5/14/2018 3:01 PM 17CV10996 IN THE CIRCUIT COURT OF THE STATE OF OREGON IN AND FOR THE COUNTY OF TILLAMOOK. Plaintiffs, Defendant,

Transcription

1 //0 :0 PM CV0 0 0 IN THE CIRCUIT COURT OF THE STATE OF OREGON IN AND FOR THE COUNTY OF TILLAMOOK WILLIAM B. WALTON, an individual; JAMES JEFFERSON WALTON, JR., an individual; and VICTORIA K. WALTON, an individual, NESKOWIN REGIONAL SANITARY AUTHORITY, v. v. Plaintiffs, Defendant, EVELYN A. HARRIS, Trustee of Harris Living Trust; MICHAEL J. INTERVENORS; KRISTEN R. INTERVENORS; CAROLY PURVINE, a/k/a Carolyn Pruvine-Burger; JANICE BALME, Trustee of the James E. Balme Exemption Trust; CARLTON J. McLEOD II; SCOTT A. McLEOD; FRANCA McLEOD DYER; NESKOWIN BEACH GOLF COURSE, INC.; and CATLIN SPEARS LIND, Defendants to NRSA s First and Second Counterclaims. Page ANSWER & COUNTERCLAIMS ON BEHALF OF Case No. CV0 INTERVENORS-DEFENDANTS ANSWER TO PLAINTIFF S COMPLAINT FOR INVERSE CONDEMNATION AND AFFIRMATIVE DEFENSES, ANSWER TO NRSA S FIRST & SECOND COUNTERCLAIMS, AND INTERVENORS-DEFENDANTS COUNTERCLAIMS Defendants Frederick C. Rusina ( Rusina ), Thomas G. Swenson and Frances S. Swenson ( Swenson ), Douglas F. Frank and Margaret W. Frank ( Frank ), Angelica Caministeanu and Gheorghe Caministeanu ( Caministeanu ), Richard Charles Hook and Penny K. Hook ( Hook ), Steve E. Rossman and Audrey M. Rossman ( Rossman ), Richard A. Schmuck, Patricia A. Schmuck, Allen R. Schmuck and Julie A. Mcallister ( Schmuck and Mcallister ), Mark R. Rosenberg and Ilene Abby Safyan ( Rosenberg-Safyan ), and Howard Lichter and Rebecca Friberg ( Lichter and Friberg ) (collectively, all the aforementioned moving parties shall be referred to as the Intervenors ), by and through their undersigned counsel of record, hereby 0 TH AVENUE, SUITE 0 SEATTLE, WA 0 Tel: 0-- Fax: 0--

2 0 0 submit their Answer to Plaintiff s Complaint for Inverse Condemnation and Affirmative Defenses, and Answer to Defendant Neskowin Regional Sanitary Authority s ( NRSA ) First and Second Counterclaims in the Amended Answer as follows: I. ANSWER Common Law Dedication. No response required.. Intervenors admit that part of what the NRSA calls the Dedicated Road Property has been used for ingress, egress and certain utilities and that it is a public use. Intervenors are without information or knowledge sufficient to form a belief as to the scope of the defined Dedicated Road Property, and thus denies its description in Paragraph (or attached exhibit ) as accurate at this point for what Intervenors claim for specific public use. Any further reference to the Dedicated Road Property in the NRSA s Answer in following paragraphs bears the same denial for want of information or knowledge at this time.. Intervenors admit the allegations contained in Paragraph.. Intervenors are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph, and therefore denies the same.. Intervenors are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph, and therefore denies the same.. Intervenors admit the allegations contained in Paragraph. Declaratory Judgment. Intervenors re-assert all responses and answers in Paragraphs - above, as if fully stated herein.. Intervenors admit the allegations in Paragraph over the paved portion of Hawk Street and historically used road North of Corvalis Avenue. Intervenors again deny the accuracy of the defined Dedicated Road Property at this time, for want of information or knowledge sufficient to form a belief as to its truth. Page ANSWER & COUNTERCLAIMS ON BEHALF OF 0 TH AVENUE, SUITE 0 SEATTLE, WA 0 Tel: 0-- Fax: 0--

3 0. Intervenors are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 0, and therefore denies the same.. Intervenors are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph, and therefore denies the same. II. AFFIRMATIVE DEFENSES 0 0 By way of further answer and affirmative defense, Defendant Intervenors state as follows:. The paved and existing portion of Hawk Street from Corvalis Avenue and then North into Kinnikinnick Drive ( Hawk Street ) is either a dedicated public road or Intervenors have the right to use the existing and historically-used road because it has been used for more than the statutory period for adverse possession/prescriptive easement. Hawk Street serves as access for ingress, egress and certain utilities to the Intervenors Property and all properties along Hawk Street.. Defendant Intervenors reserve the right to add additional defenses as they may discover them. III. COUNTERCLAIMS AGAINST PLAINTIFFS (Common Law Dedication and Declaratory Judgment/Prescriptive Easement) For a counterclaim against Plaintiffs, Defendant Intervenors allege as follows:. Rusina is the owner of the real property commonly known as 0 Kinnikinnick Dr., Neskowin, Oregon (the Rusina Property ). Swenson is the owner of the real property commonly known as Verbena Court, Neskowin, Oregon (the Swenson Property ). Frank is the owner of the real property commonly known as 00 Hawk Street, Neskowin, Oregon (the Frank Property ). Caministeanu is the owner of the real property commonly known as Kinnikinnick Drive, Neskowin, Oregon (the Caministeanu Property ). Schmuck and Mcallister are the owners of the real property commonly known as Verbeena Court, Neskowin, Oregon (the Schmuck and Mcallister Property ). Hook is the owner of the real property commonly known as 0 Hawk Street, Neskowin, Oregon (the Hook Property ). Rosenberg and Safyan are the owners of the real property commonly known as Page ANSWER & COUNTERCLAIMS ON BEHALF OF 0 TH AVENUE, SUITE 0 SEATTLE, WA 0 Tel: 0-- Fax: 0--

4 0 0 Verbena Court, Neskowin, Oregon (the Rosenberg-Safyan Property ). Howard Lichter and Rebecca Friberg are the owners of the real property commonly known as 0 Hawk Street, Neskowin, OR (the Lichter and Friberg Property ). Each of the afore-mentioned properties lies North of the Walton property and area of interest claimed by the NRSA on Hawk Street.. The use of the Hawk Street for ingress, egress and certain utilities is public.. Intervenors seek a declaratory judgment they are entitled to use Hawk Street for ingress, egress and certain utilities because it is a public road.. Hawk Street has been in use by the Intervenors and numerous predecessors in interest for more than ten (0) years for ingress, egress and certain utilities to reach their property.. The Intervenors and predecessors in interest have used and occupied Hawk Street under claim of right, color of title, and by actual, open, notorious, exclusive hostile and continuous use for purposes of ingress, egress and certain utilities for more than ten (0) years.. Intervenors are the owners and holders of a prescriptive easement over and across Hawk Street. IV. REQUEST FOR RELIEF 0 WHEREFORE, Defendant Intervenor request relief as follows:. For declaratory judgment that Hawk Street is a public road.. Alternatively, that the Intervenors have a prescriptive easement across the area encompassed by Hawk Street.. For such other and further relief as the court deems just and equitable. DATED: May, 0. Page ANSWER & COUNTERCLAIMS ON BEHALF OF By: s/ Daniel A. Womac DANIEL A. WOMAC, OSB #0 Columbia Center 0 th Avenue, Suite 0 Seattle, WA 0 Tel: (0) -00 () - daniel.womac@fnf.com 0 TH AVENUE, SUITE 0 SEATTLE, WA 0 Tel: 0-- Fax: 0--

5 Attorneys for Intervenors-Defendants: Frederick C. Rusina, Thomas G. Swenson and Frances S. Swenson, Douglas F. Frank and Margaret W. Frank, Angelica Caministeanu and Gheorghe Caministeanu, Richard Charles Hook and Penny K. Hook, Steve E. Rossman and Audrey M. Rossman, Richard A. Schmuck, Patricia A. Schmuck, Allen R. Schmuck, Julie A. Mcallister, Mark R. Rosenberg and Ilene Abby Safyan, and Howard Lichter and Rebecca Friberg 0 0 Page ANSWER & COUNTERCLAIMS ON BEHALF OF 0 TH AVENUE, SUITE 0 SEATTLE, WA 0 Tel: 0-- Fax: 0--

6 CERTIFICATE OF SERVICE The undersigned certifies that on the date given below, a true and correct copy of the foregoing document entitled INTERVENORS-DEFENDANTS ANSWER TO PLAINTIFF S COMPLAINT FOR INVERSE CONDEMNATION AND AFFIRMATIVE DEFENSES, ANSWER TO NRSA S FIRST & SECOND COUNTERCLAIMS, AND INTERVENORS- DEFENDANTS COUNTERCLAIMS was caused to be served upon the following parties or counsel of record by the method indicated, as follows: 0 Of Attorneys for Plaintiffs: Jennifer C. Paul, OSB # 0 Paul J. Sundermier, OSB #0 SAALFELD GRIGGS PC 0 Church Street SE, Suite 00 P.O. Box 0 Salem OR 0 Tel: (0) -00 Fax: (0) - s: jpaul@sglaw.com; psundermier@sglaw.com Of Attorneys for Defendant Neskowin Regional Sanitary Authority: John A. Wolf, OSB #00 SPEER HOYT LLC Oak Street, Suite 00 Eugene OR 0 Tel: () - Fax: () - s: jaw@speerhoyt.com HAND-DELIVERED EPRESS DELIVERY HAND-DELIVERED EPRESS DELIVERY 0 Of Attorneys for Intervenors: Greg Edwards, Karlen Edwards, William Brian II, Beth Louise Brian, Robert And Patricia Brandon Living Trust U/A/D //0, Donald Schmidt, Marilyn Schmidt, MD Properties, LLC, Ralph C. Sipprell, Betty J. Sipprell, Mary E. Cate, Neskowin North LLC, Francis J. Ostlund, Debra J. Naubert, Brent Norman, Lorinda Dalene Olson, James Charles Menges Revocable Trust, Jo D. Landefeld Revocable Trust, John W. Richardson Revocable Trust, Rian Theiler Brown Revocable Living Trust, Patricia Carlin Dibblee Revocable Living Trust, Milo C. Harris Decedent's Trust, Ronald L. Saxton, and Lynne Hume Saxton Carrie A. Richter, OSB #000 Bateman Seidel Miner Blomgren Chellis & Gram, P.C. SW Fifth Avenue, Suite 0 Portland, Oregon 0 EPRESS DELIVERY Page ANSWER & COUNTERCLAIMS ON BEHALF OF 0 TH AVENUE, SUITE 0 SEATTLE, WA 0 Tel: 0-- Fax: 0--

7 Tel: (0) -0 Fax: (0) - crichter@batemanseidel.com Of Attorneys for Defendant Carolyn Purvine, a/k/a Carolyn Purvine-Burger to NRSA s First & Second Counterclaims: Mark C Hoyt, OSB # Sherman Sherman Johnnie & Hoyt, LLP Chemeketa Street NE PO Box Salem, OR 0 Tel: (0) - Fax: (0) mark@shermlaw.com EPRESS DELIVERY 0 Of Attorneys for Intervenors Mark G. Lyman & Fry Family LLC: James C. Edmonds, OSB # Fetherston Edmonds LLP 0 Liberty St SE Ste 0 Salem, OR 0 Tel: (0) - Fax: (0) - jedmonds@fe-attorneys.com EPRESS DELIVERY Of Attorneys for Intervenor Lorraine M. Purnell: Wesley ( Wes ) A. Hill, OSB #0 Martinis & Hill P.O. Box 0 Madrona Avenue SE Salem, OR 0 Tel: (0) -00 Fax: (0) - wes@martinis-hill.com EPRESS DELIVERY 0 Of Attorneys for Intervenors James D. Burke, et al.: Jonathan M. Radmacher, OSB # McEwen Gisvold LLP 00 SW th Avenue, Suite 00 Portland, OR 0 Tel: (0) - Fax: (0) - jonathanr@mcewengisvold.com EPRESS DELIVERY Defendant Harris Living Trust: Evelyn A. Harris Trustee of The Harris Living Trust P.O. Box 0 Neskowin, OR EPRESS DELIVERY Page ANSWER & COUNTERCLAIMS ON BEHALF OF 0 TH AVENUE, SUITE 0 SEATTLE, WA 0 Tel: 0-- Fax: 0--

8 Def. James E. Balme Exemption Trust: Janice Balme Trustee of the James E. Balme Exemption Trust Via Capri San Juan Capistrano, CA EPRESS DELIVERY 0 Defendant McLeod II: Carlton J. McLeod II NW Northrup Street Portland, OR 0 Defendant McLeod: Scott S. McLeod SE Clay Dallas, OR EPRESS DELIVERY EPRESS DELIVERY 0 Defendant McLeod Dyer: Franca McLeod Dyer Prominent Ct. S. Salem, OR 0 Def. Neskowin Beach Golf Course, Inc.: Neskowin Beach Golf Course, Inc.: C/O J. Gary McClain E. Gary Circle Mesa, AZ 0 Defendant McLeod Dyer: Catlin Spears Lind SW Fir Grove Lane Wilsonville, OR 00 EPRESS DELIVERY EPRESS DELIVERY DATED this th day of May, 0, at Seattle, Washington. s/ Estela Acosta ESTELA ACOSTA EPRESS DELIVERY Page ANSWER & COUNTERCLAIMS ON BEHALF OF 0 TH AVENUE, SUITE 0 SEATTLE, WA 0 Tel: 0-- Fax: 0--