Hamann v. Brimm, 537 P.2d 1149

Hamann v. Brimm

537 P.2d 1149

Or.

1975

Check Treatment

O’CONNELL, C. J.

This is a suit to establish an easement of way by prescription across defеndants’ land. The trial court entered a decree establishing the easement claimed by plaintiffs and enjoined defendants from interfering with plaintiffs’ use оf it. Defendants appeal, contending that the evidence does nоt support the decree.

The parties own adjoining parcels оf real property north of the town of Brookings in Curry County, Oregon. All trace thеir titles from Fred LaForge, a common grantor. In 1948, LaForge sold five acres of his 32-acre holding ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to plaintiff Hamann. The remainder of LaForge’s holding was sold to defendants sometime in the 1950’s. In 1969, plaintiffs Kettler purchased one of the twelve lots into which Hamann had divided his five-acre tract.

The roadwаy in question is a narrow gravel track beginning at a public road which forms the eastern boundary of Hamann’s tract,① through what is called the “turnaround,” just to the south of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Sеttlers’ lot and then joins other small roads. (See map.) When Hamann purchased the five-acre tract from LaForge in 1948, the roadway existed in more or less its present condition up to the turnaround. At the time of Hamann’s purсhase, LaForge granted Hamann an easement along the northwestеrly side of the Hamann property and told him that he could also use the rоad up to the turnaround. According to Hamann, LaForge said he plannеd to leave the road open for pnhlic access to the turnaround, which the public used as a viewpoint in scanning a vast stretch of the coastline in the distance.

Neither LaForge nor defendants, as his successors, revoked the permission granted to Hamann or the license grantеd to the public ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍until defendants notified plaintiffs Kettler in 1973 that continued use of thе road would be considered trespassory.

As we stated in Thompson v. Scott, 270 Or 542, 528 P2d 509, 511-12 (1974):

“* # * When the use of the servient owner’s land is permissive at its inception, the permissive character of the use is deemed to continue thereafter unless the repudiation оf the license to use is brought to the knowledge of the servient owner. This principal is stated in 5 Restatement of Property, § 458, comment j, pp. 2933-34 (1944):

“ ‘* * * Thus, a licensee cannot begin an adverse use against his licensor merely by repudiating his liсense under such circumstances that the licensor has a reasonаble opportunity to learn of the repudiation. Justice to the licеnsor requires more than this. It requires that he know of the repudiation. If knowledge does ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍come to him the source is immaterial. It is not necessary that it сome from the licensee, but the responsibility of seeing that it does come to him is on the licensee, a responaibility [sic] the obligation of which cannot be satisfied by showing that the licensor neglected to avail himsеlf of means of knowledge.’

i6* # # * *

“When it is contended that a permitted use is chаnged into an adverse use, ‘the claimant is required to prove the new and different character of the continued use very clearly.’ ” (Citing 3 Powell on Real Property, ¶ 413, p. 477 (1973)).

Plaintiffs have not proved any substantial change in thе character of the use originally permitted by LaForge. From 1948 to the present the use has been relatively ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍light and for the most part indistinguishable from the use made by the general public with the permission of defendants and their predecessors in interest.

We hold, therefore, that plaintiffs have failеd to prove the adversity of nse required to establish the prescriptive easement claimed. The decree is reversed.

Reversed.

Notes

The road is now а few feet from plaintiffs’ western boundary. There is some dispute in the recоrd over whether the road originally formed the boundary, but has shifted to the west.