FOLLANSBEE v. Linda Wallace, individually et al., Defendants. (2026)

This action for declaratory and injunctive relief concerns the use of a private road in Bend referred to as Cougar Trail. The parties own or lease property that runs along or close to the road. After years of litigation below, we now address the parties’ arguments on appeal, which primarily relate to the use of Cougar Trail, and whether the parties have express or implied easements to use parts of the road. In our review of this case, we have done our best to sort through and streamline the parties’ arguments, which are often difficult to decipher and disentangle due to the many motions the parties have filed both in the trial court and on appeal.

Having considered the record and the arguments, and for the reasons explained below, we dispose of the case as follows. First, we affirm the trial court's dismissal of plaintiffs’ claims relating to whether defendants were overusing or damaging the road. Second, we vacate the trial court's dismissal of James Ooi's first counterclaim, and we remand for the trial court to grant his request for leave to amend the counterclaim and address whether Ooi has an express easement on property owned by Julia Follansbee and Ronald Braatz.¹ Third, we reverse the trial court's determination that Ooi has an implied easement on property owned by David DeCourcey and Cristy Hartman DeCourcey.² And fourth, we reverse the trial court's award of attorney fees and costs to defendants Ooi, Gretchen Miller and M&B Farms, LLC.³

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs include Follansbee, Braatz, and the DeCourceys, who own property to the south of Ooi's property. Cougar Trail is the only road providing access from Dodds Road to property owned by Ooi, who purchased his property in 2009. The Ooi Property is zoned for exclusive farm use (EFU), and, in 2019, Ooi leased it to Miller and M&B. Miller is the managing member of M&B, which began operating summer camps on the Ooi Property in 2020 that focused on equine activities, including horseback riding lessons. That use of the Ooi Property resulted in increased traffic on Cougar Trail. That use of the road since around June 2020 led to disputes between the parties and gave rise to this litigation.

We begin by describing the location of Cougar Trail. From Dodds Road, Cougar Trail runs along the western edge of the DeCourcey Property, and then it runs along the western edge of property owned by Follansbee and Braatz. The Follansbee/Braatz Property is north of the DeCourcey Property. To the north of the Follansbee/Braatz Property, the Cougar Trail also runs along the western edge of the Ooi Property.

At the northwestern corner of the Ooi Property, Cougar Trail intersects with Skywagon Drive, which is a road used to access other properties owned by persons who were named as plaintiffs. The Cougar Trail is a paved road, and it consists of a single lane bridge over a canal located at or close to where the DeCourcey Property meets the Follansbee/Braatz Property. The record includes a trial exhibit showing the location of some of those properties in relation to Cougar Trail.

The properties now owned by Follansbee, Braatz, and Ooi (but not the DeCourcey Property) were once part of land owned by Robert and Marcia Smith, and that property was described in a 1978 Quitclaim Deed and Agreement as follows:

“The North Half of the Northwest quarter (N1/2 NW1/4) of Section 12, Township 18 South, Range 13 East of the Willamette Meridian, Deschutes County, Oregon.”

In 1978, that property was divided into several parcels to create Juniper Airpark, it included a private airport, and the 1978 Quitclaim Deed and Agreement stated that the parcels were subject to “an easement for roadway purposes across the Northerly 30 feet and the Westerly 30 feet of the North 1/2 of the Northwest 1/4 of said Section 12.” The record includes a trial exhibit showing the current ownership of the properties conveyed by the Smiths:

As noted above, Miller and M&B operated summer camps on the Ooi Property. In their third amended complaint (TAC), plaintiffs sought a judicial determination and declaration that defendants’ commercial use of the part of Cougar Trail that crosses the DeCourcey Property was permissive only and subject to withdrawal by the DeCourceys. They also sought a declaration that defendants’ use of Cougar Trail was exceeding its capacity and causing damage. Plaintiffs filed a claim for “abuse of easement,” and they sought to enjoin defendants’ commercial use or overuse of Cougar Trail. Plaintiffs filed a claim for defamation against Miller and one of her companies for statements Miller allegedly made about Braatz.

Ooi answered the TAC, and he filed counterclaims against Follansbee, Braatz, and the DeCourceys seeking to quiet title to the “Ooi Easement,” which he alleged crosses the DeCourcey Property and the Braatz Property, which coincides with Cougar Trail and which provides access to the Ooi Property from Dodds Road. Ooi filed a third counterclaim for prescriptive easement and a fourth counterclaim for implied easement.

The trial court bifurcated the defamation claim and held a bench trial on the property claims and counterclaims in September 2022.⁴ After the trial, in its memorandum opinion dated January 19, 2023, as well as addressing various motions to dismiss, the trial court made several determinations:

“Cougar Trail runs along the [w]est side of the Ooi property from Do[dd]s Road and runs over two 30-foot easements, one of which benefits the Ooi property as it crosses the Braatz property. Cougar Trail provides the only access to the Ooi property from Dodds Road. Cougar Trail is also used by other vehicles, including semi-trucks and trailers that are not associated with M&B.”

In its memorandum opinion, the trial court stated:

“The evidence in this case establishes that there are two separate 30-foot-wide easements, one running along the [w]esterly boundary of the DeCourcey property and another running along the [w]esterly boundary of the Follansbee/ Braatz Property. Both easements are for roadway purposes. The 30-foot-wide easement across the Follansbee/Braatz property was created in 1978 and benefits the Ooi property. The 30-foot-wide easement across the DeCourcey property benefits properties north of the DeCourcey property, but not the Ooi property. This easement was created prior to 1999. In 1999, an additional 20-foot-wide easement was created along the easterly edge of the 30-foot-wide easement across the DeCourcey property. The 20-foot-wide easement triangulates and comes to a point prior to reaching the Follansbee/ Braatz property. The 20-foot-wide easement benefits all properties [n]orth of the DeCourcey property, including the Ooi property. The 20-foot-wide easement along with the 30-foot-wide easement across the DeCourcey property form a 50-foot-wide access entry point at the beginning of the DeCourcey property from Dodds Road. The 20-foot-wide easement was created by Minor Land Partition PP1999-45. The declaration within the Minor Land Partition document does not contain any language that would merge the 20-foot-wide and the 30-foot-wide easements across the DeCourcey property. Because of the way the 20-foot-wide easement triangulates, it does not by itself provide vehicular access from Dodds Road, across the DeCourcey property, to any of the property [n]orth of the DeCourcey property.

“Cougar Trail is a private road that runs over both 30-foot easements beginning at Dodds Road. Cougar Trail does not fit within the 30-foot easement which runs across the DeCourcey Property beginning at Dodds Road. The additional 20-foot-wide easement was apparently created to remedy the situation. There is no evidence when Cougar Trail was created.”

Based on those and related determinations, the trial court dismissed plaintiffs’ first, second, and third claims for relief in the TAC. The trial court also dismissed some plaintiffs for lack of standing. Although the trial court found that there was evidence of increased traffic on Cougar Trail and that vehicles traveled at a high rate of speed, the trial court determined that plaintiffs failed to show that defendants caused damage to Cougar Trail or to the single lane bridge. The trial court therefore dismissed plaintiffs’ request for a declaration that defendants’ use of Cougar Trail was exceeding its capacity or causing unacceptable damage.

Regarding plaintiffs’ “abuse of easement” claim, the trial court determined that Oregon law does not recognize such a claim, but even if plaintiffs stated a cognizable claim, they failed to request relief pertaining to the claim. The trial court therefore dismissed it.

The trial court also dismissed plaintiffs’ request for an injunction because the plaintiffs “failed to provide clear and convincing evidence of irreparable harm to Cougar Trail or the single lane bridge.” The trial court determined that there was “insufficient evidence that defendants or their clients, guests or invitees overuse the Cougar Trail easement roadway across plaintiffs’ property,” and plaintiffs failed to show that they did not have an adequate remedy at law.

Turning to defendant Ooi's counterclaims, the trial court dismissed Ooi's counterclaims seeking to quiet title against Follansbee, Braatz, and the DeCourceys, because Ooi presented no evidence that he was in “actual possession” of Cougar Trail, which the trial court viewed as necessary to maintain an action to quiet title. The trial court also determined that Ooi could not prevail on his claim for a prescriptive easement. However, the trial court granted Ooi's fourth counterclaim for an implied easement because the evidence showed that Cougar Trail provides the only way to access the Ooi Property.

When addressing Ooi's fourth counterclaim, the trial court made the following determinations:

“The evidence * * * establishes that the properties now owned by the DeCourceys, Follansbee/Braatz, Bell, the Shraders and Ooi, all located in Section 12, were all in common ownership of the USA, and was conveyed as one entire parcel to the State of Oregon. There is evidence that the properties, located in the NW 1/4 NW 1/4 & NE 1/4 NW 1/4 of Section 12, now owned by the Shraders, Braatz, Bell, and Ooi were all once in the common ownership of Robert and Marcia Smith in October 1978, as one parcel of land. That land was divided into separately owned parts by a conveyance in a quitclaim deed in October 1978. In 1977 the owners and partitioners of that property, dedicated, within Major Partition MJP-77-13, to the public forever all streets and easements. That dedication included the 30-foot-wide easement running along the West boundary of the property, over which Cougar Trail now runs.

“There is no direct evidence when the DeCourcey property was divided or severed from the Shraders, Braatz, Bell, and Ooi properties. The DeCourcey property which shares [its] northern boundary with the Follansbee/ Braatz property is located in the SW 1/4 of the NW 1/4 of Section 12, also contained a 30-foot-wide easement road which encroached approximately 20 ft on the DeCourcey property. The 30-foot-wide road easement benefits certain properties north of the DeCourcey property, but not the Ooi property. This 30-foot-wide easement is the easement over which Cougar Trail runs and connects to Dodds Road. In 1999, the owners of the DeCourcey property addressed the encroachment of the 30-foot-wide access easement on the DeCourcey property by granting an additional 20-foot private access easement, as shown on Minor Land Partition PP1999-45, for the benefit of the Southwest one-quarter of Section 1, the Southeast one-quarter of Section 2, the Northeast one-quarter of the Northeast one-quarter of Section 11. This 20-foot additional private access easement benefits all the properties north of the DeCourcey property, including the Ooi property.”

The trial court further determined that “Cougar Trail provides the only ingress [and] egress to the public road Dodds Road for all properties in Section 12. Without access to Cougar Trail for ingress [and] egress to Dodds Road, the Shraders, Braatz, Bell, and Ooi Properties would be landlocked.”⁵

The trial court then determined:

“A reasonable purchaser of land north of the DeCourcey property, including the Ooi property, would be justified in expecting a road access easement from Dodds Road to their property given that their property would be, otherwise, landlocked. The court finds that Cougar Trail is a necessary road access easement benefiting the Ooi property. Therefore, defendant/counter-plaintiff Ooi has an implied easement for road access purposes via Cougar Trail across the DeCourcey property”

On attorney fees, the trial court determined that defendants Miller and M&B were entitled to reasonable attorney fees and costs incurred up to the filing of the TAC under ORS 30.938 as the prevailing parties in an action for relief relating to farming practices.

After the trial court issued its memorandum opinion, Ooi made an ORCP 62 B request for additional findings and conclusions. Among other things, Ooi argued that the trial court should amend the pleadings to conform to the issues litigated at trial because the parties “litigated * * * whether the 1978 Quitclaim Deed and Agreement created an unrestricted access easement over the westerly 30 feet of the Follansbee/Braatz Property in favor of the Ooi Property.”

The trial court granted in part and denied in part the ORCP 62 B request. The trial court ordered that, as well as Miller and M&B, Ooi was entitled to reasonable attorney fees under ORS 30.938. The trial court determined that the “Ooi property is zoned EFU and M&B Family Farm, LLC's equine activities are ‘Farm Use’ and outright permitted under the EFU zone.” However, the trial court denied the request to enter a declaration that the 1978 Quitclaim Deed and Agreement created an easement over the Follansbee/Braatz Property in favor of the Ooi Property.

In June 2023, the trial court issued a limited judgment consistent with those determinations. In November 2023, the trial court entered a supplemental judgment awarding attorney fees and costs to Miller and M&B in the amount of $168,454.30, and to Ooi in the amount of $88,400. Ooi appeals the limited judgment, while plaintiffs cross-appeal the limited judgment and the supplemental judgment.

II. ANALYSIS

Ooi's appeal raises two assignments of error, and the cross-appeal raises five assignments of error. We address each of them in turn.⁶

“In reviewing a trial court's determinations following a bench trial, we review the trial court's explicit and implicit findings of fact for any evidence in the record to support them, and the legal consequences of those facts for legal error.” Pistol Resources, LLC v. McNeely, 312 Or App 627, 629, 496 P3d 28 (2021) (internal quotation marks omitted).

A. Ooi's Appeal

In his first assignment of error, Ooi argues that the trial court erred when it dismissed his first counterclaim because, according to Ooi, he sought a declaration that he had an express easement over the Follansbee/Braatz Property. In his second assignment, he argues that the trial court erred in denying his request for leave to amend the first counterclaim. We are not persuaded by the first argument, but, as explained below, we vacate the dismissal of Ooi's first counterclaim and remand for the trial court to address whether the evidence presented at trial shows that he has an express easement over the Follansbee/Braatz Property.

1. Ooi did not request a declaration of an express easement.

In his first assignment of error, Ooi argues that the trial court erred when it dismissed his first counterclaim because, according to Ooi, he sought a declaration that he “benefited from an express unrestricted easement for roadway purposes over the westerly 30-feet of the Braatz property.” Ooi argues that he requested the declaration in paragraph 47 of his Answer and Counterclaims and in paragraph 2 of the prayer for relief. We are not persuaded by that argument.

Paragraph 47 of Ooi's Answer and Counterclaims stated:

“Defendant Ooi seeks a declaration and judgment against plaintiffs Follansbee and Braatz: 1) quieting title to the Ooi Easement Section 1 across the Follansbee and Braatz property; 2) for a declaration that the purpose of the easement is an unrestricted roadway; and 3) that Defendant Ooi and his tenants’ permitted use is consistent with property zoned EFU.”

And in the prayer for relief, defendant Ooi prayed

“[f]or a declaratory judgment against plaintiffs Follansbee and Braatz quieting title to Defendant Ooi's right to an easement for roadway purposes across the Westerly 30 feet of the North 1/212 of the Northwest 1/414 of Section 12, Township 18 South, Range 13 East, of the Willamette Meridian, Deschutes County, Oregon[.]”

Based on the plain language of those allegations, Ooi did not request a declaration that he had an express easement. Instead, he alleged that he had an easement, and he sought a declaration quieting title to it and seeking a declaration about its purpose and permitted use. The trial court rejected Ooi's argument that he could “quiet title” to an easement, and Ooi does not challenge that ruling on appeal, so we do not address it further. We therefore reject Ooi's first assignment of error.

2. The trial court did not explain why it denied Ooi's request for leave to amend the first counterclaim.

Turning to the second assignment, Ooi argues that the trial court erred when it denied his request to amend the first counterclaim “to conform with the evidence and the trial court's findings.” Ooi sought leave to amend to obtain a declaration that “the 1978 Agreement created an unrestricted road access easement over the westerly 30 feet of the Braatz property in favor of the Ooi property.” Without explanation, the trial court denied Ooi's request for leave to amend the first counterclaim to conform to the evidence presented at trial.

We review the denial of a motion for leave to amend pleadings for abuse of discretion. Pringle Square, LLC v. Berrey Family, LLC, 314 Or App 10, 22, 497 P3d 1242 (2021). ORCP 23 B provides in part:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.”

Relying on that rule, Ooi argues that the trial court abused its discretion in denying his request for leave to amend the first counterclaim because, at trial, “plaintiffs did not object to the evidence of the express easement over the Braatz property that benefited the Ooi property.” Plaintiffs respond that the issue was, in fact, “hotly contested” at trial, and that Ooi failed to prove that he had an express easement over the Braatz property.

“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, 224 Or App 433, 445, 199 P3d 318 (2008), rev. den., 346 Or 115 (2009). Here, the record indicates that the issue of whether Ooi has an express easement over the part of Cougar Trail that runs along the western edge of the Follansbee/Braatz Property was litigated in the trial court. Ooi argued that he has an express easement based on the 1978 Quitclaim Deed and Agreement and related documents. Plaintiffs argued that the terms of that easement are ambiguous because it may refer to a 1977 public dedication that they contend is void.

On that question, we understand the trial court to have sided with Ooi, because the trial court stated in its memorandum opinion that a “30-foot-wide easement across the Follansbee/Braatz property was created in 1978 and benefits the Ooi property.” Therefore, it is not clear to us why the trial court denied leave to amend the first counterclaim to conform to the evidence presented at trial. See id. at 445 (holding that the trial court did not abuse its discretion in allowing the plaintiffs to amend their complaint after trial in a manner consistent with the evidence at trial).

The trial court denied the request for leave to amend without explanation. When a trial court makes a discretionary decision but provides no explanation, we often vacate and remand for the trial court to provide an explanation that would permit meaningful appellate review. See Moreau v. Samalin, 295 Or App 534, 535, 435 P3d 794 (2019) (vacating and remanding where we did not have sufficient information about the trial court's reasons). Although the practice arises most often when reviewing a discretionary attorney fee determination, the “practice is tied to the nature of discretionary rulings; it is not limited to fee rulings.” Jaimez v. Rosales, 323 Or App 741, 744, 525 P3d 92 (2023).

Here, the trial court had discretion to amend Ooi's first counterclaim to conform to the evidence presented at trial, and the record shows that the issue of whether Ooi has an express easement over the Follansbee/Braatz Property was litigated. We therefore vacate the dismissal of Ooi's first counterclaim and remand for the trial court to grant the request for leave to amend the counterclaim and address—or more clearly address—whether Ooi has an express easement over the Follansbee/Braatz Property.⁷

B. Plaintiffs’ Cross-Appeal

We turn to plaintiffs’ assignments of error. First, they argue that the trial court erred when it dismissed some plaintiffs for lack of standing. Second, they argue that the trial court erred in determining that Ooi has an implied easement over the DeCourcey Property because there was no evidence the properties “were once joined under common ownership.” Third, plaintiffs argue that the trial court erred when it failed “to declare the status of defendants’ access over the Braatz Property in the Limited Judgment.” The fourth and fifth assignments of error concern attorney fees.

1. Standing

Plaintiffs’ first argument in their cross-appeal is that the trial court erred in dismissing some plaintiffs for lack of standing. Preliminarily, we have no jurisdiction to consider part of plaintiffs’ argument. In the limited judgment entered in June 2023, the trial court stated that several parties had been dismissed earlier, and that occurred in a limited judgment dated October 12, 2022.⁸ Plaintiffs did not appeal that earlier limited judgment, so the trial court's dismissal of those plaintiffs is final. See Phillips v. State Farm Fire and Casualty Co., 302 Or App 500, 503, 461 P3d 1008 (2020) (“A limited judgment entered in compliance with ORCP 67 B is an appealable judgment, and the notice of appeal must be filed within 30 days of its entry.”).

In the limited judgment that has been appealed, the trial court dismissed plaintiffs Scott Goodrich, Lee Goodrich, and Alex Hamilton for lack of standing because “they failed to present any evidence of their ownership of any interest in the easement at issue, by deed or otherwise.” The trial court also dismissed Follansbee's and Braatz's claim relating to defendants’ use of the DeCourcey Property and the DeCourceys’ claim, if any, relating to defendants’ use of the Follansbee/Braatz Property.

On appeal, plaintiffs argue that those rulings were erroneous because all plaintiffs contributed financially to a fund for maintaining Cougar Trail and the canal bridge on the DeCourcey, Braatz, and Ooi properties, and some of them have recorded easements over all or parts of Cougar Trail. For the same reason, plaintiffs argue that Follansbee, Braatz, and the DeCourceys had standing to bring claims related to defendants’ use of each other's property.

We review whether a party has standing for legal error. Albrecht v. Emmert, 327 Or App 465, 473, 535 P3d 785 (2023). “[S]tanding means the right to obtain an adjudication.” Andlovec v. Spoto, 326 Or App 525, 535-36, 532 P3d 531 (2023). For a party to have standing, three considerations are relevant: “(1) there must be some injury or impact to a legally recognized interest beyond an abstract interest in the correct application or the validity of a law; (2) the injury or impact must be probable, not speculative; and (3) the court's decision must have a practical effect on plaintiffs’ rights.” Albrecht, 327 Or App at 473.

Here, in their first claim for declaratory relief, plaintiffs sought two declarations. First, they sought a declaration that defendants’ “use of Cougar Trail over and across the DeCourcey Property for commercial purposes is permissive only, and subject to withdrawal by the DeCourceys should they so choose.” Second, they sought a declaration that defendants’ use of Cougar Trail across the DeCourcey Property and the Follansbee/Braatz Property was exceeding its capacity and “causing unacceptable damage to Cougar Trail and the single lane bridge.”

Regarding the first request for a declaration relating to whether the use of Cougar Trail is permissive only, we agree with the trial court's determination that only the owners of the relevant properties had standing. With respect to the DeCourcey Property, if defendants have no easement and are using the part of Cougar Trail that runs over the DeCourcey Property without permission, then that would injure or impact the DeCourceys’ legal interests as owners of the property, but it would not injure or impact the legal interests of the other plaintiffs. The same reasoning applies with respect to any adjudication that defendants’ use of the Follansbee/Braatz Property is permissive only. Thus, under the circumstances of this case, we agree with the trial court that only the owners of the properties had standing to seek a declaration about whether defendants’ use of their property is permissive only. See Idaho Power Co. v. Bean, 341 Or App 696, 709, 576 P3d 1059, rev. den., 374 Or 616 (2025) (explaining that property ownership includes the right to exclude others).

However, regarding the second requested declaration relating to whether defendants’ use of Cougar Trail was exceeding its capacity and causing damage, we think that the plaintiffs who pay for the maintenance of Cougar Trail had standing to seek that declaration because such use would impact the cost of maintaining the road. See Albrecht, 327 Or App at 473-74 (explaining that when there was a new use of property, neighbors had standing to seek a declaration that the use was nonconforming because the new use impacted the plaintiffs’ ability to use their own property).

Nevertheless, even if the trial court erred in dismissing some plaintiffs for lack of standing, we affirm on plaintiffs’ first assignment of error because plaintiffs fail to show they were prejudiced by the error. The standard for prejudicial error is stated in ORS 19.415(2), which provides that “[n]o judgment shall be reversed or modified except for error substantially affecting the rights of a party.” That statute “imposes a burden on the party asserting an error to demonstrate that the error had the required prejudicial effect.” Purdy v. Deere and Company, 355 Or 204, 225, 324 P3d 455 (2014). The rule embodied in ORS 19.415(2) “places the burden to make a record that demonstrates prejudicial error on whichever party loses in the trial court and then seeks reversal or modification of the judgment on appeal.” Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 173-74, 61 P3d 928 (2003).

Here, in its memorandum opinion, the trial court stated:

“There is no evidence that defendants Miller and M&B use Cougar Trail for commercial purposes. Plaintiffs also failed to provide any evidence as to the capacity of Cougar Trail, such that the court may determine whether defendants’ use of Cougar Trail is exceeding its capacity. * * * [And] plaintiffs have failed to present any evidence that defendants caused any damage to Cougar Trail or the single lane bridge.”

Plaintiffs have not challenged those determinations on appeal, and they do not explain how those determinations would have been different if some plaintiffs had not been dismissed for lack of standing. In other words, assuming there was error, plaintiffs fail to show prejudicial error. We therefore affirm on plaintiffs’ first assignment of error.

2. Implied Easement

In their second assignment of error, plaintiffs argue that the trial court erred when it granted Ooi an implied easement over the DeCourcey Property because there was no evidence of common ownership of the Ooi Property and the DeCourcey Property such that we can infer that the grantor would have intended to create an easement over the DeCourcey Property. We agree with plaintiffs on that point.

We review the trial court's determination that Ooi has an implied easement for legal error. Block v. DEA Properties-2 LLC, 334 Or App 198, 200, 555 P3d 1268 (2024). We state the relevant facts in a manner consistent with the trial court's express and implicit factual findings. Id.

In prior cases, we have explained the requirements for an implied easement.

“When land in one ownership is divided into separately owned parts by a conveyance, an easement may be created by implication from the circumstances under which the conveyance was made alone. That is, an implied easement is created when the circumstances that exist at the time of severance of a parcel establish that the grantor of the parcel intended to create an easement.”

Ghiglieri v. Tomalak, 304 Or App 717, 721-22, 469 P3d 262 (2020) (internal quotation marks and citations omitted). A key consideration is not what the grantor consciously intended, but what we can infer from the circumstances about what the grantor would have intended. Id. at 722. The Supreme Court has identified a list of eight nonexclusive factors that are important to the analysis:

“(1) whether the claimant is the conveyor or the conveyee; (2) the terms of the conveyance; (3) the consideration given for it; (4) whether the claim is made against a simultaneous conveyee; (5) the extent of necessity of the easement to the claimant; (6) whether reciprocal benefits result to the conveyor and the conveyee; (7) the manner in which the land was used prior to its conveyance; and (8) the extent to which the manner of prior use was or might have been known to the parties.”

Block, 334 Or App at 204-05 (citing Cheney v. Mueller, 259 Or 108, 118-19, 485 P2d 1218 (1971)). “Implied easements are disfavored and must be established by clear and convincing evidence.” Manusos v. Skeels, 263 Or App 721, 730, 330 P3d 53 (2014).

Here, the trial court observed that Ooi presented no evidence on six of those eight factors, which is telling. Although Ooi's expert testified at trial that all of the property at issue was once owned by the United States and conveyed to the State of Oregon, there was no evidence that a grantor with common ownership conveyed or severed both the Ooi Property and the DeCourcey Property. Instead, there was evidence that the Smiths owned the property now owned by Follansbee, Braatz, Ooi, Bell and the Schraders. When the Smiths conveyed that property and divided it into parcels, the 1978 Quitclaim Deed and Agreement indicates that the Smiths did so subject to an easement along the western edge of their property. But the DeCourcey Property is to the south of that, and it is not clear from the record when the DeCourceys acquired their property or from whom.

Thus, Ooi failed to produce evidence that a common owner conveyed and severed the land formerly owned by the Smiths and the land currently owned by the DeCourceys. As a result, there was no evidence of the kind of severance or conveyance that the trial court could use to infer that the grantor would have intended for the grantee to have an easement along the western edge of the DeCourcey Property. We are not aware of any case in which a court has inferred an implied easement where there was no evidence of common ownership of the land that was severed. That requirement makes sense because an easement is “a right in one person to do certain acts on land of another.” Bloomfield, 224 Or App at 445. Without common ownership, and a severance and conveyance of that land, a grantor could not have intended to create an easement over land the grantor did not own. See Manusos, 263 Or App at 730 (“[W]ithout exception, implied easement cases have focused on a common grantor's intent at the time of conveyance of a parcel.” (Emphasis in original.)).

Here, the trial court focused on the reasonable expectations of a purchaser of the Ooi Property and on the necessity for an easement over the DeCourcey Property to access Dodds Road. The trial court stated, “A reasonable purchaser of land north of the DeCourcey property, including the Ooi property, would be justified in expecting a road access easement from Dodds Road to their property given that their property would be, otherwise, landlocked.”

However, when determining whether there is an implied easement, the relevant consideration is “what a reasonable grantee would be justified in expecting as a part of his bargain when he purchases land under the particular circumstances.” Dressler et al v. Isaacs et al, 217 Or 586, 597, 343 P2d 714 (1959). In other words, for an implied easement, there must be common ownership of the land, and then we consider what the grantor would have intended and what the grantee would have expected at the time of that severance. See Dayton v. Jordan, 279 Or App 737, 381 P3d 1031 (2016) (“[I]n determining whether defendants had an implied easement over the disputed road, the court was required to determine whether the circumstances that existed at the time that defendants’ parcel was created establish that the grantor of the parcel intended to create an easement.” (Internal quotation marks omitted.)). Here, Ooi did not establish that a common owner severed and conveyed all of the land at issue, so the trial court could not determine what the expectations of a reasonable grantee would have been at that time and under those circumstances.

Instead, the trial court relied on the fact that, without an easement over the western edge of the DeCourcey Property, the Ooi Property is landlocked, and the trial court determined that Cougar Trail is “a necessary road access easement benefiting the Ooi property.” Certainly, “the extent of necessity of the easement” is an important factor to consider in determining whether an implied easement exists. Block, 334 Or App at 204-05. For example, in Thompson v. Schuh, 286 Or 201, 214, 593 P2d 1138 (1979), the court described necessity as “the cornerstone” of the plaintiffs’ claim to an implied easement. But in Thompson, there was a common grantor, and the court explained that “the necessity element is used as an indicator of the intent of the grantor and grantee at the time of the conveyance.” Id.

In other words, the case law indicates that we look to the intent and expectations of the parties at the time of severance of land under common ownership. Here, that evidence is lacking, so the trial court had no grounds for determining what a grantor would have intended and what a reasonable grantee would have been justified in expecting as part of the severance or conveyance of land under common ownership.

Perhaps there may be other ways for Ooi to obtain an easement along the western edge of the DeCourcey Property, especially given that Cougar Trail is the only way to reach Dodds Road from the Ooi Property. For example, the trial court found that there is a

“30-foot-wide easement across the DeCourcey property * * * [that] benefits properties north of the DeCourcey property, but not the Ooi property. This easement was created prior to 1999. In 1999, an additional 20-foot-wide easement was created along the easterly edge of the 30-foot-wide easement across the DeCourcey property. The 20-foot-wide easement triangulates and comes to a point prior to reaching the Follansbee/Braatz property. The 20-foot-wide easement benefits all properties North of the DeCourcey property, including the Ooi property.”

It seems odd that Ooi has a 20-foot-wide easement over the DeCourcey Property that triangulates to a point before reaching the Follansbee/Braatz Property, but that he does not have a 30-foot-wide easement along the western edge of the DeCourcey Property. We note that Ooi may be able to petition to establish a way of necessity along Cougar Trail under ORS 376.155.

Nevertheless, the question before us is whether the trial court erred when it ruled that Ooi has an implied easement across the DeCourcey Property. Because there is no evidence that a common owner severed and conveyed the land currently owned by both Ooi and the DeCourceys, we conclude that the trial court erred in determining that Ooi has an implied easement along the western edge of the DeCourcey Property. See Manusos, 263 Or App at 724 (“Implied easements are disfavored and must be established by clear and convincing evidence.”).

3. Express Easement

Plaintiffs’ third assignment of error in their cross-appeal is, in some respects, the mirror-image of Ooi's second assignment of error. While Ooi seeks a declaration of an express easement along the western edge of the Follansbee/ Braatz Property, plaintiffs argue that the trial court erred when it failed to declare that Ooi does not have that express easement. For the reasons explained earlier, we vacate the dismissal of Ooi's first counterclaim and remand for the trial court to grant the request for leave to amend the counterclaim and address whether Ooi has an express easement over the Follansbee/Braatz Property. Plaintiffs’ arguments on appeal about why Ooi does not have an express easement will be relevant to the trial court's determination. We think that those arguments should be addressed in the first instance by the trial court. See Cerner Middle East Ltd. v. Belbadi Enterprises LLC, 305 Or App 413, 424, 472 P3d 299, rev. den., 367 Or 257 (2020) (declining to address issue on appeal when “it involves factual determinations that are more appropriately addressed by the trial court in the first instance on remand”). We therefore decline to consider the arguments raised in plaintiff's third assignment of error.⁹

4. Attorney Fees and Costs

In their fourth assignment of error, plaintiffs argue that the trial court erred in awarding attorney fees and costs to Ooi, Miller, and M&B under ORS 30.938. We agree with plaintiffs that the trial court erred.

Before this fraught litigation began, Deschutes County responded to a code enforcement complaint against “equine uses” of the Ooi Property by pointing out that such uses are permitted in an EFU zone. See ORS 215.203(2)(a) (defining “farm use” as including “the current employment of land for the primary purpose of obtaining a profit in money by stabling or training equines including but not limited to riding lessons, training clinics and schooling shows”). Although plaintiffs named Deschutes County as a defendant in earlier iterations of their complaint, the trial court granted the county's motion to be dismissed from the case.

After the bench trial, the trial court awarded prevailing party attorney fees to Miller and M&B, ruling as follows:

“ORS 30.938 provides that the prevailing party in any action for relief alleging nuisance or trespass and arising from a practice that is alleged by either party to be a farming or forest practice shall be entitled to judgment for reasonable attorney fees and costs incurred at trial. ORS 30.932 provides that nuisance includes but is not limited to actions or claims based on noise, vibration, odors, smoke, dust, mist from irrigation, use of pesticides and use of crop production substances. Plaintiffs’ original complaint, in claims 1 [through] 4, alleges defendants’ use of Cougar Trail overburdens the roadway and bridge and adversely affects plaintiffs’ rights as a result of, inter alia, noise and dust. Similarly in plaintiffs’ First Amended Complaint, plaintiffs in claims 1 [through] 4, allege defendants’ use of Cougar Trail overburdens the roadway and bridge and adversely affects plaintiffs’ rights as a result of, inter alia, noise. This court previously found that Defendant Miller's use of M&B's farm falls within the definition of ‘farm use’ as defined in ORS 215.203(2). Defendants are the prevailing parties on plaintiffs’ claims. Defendants Miller and M&B are entitled to judgment for reasonable attorney fees and costs incurred at trial on plaintiffs’ claims up to, and prior to, plaintiffs’ filing of the [TAC].”

The trial court subsequently determined that Ooi was also a prevailing party entitled to attorney fees under ORS 30.938.¹⁰

On appeal, plaintiffs challenge the trial court's decision to award attorney fees to Ooi, Miller, and M&B. “Whether a party is entitled to attorney fees presents a question of law, but whether fees are reasonable is a factual determination that we review for abuse of discretion.” Makarios-Oregon, LLC v. Ross Dress-for-Less, Inc., 293 Or App 732, 739, 430 P3d 142, adh'd to as modified on recons., 295 Or App 449, 430 P3d 1125 (2018).

Here, we conclude that the trial court erred in awarding attorney fees under ORS 30.938. That statute is part of legislation enacted to protect farming and forest practices. Hale v. Klemp, 220 Or App 27, 33, 184 P3d 1185 (2008) (citing Or. Laws. 1993, ch. 792). As used in ORS 30.930 to 30.946, “farm” means “any facility, including the land, buildings, watercourses and appurtenances thereto, used in the commercial production of crops, nursery stock, livestock, poultry, livestock products, poultry products, vermiculture products or the propagation and raising of nursery stock.” ORS 30.930(1). And “farming practice” is defined in part as “a mode of operation on a farm.” ORS 30.930(2).

Here, although the equine uses of the Ooi Property qualify as a “farm use” under ORS 215.203(2)(a), we conclude that they do not qualify as a “farming practice” under ORS 30.930 because there was no evidence that the Ooi Property is being “used in the commercial production of * * * livestock.” To be sure, “livestock” includes horses. See Webster's Third New Int'l Dictionary 1324 (unabridged ed. 2002) (defining “livestock” as “animals of any kind kept or raised for use or pleasure,” especially “meat and dairy cattle and draft animals”). But there is no indication that Ooi, Miller, and M&B were engaged in the “commercial production” of horses. Instead, the horses were used for riding lessons and as part of summer camps. As such, we conclude that those equine uses of the Ooi Property do not qualify as a “farming practice” under ORS 30.930, so defendants were not entitled to attorney fees under ORS 30.398. See Hale, 220 Or App at 32 (explaining that when interpreting the same set of statutes, we may not insert what has been omitted or omit what has been inserted). Because defendants’ equine uses of the Ooi Property do not meet the statutory definition of a “farming practice,” they could not rely on ORS 30.938 to obtain an award of attorney fees and costs, and we therefore reverse the award of attorney fees and costs to Ooi, Miller, and M&B.

In their fifth assignment of error, plaintiffs argue that the trial court erred when it denied their request for attorney fees under ORS 20.105(1), which provides in part that “the court shall award reasonable attorney fees to a party against whom a claim, defense or ground for appeal or review is asserted, if that party is a prevailing party in the proceeding and * * * upon a finding by the court that * * * there was no objectively reasonable basis for asserting the claim, defense or ground for appeal.”

Plaintiffs argue that Ooi's counterclaims were objectively unreasonable, but we are not persuaded. Whether there was an objectively reasonable basis for asserting a claim is a question of law. Minihan v. Stiglich, 258 Or App 839, 861, 311 P3d 922 (2013). A claim lacks an objectively reasonable basis only if it is “entirely devoid of legal or factual support.” Magno, LLC v. Bowden, 313 Or App 686, 691, 496 P3d 1049 (2021) (internal quotation marks omitted). Here, as this opinion shows, the issues relating to easements over property along Cougar Trail are complex, and we are not persuaded that Ooi's counterclaims were entirely devoid of legal or factual support. We therefore reject plaintiffs’ argument that the trial court erred when it denied their request for attorney fees under ORS 20.105(1).

C. Miller and M&B's Cross-Assignment of Error

On appeal, when Miller and M&B filed their answering brief in response to plaintiffs’ opening brief in the cross-appeal, they also asserted a cross-assignment of error arguing that the trial court erred in denying their request for attorney fees and costs through trial under ORS 30.398. ORAP 5.57(2) provides in part that a cross-assignment of error is appropriate if the respondent “does not seek to reverse or modify the judgment on appeal.” But Miller and M&B, as cross-respondents, do seek to modify the limited judgment, which stated that they were only entitled to fees and costs incurred up to the time of the filing of plaintiffs’ TAC. Miller and M&B did not file a notice of appeal from the limited judgment, so we cannot address their cross-assignment of error. See Central Lincoln PUD v. Dept. of Energy, 307 Or App 163, 179, 478 P3d 993 (2020) (“[B]ecause petitioners seek modification and reversal of an express declaration in the judgment, a cross-appeal was needed to bring that issue before this court, not simply a cross-assignment of error.” (Emphasis in original.)) We conclude that we have no authority to reach the cross-assignment of error.¹¹

Having reviewed the record and the arguments on appeal, we observe that the trial court made a determined effort to sort through and address the many complicated issues. Both below and on appeal, the parties filed numerous motions, which has resulted in protracted litigation, and which has made both the trial court's task and ours more difficult in an endeavor to sort through the many issues and to fairly resolve the parties’ disputes. For the reasons explained above, we affirm the trial court's dismissal of plaintiffs’ claims; we vacate the trial court's dismissal of Ooi's first counterclaim and remand for the trial court to address whether the evidence presented at trial shows that Ooi has an express easement over the part of Cougar Trail on the Follansbee/Braatz Property; we reverse the trial court's determination that Ooi has an implied easement over the part of Cougar Trail on the DeCourcey Property; and we reverse the award of attorney fees and costs to Ooi, Miller, and M&B.

Dismissal of defendant James Ooi's first counterclaim vacated and remanded; grant of defendant James Ooi's fourth counterclaim reversed; award of attorney fees and costs to defendants James Ooi, Gretchen Miller, and M&B Farms, LLC reversed; otherwise affirmed.

FOOTNOTES

1.   Follansbee and Braatz are married. Below, the parties and the trial court tended to refer to their property either as the “Follansbee/Braatz Property,” or simply as “the Braatz Property.” Any reference to the Braatz Property should be understood to refer to the property owned by both Follansbee and Braatz.

2.   David DeCourcey is deceased, and Christy Hartman DeCourcey is the successor trustee of the DeCourcey Hartman Joint Trust and the personal representative of her deceased husband's estate. Like the parties, we refer to Christy Hartman DeCourcey in her individual capacity and as representative of the estate of her deceased husband as “the DeCourceys,” and to their real property as “the DeCourcey Property.”

3.   Due to improper service, the cross-appeal from the limited judgment has been dismissed as to one of the defendants/cross-respondents, M&B Farms, LLC. Follansbee v. Ooi, 335 Or App 305, 558 P3d 422 (2024), rev. den., 373 Or 280 (2025). In their answering brief in the cross-appeal, Miller and M&B argue that we “lack jurisdiction” to review plaintiffs’ arguments. But Miller and M&B have articulated no cogent argument that demonstrates that our prior opinion acts to deprive us of jurisdiction.

4.   In August 2024, the trial court entered a stipulated limited judgment of dismissal of the defamation claim.

5.   We note that Mike and Diane Schrader are sometimes referred to in the record as the “Shraders,” and at other times as the “Schraders.”

6.   Plaintiffs filed a notice of probable mootness under ORAP 8.45 based on their understanding that Miller and M&B no longer reside at or lease the Ooi Property. Plaintiffs argue that, based on that changed circumstance, we “should not consider” the portion of Miller's and M&B's answering brief that responds to plaintiff's first three assignments of error. That argument misconstrues the nature of the mootness doctrine, which is a way to obtain dismissal of a moot claim or appeal. See generally ORAP 8.45. But here, plaintiffs do not seek dismissal of the appeal or any part of it. We therefore reject their mootness argument without further discussion.

7.   On remand, the trial court may request briefing from the parties explaining why the evidence presented at trial—including the 1978 Quitclaim Deed and Agreement—did or did not show that Ooi has an express easement over the Follansbee/Braatz Property. We leave it to the trial court to determine the appropriate approach on remand.

8.   The plaintiffs who were dismissed earlier were Mike Schrader, Diane Schrader, Gary Bell, Susan Inman, Mike Crabtree, John Thomas, and Connie Thomas.

9.   We further note that the TAC did not plead a claim for a declaration that Ooi does not have an express easement over the Follansbee/Braatz Property. Although plaintiffs may argue that they were denied leave to amend the complaint to add that claim, they have not appealed that ruling. In any event, the issue can be addressed on remand by the trial court under Ooi's first counterclaim.

10.   At oral argument, plaintiffs argued for the first time that the trial court had no subject matter jurisdiction to award attorney fees because it relied on allegations from earlier iterations of their complaint that had been stricken as relating to claims falling within the exclusive jurisdiction of the Land Use Board of Appeals. We are not persuaded that the trial court lacked jurisdiction to award attorney fees because the attorney fee decision was not a land use decision, and the trial court relied on allegations that had been stricken simply to make the point that defendants had been required to defend against allegations that could be construed as alleging a nuisance or trespass under ORS 30.938. Nevertheless, as we explain, we conclude that the trial court erred in awarding attorney fees under ORS 30.938 because a “farm use” under ORS 215.203(2)(a) is defined differently than a “farming practice” under ORS 30.930(2) and defendants’ equine uses do not qualify as a “farming practice.”

11.   And even if we could reach it, we would reject the argument because, as explained above, Miller and M&B's equine uses of the Ooi Property do not qualify as a “farming practice” under ORS 30.930(2).

TOOKEY, P. J.