33-770-Order Recorded 1/2/1980J f$kv yij C
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF THE STATE OF OREGON
FOR DESCHUTES COUNTY
In the Matter of Statutory
Way of Necessity:
LESTER C. DAVIS and
JOYCE DAVIS, Petitioners,
and
DELLON K. MASSMAN and
NELLIE B. MASSMAN, Respondents.
ORDER
This matter came before the regular term of the Board of County Commissioners on
October 29, 1979, pursuant to the order of the Circuit Court of the State of Oregon
for Deschutes County in Case Number 24427, Lester C. Davis, et ux, vs. Dellon K. Massman,
et ux. That order required the Board of Commissioners pursuant to ORS 376.105 to
appoint a Board of County Road Viewers, order the viewers to meet within ten days after
the making of the order, and to notify the Massmans of the time and place of the meeting
of the Board of Road Viewers. Pursuant to the court order, the Board of Commissioners
appointed Ed Thompson and Harvey M. Watt as the Board of Road Viewers. They met on
August 27, 1979, and produced a report dated September 5, 1979 (Exhibit "C" in the
record) assessing damage in the amount of $3,687.00 and laying out a way of necessity
across the lands of Respondents. The Board of Road Viewers produced an-amended report
which was entered in the record by stipulation of the parties as Exhibit "D," and
Exhibit "B" is the map produced by the Roadmaster showing the route laid out by the
Board of Road Viewers.
At the hearing, the Petitioners were represented by James Drew, Esq. and the
Respondents were represented by Gerald R. Kolb, esq. Commissioner Paulson was not present.
After consideration of the arguments of counsel and the record, the Commissioners present
differed in their decisions on whether the way of necessity should be granted. Accord-
ingly, Commissioner Paulson's vote was required under the rule of necessity in order
for the Board to make a decision. Without objection, Commissioner Paulson considered
the tape recordings of the hearing and the documentary record, and voted on this order.
The Board being fully advised, having considered the whole record, and having tried
the issues formed by the Petition of Lester C. Davis and Joyce Davis and the Answer
of Dellon K. Massman and Nellie B. Massman on file herein, pursuant to ORS 376.115,
and good cause appearing therefor,
NOW, THEREFORE, IT IS HEREBY ORDERED that:
1. The findings of fact attached hereto as Exhibit "l," incorporated herein by
reference, are adopted;
PAGE -1- ORDER
} VOL rArf 771
2. The Petition of Lester C. Davis and Joyce Davis submitted under ORS 376.105
on August 4, 1978, is denied.
DATED this day of 1979.
Distribution:
JAMES DREW, ESQ.
GERALD R. KOLB, ESQ.
MR. AND MRS. LESTER C. DAVIS
MR. AND MRS. DELLON K. MASSMAN
HARVEY WATT
ED THOMPSON
COUNTY COUNSEL
BONNIE RANYARD
DESCHUTES NATIONAL FOREST
PAGE -2- ORDER
BOARD OF COUNTY COMMISSIONERS
'4wev 0'.V~ - ~we-
CLAY C. S EPARD, airman
VOL 33 rAm 772
IN THE BOARD OF COUNTY COMMISSIONERS OF THE STATE OF OREGON
FOR DESCHUTES.COUNTY
In the Matter of Statutory
Way of Necessity:
LESTER C. DAVIS and
JOYCE DAVIS, Petitioners,
and
DELLON K. MASSMAN and
NELLIE B. MASSMAN,
Respondents.
The Board of Count Commissioners met for the purpose of
considering the above captioned action on October 29, 1,979 1n the
Offices of the Deschutes County Commissioners, Deschutes County
Courthouse Annex, Bend, Oregon. The petitioners were pre"sent"arid
represented by their attorney-, James S. Drew. The respondents
were present and represented by their attorney, Gerald R. Rolb*
Deschutes County was represented by County Counsel, Louis Dvorak4
Based upon the testimony and exhibits presented,, the Board
of County Commissioners of Deschutes County, Oregon hereby adopts.
the following Finding of Fact.
1. The Massman prope. ty.i located south of and -contigUout ]
to River Forest Acres, a subdivision which was developed in the
late 1950s. Forest Lane is the main north-south road in that %
subdivision, connecting at; its northerly end with a U'.S~ Forest`
Service Road which in turn connects to South Century Drive and
connecting on its southerly end having its terminus at the
northern bourdary of the Massman property. (Testimony of Nellie
Massman, Map - Exhibit 1)
Page I - FINDING OF PACT
#ALrI
~)o
VOL 33 ra 773
2. The Davis property'-<is located south of the Massman
property, but is not contiguous to that property, there being a
distance of approximately ;500 feet between-the parcels.
(Testimony of Lester Davisii Map - Exhibit 1)
3. A different U.S. Forest Service Road than that referred
to in pararagraph 1 provides access to the Davis property as well,
as other properties south!of the Massman property. This Forest
Service Road has one terminus at the southerly boundary of the
Massman property and its other end is on South Century Drive: It
1
has served as the Massman'!s traditional access to their
property. This roadway has been in use for at least 20 years.
(Testimony of Joe Hunt, U .S. Forest Service, and Nellie Massman,
Map - Exhibit 1)
i
4 A power line belonging to Midstate Electric Cooperative
traverses the Massman proierty from north to south on a line
which approximately connects Forest Lane and the U.S. Forest
Service Road mentioned in paragraph 3. The track under this
power line has been used in the past by Davis and others but has
been posted "No Trespassing"# aAd even barripaded, ;thy Massilarts, in,
k_
an attempt to prohibit its use. The use by Davis and others of
this track has been conti#iuously objected to'by Massmans.
(Testimony of Nellie Masstnan and 'Lester Davis)
5. The U.S. Forest Service Road referred to in paragraph 3 .
provides petitioners and the public with convenient 'access to the
Davis property as well as: other proper,:ties in the area. and the
Page 2 - FINDING OF FACT
voL 33 rAtE 714,
creation of a Statutory Way of Necessity as provided by ORS
376.105 et. seq. is not necessary. (Testimony of Nellie Maasman
and Dellon Massman, Map - 8xhibit 1)
6. Because this Board of County Commissioners has found
that a Statutory Way of Necessity is not required in this case`.
it does not have to decide whether it is satisfied that the
report of the Viewers is just (ORS 376.110)
DATED this 2nd. day of . January_,_ 1980.
County Ccai'dissionet
County Commissioner
County C missi er
Page 3 - FINDING Of FACT