concurring.
I concur in the decision in this case but write separately to explain why I am persuaded that there was no evidence on which to find in favor of plaintiffs on the reformation claim. In order to prevail on that claim, plaintiffs had to establish the content of the specific agreement to which the prior agreement was to be reformed. Even if the evidence could support a finding that Lucases agreed to convey a fee interest in the disputed parcel to Purcells, there is no way to resolve whether that interest was an unencumbered interest.
As noted by the majority, 141 Or App at 537, Lucases owned an adjoining parcel to the south of the disputed parcel. An existing roadway over the disputed parcel provided access from the adjoining parcel to Highway 101. If Lucases had agreed to convey the fee to the disputed parcel to Purcells, they could well have intended to reserve an easement over that parcel that mirrored the easement in favor of Purcells in the original deed. On this record, however, there is no way to resolve whether such an easement was reserved in the agreement that plaintiffs sought to prove. Consequently, the jury would have to speculate whether the agreement conveyed an unencumbered fee interest to Purcells, which the jury is not permitted to do. For that reason, I agree that the trial court properly granted a directed verdict on plaintiffs’ reformation claim because the record does not contain evidence on which the jury could determine the content of the purported agreement.