The case law as it has developed in Oregon makes abundantly clear that considerably more is required in order to invoke the doctrine of partial performance. See, e.g., Royer v. Gailey, 252 Or. 369, 373-74, 449 P.2d 853, 855 (1969) (easement created where plaintiff cleared a ravine, excavated area, installed collection tiles, backfilled excavation with gravel, and installed catch basin); Luckey, 217 Or. at 634-35, 343 P.2d at 726 (easement created where, pursuant to oral agreement, plaintiff built, at his own expense, two concrete reservoirs, contributed to cost of adjoining pipe, paid sum of money to defendant, and agreed to place a portion of pipe over his land; in addition, benefit accrued to defendant by use of water system and monetary payments); Hayward, 194 Or. at 349-50, 241 P.2d at 894 (1952) (upholding agreement where plaintiff took possession of premises, made improvements thereon, and defendant received and accepted purchase price). Summarizing the requirements of partial performance, the Oregon Supreme Court has stated that
Partial performance may, however, take a contract out of the statute of frauds. Strong v. Hall, 253 Or. 61, 70 (1969); Royer v. Gailey, 252 Or. 369, 373 (1969). Plaintiff's allegation that BAC accepted partial payments as described under the loan modification agreement for five months is sufficient pleading at this stage to survive Defendants' argument that the agreement failed to satisfy the statute of frauds.
The court further found that plaintiff and Brian, together with Inez Adamson, were "buyers" pursuant to the contract and were owners of an equitable interest in the fourplex; that Inez Adamson had conveyed her interest to defendant-intervenor. Where only interested witnesses are called to testify, where the testimony is conflicting and the evidence is in equipoise, the credibility of witnesses is decisive and we give considerable weight to the findings of the trial court even though we try the case de novo. Royer v. Gailey, 252 Or. 369, 375, 449 P.2d 853 (1969); Cole v. Fogel et al, 210 Or. 257, 261, 310 P.2d 315 (1957); Kramer v. Taylor et al and Trickel, 200 Or. 640, 647, 266 P.2d 709 (1954); Bogle v. Paulson, 185 Or. 211, 228, 201 P.2d 733 (1949); Kallstrom v. Kallstrom, 265 Or. 481, 485, 509 P.2d 1195 (1973). We have reviewed all of the testimony and exhibits and although it is conflicting, we conclude that the evidence adduced demonstrates that plaintiff and Brian had an equitable interest in the fourplex as set forth in the land sale contract dated May 20, 1965.
They have previously been involved in disputes over the joint use of spring waters, a common fence line, and use of the access road. See Royer v. Gailey, 252 Or. 369, 449 P.2d 853 (1969). On the morning of April 23, 1970, the defendant and an employee were working alongside the access road to plaintiff's property.
We recognize that some states have found that an oral agreement for the use of land may be taken out of the statute of frauds by partial performance. See Royer v. Gailey, 449 P.2d 853, 855, 252 Or. 369 (1969); Birdsey v. Kosienski, 101 A.2d 274, 278, 140 Conn. 403 (1953). Most state cases on this question involve the mutual use rule to some degree.
We recognize that some states have found that an oral agreement for the use of land may be taken out of the statute of frauds by partial performance. See Royer v. Gailey, 449 P.2d 853, 855, 252 Or. 369 (1969) ; Birdsey v. Kosienski, 101 A.2d 274, 278, 140 Conn. 403 (1953). Most state cases on this question involve the mutual use rule to some degree.
He also testified that, if his redemption of the Glenn Ranch had been successful, he would have had to negotiate with defendant for permission to transport water to the Glenn Ranch. Pratt's testimony is corroborated by the fact that Federal Land Bank unsuccessfully negotiated with Pratt for an easement after it foreclosed on the Glenn Ranch and discounted the price of the ranch when it was sold to plaintiff, due to the lack of a recorded easement. We conclude that there was no oral agreement that an easement in favor of the Glenn Ranch existed on the Pratt Ranch. The theory of equitable estoppel and related doctrine of part performance are used to avoid the statute of frauds when parties enter into an oral agreement concerning the use of land. Luckey et ux v. Deatsman, 217 Or. 628, 632-33, 343 P.2d 723 (1959); see also Royer v. Gailey, 252 Or. 369, 449 P.2d 853 (1969). Because there was no oral agreement allowing the Glenns to use the Pratt Ranch, there is no easement by estoppel in favor of plaintiff's property for the delivery of water through defendant's property.
In Luckey, the plaintiff built a reservoir on the easement allegedly granted to him. In Royer v. Gailey, 252 Or. 369, 449 P.2d 853 (1969), a similar water-collecting structure was built on the land. Such a physical improvement to land "corroborates and is unequivocally referable to the oral agreement."