445 P.3d 319
Or. Ct. App.2019Background
- Country Lane residents (defendants) and predecessors used a marked railroad crossing across AERC's track strip as their only access to the highway for decades; use was open, notorious, and continuous for over 10 years.
- Murray’s 1928 deed to the railroad reserved an easement to cross for the owner of her property; Sharinghousen (who subdivided into the eight lots) did not reserve any easement and warranted against encumbrances.
- Railroad owners historically treated the crossing as public: they installed crossbuck signs, maintained the crossing at their expense, and federal listings showed it as a public crossing since 1970.
- AERC purchased the railroad and land decades later, discovered no deeded access for five lots, sought permits/fees from residents, and then posted signs labeling the crossing private and prohibiting trespass.
- AERC sued for trespass/quiet title; defendants counterclaimed for prescriptive easements. Trial court found prescriptive easements based on a presumption of adversity and alternative finding of actual adversity; Court of Appeals reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether open and notorious use gave rise to a rebuttable presumption of adversity | Presumption does not apply because the crossing's nature/relationship made residents' use unlikely to put owner on notice; trial court erred applying it | Presumption arose from long open, notorious, continuous use and AERC failed to rebut permissive use | Court: Presumption did not apply; facts (railroad treated crossing as public, maintained it, signage/listing) meant owner lacked notice that use was adverse |
| Whether defendants proved actual adverse use by clear and convincing evidence | Defendants failed to show use interfered with owner’s use or was under a claim of right | Defendants relied on long use and that their use imposed maintenance/liability burden on railroad | Court: No evidence that use interfered with AERC’s use of tracks; maintenance costs alone insufficient; defendants did not prove actual adversity; prescriptive easement fails |
Key Cases Cited
- Wels v. Hippe, 360 Or. 569 (2016) (defines adversity, clarifies when presumption of adverse use arises and exceptions)
- Thompson v. Scott, 270 Or. 542 (1974) (prescriptive easement elements and permissive-use continuation/repudiation principle)
- Woods v. Hart, 254 Or. 434 (1969) (common-road context: use of owner-constructed or unknown-origin roads does not give rise to presumption)
- Feldman v. Knapp, 196 Or. 453 (1952) (older articulation that open, continuous unmolested use may give rise to presumption of adversity)
- Webb v. Clodfelter, 205 Or. App. 20 (2006) (wear/damage or burdens from use that do not interfere with owner's use do not establish adversity)