Vossen v. Forrester

963 P.2d 157 (1998)

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Nature of the Case

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Facts

D bought a beachfront lot in Yachats in November 1993. A title report on the property disclosed the existence of an easement in Books 128 page 315 as well as several other easements described with more particularity. A map attached to the title report did not disclose the location of the easement described at Book 128. D's deed made no reference to that easement. D got a permit to build a home and began excavation. D did not have actual knowledge that the easement described in Book 128. The actual easement described in Book 128, was not apparent based on a visual inspection of the property. P who owns the four properties benefited by the easement on Page 128, believed that the house might be encroaching on their easement. Several months before that time, they had observed that D had placed a number of other encroachments on the easement, including boulders and trees. They did not attempt to use the easement, however, and did not notify D either of the existence of the easement or of their belief that he was encroaching on it. P took no action because they believed that D would be ordered to tear down his house as a result of the 'Friends of the 804 Trail' litigation that held up D's initial building permit. In April 1995, when the house was substantially completed, P filed this action seeking a mandatory injunction requiring D to remove the house and the various other obstructions from the easement, as well as a preliminary injunction to prevent D from occupying the house. D offered P an easement over a different portion of the lot, but it was refused. The trial court granted partial summary judgment in favor of P. The parties went to trial on whether laches barred P's claim and whether the trial court should balance the relative hardships to the parties in determining an appropriate remedy. The contractor who constructed the house testified that it had a foundation designed to withstand tsunamis and that due to the nature of the construction, it would not be possible to move the house or to cut off the northern 2.08 feet from the house without harming its structural integrity. The court held that D 'knew or should have known' of the location of the easement and that the defense of laches, therefore, did not apply. Thus, the court was precluded from balancing the relative hardships of the parties in determining the appropriate relief. The trial court granted a mandatory injunction requiring D to remove the house, as well as the other encroachments, from the easement.