*1 No. 71 November 17, 2016
IN THE SUPREME COURT OF THE STATE OF OREGON Jоhn B. WELS, Jr., Respondent on Review, v.
Douglas W. HIPPE, Defendant, and Le Roy HIPPE and Cheryl Hippe, Petitioners on Review.
(CC 101215E3; CA A150238; SC S063486) On review from the Court of Appeals.* Argued and submitted June 15, 2016.
Clayton C. Patrick, Clatskanie, argued the cause and filed the brief for petitioners on review.
John R. Hanson, Medford, argued the cause and filed the brief for respondent on review. Also on the brief was Tracey R. Howell.
Before, Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, and Brewer, Justices, and DeHoog, Justice pro tempore.**
LANDAU, J.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. ______________ ** Appeal from Jackson County Circuit Court, Ronald D. Grensky, Judge.
LANDAU, J.
Plaintiff seeks a prescriptive easement over an
existing road that crosses defendants’ property. To estab-
lish a prescriptive easement, the law requires (among other
things) that plaintiff’s use of the road was adverse to the
rights of the owners of the property. The dispute in this case
is whether plaintiff satisfied the requirement to prove such
adverse use. The trial court found that plaintiff did establish
adverse use of the roаd in either of two ways. First, it found
that plaintiff showed that his use of the road interfered with
defendants’ rights, in that defendants could see vehicles
passing in close proximity to their house. Second, and in the
alternative, the court found that plaintiff established adver-
sity through testimony that he believed—although without
communicating that belief to defendants—that he had the
right to use the road without defendants’ permission. The
Court of Appeals affirmed.
Wels v. Hippe
,
We conclude that the trial court and the Court of Appeals erred. To establish that the use of an existing road *3 is adverse, а plaintiff must show that the use of the road interfered with the owners’ use of the road or that the use of the road was undertaken under a claim of right of which the owners were aware. In this case, there is a complete absence of evidence in the record of either of those things. We there- fore reverse the decision of the Court of Appeals and the judgment of the trial court.
The relevant facts are not in dispute. Plaintiff owns three contiguous parcels of rural property near the Rogue River. He purchased the parcels in 1998. The nearest state highway, the Crater Lake Highway, is located some distance away. In between plaintiff’s property and the highway lie federally owned forest lands and a number of private par- cels. Defendants own one of those private parcels, a 20-acre lot, where they have lived since 1973.
A private dirt road, known as “Lewis Creek Road,” runs from plaintiff’s property across the federally owned for- est land and the intervening private parcels, eventually con- necting to another private road and, ultimatеly, the highway. Lewis Creek Road crosses defendants’ property and passes within 60 to 80 feet of their house. No one knows who built Lewis Creek Road or when it was first constructed, but old records indicate that it has been in existence since at least 1932. Plaintiff and the other private property owners in the area have used it to access the Crater Lake Highway. *4 At some point, defendants erected a chain across Lewis Creek Road where it entered their property. But they left the chain unlocked and provided keys to neighbors, includ- ing plаintiff. Plaintiff sometimes performed general main- tenance of the road, including dragging an iron bar behind his truck to level the road. On one occasion, he asked defen- dants for permission to trim the brush alongside the road, and defendants agreed. Plaintiff’s use of Lewis Creek Road across defendants’ property caused some dust and vehicle noise, but defendants did not believe that it interfered with their use of the road or of their land.
In 2008, plaintiff decided to build a cabin on his property. The county, however, would not issue the neces- sary permits unless he obtained written confirmation of his right to use Lewis Creek Road for access to the Crater Lake Highway. Plaintiff tried to obtain written easements from each of the private property owners over whose prop- erty Lewis Creek Road ran. He succeeded in obtaining easements from some of the private property owners, but not from defendants. Plaintiff then initiated this action for a declaration that he had acquired a prescriptive easement to use the part of Lewis Creek Road on defendants’ property. Plaintiff аdvanced no other theory in support of his right to use the road.
In his trial memorandum, plaintiff asserted that he had used Lewis Creek Road for access to his property openly, notoriously, and continuously from the time he pur- chased the property in 1998. He further asserted that he thought he had the right to do so without defendants’ per- mission and thus had acquired an easement to use the road by prescription.
In response, defendants’ trial memorandum “con- cede[d] that plaintiff has used the roadway open and notori- ously. Defendants dispute[d] that рlaintiff’s use ha[d] been adverse.” Defendants argued that, in other words, although plaintiff’s use of the road may have been obvious, it was permissive. In support, defendants asserted that, when a prescriptive easement claim involves the nonexclusive use of an existing road, such use is presumed to have been per- missive, and anyone claiming otherwise must establish that *5 their use of the existing road interfered with the owner’s use of it. In this case, defendants argued, there was no evidence that plaintiff’s use of Lewis Creek Road interfered with their own use of the sаme road.
In their opening statement, defendants elaborated on that line of argument:
“And it’s presumed if he used open and notoriously then it was adverse. And so we think that he’s got that pre- sumption going in. If that presumption exists, it’s up to the defendants to rebut that with—by showing that his use was of an existing road, did not interfere with defendants’ use of the road and—and it was not exclusive. His use was not exclusive if others used the road, like the defendants or others. And if defendants can rebut those three pieces, [plaintiff] still has to come up with some other way to prove advеrsity by clear and convincing evidence. And I don’t think he’s got that.”
In his opening statement, plaintiff acknowledged that what was in dispute was whether, in light of his nonex- clusive use of Lewis Creek Road, his use nevertheless was “open and notorious and hostile or adverse.” His position was that he had satisfied all those requirements because, during the years that he used the road, he “never received anything like permission,” that he “always assumed that [Lewis Creek Road] was his access,” and that “[h]e had a right to use it.”
At trial, two witnesses testified—plaintiff and defendant Douglas Hippe—establishing the foregoing facts. Following the trial, the court issued a written opinion ruling for plaintiff. The court explained that, in cases involving the use of an existing road, there is a presumption that such use was not adverse, but instead was permissive. Nevertheless, the court explained, that presumption could be rebutted with evidence either that plaintiff’s use “interfered with [d]efendant’s right on his property” or that plaintiff mistak- enly thought that he had the right to use the road without defendants’ permission. In this case, the court concluded, plaintiff established both. As the triаl court saw it, evidence that plaintiff’s vehicles passed in “close proximity” to defen- dants’ house interfered with defendants’ rights to use their property, and, in any event, it was undisputed that plaintiff mistakenly thought that he had the right to use the road.
Defendants appealed. They argued that the trial court erred in concluding that plaintiff had rebutted the presumption of permissive use for two reasons. First, defen- dants argued that the trial court erred in relying on evi- dence that plaintiff’s vehicles passed in close proximity to their house, presumably referring to testimony that such use kicked up dust and made noise. That evidence, defen- dants argued, was not sufficient, because noise and dust *6 “did not interfere with defendants’ use” of the road. Second, defendants argued that the trial court also erred in relying on plaintiff’s uncommunicated, subjective belief that he had the right to use Lewis Creek Road without their permission. As defendants put it, merely “[t]hinking you have a right to use a road is not sufficient” to establish adverse use.
The Court of Appeals affirmed. In so doing, the court did not address whether the trial court erred in concluding that evidеnce of dust and noise from plaintiff’s use of the road was sufficient to rebut the presumption of permissive use. Rather, it focused on the question whether plaintiff’s mistaken belief that he had the right to use Lewis Creek Road was adequate to rebut that presumption. Relying on the Restatement (First) of Property § 458 (1944), the court explained that “adverse” use has three elements: (1) it is not made in subordination to the owner; (2) it is wrongful as to the owner; and (3) it is open and notorious. Wels , 269 Or App at 795-96. The court noted that there was no dis- pute that plaintiff’s use was wrongful and defendants had “conceded” that plaintiff’s use was open and notorious. Id. at 797 n 4. So, the court explained, the only issue in dispute was whether plaintiff’s use was made in subordination to defendants’. Relying on the unrebutted evidence that plain- tiff used Lewis Creek Road under the mistaken belief that he had a right to do so without defendants’ permission, the court concluded that there was evidence sufficient to support the trial court’s determination that plaintiff had established that his use was adverse. Id. at 802-04.
The court’s decision was not unanimous. The dis- sent took the majority to task for framing the issue as it did, in terms of the three elements set out in a comment to the Restatement (First) of Property . According to the dis- sent, that definition of “adverse” use has never been adopted by this court, and it cannot be reconciled with subsequent Supreme Court and Court of Appeals case law. Id. at 827-31 (DeVore, J., dissenting). In the view of the dissent, the use of an existing road gives rise to a presumption that the use was permissive, and an uncommunicated belief in a right of use cannot suffice to rebut that presumption. Id. at 814- 23 (DeVore, J., dissenting). The dissent contended that the majority’s reliance on defendants’ “concession” thаt plain- tiff’s use was open and notorious in resolving that issue was unwarranted; defendants conceded only that plaintiff’s use was obvious, not that it was adverse in character. Id. at 824 (DeVore, J., dissenting). That left, the dissent said, the ques- tion whether plaintiff used Lewis Creek Road in a manner that interfered with defendants’ own use of the road. As the dissent saw it, the record was uncontradicted that, at best, plaintiff’s use of the road caused dust and noise, but did not in any way interfere with defendants’ use of the road. Id. at 841-42 (DeVore, J., dissenting).
A concurring opinion agreed with the dissent that the trial court erred in cоncluding that the evidence showed that plaintiff’s use of the road interfered with defendants’. The concurrence nevertheless joined the majority on the *7 ground that defendant’s concession that plaintiff’s use was open and notorious eliminated any concern about whether plaintiff’s mistaken claim of right ever was communicated to defendants. Id. at 804-12 (Lagesen, J., concurring).
We allowed review to address the elements of a
claim for a prescriptive easement to use an existing road.
We begin with some familiar legal principles. An easement
is an interest in аnother’s land, which grants its owner a
right of limited use or enjoyment.
ODOT v. Alderwoods
(Oregon), Inc.
, 358 Or 501, 512, 366 P3d 316 (2015) (An
easement is “ ‘a nonposessory interest in land because it
generally authorizes limited uses of the burdened property
for a particular purpose.’ ” (Quoting
Restatement (Third) of
Property: Servitudes
§ 1.2 comment d (2000).));
see also
ORS
105.170(1) (“Easement means a nonpossessory interest in
the land of another which entitles the holders of an interest
in the easement to a private right of way.”). Because it is an
interest in land, an easement ordinarily must be created in
writing.
Shaw v. Profitt
,
The origin of prescription is a matter of some debate.
Historically, it has been tied to the idea of a fictional “lost
grant”—that long use must have originated in an early, but
lost, lawful grant of the right—or to an analogy to statutes
of limitations that apply to the related doctrine of adverse
possession.
See generally Restatement (Third) of Property:
Servitudes
§ 2.17 comment b (2000) (discussing historical and
theoretical bases of prescription). Whatever the doctrine’s
origins, its principal justification has been that “established
patterns of land possession and use should be protected and
that a diligent occupant should be rewarded at the expense
of a careless owner.” Jon W. Bruce & James W. Ely, Jr.,
The
Law of Easements and Licenses in Land
§ 5:1, 5-5 (2008);
see also Restatement (Third)
§ 2.17 comment c (“Prescription
doctrine * * * penalizes the property owner who sleeps on
his or her rights.”). A critical underpinning of the doctrine
thus is that the owner of land against whom a prescriptive
easement is being claimed must have reason to know of the
adverse use of his or her property before being held respon-
sible for failing diligently to take action to protect it. As the
court explained in
Feldman v. Knapp
,
“[t]he foundation of the establishment of a right by pre-
scription is the acquiescence on the part of the owner of
the servient tenement in the acts which are relied upon
to establish the easement by prescription. This makes it
necessary that he know of those acts, or be charged with
knowledge of them if he did not in fact know of them.”
Accordingly, this court has held that not just any use
will suffice to establish a prescriptive easement. The plain-
tiff “must establish an open and notorious use of defendants’
land adverse to the rights of defendants for a continuous
*8
and uninterrupted period of ten years.”
Thompson v. Scott
,
Whether a plaintiff has established the requisite open and notorious use of another’s land adverse to the oth- er’s interest for the requisite period is a question of fact. Historically, because of the equitable nature of a prescriptive easement claim, appellate review of the trial court’s find- ings concerning the elements of the claim has bеen de novo . Boyer v. Abston , 274 Or 161, 163-64, 544 P2d 1031 (1976). In 2009, however, the legislature amended ORS 19.415(3) to provide that de novo review in such equity cases is now discretionary. In this case, the Court of Appeals declined to exercise discretion to review this case de novo . Wels , 269 Or at 787. Accordingly, assuming the trial court applied the correct legal standards, its findings of historical fact will be upheld if there is any evidence to support them. Sea River Properties, LLC v. Parks , 355 Or 831, 834, 333 P3d 295 (2014).
With those more general principles in mind, we
turn to the particular elements of a prescriptive easement
claim. Use qualifies as “open and notorious” if it provides
the lаndowner with “a reasonable opportunity to learn of its
existence and nature.”
Thompson v. Schuh
,
Use is “adverse” if it is inconsistent with the owner’s
use of the property or if it is undertaken not in subordina-
tion to the rights of the owner.
Cf. Faulconer v. Williams
, 327
Or 381, 389,
It is often stated that open and notorious use for the
prescribed period gives rise to a rebuttable presumption of
adverse use.
See, e.g.
,
Coventon v. Seufert
,
When, for example, an owner supplies permission
to use a road across the owner’s property, use in accordance
with that permission will not give rise to a presumption that
it is adverse; there must be prоof that the claimant repudi-
ated the owner’s permission and communicated that repudi-
ation to the owner.
Hamann v. Brimm
,
Similarly, when a claimant uses a road that the
landowner constructed or that is of unknown origin, the
claimant’s use of the road—no matter how obvious—does
not give rise to a presumption that it is adverse to the owner.
As the court explained in
Woods v. Hart
,
When a claimant uses a preexisting road, the
claimant must аffirmatively establish that his or her use of
the road is adverse.
Thompson v. Scott
,
The adverse character of the use of a preexisting
road also may be established by evidence that the claimant
used the road under a claim of right.
Hay v. Stevens
, 262
Or 193, 196, 497 P2d 362 (1972). It is not sufficient, how-
ever, for a claimant merely to believe that he or she has the
right to use a road. There must be evidence that the owner
of the property knew or should have known of that belief.
Davis v. Gassner
,
Having set out the elements of a prescriptive ease- ment claim, we turn to the question whether there is evi- dence to support the trial court’s findings that plaintiff sat- isfied them. At the outset, we note that it is undisputed that plaintiff did not construct Lewis Creek Road. The road is of uncertain origin and existed long before plaintiff acquired his property. It is likewise undisputed that plaintiff’s use of the road was nonexclusive. In fact, all of the property own- ers along the road used it for access to and from the Crater Lake Highway.
Because plaintiff’s prescriptive easement claim is based on his nonexclusive use of a preexisting road, the bur- den rests with him to establish by clear and convincing evi- dence that his use of the road was adverse. The trial court found that plaintiff met his burden by producing evidence that his use of the road created noise and dust that could be viewed or heard by defendants from their house some 60 to 80 feet from the road. That evidencе is insufficient. It does not establish that plaintiff’s use of Lewis Creek Road in any way interfered with defendants’ use of the same road. In fact, there is a complete lack of evidence that anything that plaintiff did interfered with defendants’ use of the road.
The trial court also found that plaintiff met his
burden through testimony that he believed that he had
the right to use Lewis Creek Road without any permission
*11
from defendant. As we have noted, however, an uncommu-
nicated belief in a right to use property provides no notice
to the owner of such a belief. It therefore cannot satisfy the
essential requirement of adverse use, that is, that it inform
the owner of the servient property that the claimant is
asserting a right of use hostile to the rights of that owner.
If a claimant who is engaging in nonexclusive use of a pre-
existing road fails to communicate his or her belief in a right
to do so, there is no way for the owner to know that the
claimant is asserting a right hostile to the owner’s. As the
court observed in
Woods
, “ ‘the fact that [the owner] sees his
neighbor also making use of it, under circumstances that
in no way injures the road, or interferes with his own use
оf it, does not justify the inference that he is yielding to his
neighbor’s claim of right or that his neighbor is asserting
any right.’ ”
The Court of Appeals concluded that the absence of any evidence that plaintiff communicated his belief that he had a right to use the road is no impediment to his prescrip- tive easement claim, because, according to the Restatement (First) of Property , an adverse use must be open and notori- ous, and defendants “conceded” that plaintiff’s use of Lewis Creek Road was open and notorious. The Court of Appeals erred in reaching that conсlusion.
To begin with, it is not entirely clear that the way
that the
Restatement (First) of Property
sets out the elements
of a prescriptive easement claim is consistent with the way
that this court has set out the elements of the claim. The
Court of Appeals itself noted that point in observing that,
although this court has emphasized that, to support a pre-
scriptive easement claim, use of another’s property must be
open and notorious, the
Restatement (First) of Property
rel-
egates that consideration to an aspect of the adverse char-
acter of a claimant’s use.
Wels
,
Aside from that, although this court has referred
to a particular section of the
Restatement (First) of Property
or to a particular comment in some of its prior decisions,
e.g.
,
Thompson v. Schuh
,
Finally, we do not agree that defendants, by using the phrase “open and notorious” in reference to plaintiff’s use of the road, effectively conceded that plaintiff’s use was adverse. As we have noted, defendants’ trial memorandum used that phrase in describing the proper method of analysis in light of the case law that we have described. The mem- orandum asserted that, although open and notorious use ordinarily triggers a presumption that the use is adverse, this is not such a case. Defendants argued, both in their trial memorandum and in their opening statement, that because plaintiff in this case engaged in nonexclusive use of an exist- ing road, plaintiff “still has to come up with some other way to prove adversity by clear and convincing evidence. And I don’t think he’s got that.” Defendants’ entire case at trial, in fact, was that plaintiff’s use of Lewis Creek Road was not of the sort that would put them on notice as to the adverse nature of that use. And that, as we have also noted, is pre- cisely how plaintiff understood defendants’ arguments.
To summarize: The undisputed evidence shows that plaintiff engaged in nonexclusive use of the existing Lewis Creek Road. To prevail on his prescriptive easement claim, therefore, he must supply clear and convincing evidence that his use of the road was adverse. There is a complete absence of evidence in the record that plaintiff did so. Evidence that his use of the road may have caused dust and noise is legally insufficient; such evidence does not demonstrate any inter- ference with defendants’ own use of the road. And evidence that plaintiff believed that he had a right to use the road without defendants’ permission likewise is legally insuf- ficient, in the absence of evidence that he communicated that belief to defendants. The trial court therefore erred in finding for plaintiff on his prescriptive easement claim, and the Court of Appeals erred in affirming the trial court’s judgment.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.