150 September 23, 2026 No. 881
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Julia FOLLANSBEE
and Ronald Braatz, husband and wife;
Mike Schrader and Diane Schrader, husband and wife;
Gary Bell, individually;
Scott Goodrich and Lee Goodrich, husband and wife;
Susan Inman, individually; Mike Crabtree, individually;
Alec Hamilton, individually;
David and Christy Decourcey, husband and wife;
and John and Connie Thomas, husband and wife,
Plaintiffs-Respondents
Cross-Appellants,
v.
James OOI,
individually,
Defendant-Appellant
Cross-Respondent,
and
Gretchen MILLER,
individually and managing member of M & B Family
Farms, LLC, an Oregon Limited Liability Company;
Deschutes County; and H & H Holdings, Inc., dba Compass
NW Construction,
Defendants
Cross-Respondents,
and
Linda WALLACE,
individually et al.,
Defendants.
Deschutes County Circuit Court
20CV40559; A181885
Raymond D. Crutchley, Judge.
Argued and submitted on August 13, 2026.
Janis G. White, Washington, argued the cause for
appellant-cross-respondent. On the opening brief were
Michael W. Peterkin and Peterkin Burgess. Also on the
Cite as 353 Or App 150 (2026) 151
combined reply and answering brief were Fidelity National
Law Group, Washington, and Michael W. Peterkin and
Peterkin Burgess.
Gareth S. Ford argued the cause for respondent-cross-appellants. Also on the briefs were William H. Sherlock and
Hutchinson Cox.
Eileen I. McKillop argued the cause for cross-respondents. Also on the briefs was Hawkins Parnell & Young LLP.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
TOOKEY, P. J.
152 Follansbee v. Ooi
TOOKEY, P. J.
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
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.
Cite as 353 Or App 150 (2026) 153
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.
154 Follansbee v. Ooi
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:
Cite as 353 Or App 150 (2026) 155
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:
4
In August 2024, the trial court entered a stipulated limited judgment of dismissal of the defamation claim.
156 Follansbee v. Ooi
“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-footwide 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.”
Cite as 353 Or App 150 (2026) 157
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
158 Follansbee v. Ooi
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
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.” Cite as 353 Or App 150 (2026) 159
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.
160 Follansbee v. Ooi
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
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.
Cite as 353 Or App 150 (2026) 161
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 ½ of the Northwest ¼ 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
162 Follansbee v. Ooi
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 Cite as 353 Or App 150 (2026) 163
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
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.
164 Follansbee v. Ooi
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
8
The plaintiffs who were dismissed earlier were Mike Schrader, Diane Schrader, Gary Bell, Susan Inman, Mike Crabtree, John Thomas, and Connie Thomas.
Cite as 353 Or App 150 (2026) 165
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 166 Follansbee v. Ooi
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.
Cite as 353 Or App 150 (2026) 167
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
168 Follansbee v. Ooi
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
Cite as 353 Or App 150 (2026) 169
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.
170 Follansbee v. Ooi
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.”).
Cite as 353 Or App 150 (2026) 171
3. Express Easement
Plaintiffs’ third assignment of error in their crossappeal 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
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. 172 Follansbee v. Ooi
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
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.”
Cite as 353 Or App 150 (2026) 173
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
174 Follansbee v. Ooi
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’ Cite as 353 Or App 150 (2026) 175
TAC. Miller and M&B did not file a notice of appeal from
the limited judgment, so we cannot address their crossassignment 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.
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).