250 P.3d 939
Or. Ct. App.2011Background
- Plaintiffs seek a prescriptive easement across McKinley property to access the Sander property’s upper portion.
- Voss predecessors used a dirt road across McKinley since 1970; Olcott fence and gate blocked the original road in 1993–1994.
- Olcots completed fencing and installed a gate, forcing Voss to use a different route through Kinney Lake area.
- Voss continued to use the road by the new route; Olcott allowed limited crossing for cattle tending before their sale.
- Trial court found a prescriptive easement by 1987–1988 and relocation by mutual consent; defendants appealed asserting lack of adversity and relocation evidence.
- Appellate review was de novo
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Vosses’ use was adverse for prescriptive easement | Voss use was adverse; no permission; Potter deposition supports adversity | Use was permissive and not adverse; Potter’s testimony legally ineffective under ORS 93.850(2)(b) | Yes, adverse; prescriptive easement ripened by 1988 |
| Effect of ORS 93.850(2)(b) on Potter testimony | Statute does not bar testimony about lack of permission | Statute bars such testimony; preserved or plain error issue | Statute does not bar the statements and supports adversity evidence |
| Whether easement was relocated by mutual consent | Consent implied from conduct when route blocked; Voss could use new route | No evidence of relocation; must prove explicit or clear mutual consent | Relocation inferred; same easement governs current route |
| Whether current route satisfies the easement; is it the same easement | Original adverse use extended to current route via relocation | Different route at present; not the same easement | Current route governed by same prescriptive easement due to implied relocation |
Key Cases Cited
- Feldman et ux. v. Knapp et ux., 196 Or. 453 (1952) (adverse-use presumption and burden-shifting in prescriptive easements)
- Kondor v. Prose, 50 Or. App. 55 (1981) (adverseness may be shown directly, not only by presumption)
- Ericsson v. Braukman, 111 Or. App. 57 (1992) (consent to relocate easement may be implied from conduct)
- McGrath v. Bradley, 238 Or. App. 269 (2010) (prescriptive easement reliance not necessary on presumption in some contexts)
- Wood v. Woodcock, 276 Or. 49 (1976) (easement prescription basics; open, notorious, adverse, continuous)