2015. Marlene Boehm then sold parcel A to
plaintiffs, transferring the property by deed recorded in
2016.
Plaintiffs sought a declaration that they have an
express easement over tract B, parcel C, and tract D to access
688 Humphreys v. Huls
their property from Stephens Road.2 The trial court agreed
with plaintiffs and issued the requested declaration. The
court rejected most of defendants’ affirmative defenses and
counterclaims, except the nuisance counterclaims. The nuisance counterclaims, along with plaintiffs’ nuisance claim,
were tried to a jury, which was instructed that plaintiffs
have a valid easement, and, so instructed, the jury found for
plaintiffs on all of those claims.
II. ANALYSIS
Defendants the Hulses contend that the trial court
erred in ruling that plaintiffs (as owners of parcel A) have an
express easement over the Hulses’ property (tract B). They
argue that the 2004 declaration does not create such an easement, because it expressly creates only an easement benefitting tract B, and that the 2005 declaration created an invalid
easement, because the burdened and benefitted estates were
in common ownership at the time. Plaintiffs defend the
court’s rulings. Because the court rendered its decision following a bench trial, and we understand defendants to accept
the court’s factual findings but challenge its application of
the law, we review for legal error. Pistol Resources, LLC v.
McNeely, 312 Or App 627, 629,
496 P3d 28 (2021).
A. 2004 Declaration
“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, 445,
199 P3d 318 (2008), rev den,
346 Or 115 (2009) (citing Tusi
v. Jacobsen,
134 Or 505, 508,
293 P 587, reh’g den,
134 Or
505 (1930)). 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.” Id.;
see also Farnsworth v. Meadowland Ranches, Inc.,
321 Or
App 814, 821,
519 P3d 153 (2022) (“In interpreting a deed,
our objective is to ascertain the meaning that most likely
was intended by the parties who entered into it.” (Internal
quotation marks and brackets omitted.)).
2
We note that there is access to parcel A from a different direction, using an
easement that the Boehms secured from a neighbor. That easement is not at issue.
Cite as 343 Or App 683 (2025) 689
To determine whether an instrument creates an
express easement, we follow our well-established method of
interpretation: “We look first to the language of the instrument itself and consider its text in the context of the document as a whole.” Bloomfield, 224 Or App at 447 (citing
Yogman v. Parrott,
325 Or 358, 361,
937 P2d 1019 (1997)).
In reading the text, we place ourselves in the position of
the parties, which is to say that we consider the circumstances surrounding the execution of the instrument.
Id.
From that vantage, “[i]f the text’s meaning is unambiguous,
the analysis ends, and we interpret the provision’s meaning
as a matter of law.”
Id.
We agree with defendants that the 2004 declaration unambiguously creates an easement only for the benefit of tract B. The declaration recites that its purpose is “to
allow access to [tract B] across [tract AC] and [tract D] from
Stephens Road” and later reiterates in the body that its purpose “is to allow ingress and egress across [tracts AC and D]
to serve [tract B].” In its letter opinion, the trial court took
the view that the 2004 declaration grants an easement across
tracts AC and B for the benefit of tract D and a reciprocal
easement across tract D for the benefit of tracts AC and B,
thus creating “a valid and express easement appurtenant to
all three named tracts/parcels.” We disagree. The 2004 declaration unambiguously states its purpose as being only to
benefit tract B with an easement burdening tracts AC and D.
The trial court found, based on Marlene Boehm’s
testimony, that the 2004 declaration was “intended to permit access to all portions of the property … through the
Stephens Road access.” But a party’s testimony cannot be
used to vary the unambiguous terms of the actual recorded
instrument. As succinctly put in Weniger v. Ripley, 134 Or
265, 276,
293 P 425 (1930), “[I]n construing a deed the court
endeavors to ascertain the intention of the parties; but
the intention sought is the one expressed in the deed and
not some secret unexpressed intention which the parties
refrained from incorporating within the instrument of conveyance.” Even if the 2004 declaration did not accomplish
the Boehms’ subjective goals, the text is unambiguous and
therefore conclusive. Bloomfield,
224 Or App at 447.
690 Humphreys v. Huls
The trial court erred in concluding that the 2004
declaration created an express easement burdening tract B
and benefiting parcel A.
B. 2005 Declaration
We now turn to the 2005 declaration, which was
recorded before the partition of tract AC, and which purports to create an easement over tract B, future parcel C,
and tract D, for the benefit of future parcel A. Unlike the
2004 declaration, the 2005 declaration does purport to create an easement for the benefit of plaintiffs’ parcel. However,
as explained below, we conclude that it too fails to do so.
One inherent characteristic of an easement is
that it transfers an interest in property from one party to
another. “An easement is a right in one person to do certain
acts on land of another.” Bloomfield, 224 Or App at 445 (citing German Savings & Loan Soc. v. Gordon,
54 Or 147, 150,
102 P 736 (1909)). Consequently, it is impossible to create
an easement running between two properties in common
ownership, as such an encumbrance “lacks a characteristic
fundamental to easements—it provides no interest in ‘land
of another.’ ” Partney v. Russell,
304 Or App 679, 692,
469
P3d 756 (2020) (quoting 7455 Incorporated v. Tuala West
LLC,
274 Or App 833, 840,
362 P3d 1179 (2015)). A document purporting to create such an easement is invalid. Id.;
see also DeJardin v. Bonfiglio,
340 Or App 619, 622,
572 P3d
1106 (2025) (“[A] declaration that purports to grant an easement in one’s own land is invalid, on its own.”). The doctrine
of merger similarly provides that when parcels previously
in separate ownership come into common ownership, any
easements running between them are immediately extinguished, even if they remain in the deed record. Witt v.
Reavis,
284 Or 503, 508,
587 P2d 1005 (1978).
Of course, even if an easement is invalid when created, or is extinguished at some point, the same easement
may be validly created or recreated in a later conveyance—
but the intent to do so must be clear. See Bloomfield, 224 Or
App at 445 (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
Cite as
343 Or App 683 (2025) 691
easement”). In Faulconer v. Williams,
327 Or 381,
964 P2d 246
(1998), an easement was extinguished by adverse possession,
but later deeds continued to reference it. The court explained
that “once an easement is extinguished, it is gone forever.”
Id. at 394-95. That is, “it cannot be revived, only recreated.”
Partney,
304 Or App at 690 (discussing Faulconer). And a
“mere later reference” to an extinguished easement “does not
in itself recreate the easement.” Faulconer,
327 Or at 395.
Instead, the later deed, on its face or read in the context of
the circumstances of its execution, must clearly evince the
grantor’s intent to “recreate the easement de novo.”
Id. The
later deeds in Faulconer merely referenced the extinguished
easement, which was not enough to recreate it.
Id. at 395-96.
We recognized in Partney that the same principle
applies to invalidly created easements as extinguished easements. Partney, 304 Or App at 691-92. Partney involved a
recorded declaration that failed to create a valid easement
because the properties were in common ownership.
Id. at
692. Under such circumstances, “even if the declaration is
intended to define the scope of an easement—and even if
it is recorded—the declaration itself does not establish the
easement; only subsequent conveyances made in reference
to the declaration can have that effect.”
Id. Of course, as
with any express easement, the language of the conveyance
instrument itself must be sufficiently clear to establish the
grantor’s intent to create the easement. Bloomfield,
224 Or
App at 445.
Lute illustrates how a recorded document that does
not itself create a valid easement may be used in a later deed
to create one. Lute v. Cascadia Tower Inc., 336 Or App 155,
561 P3d 112 (2024). In April 2015, in anticipation of selling a piece of real property, the defendant in Lute recorded
an easement in gross for its own benefit, which purported
to allow it to install, construct, and operate a cell tower on
one corner of the property, along with an access easement to
travel to and from the cell tower.
Id. at 156. In June 2015,
the defendant sold the real property to the Bodtkers, via
a warranty deed that conveyed it subject to the easement
described in the April 2015 recording.
Id. at 158. The deed
expressly stated that the property was conveyed free from
692 Humphreys v. Huls
encumbrances except those specifically set forth in Exhibit
A to the deed, and Exhibit A listed “the April 2015 recorded
easement document, noting the purpose, recording date,
and record number of that document.”
Id. Assuming that
the 2015 declaration did not create a valid easement, given
the common ownership at that time, we concluded that the
June 2015 deed created one.
Id. at 158. The express language of the deed, read in the context of the circumstances
surrounding its execution, made clear that it was intended
to convey the property subject to a cell tower easement. Id.3
Lute demonstrates that it is possible to create a
valid express easement by executing a deed that expressly
references and incorporates an earlier recording in a way
that makes clear that the grantor intends to convey the
property subject to such an easement—even if the prior
recording itself did not create a valid easement. It is important to note, however, that it is the later deed that creates the
easement, not the earlier recording, and that merely referencing a prior recording in a later deed will not necessarily
create a valid easement if one does not already exist. There
is thus some inherent risk in recording an easement while
property is in common ownership, in anticipation of future
events, because such an easement is invalid at creation, and
additional steps must be taken in the future to actually create a valid easement at the time of property transfer.4
3
See also DeJardin, 340 Or App at 620-21, 623 (holding that the plaintiff
took property subject to a view restriction, even though the property transfer and
the restriction were recorded in separate documents, where the sellers notified
the plaintiff of the intended restriction before the sale, the document creating
the restriction was recorded on the same day as the deed, and the restriction was
mentioned in the closing statement).
4
We note that there are special rules for new towns and subdivisions.
Longstanding Oregon case law provides that when a developer “sells lots with
clear reference” to a plat or plan laying out a town “with spare ground marked
as streets, alleys, public squares or parks,” “the purchasers of the lots acquire as
appurtenant thereto every easement, privilege, and advantage which the plan
or map represents as part of the town.” Carter v. City of Portland, 4 Or 339, 346
(1873). The same is true for subdivision plats. Bloomfield,
224 Or App at 446.
Partney discusses a Restatement section addressing a similar principle relevant
to a “general-plan development”—although we note that that portion of Partney
is dicta. See Partney,
304 Or App at 692-93, 695 (discussing Restatement (Third)
of Property: Servitudes, § 2.1(1) (2000), as potentially relevant, but ultimately
“not consider[ing]” whether or how it might apply, given the arguments made on
appeal); see also Restatement § 1.7 (defining “general-plan development”). Plaintiffs
do not suggest that that Restatement provision has any application here.
Cite as
343 Or App 683 (2025) 693
With those principles in mind, we return to the
present case. When the 2005 declaration was recorded, the
Boehms owned tract AC, which had not yet been partitioned,
and tract B, and they jointly owned tract D with their son
and his wife. The 2005 declaration purports to grant an
express easement over tract B, future parcel C, and tract D,
for the benefit of future parcel A. We readily conclude that
the 2005 declaration did not create a valid easement over
tract B for the benefit of future parcel A. Because the burdened and benefitted estates were in common ownership,
the easement that the declaration purported to create was
necessarily invalid. Partney, 304 Or App at 692 (explaining
that a recorded easement purporting to burden one property
for the benefit of another is invalid if the properties are in
common ownership at the time of the recording).
The trial court viewed Partney as distinguishable
because the 2005 declaration affected tract D, which the
Boehms owned jointly with their son and his wife, whereas
they owned tracts AC and B on their own. That is, the trial
court concluded that tract D was not in entirely common
ownership with tracts B and AC, that the declaration therefore created a valid easement as to tract D, and that all
easements created by the declaration were therefore valid.
We are unpersuaded that Partney is distinguishable on that
basis. Assuming without deciding that the easement burdening tract D for the benefit of future parcel A is valid, it
does not follow that the easement burdening tract B for the
benefit of future parcel A is valid. Plaintiff has not identified, and we are not aware of, any authority that an otherwise invalid easement may be rendered valid by simply
including it in an instrument that creates a valid easement
burdening a different property. Absent such authority, we
are unpersuaded.
The only remaining question is whether the 2006
deed conveying tract B from the Boehms to the Hulses
managed to create the easement that the 2005 declaration
described but failed to create. It did not. The 2006 deed
does not mention any easements, let alone expressly call
out the 2005 declaration. It contains only a generic reference to the chain of title, stating, “This property is free from
694 Humphreys v. Huls
encumbrances, EXCEPT: All those items of record, if any,
as of the date of this deed, including any real estate taxes
due, but not yet payable.” Such language is insufficient to
create an express easement. See Faulconer, 397 Or at 395
(to recreate an extinguished or invalid easement, the later
deed, read in the context of the circumstances of its execution, must clearly evince the grantor’s intent to “recreate
the easement de novo”). It does not make clear, like the deed
in Lute did, that the grantor intended to transfer the property subject to an express easement described in a recent
separate recording, even if that separate recording did not
itself create a valid express easement. If merely referencing a previously recorded document is insufficient to create
a valid express easement, as Faulconer holds, then merely
referencing the chain of title in general terms is certainly
insufficient to create a valid express easement.
Accordingly, the trial court erred in ruling that an
express easement burdens tract B (the Hulses’ property) for
the benefit of parcel A (plaintiffs’ property). We reverse and
remand for further proceedings on the remaining claims
and counterclaims and, ultimately, for entry of a judgment
containing declarations consistent with this opinion.
Reversed and remanded.
