Wels v. Hippe, 347 P.3d 788

Background

Plaintiff owns parcels accessed only by Lewis Creek Road, which traverses defendants’ property; plaintiff bought three parcels in 1998 (a fourth in 2006) and used the road for access and recreation.
Lewis Creek Road is an old, ~18-foot dirt road existing since at least 1934 and is used by multiple private owners (including Larson and Woods) as the only vehicular access to their properties.
In 2008 the county required written evidence of legal access before issuing a building permit; plaintiff sought written easements from owners along the road, including defendants, who refused and demanded money.
Plaintiff sued for a prescriptive easement. At trial defendants conceded plaintiff’s use was open and notorious but disputed that it was adverse and continuous for the 10-year prescriptive period.
Trial court found plaintiff established a prescriptive easement to three 1998 parcels (Tax Lots 3400, 3500, 3600) — not the 2006 parcel — reasoning adversity could be shown either by the 10-year presumption or by direct evidence of a claimant’s mistaken claim of right; the court found plaintiff credible and defendants’ contrary testimony not credible.
On appeal defendants argued plaintiff failed to prove adversity and the required 10 years of adverse use; the Court of Appeals affirmed, holding direct evidence of a claimant’s mistaken claim of right can establish nonsubordination (adversity) and that the 10-year requirement was met.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff’s use of the road was "adverse" (nonsubordinate) for prescriptive easement purposes	Plaintiff asserted he used the road under a claim of right (mistakenly believing he had a right) and never sought or received permission from defendants	Hippe argued travel over a preexisting, jointly used road was permissive or at least rebutted the presumption of adversity because the road preexisted, use was nonexclusive, and did not interfere with defendants’ use	Adversity may be proved either by the 10-year open-and-continuous presumption or by direct evidence of nonsubordination (a claimant’s mistaken belief/claim of right); trial evidence supported nonsubordination, so adversity was established
Whether plaintiff proved 10 years of continuous and uninterrupted adverse use	Plaintiff continued to use the road after purchasing (1998) and maintained that he already had a legal right; his 2008 request for an easement was to confirm, not to obtain, permission	Defendants argued plaintiff’s 2008 request (before 10 years elapsed for one parcel) showed subordination and ended adverse use	Court held the 2008 request did not negate adverse use because plaintiff continued to assert an existing right; the 10-year requirement for the three 1998 parcels was satisfied
Whether ORS 105.692(1) (recreational-use statute) barred a prescriptive claim	Plaintiff said the statute applies only to landowners who permit the general public for recreational use, not to private access to one’s own land	Defendants invoked the statute asserting plaintiff’s use was recreational and thus barred	Court held the statute inapplicable: it protects landowners who open land to the public; it does not bar a private owner’s prescriptive claim to access his own property
Proper standard/methods of proof for adversity over jointly used/preexisting roads	Plaintiff relied on direct testimony of his belief (claim of right) and the longstanding open use	Defendants urged that for preexisting/nonexclusive roads the presumption of adversity can be rebutted by evidence of noninterference or permissive arrangements and that plaintiff could not rely on subjective belief alone	Court reaffirmed that direct proof of nonsubordination (claim of right) is permissible (citing Kondor and Sander) and that the trial court’s factual findings were supported by the record; it did not adopt a rule limiting proof to the presumption alone

Key Cases Cited

Thompson v. Scott, 270 Or 542 (Oreg. 1974) (elements for prescriptive easement include open and notorious, adverse, continuous use)
Feldman v. Knapp, 196 Or 453 (Or. 1952) (open-and-continuous use for the prescriptive period gives rise to a rebuttable presumption of adversity)
Kondor v. Prose, 50 Or App 55 (Or. Ct. App. 1981) (use under a mistaken belief of right can be nonsubordinate and thus adverse)
Sander v. McKinley, 241 Or App 297 (Or. Ct. App. 2011) (clarifies that adversity may be shown directly by a claimant’s mistaken belief in a right to use servient property)
Woods v. Hart, 254 Or 434 (Or. 1969) (for preexisting roads, ordinary, nonexclusive use that does not interfere with owner’s use can rebut presumption of adversity)
Trewin v. Hunter, 271 Or 245 (Or. 1975) (presumption of adversity over road may be overcome where origin of road is unknown and use did not interfere)
Webb v. Clodfelter, 205 Or App 20 (Or. Ct. App. 2006) (shared, nonexclusive use of preexisting road and lack of interference can defeat prescriptive claim)
Insko v. Mosier, 235 Or App 451 (Or. Ct. App. 2010) (subjective belief alone does not make ordinary use adverse; focus is on actual use inconsistent with owner’s rights)