Central Oregon Fabricators, Inc. v. Hudspeth
159 Or. App. 391, 1999 Ore. App. LEXIS 432, 977 P.2d 416 (1999)
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Rule of Law:
To establish abandonment of an express easement or profit a prendre, the party claiming abandonment must prove both non-use and a clear, unequivocal intent by the rights holder to permanently relinquish the right. Mere acquiescence to the servient landowner's actions, such as fencing and gating the property, is insufficient to demonstrate the requisite intent to abandon.
Facts:
- On August 7, 1964, Hudspeth Land and Livestock Company sold over 24,000 acres of land to Central Oregon Fabricators, Inc. (COF), a company owned by Jack Rhoden.
- On the same day, COF executed a deed granting Fred Hudspeth, Alan Hudspeth, Barry Hudspeth, and others the perpetual right for themselves, their heirs, assigns, and personal guests to hunt and fish on the property.
- Immediately after the 1964 purchase, Rhoden constructed fences and trenches, installed locked gates on all access roads, and hired guards to patrol the property during hunting season.
- From 1964 until 1997, Barry Hudspeth and Fred Hudspeth never exercised their rights to hunt or fish on the property.
- Alan Hudspeth hunted on the property in 1968 or 1969 after informing Rhoden, and in 1974 he decided not to hunt after Rhoden told him paying hunters would be in the area.
- In 1989, Rhoden began operating a commercial hunting guide service on the property, actively managing the land to enhance game populations.
- In 1994, Alan Hudspeth requested keys to the locked gates to go hunting, but Rhoden refused, citing his commercial hunting operations.
- Subsequently, the Hudspeths began developing a plan to sell hunting memberships by assigning their rights on an annual basis.
Procedural Posture:
- Plaintiffs Jack Rhoden and Central Oregon Fabricators, Inc. filed an action to quiet title in state trial court against defendants Alan Hudspeth, Barry Hudspeth, and F & M Realty Company.
- The complaint alleged that defendants had abandoned their profit a prendre for hunting and fishing rights, and alternatively sought a declaratory judgment limiting the scope of those rights.
- Defendants counterclaimed, seeking a declaration of their rights under the deed and an injunction to prevent plaintiffs' interference.
- The trial court, after a bench trial, entered judgment for the plaintiffs, finding that the defendants' rights were extinguished either by abandonment or, alternatively, by adverse possession—a theory plaintiffs had not pleaded.
- The trial court also issued a declaratory judgment construing several limitations on the scope of the defendants' rights.
- Defendants appealed the trial court's judgment to the Court of Appeals of Oregon.
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Issue:
Does a grantee's long-term non-use of a profit a prendre for hunting and fishing, combined with acquiescence to the landowner's fencing, gating, and patrolling of the property, constitute abandonment of those rights?
Opinions:
Majority - Haselton, J.
No. The grantees' non-use and failure to object to the landowner's actions did not constitute abandonment of their hunting and fishing rights. Abandonment of an easement requires proof of both non-use and a clear intent to abandon. While defendants' non-use was established, plaintiffs failed to show the second element: an unequivocal intent to relinquish their rights. Defendants' passivity or acquiescence to Rhoden fencing and gating the property was insufficient to demonstrate such intent, especially since these actions were not inconsistent with the defendants' rights and may have even enhanced them by excluding trespassers. Alan Hudspeth's conduct was, at best, equivocal and did not show an intent to abandon. The trial court also erred by granting relief on the unpleaded theory of adverse possession. Finally, the court construed the deed to mean that rights can only be assigned to natural persons, not entities; a 'personal guest' cannot be a paying customer; but the right to hunt is not limited to only the game species specifically listed.
Analysis:
This decision reinforces the high evidentiary standard required to prove abandonment of an express property interest like an easement or profit a prendre. It clarifies that a rights holder's mere passivity in the face of the landowner's control over the property does not, by itself, demonstrate the clear and unequivocal intent to abandon necessary for extinguishment. The ruling protects easement holders from losing valuable rights through inaction alone, placing a heavy burden on the landowner to prove affirmative acts of relinquishment. The case also serves as a strong procedural reminder that trial courts cannot grant relief on legal theories that were never pleaded or argued by the parties.
