242 P.3d 670
Or. Ct. App.2010Background
- Four parcels within a Grants Pass block; driveway on lot 900 connects 5th St to back of lot 1100 and provides access to lots 1000 and 1200; Shelton Auto Parts operated on 1100/1200 since the 1940s; Hodges owned 900/1000 (1995–2005) and paid rent to Hodges beginning in the early 1980s; plaintiffs claim a prescriptive easement through use since the 1960s; trial court ruled for McGrath, prescriptive easement established, and easement not extinguished.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prescriptive easement for the driveway was established. | McGrath/predecessors used openly, notoriously, adversely for 10+ years. | Use was permissive due to rent payments and lack of adversity. | Yes; prescriptive easement established. |
| Whether defendants extinguished the easement by adverse use or rent. | Even with rent, use vested before the 1980s; adverse presumption remains. | Rent payments show permissive use and extinguish the easement. | Easement not extinguished by rent or adverse possession. |
| Whether adverse possession extinguishes an easement when servient-use is not incompatible with dominant use. | Defendants did not show incompatible use; non-use was not adverse. | Adverse use by servient owner would extinguish. | Not extinguished; evidence shows no incompatibility. |
Key Cases Cited
- Beers v. Brown, 129 P.3d 756 (Or. App. 2006) (clear-and-convincing standard; adversity presumed with open use)
- Feldman et ux v. Knapp et ux, 250 P.2d 92 (Or. 1952) (presumption of adversity; rebuttal by permissive use)
- Hoffman v. Dorris, 163 P.972 (Or. 1917) (extinguishment requires incompatible use by servient owner)
- Stonier v. Kronenberger, 214 P.3d 41 (Or. App. 2009) (elements of adverse possession for an easement; incompatibility required)
- Woods v. Hart, 458 P.2d 945 (Or. 1969) (presumption of adversity and methods to rebut)