Underhill v. Prock

In Morgan v. Hart, the court explained that "ORS 36.175 requires the circuit court to perform two acts with respect to a way of necessity claim: (1) to determine whether or not a need has been demonstrated for the granting of a way of necessity; and (2) to enter an order granting or denying the necessity. [Morgan v. Hart, 325 Or 348, 354 (1997)].”

Respondents appealed both the circuit court’s dismissal of Petitioner’s petition to establish a way of necessity, and the circuit court’s denial of Petitioner's request for attorney fees under ORS 376.175(2)(e). On appeal, Respondents argued that the court’s denial of their request for attorneys fees was based on an erroneous interpretation of ORS 376.175. In response, Petitioner argued that the trial court correctly interpreted the plain text of the statute. In Morgan v. Hart, the court explained that "ORS 36.175 requires the circuit court to perform two acts with respect to a way of necessity claim: (1) to determine whether or not a need has been demonstrated for the granting of a way of necessity; and (2) to enter an order granting or denying the necessity. [Morgan v. Hart, 325 Or 348, 354 (1997)].” The Court held that unlike Morgan, the circuit court did not determine the merits of the way of necessity petition or enter an order granting or denying the petition. Therefore, the dismay of this case was not an order within the meaning of ORS 37.175, thus making an award of costs and attorney fees unauthorized. 

Affirmed.