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FILED: February 16, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

ALBERT KNIGHT
and CAROL KNIGHT,

Plaintiffs-Respondents,

v.

BILL NYARA
and ROBBIE NYARA,

Defendants-Appellants.

Linn County Circuit Court
062833
A138945

Glen D. Baisinger, Judge.

Argued and submitted on March 17, 2010.

Barry L. Groce argued the cause for appellants. With him on the briefs was McEwen Gisvold LLP.

Norman R. Hill argued the cause for respondents. With him on the brief were Wesley A. Hill and Martinis & Hill.

Before Wollheim, Presiding Judge, and Brewer, Chief Judge, and Sercombe, Judge.*

BREWER, C. J.

Reversed and remanded for entry of a judgment granting to defendants, their successors, and assigns all uses of the easement property that do not substantially interfere with those uses granted to plaintiffs in paragraph 3 of the general judgment; otherwise affirmed.

*Brewer, C. J., vice Ortega, P. J.

BREWER, C. J.

Defendants appeal from a judgment dismissing their counterclaim for trespass, construing an express easement over a portion of their property, and enjoining defendants from using the portion of their property subject to the easement. In three assignments of error, defendants argue, first, that the trial court erred by construing the word "exclusive" in the easement to prohibit them from using all of the land included within the easement; second, that the trial court erred in determining that plaintiffs' use of the easement area was reasonable under the terms of the easement; and, third, that the court erred in dismissing their counterclaim for trespass. On de novo review, ORS 19.415(3) (2007),(1) we reverse in part and otherwise affirm.

Plaintiffs originally owned 10 acres of land on a gravel bar within the meander line of the South Santiam River. That parcel was bounded to the south by the river and to the north by a county road. The parcel was swampy and wet most of the year owing to its proximity to the river, a high water table, and the presence of a natural drainage way running east to west across the parcel. The drainage way had historically been a channel of the South Santiam River. After purchasing the property, plaintiffs excavated a pond on the drainage way, and they used the excavated material to build an elevated driveway with sloping embankments on each side. The embankment operates as a dam and makes up the western end of the pond. Plaintiffs installed a culvert under the driveway that followed the east-to-west line of the drainage way, and the culvert was connected, by a ninety-degree connector on its eastern end, to a "stand pipe" that plaintiffs installed inside the pond. When the water level in the pond would rise to the top of the stand pipe, water would then drain through the pipe into the culvert; water cannot travel through the culvert unless it rises above the stand-pipe because of the ninety-degree connector which seals off the eastern end of the culvert pipe. The culvert's western end empties into the natural drainage way.

The pond receives its water from the South Santiam River, and the level of water in the pond fluctuates in accordance with the level of water in the river. River water does not flow into the pond through a channel, but rather flows underground through the loose gravel soil. At times, plaintiffs pumped water from the pond into sprinklers that they used to irrigate the sloping embankment and other parts of their property. Plaintiffs planted vegetation on the slopes of the embankment to help control erosion, along with ornamental plants around the property, and they watered that vegetation with water drawn from the pond. Plaintiffs installed a water spigot on their property to facilitate the watering. Plaintiffs' watering draws down the level of the pond, thereby allowing fresh water to flow underground from the river into the pond. Plaintiffs stocked the pond with fish and would sometimes draw down the level of the pond during the summer months to allow fresh water in to benefit the health of the fish. Plaintiffs also pumped water out because allowing in fresh water would lower the temperature of the pond, mitigating the growth of algae blooms.

While they had fish in the pond, plaintiffs placed a grill over the top of the stand pipe to prevent the fish from flowing into the culvert when the water level topped the level of the stand pipe. Plaintiff Albert Knight testified that he did not use the grill to filter out the weeds that grew in the pond from the water flowing into the culvert, because those weeds would clog the grill and cause the water level to "build up and blow out the driveway."

In 1995, plaintiffs partitioned the property into three lots, as shown in the map below.

Click to view MAP

Plaintiffs retained Parcel 3, the parcel that included the pond, their home, and a portion of the elevated driveway. Plaintiffs sold the adjoining parcel, Parcel 2, to defendants in 2005. At that time, the pond was already built and had been used by plaintiffs, as described above, for nearly ten years. We describe the lay of the land and the nature of the pond in some detail because, as discussed below, the way that water drains across the parcels and the way that the pond affects that drainage, forms the basis of defendant's counterclaim for trespass. Parcel 2 is downstream from parcel 3 at a lower elevation and is bounded on the south by the South Santiam River, to the north by the county road, and to the east by the elevated driveway and plaintiffs' property line. The natural drainage way from parcel 3 lies across parcel 2, proceeding west from the culvert installed by plaintiffs at the bottom of the elevated driveway. The drainage way traverses the width of defendant's property and continues onto parcel 1, which lies to the west of parcel 2 and is not at issue in this case.

When they sold parcel 2 to defendants, plaintiffs reserved for themselves an easement. That easement provided:

"INCLUDING an exclusive easement for access and utilities to Parcel 3, Partition Plat No. 1995-70 over the following described area: Beginning at the NE corner of Parcel 2 of Partition Plat No. 1995-70 in Section 28, Township 13 South, Range 1 East of the Willamette Meridian in Linn County, Oregon and running thence South 0