College Inns of America, Inc. v. Cully

460 P.2d 360 (1969)

COLLEGE INNS OF AMERICA, INC., a Delaware Corporation, Appellant, v. Anne CULLY, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted September 12, 1969.

Decided November 5, 1969.

*361 Asa L. Lewelling, Salem, argued the cause and filed a brief for appellant.

Edward S. Lawlor, Eugene, argued the cause and filed a brief for respondent.

SLOAN, Justice.

Plaintiff seeks to restrain defendant from interfering with plaintiff's use of an easement over a private street or way in Eugene, designated as Ferry Lane. The easement was created by a deed executed by one Bertha A. Dorris in 1945. The easement granted to all of the owners of property abutting on Ferry Lane a right to use the lane for vehicular and pedestrian traffic. Both plaintiff and defendant later acquired property abutting on Ferry Lane and, of course, acquired the right to use it. Plaintiff acquired other property adjacent to its abutting lot and constructed a large dormitory facility on his entire property. A small part of the dormitory building rests on the Ferry Lane property.

The operation of the dormitory has caused Ferry Lane to be used by garbage trucks and other heavy equipment to the distress of other easement holders along Ferry Lane. All of this traffic passed over Ferry Lane to and from the nondominate property to which the easement is not appurtenant. As a result, defendant blocked plaintiff's use of the property. Plaintiff filed this suit to restrain her interference with its use. The trial court refused the injunction. Plaintiff appeals.

It is well established law that "a right of way appurtenant to the land conveyed cannot be used by the owner of the dominant tenement to pass to or from other land adjacent to or beyond that to which the easement is appurtenant." Murphy v. Mart Realty of Brockton, Inc., 1965, 348 Mass. 675, 678, 679, 205 N.E.2d 222 at 225; Gale, Law of Easements (12th ed. 1950), pp. 325, 326; 46 A.L.R.2d 461 at 490; Beloit Foundry Co. v. Ryan, 1963, 28 Ill. 2d 379, 192 N.E.2d 384; Penn Bowling R. Center v. Hot Shoppes (1949), 86 U.S. App.D.C. 58, 179 F.2d 64, 16 A.L.R.2d 602.

The decree is affirmed.