Lead Opinion
Dеfendants appeal a judgment declaring that plaintiff has an easement by prescription over a dirt road that runs through defendants’ property to his property. To establish a prescriptive easement, plaintiff was required to show, by clear and convincing evidence, that his use (or use by former owners of his property) of the road on defendants’ property was “open and notorious,” “adverse to the rights of defendants,” and “continuous and uninterrupted” for 10 years. Thompson v. Scott,
I. FACTS
Because it was undisputed at trial that plaintiffs use of the road was “open and notorious,” the relevant facts relate to whether plaintiffs use of the road was adverse to defendants’ rights and was continuous for 10 years. We initially address our standard of review of those facts. This case arises in equity, and defendants request that we take de novo review with respect to certain findings made by the trial court. See ORAP 5.40(8)(d). We decline to exercise our discretion to take de novo review, because the disputed findings have support in the record and this case is not an exceptional one that merits such review. Accordingly, we are bound by the trial court’s express and implied findings of fact if supported by evidence, Morton and Morton,
Plaintiff is the owner of four contiguous parcels, identified as Tax Lots 3300, 3400, 3500, and 3600. He acquired
Both plaintiff and defendants get to their respective properties from Highway 62 via Busch Road and Lewis Creek Road. From Highway 62, Busch Road passes through private property, where it connects to Lewis Creek Road. Lewis Creek Road also passes through private property, reaching defendants’ residence on their property, and then continues on through defendants’ property, then through private property owned by Larson, then for a significant distance through federal public land, then through private property owned by Woods, then through additional federal public land, where it ends at plaintiffs parcels. Old records indicate that Lewis Creek Road has been in existence since at least 1934. The part of Lewis Creek Road that runs through defendants’ property is a dirt road, approximately 18-feet wide, and passes within 60 to 80 feet of defendants’ house.
Lewis Creek Road provides the only vehicular access to plaintiffs parcels and was the means by which the seller showed plaintiff how to get to the three parcels that he purchased in December 1998. All the private property owners along Busch Road and Lewis Creek Road use the roads to access their properties. In addition to plaintiff, two other owners of private property beyond defendants’ property— Larson and Woods — use the part of Lewis Creek Road that goes through defendants’ property to get to their properties. Larson has a residence on his property, which includes a home business that requires parcel delivery companies to use the road.
In 2008, plaintiff sought a building permit, but the county would not issue a permit without written confirmation of plaintiffs legal access to his property. As a result, plaintiff sought to obtain written easements to confirm his
At trial, defendants did not dispute plaintiffs open and notorious use of the road. Defendants filed a trial memorandum conceding that element: “Defendants concede that plaintiff has used the roadway open and notoriously. Defendants dispute that plaintiffs use has been adverse and dispute that plaintiffs use, if adverse, has been so for the requisite 10-year period.” In opening statement, defendants’ counsеl told the trial court that
“for Plaintiff to prevail, he has to * * * prove that he used this road open and notoriously, adverse to Defendants for a continuous period of ten years. The case is kind of lumped into those three categories. And it’s presumed if he used open and notoriously then it was adverse. And so we think that he’s got that presumption going in.”
Plaintiff and defendant Le Roy Hippe (defendant) provided the only witness testimony. Plaintiff testified that, before seeking a written easement, he and defendants had never discussed whether he had a right to use the road. Plaintiff explained that he had always believed that he had a right to use the road based on the seller’s actions, because the road was his only means of access to his property, and because two easements that came with the property mentioned Lewis Creek Road as his means of access. By the time of trial, though, plaintiff acknowledged that he had come to understand that those easements did not cover the part of the road on defendants’ property. Plaintiff also noted that he had participated in maintaining Busch Road and Lewis Creek Road, along with the other property owners.
Defendant initially testified in plaintiffs case-in-chief. During the course of that testimony, he changed his position several times regarding what he believed concerning his and the other property owners’ rights of access to
Testifying during defendants’ case-in-chief, defendant confirmed that he believed that Larson had a right to use the road and did not need defendants’ permission. He also testified that, in “the last few years,” he had put a chain across Lewis Creek Road where it enters his property; however, he left the lock open and gave a key to plaintiff, Larson, UPS, Federal Express, and the power company.
Defendant testified on two other subjects during defendants’ case-in-chief: whether plaintiffs use of the road interfered with defendants’ use and whether plaintiff had sought permission from defendants to use the road. Defendant explained that plaintiffs use of the road did not
In contrast to defendant’s testimony that he gave plaintiff permission to use the road, plaintiff testified that, although he remembered generally the conversation with defendant by the highway, he did not remember defendant ever telling him that he had permission to cross defendants’ land. Defendant had failed to mention that grant of permission in his deposition, and he made no claim of permission in his answer to the lawsuit. The trial court was not persuaded that the conversation about permission had actually occurred and so found. We are bound by that factual and credibility finding.
The trial court ruled that plaintiff had established a prescriptive easement in Lewis Creek Road across defendants’ property as to the three parcels purchased in 1998. The court observed in its letter opinion that the parties agreed that, “for the most part,” the requirements for a prescriptive easement — which it described as “the use was opеn or notorious, and continuous and uninterrupted and adverse to the interest of the other party for a period of at least ten years” — were met. Addressing plaintiffs adverse use of the road, which the parties had disputed at trial, the court found and concluded as follows:
“Adverse use of a disputed roadway can be shown in two different ways.
“1) Open [use] for ten years equates to a presumption of adversity, Feldman [et ux] v. Knapp [et ux],196 Or 453 ,250 P2d 92 (1952). This presumption can be overcome by showing the easement was over an existing way and the use did not interfere with the owner’s rights, McGrath v. Bradley,238 Or App 269 ,242 P3d 670 (2010). Such presumption can also be overcome by showing the use was ‘permissive,’ but to overcome the presumption the evidence must do more than show ‘mere acquiescence’ in the non-owner’s use of the land, Id. & Feldman Supra; or
“2) Direct evidence that claimant mistakenly thought he had a right to use the property (e.g., Plaintiff always thought he had the right and so never asked for permission). Kondor v. Prose, 50 Or App 55 ,622 P2d 741 (1981).
“The Court is of the opinion that Plaintiff satisfies ‘adversity’ using both criteria. As to the three parcels acquired by Plaintiff in 1998, Tax Lot 3400, 3500 and 3600, there exists a presumption of adversity which Defendant admitted has on occasion ‘interfered’ with Defendant’s right on his property. (Viewing vehicles go past his house in close proximity to the subject road.) Such interference prevents Defendant from overcoming the presumption.
“Further it is clear that claimant mistakenly thought he had a right to use the subject property and therefore never asked for permission until he requested the easement herein. Since the road had been in existence for many years beyond the time Plaintiff purchased his property and because Plaintiff until the time he requested an easement, thought he had a right to use the road, adversity is satisfied here as well.”
The court also concluded that plaintiff had demonstrated continuous use of the road to reach the three parcels that he purchased in 1998, but that plaintiff had not proved continuous use of Lewis Creek Road to reach Tax Lot 3300 for 10 years and had no easement for that parcel.
The court entered a general judgment, declaring, in favor of plaintiff, a perpetual easement for ingress and egress to Tax Lots 3400, 3500, and 3600 over Lewis Creek Road across defendants’ property. The court also entered a supplemental judgment awarding plaintiff his costs. Defendants appeal both the general and supplemental judgments, challenging the trial court’s conclusion that plaintiff proved the disputed elements of a prescriptive easement in the road.
II. ANALYSIS
A. Statutory bar based on recreational use
Before turning to the merits of defendants’ primary arguments, we first address and reject defendants’ contention that a statute, ORS 105.692 (1), barred the establishment
The plain text of that statute, though, as supported by its context as part of the Public Use of Lands Act, applies only when a landowner permits the general public to use the landowner’s land for recreational purposes. That reading of the statute is also supported by the legislature’s declared policy in enacting the Public Use of Lands Act and by the case law interpreting other provisions within the same act. See ORS 105.676 (“The Legislative Assembly hereby declares it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes * * * by limiting their liability toward persons entering thereon for such purposes and by protecting their interests in their land from the extinguishment of any such interest or the acquisition by the public of any right to use or continue the use of such land for recreational purposes ***.”); Liberty v. State Dept. of Transportation,
B. Proof of adverse use
We turn to defendants’ remaining and primary arguments, which concern whether plaintiff properly established
1. Restatement (First) of Property § 458
This case in large part concerns the appropriate method of proving adverse use for purposes of establishing a prescriptive easement. For its understanding of the adverse use element, the Oregon Supreme Court has repeatedly relied on section 458 of the Restatement (First) of Property (1944). For example, in Thompson, the court stated that “[a]dverse use is defined as follows” in section 458 of the Restatement, and then quoted that section with approval.
Thompson was not the first case in which the Supreme Court relied on the Restatement formulation of adverse use. In Feldman et ex. v. Knapp et ux.,
Accоrdingly, to set the context, we first discuss at length the Restatement’s formulation of adverse use.
“A use of land is adverse to the owner of an interest in land which is or may become possessory when it is
“(a) not made in subordination to him, and
“(b) wrongful, or may be made by him wrongful, as to him, and
“(c) open and notorious.”
Restatement at § 458.
The Restatement explains that the key concept with respect to sub-element (a) — use not in subordination— is non-recognition of the authority of the owner to prevent the plaintiffs use:
“To be adverse it is not essential that a use be hostile. It is not necessary that it be made either in the belief or under a claim that it is legally justified. It is, however, necessary that the one making it shall not recognize in those as against whom it is claimed to be adverse an authority either to prevent or to permit its continuance. It is the non-recognition of such authority at the time a use is madewhich determines whether it is adverse. * * * A use of land is adverse when made as of right even though no right exists. * * * A use which is not made in recognition of and in submission to a present authority to prevent it or to permit its continuance is adverse though made in recognition of the wrongfulness of the use and, also, of the legal authority of another to prevent it.”
Restatement at § 458 comment c (emphasis added). The Restatement also provides further guidance on what is meant by a “claim of right” as referred to in comment c:
“As indicated in Comment c, it is not necessary in order that a use be adverse that it be made either in the belief or under a claim that it is legally justified. The essential quality is that it be not made in subordination to those against whom it is claimed to be adverse. Yet he who claims a right in himself is impliedly asserting an absence of any right in another inconsistent with the right claimed. Hence one who uses under a claim of right himself is denying a use by the permission of another. Quite commonly, therefore, the absence of submission to another is evidenced by the fact that the one making the use did so under an affirmative claim of right in himself.”
Id. at § 458 comment d (emphasis added).
With respect to sub-element (b) of the Restatement formulation of adverse use — uses that are “wrongful” or “may be made [by the owner] wrongful” — the key idea is whether the landowner against whom the adverse use is claimed could “protect himself by vindicating his rights through legal proceedings.” Restatement at § 458 comment f. Thus, for example, a neighbor could build a structure on the neighbor’s property that receives support from an adjoining owner’s land, but the use is not wrongful and so cannot be adverse to the adjoining owner. Id. at 458 comment e. The parties do not discuss this sub-element, but it is apparent from the nature of the use of the road over defendants’ land that this sub-element was met.
Finally, with respect to sub-element (c) of the Restatement formulation — “open and notorious” use — the Restatement explains that the clause is to protect those owners against whom the adverse use is claimed. Restatement at § 458 comment h. The requirement of open and notorious
2. The challenged determination
It follows that the only sub-element of adverse use actually in contention in the trial court was whether plaintiffs use of Lewis Creek Road was not made in subordination to defendants. On appeal, the parties dispute the permissible methods of proving that sub-element. As we explain below, the Restatement formulation of adverse use, and particularly of the sub-element pertaining to lack of subordination, is key to an understanding of Kondor v. Prose,
In light of what was actually in dispute, the trial court determined that plaintiff could establish that his use of the road was adverse to the rights of defendants in two ways: (1) through the use of a rebuttable presumption that the use was adverse, which arises through open and continuous use for the prescribed period, citing Feldman,
Defendants agree that the trial court correctly stated that a plaintiff may rely on a rebuttable presumption of adverse use that arises from proof of 10 years of open and continuous use of the defendant’s property. McGrath v. Bradley,
3. Proof by direct evidence and by presumptions
First, defendants cite no case holding that a plaintiff seeking to establish a prescriptive easement over a jointly used road can prove adverse use of the road solely through the rebuttable presumption of adverse use that arises upon proof of 10 years of open and continuous use. We, too, have found no case in which an Oregon court has held that a plaintiffs proof of adverse use to establish a prescriptive easement is so limited.
Instead, based on our review of the case law on prescriptive easements in Oregon, we conclude that the trial court correctly determined that a plaintiff may also establish a prescriptive easement by proving the disputed sub-element of adverse use — use not in subordination to the servient owner — through direct evidence of a claim of right, in accordance with Kondor. The discussion of adverse use in Kondor adheres closely to the description of adverse use in section 458 of the Restatement.
Defendants attempt to distinguish that discussion by reading Kondor narrowly. Defendants contend that the statement in Kondor that, “even if the user mistakenly believes he has the right to use the easement, that use is sufficiently adverse,”
We do not read Kondor as narrowly as defendants and the dissent do, for two reasons. First, defendants and the dissent overlook Kondor’s reference to the sub-element of
Second, defendants argue that the trial court’s reading of Kondor was incorrect because the nonsubordination sub-element of adverse use cannot be proved through direct evidence, such as plaintiffs testimony here that he used the road for 10 years believing that he had the right to do so. That is also a focus of the dissenting opinion. See
In Sander, which also involved the plaintiffs’ use of a road across the defendants’ land for access to their property,
The dissent deals with Sander by rejecting it in its entirety.
Defendants’ argument about Kondor is limited, and the rest of their argument focuses on the facts that they established consonant with rebutting the presumption of adverse use. Although neither we nor the Oregon Supreme Court have held that a plaintiff must establish adverse use only by relying on the presumption of adverse use that arises from open and notorious use of the defendant’s property for 10 years, defendants assume that that is so. Defendants rely on two Supreme Court cases, Woods v. Hart,
The dissent defends defendants’ assumption, offering a rationale for why a plaintiff must establish the element of adverse use solely by relying on the presumption of adverse use that arises from open and notorious use of the defendants’ property for 10 years. Yet, as noted, defendants’ argument about appropriate methods of proof is limited to its argument that the trial court misread Kondor, an argument that we have rejected. The focus of defendants’ appeal concerns whether the record reflects that they rebutted the presumption of adverse use in accordance with the means of rebuttal described in Woods and Trewin. Thus, the dissent would reverse the trial court’s ruling based on an argument that defendants are not aсtually making. That is a departure from our typical approach to decisions. See Beall Transport Equipment Co. v. Southern Pacific,
In sum, defendants’ assertion that proof that a claimant used a roadway under the belief that he or she had the right to use it can never establish the sub-element of nonsubordinate use flies in the face of Oregon’s application of the Restatement formulation of adverse use in section 458. Accordingly, we apply Kondor and Sander and turn to the sufficiency of the evidence, which defendants also challenge.
4. Sufficiency of the evidence
The trial court determined that plaintiff had established through clear and convincing evidence that he had used the road by claim of right and had not asked for, nor been given, permission from defendants to use the road on their property during the 10-year prescriptive period. We conclude that the record supports the trial court’s findings.
Thus, the trial court heard evidence from defendant and plaintiff concerning whether plaintiff’s use was in subordination to defendants. And, for a number of good reasons, including the fact that defendant’s trial testimony presented a new factual and legal twist that had never come up in defendants’ pleadings or defendant’s deposition, the trial court found defendant’s testimony concerning permission to be lacking in credibility and accepted plaintiffs testimony.
The trial court did not commit legal error by considering direct evidence that plaintiff had not used the road in subordination to defendants, and we are hound by the trial court’s express and implied findings concerning the factual dispute over whether plaintiff used the road by permission.
C. Proof of 10 years of adverse use
We also reject defendants’ contention that, contrary to the trial court’s finding, plaintiff did not establish 10 years of adverse use because he acted in subordination to defendants when he asked defendants to sign a written easement at a time when he had owned three of his parcels for slightly less than 10 years. Plaintiff, though, asked for a written easement from defendants (and the other property
Affirmed.
Notes
The third defendant was also an owner of the property, but he died after plaintiff filed his complaint.
Defendant also testified that he had a key for Woods but had not yet had the opportunity to give it to him.
Section 457 of the Restatement sets forth the elements for creation of an easement by prescription, namely, use that is “adverse” and “for the period of prescription, continuous and uninterrupted.” As stated by the Oregon Supreme Court in Thompson,
The dissent’s argument that our holding effectively drops the “open and notorious” element from the proof required for a prescriptive easement, see
Neither has the dissent.
We disagree with the dissent’s characterization of the analysis in Kondor, which is that it was divorced from the principles in the Restatement formulation of adverse use and simply “proceeded on the familiar principle that continuous, open, and notorious use of a road would be presumed to be adverse — that is, to be without the defendants’ permission.”
Concurrence Opinion
concurring.
I join fully in the majority opinion with the understanding that its discussion of the content of the “open and notorious” element of a prescriptive easement, see
A. My understanding of the Oregon law of prescriptive easements
Under Oregon law of prescriptive easements, a plaintiff seeking to establish a prescriptive easement generally must prove that the use for which the plaintiff seeks the easement had three characteristics: (1) the use must have been “continuous and uninterrupted” for the prescriptive period; (2) the use must have been “adverse to the rights” of the defendant; and (3) the use must have been “open and notorious.” Thompson v. Scott,
The meaning of the element of “continuous and uninterrupted” is not in dispute in this case, and I therefore
Under Feldman, the open and continuous use of land for the prescriptive period gives rise to a rebuttable presumption that the use was adverse.
With respect to the “open and notorious” element, a plaintiffs use of land is “open and notorious” if it is “such
In most instances a showing that the landowner knew of the use, or had a reasonable opportunity to learn about the use, is sufficient to establish that the landowner had a reasonable opportunity to learn of both the fact of the use and its adverse character. However, in some circumstances a greater showing is required. Restatement (First) of Property § 458 comments h - k (1944) (describing how different circumstances affect what a plaintiff must prove to establish the “open and notorious” element of a prescriptive easement); see also Thompson,
B. Application to this case
Applying the above standards to the present case, I would conclude that the trial court erred when it concludеd that defendants had not rebutted the presumption of adverseness, because it applied the wrong legal standard in making that determination. In particular, the trial court applied the wrong legal standard when it found that plaintiff’s use of the road “interfered” with defendants’ property because defendants had to view vehicles traveling by their house on the road. As a matter of law, that sort of “interference” has no bearing on whether defendants rebutted the presumption of adverse use. Rather, to rebut the presumption in the context of an existing roadway of unknown origin, a landowner need only establish that the plaintiffs use of the road did not interfere with the landowner’s use of the road (or damage the road). Woods,
First, defendants conceded in their trial memorandum before trial that the “open and notorious” element of a prescriptive easement was met in this case: “Defendants concede that plaintiff has used the roadway open and notoriously. Defendants dispute that plaintiffs use has been adverse and dispute that plaintiffs use, if adverse, has been so for the requisite 10-year period.” The trial court— appropriately so — relied on that concession in determining that plaintiff had established the elements of a prescriptive easement. Second, for the reasons stated in the majority opinion, the evidence in the record is sufficient to support the trial court’s factual findings that the other two elements for a prescriptive easement are satisfied: (1) that plaintiffs use was adverse to defendants’ rights (that is, under claim of right rather than by permission); and (2) that the adverse use was continuous for long enough to give rise to a prescriptive easement.
The question of adverseness is a close one for me, albeit not for the same reasons that it is a close question for the dissent. In some of our previous cases we havе concluded on similar evidence that prescriptive-easement claimants have not demonstrated that a use was adverse; we have even found that such evidence demonstrated affirmatively that a use was permissive. See Nice,
The dissent contends that the evidence is insufficient to support a factual finding that plaintiffs use of the roadway was adverse because, in the dissent’s view, the evidence is insufficient to support a factual finding that defendants were on notice of the adverse character of plaintiffs use.
I tend to agree with the dissent that the evidence would not support a factual finding that defendants were on
As I noted above, Woods suggests that under the circumstances present here, a prescriptive-easement plaintiff may need to prove that the servient landowner had actual knowledge of the adverse character of the plaintiffs use in order to prove that the use was “open and notorious.” However, in the light of defendants’ express written concession in the trial court that plaintiffs use of the land met the “open and notorious” element of a prescriptive easement (a concession that, in my view, relieved plaintiff of the obligation to further develop the evidence on that element), this case does not present the opportunity for us to address the scope of the “open and notorious” element of a claim for a
With those considerations, I concur in the majority opinion.
This court sometimes misstates the presumption articulated in Feldman as being established by a showing of “open and notorious” use. McGrath v. Bradley,
Of course, proof by the landowner that the use was, in fact, permissive does more than simply rebut the presumption that the use is adverse; it affirmatively disproves the element of adverse use, thereby defeating a plaintiff’s claim for a prescriptive easement. See Baum et ux. v. Denn et al.,
Macy describes the burden-shifting dynamic for the presumption of adversity as follows:
“The weight of reason and authority supports the proposition that the burden of proof as to the adverse nature of the use remains on the claimant throughout. Analogy with the claim of adverse possession, as well as general principles, require him to sustain the burden as to all the elements of prescriptive right. The presumption of adverseness which supports him in the first instance is a typical legal presumption. It is not a mere evidential inference, although that may lie back of it. It is one which requires a trial judge, when no evidence opposes it, to direct a verdict for the claimant. Being a typical legal presumption, it disappears when confronted with evidence of permission or license, leaving the issue as one of fact. And upon that issue the burden to support the allegation of adverseness by a preponderance of the evidence remains on the claimant.”
As we observed in Winters, in formulating the “open and notorious” element of a prescriptive easement, the Supreme Court has relied on the comments to the Restatement (First) of Property (1944) that discuss what it means for a use to be “open and notorious.”
I do not believe that the trial court’s inference that plaintiff’s use was under claim of right and not permissive is the only reasonable inference that can be drawn from the evidence in this case; on this record, had the trial court inferred that plaintiffs use was permissive, I believe that we would be bound to uphold that factual finding as well, absent a decision to engage in de novo review. Put simply, different reasonable factfinders could view the evidence in this case in different ways.
The dissent relies on comment j to section 458 of the Restatement (First) of Property for the proposition that the lack of notice as to the character of the use bears on the determination of whether the use itself is adverse.
Dissenting Opinion
dissenting.
This case offers the chance to eliminate or to exacerbate confusion in the law of prescriptive easements. Here, a well-established line of cases collide with what will become a new line of cases. The conflict requires this court to decide whether the law will continue to require that, in order to claim a prescriptive easement over preexisting roads of unknown origin, the claimants must show that their use interfered with the owner’s use of the road, so as to prove the requisite open, notorious, and adverse use. The majority opinion offers a nascent alternative that will render the long-established rule immaterial. The alternative posited is that the court will now recognize a claimant’s testimony about a prior, unexpressed, and subjective belief in the claimant’s right to use a road as sufficient evidence — indeed, as so-called “direct evidence” — of open, notorious, and adverse use of preexisting rоads of unknown origin. The result of this subjective theory of adverseness will be to tacitly overrule eight cases in concept and in practice.
Fearing this alternative to be ill-founded, I respectfully dissent. To explain why, this dissent (1) revisits the facts, (2) recalls the rules on preexisting roads, (3) compares how the parties and the majority grappled with the issues presented here, (4) questions the theory that a subjective belief constitutes “direct evidence” of adverse use of preexisting roads, (5) observes how this case conflicts in concept and in practice with established cases on prescriptive easements, (6) suggests how the law should apply to this case, and (7) concludes with a hope that the conflict between neighbors and between cases might be resolved.
I. FACTS
Plaintiff bought three parcels of land in December 1998 that are reached by Lewis Creek Road.
Lewis Creek Road has existed since at least 1934. Plaintiff admitted that he had not built the road over defendants’ property, and he did not know who did. The neighbors shared the cost and tasks of maintaining the road. One neighbor oversaw things, asking others to help. Defendant Le Roy Hippe performed maintenance over his property, cutting brush, filling pоtholes, and cleaning the ditch. Plaintiff has dragged iron behind his pickup to grade the road; and, after asking defendant Hippe’s permission, plaintiff trimmed branches on defendants’ property along the road. In the last few years before trial, defendants have had a chain across the road as it enters their property, but the chain is usually down or down while defendants were home. Defendants have given keys to the chain’s lock to plaintiff as well as the Larsons, UPS, FedEx, and the power company.
Plaintiff testified that, prior to 2009, he had never had any discussions with defendants about his use of the road across their property. In 2008, less than 10 years after his purchase, the county told plaintiff that, in order to get a building permit for a house, he had to have written
II. PREEXISTING ROADS
The principles surrounding prescriptive easements are well-established. First among them is the reminder that “[e]asements by prescription are not favored by the law[.]” Wood v. Woodcock,
In the varied situations that arise, there are many ways in which a claimant may demonstrate adverseness in making use of another’s land. There is indeed no single way in which adverse, overt, and physical use of another’s land might be manifested. Contrary to the majority’s reading, this dissent and the defendants do not contend that an easement claimant can only rely on the presumption of
When the prescriptive claim involves simply the use of a road and no other demonstrable evidence of adverseness, Oregon’s cases provide a rule that yields one or another answer, depending upon whether the roads were preexisting. The long-standing rule has been expressed in this way:
“It is generally said that the open and continuous use of a road for the prescriptive period is presumed to be adverse and under a claim of right. It is further generally said that the servient owner has the burden to rebut the presumption.
“When the road is preexisting, however, and the claimant’s use is nonexclusive, that presumption may be rebutted by proof that the claimant’s use of the road did not interfere with the servient owner’s use of the road.”
Webb,
The Oregon Supreme Court explained the significance of preexisting roads in Woods v. Hart,
“Where one uses an existing way over another person’s land and nothing more is shown, it is more reasonable to assume that the use was pursuant to a friendly arrangement between neighbors rather than to assume that the user was making an adverse claim.”
Id. Even if the normal notion were imagined — that a presumption of adverseness arises when crossing another’s land — “the fact that the claimant’s use is of an existing way and the use does not interfere with the owner’s use” would “rebut the presumption of adverseness.” Id. at 437 (emphasis added).
“‘[T]he fact that [an owner] sees his neighbor also making use of [the road] under circumstances that in no way injures the road, or interferes with his own use of 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. It signifies only that he is permitting his neighbor to use the road * * * “in a neighborly way.’””
Id. at 437-38 (quoting Anthony v. Kennard Bldg. Co., 188 Mo 704, 723-24,
The Supreme Court has made the rule plain in other decisions. In Trewin v. Hunter,
“It is our opinion that when a road is used in common by the dominant and servient owner and there is no evidence to establish who constructed the road, it should be presumed that the servient owner constructed it for his own use.”
Id. at 247-48 (emphasis added). Another decree refusing a prescriptive use was affirmed.
Again, in Boyer v. Abston,
Oregon’s rules on roads — both the general rule and its counterpoint — are paralleled in the commentary to today’s more recent Restatement:
“In states following the majority rule, particular fact situations overcome the presumption of prescriptive use, creating a counter-presumption that the initial use waspermissive. * * * Evidence that the use was made in common with the owner of the land, or that the road over which a right of way is claim was constructed by the owner for his own use, may also overcome the presumption of prescriptive use.”
Restatement (Third) of Property (Servitudes) § 2.16 comment g (2000) (emphases added).
Because Oregon understands a cooperative use of roads of unknown origin to be a permissive arrangement, it inescapably follows that, in order to demonstrate an open, notorious, and adverse use, a claimant must show the claimant’s use to interfere with the owner’s use of the road. That is so because our rule on preexisting road parallels the same sort of requirement for proof of adverseness when permission was previously granted. See Hamann v. Brimm,
Curiously, the first Oregon case on which the majority relies to show the court’s reference to the old Restatement is a case illustrating the importance of showing interference in this parallel situation. In Thompson v. Scott,
“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 of the license to use is brought to the knowledge of the servient owner. This principle is stated in [Restatement of Property § 458 comment j (1944).]”
Thompson,
In both the situation involving preexisting roads with assumed permission and the parallel situation involving prior, express permission, our courts have found one other fact to be noteworthy: A claimant who shares access with a number of other users, and has given no other demonstrable evidence of adverseness, is less likely to demonstrate adverseness by such shared use. In Thompson, the court added:
“Another fact militating against treating plaintiffs’ use as adverse is the non-exclusive character of plaintiffs’ use. Plaintiffs themselves introduced evidence establishing that the road was used by others for a variety of purposes, including the hauling of logs, the hauling of hay, the movement of farm equipment, and for hunting. It has been said that *** £[i]f the claimant is only one of two, or several, or many, who make the user in question, it is perhaps infer-able that all of these uses are permissive. In such a case the claimant must affirmatively prove the adverse character of his behavior.’”
A better claim could be made if a claimant were the sole user who establishes a two-track trail across a neighbor’s field. See R & C Ranch, LLC,
The same circumstance was presented in Webb,
This court acknowledged that ordinarily use of the road would be “presumed to be adverse and under a claim of right.” Id. at 26 (citing Feldman,
“‘Where, as here, (1) a road is used in common by the owners of a putative servient estate and by others; (2) thereis no evidence to establish who constructed the road; and (3) the evidence does not establish that the common use interfered, for the requisite period, with the servient owner’s use, the claimants of prescriptive rights have not carried their burden of proof.’”
Id. (quoting Petersen v. Crook County,
Webb foreshadowed this case. We recognized the claimants were firmly convinced of their own belief in their right to use the roads. We acknowledged the claimants’ argument “that club members did not seek out [the] defendants’ permission to use the roads because they did not believe they needed it.” Id. at 28. But there was no overt demonstration of the plaintiffs’ belief. Referring to the relevant period, we observed, “There is not evidence of a single hostile encounter between hunting club members and [the] defendants between 1977 and 1995.” Id. at 29. What was shown was not enough to establish adverse use of a neighbors set of preexisting roads. Focusing on what is needed for adverseness, we added, “More importantly, despite causing wear to roads and damage to locks and gates, plaintiffs never interfered with defendants’ own use [of the roads].” Id. We concluded that the plaintiffs’ use of the preexisting roads, bereft of any presumption of adverseness and supported only by their belief that they did not “need” permission, failed to establish a prescriptive easement. Id. We reversed the judgment for the claimants.
We recognized another friendly arrangement as to a road of unknown origin in Skidmore v. Clark,
In Insko v. Mosier,
We reversed, focusing on a critical element needed for a prescriptive easement over a preexisting road. We explained that “the case turns on the question of interference.” Id. at 455. We rejectеd the argument that the encroaching fence showed interference, because there was “no evidence that the fence encroached on the road.” Id. at 459 (emphasis in original). We rejected the argument that blocking the road for two weeks in each of two years was interference, because it did not continue over 10 years, and the plaintiffs did not do so when the defendants’ predecessors would return to their property. We rejected the argument that the plaintiffs use had actually caused compensable
“Contrary to the implication of plaintiffs argument, the question of adverse use does not depend on the claimant’s subjective intentions with regard to the disputed road; the question of adverseness turns on whether the property was actually used in a manner that was inconsistent with the owner’s use!’
Id. (emphasis and underscoring added). The essential quality of adverseness lies, not in a “subjective intention,” but in the claimant’s demonstrable “manner” of use that is “inconsistent with the owner’s use” of the road. We reversed and remanded for entry of a judgment for defendants. Id.
III. GRAPPLING WITH THE ISSUES
If the law of prescriptive claims to preexisting roads governed this case, then there should be little doubt that our conclusion is controlled by the Supreme Court decisions in Woods, Trewin, and Boyer and our decisions in Read, Hayward, Webb, Skidmore, and Insko. Defendants presented the issue squarely, and, contrary to the majority,
Like the property owners in other cases of preexisting roads, see, e.g., Woods,
“tilt’s up to 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 it was not exclusive * * * And if Defendants can rebut those three pieces, he [plaintiff] still has to come up with some other way to prove adversity by clear and convincing evidence.”
(Emphases added.) Those were three keys recited in Webb,
To construe defendants’ recognition of “open and notorious” travel as an unwitting legal concession that defendants knew or had reason to know of plaintiffs adverse claim (i.e., so-called adverseness reduced to “use not in submission”) is to attribute a meaning that defendants did not intend and should not now be understood to have conceded. Viewed in context, defendants’ counsel wrote and said that plaintiff must show interference or come up with some way other than mere travel to prove open, notorious, and adverse use. In this situation, defendants insisted, plain travel was not adverse. By frankly saying that plaintiffs travel was “open and notorious,” defendants were not conceding half the
Defendants’ cases, like the parallel cases of Thompson and Hamann, explain that when roads are preexisting, ordinary use does not suffice as open, notorious, and adverse use. They explain why a plaintiff must show interference with the owner’s use of the road or demonstrate some change in the character of the claimant’s use, in order to bring to the owner’s attention that the claimant’s use is no longer friendly. By implication or expressly, those cases reject the proposition that a claimant’s later testimony about an earlier, subjective, and unexpressed “claim of right” somehow constitutes any еvidence, let alone “direct evidence” fully sufficient by itself to prove adverse use of roads of unknown origin. See, e.g., Insko,
Our majority opinion acknowledges Woods and Trewin, but misses their significance. The majority “cabins” them as relevant only to presumptions. The majority does not mention Webb or Insko, on which defendants principally relied. The majority explores none of the reasons why our case law requires, as proof of open, notorious, and adverse use, something during the prescriptive period that is demonstrably more than ordinary use of preexisting roads, or why the Supreme Court and Court of Appeals would have erred repeatedly in requiring interference. The majority does not respond directly to defendants’ reliance on these cases, nor do we consider them of any relevance to the prospect of an alternate theory of subjective proof of adverseness.
If the criticism were redirected, the majority would be quite right to observe that more could have been said to examine today’s issue — by both parties. At trial and on appeal, the parties predictably spent most of their energies arguing about the conflicting evidence of express permission. Although the trial court did posit an alternate theory of adverseness, citing Kondor, the successful plaintiff, curiously, did not cite or argue Kondor at all in his brief on appeal in support of his judgment. Even the trial court did not cite Sander, which is arguably a better case for an altеrnate theory of adverseness, and which was decided eight months before the trial court’s judgment. In his brief, plaintiff did not cite Sander, either. Put in context, the majority opinion has done more to develop a subjective theory of adverseness than defendants ever had a chance to see in their opponent’s brief.
Defendants did cite and distinguish Kondor, treating the decision as misconstrued by the trial court. As, however, the majority opinion reflects, an alternate theory of adverseness appears to be developing. In light of Sander, which neither plaintiff nor the trial court mentioned, the prospect of a subjective theory cannot be discounted in a paragraph, as defendants might have hoped. Although
IV. EVOLUTION OF A MISCONCEPTION
A. The Old Restatement
The majority traces its analysis upstream to the Restatement (First) of Property. Summarizing the law as it was understood in 1944 as to most situations, the Restatement introduced the concept that an easement is prescriptive, “provided the use is (a) adverse, and (b) for the period of prescription, continuous and uninterrupted.” Restatement (First) of Property § 457 (1944). The Restatement (First) described adverse use as requiring several components, to wit:
“A use of land is adverse to the owner * * * when it is
“(a) not made in subordination to him, and
“(b) wrongful, or may be made by him wrongful, as to him, and
“(c) open and notorious.”
Restatement (First) at § 458. Although Oregon speaks of “open and notorious use” as a separate element of a prescriptive easement, Thompson,
That said, a “mistaken claim of right” or a lack of subordination does not wholly satisfy all the components of adverse use under the old Restatement formulation, because, by itself, it does not satisfy the second component of wrongfulness or the third component of adverseness, requiring “open and notorious” use. In short, a mistaken “claim of right” is not the equivalent of adverse use. It is an optional factor relating to one component of adverseness (i.e., (a) that the use not be in subordination to the owner).
Section 458 of the old Restatement is only a generalized summary of older American case law. It did not address the specific and varied situations that arose then or that would be developed later in' Oregon’s law. Even so, the old Restatement did anticipate the development of Oregon’s law, when it explained the third component of adverse use, that component which requires that the use be open and notorious. It explained that something more than ordinary use
“Where a user of land and one having an interest affected by the use [e.g., the owner] have a relationship to each other sufficient in itself to justify the use, the use is not adverse unless knowledge of its adverse character is had by the one whose interest is affected. The responsibility of bringing this knowledge to him lies upon the one making the use. It is not open to a user of land to contend as against one to whom he stands in a relationship sufficient to justify the use that, because the one to whom he stands in this relationship had a reasonable opportunity to learn of the existence of the use and of its naturе, the use was as to him open and notorious and therefore adverse. Thus, a licensee cannot begin an adverse use against his licensor merely by repudiating his license under such circumstances that the licensor has a reasonable opportunity to learn of the repudiation. Justice to the licensor 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 come from the licensee, but the responsibility of seeing that it does come to him is on the licensee, a responsibility the obligation of which cannot be satisfied by showing that the licensor neglected to avail himself of means of knowledge.”
Restatement (First) at § 458 comment j (1944). This rule, governing a situation more specific than the generalities of section 458, was quoted as explanation for the decision in Thompson,
This commentary is also consistent with the understanding that, when neighbors use roads of unknown origin, the use is “pursuant to a friendly arrangement between neighbors.” Woods,
To be sure, nothing in the old Restatement elevates a negative component — a lack of subordination — into the positive proof on the element of adverseness, especially without the other prerequisites of adverse use. By its nature, a mistaken belief in the claimant’s right can only go so far, because proof of a mistaken belief is only “evidence” of something that is not. It is proof of a negative circumstance — that the claimant’s use was not in subordination to the owner. It is like a claimant disproving a defense, while still needing to prove the affirmative claim. To prove that the claimant’s use was not nonadverse does not go further to prove the positive proposition that the use is, in fact, adverse. To prove that the claimant had not done something to demonstrate subordination does not prove, thereby, that the claimant had actually done something demonstrably adverse. At best, proof that use was not in subordination means simply that the use still has the potential of being adverse.
In Restatement thinking, in order to be adverse, a claimant must still show the use to be wrongful as to the owner and that the use was open and notoriously so. See Restatement (First) at § 458 (components (b) and (c)). Nothing in the Restatement-old or new-suggests that a subjective and unexpressed belief is somehow complete in itself as “direct evidence” of adverseness. That misconception lies elsewhere — with Sander. Nothing in the Restatement suggests that an unexpressed “claim of right” is a trump card applicable despite specific situations, like preexisting roads, which assume permissive use is the norm. That proposition will rest elsewhere — with this case.
B. Supreme Court Precedent
The majority opinion correctly observes that the Supreme Court has made references to the Restatement (First), but those references are only references to general concepts in ordinary cases. See Feldman,
None of these cases does more than treat the old Restatement as a secondary resource involving ordinary principles of prescriptive easements.
C. Source of the Confusion
The source of today’s confusion can be traced through several cases from correct statements of law to misapplications of those statements. In City of Ashland v. Hardesty,
In Kondor, there was no road of unknown origin, nor a group of owners sharing a common road in a neighborly arrangement. There were only two tracts of land derived from common owners of both tracts. The northern and southern tracts respectively would become the plaintiffs’ and the defendants’ lands. Before then, the common owners of both tracts had allowed Mayfield, a third-party user, to build a mill on the southern tract “about 1950” and “shortly thereafter” to build the disputed road that connected the northern tract, across the southern tract, to a public road.
Mayfield “supposed it was legal to go over the road at all times,” because he had built the road and begun renting
Kondor did not declare that a mistaken belief, standing alone, suffices as affirmative evidence in itself that a claimant’s use is adverse. Kondor declared simply that, even if Mayfield might have been mistaken, his mistake did not mean his use was thereby in subordination to the defendant owners. That was the narrow point borrowed from City of Ashland. Kondor did not say that a subjective belief (lack of subordination) sufficed in itself as “direct evidence” of adverseness. The term “direct evidence” does not appear in the case.
The analysis in Kondor proceeded on the familiar principle that continuous, open, and notorious use of a road would be presumed to be adverse — that is, to be without the defendants’ permission. That presumption was especially appropriate when the road was not of unknown origin and was instead a road known to have been constructed by the original third-party user himself. In short, Kondor was just about the defendants’ failure to overcome the plaintiffs’ presumption of adverse use. It did not create a new and alternate theory of adverseness. Kondor was decided on traditional principles; it did not suggest an alternate way to prove adverseness simply by means of self-serving testimony in an eventual trial about a previously held unspoken, subjective belief during the years of allegedly prescriptive use.
The theory that a subjective “claim of right” or lack of subordination might suffice as affirmative evidence to prove adverseness should be attributed to a case that the trial court did not mention and that plaintiff did not cite or
In 1970, the plaintiffs’ predecessors began crossing from the county road, across the McKinley property, to reach their Sander property to the northeast. Their “primitive road” had never been improved, graded, or surfaced in any way. It consisted of “two narrow dirt tracks in the grass, which [were] the result of vehicles repeatedly following the same route.”
The trial court granted a judgment recognizing a prescriptive easement for benefit of the plaintiffs. The defendants appealed, asserting that their predecessors had given permission, and that the plaintiffs had failed to prove that the primitive road interfered with the defendants’ property. In a creative moment, the claimants reasoned that the lack of interference could only serve to rebut a presumption of permissive use, that they were not relying on any presumption, and that what they offered was affirmative evidence in itself of adverseness. Agreeing with the first premise that use gives rise to a presumption of adverseness and the second premise that a lack of interference serves to rebut the presumption of adverseness, we accepted the logic of the plaintiffs’ syllogism, in these words:
“That said, as plaintiffs argue, an easement claimant need not rely on that presumption to establish the element of adverse use. Adverseness can be established directly by showing that the claimant’s use was not in subordinatipn to the rights of the property owner. Kondor [, 50 Or App at 60 ]. A claimant’s mistaken belief that he or she has the right to use the servient property is sufficient to establish adverse use. Id. In this case, plaintiffs contend that they established adversity directly and thus do not rely on the presumption. Because they do not rely on the presumption, we agree with plaintiffs that it is immaterial that the [plaintiffs’ predecessors’] use of the McKinley property did not interfere with any of its respective owners’ use of it.”
The language in Sander, adopting the claimants’ novel theory that they were offering an alternate proof of adverseness, would seem to lend support to the majority’s conclusion here, if it were not so overshadowed by Woods, Trewin, Boyer, Webb, Skidmore, and Insko, and if it were not better distinguished and explained on its facts. In Sander, there was only the one adjoining parcel that needed access across the defendants’ property, such that travel by the one neighbor is of more significance. Cf. Kondor,
In other words, Sander was correctly decided, even if it strayed when accepting the claimant’s misconception that Kondor could be read to say that a mistaken “claim of right” is sufficient in itself to constitute the full equivalent of adverse use. Sander need not be overruled. If it deserved any attention, which neither the trial court nor plaintiff gave it, the case only needs to be explained in terms of its facts and familiar principles.
V. TROUBLED THEORY
Although Kondor was cited by the trial court and the majority opinion, Kondor is not the problem, for the reasons reviewed above. It does not stand for the proposition attributed to it, and defendants did correctly distinguish it. If, however, Sander cannot be better explained in the terms suggested here, then Sander, together with this case, will present serious problems for the law on prescriptive easements.
Although all cases agree that “[e]asements by prescription are not favored,” Wood,
Although all cases agree that proof of a prescriptive easement must be established by clear and convincing evidence, proof of adverseness, when offered in the form of a “lack-of-subordination” will be anything but clear and convincing. Proof of a subjective belief in a person’s right to use a road is not a tangible thing and not suitable to meaningful cross-examination. Although circumstantial evidence might be offered to show whether the subjective belief was honestly held, pretrial discovery and trial proof of such matters will prove to be a morass. Because claimants will prove adverseness through their own opinion, efforts at discovery or cross-examination will be a waste of clients’ fees, lawyers’ efforts, and courts’ time.
This problem will be most troubling in this context of roads of unknown origin. Where a number of neighbors cross an owner’s land on a road that predated them all, where they share maintenance, and where they assume a neighborly arrangement of permissive use, an owner cannot know which neighbor secretly harbors a “mistaken claim of right” (or lack of subordination) to use the road. An owner will not know against whom to protect from a future prescriptive claim. Surely, it must remain true that ordinary use of preexisting road is not presumptively adverse. But, if an uncommunicated, “mistaken claim of right” silently transforms ordinary, non-adverse travel over a shared road into adverse use, then an owner cannot know which of the neighbors holds such a subjective belief.
In cases of preexisting roads, this is not just a problem that adverseness is effectively dropped from the disputable
To suggest that a subjective belief in one’s right to use a road is itself, full and complete, open and notorious, “direct evidence” of adverseness is a contradiction in terms. In most situations, it is an oxymoron, because to prove a subjective belief proves nothing. A mistaken “claim of right” is only relevant to disprove subordination; it is not itself affirmative proof of adverseness. This court has already explained that a subjective belief does not make plain use become adverse use. The statement warrants repetition. We have recognized that
“the question of adverse use does not depend on the claimant’s subjective intentions with regard to the disputed road; the question of adverseness turns on whether the property was actually used in a manner that was inconsistent with the owner’s use.”
Insko,
The claimants in Sander may have been ingenious. By offering so-called “direct evidence” of adverseness — that is, the claimant’s own belated testimony about a prior, subjective belief — without relying on their travel over the road for a presumption — without any other tangible proof of open, notorious, and adverse activity — without any overtly demonstrable facts that were known or even could be known by the defendants — the claimants avoided our long-established case law on preexisting roads of unknown origin. The claimants avoided the need to explain why, with their novel
Even if there were a subjective theory of adverseness, Woods, Trewin, Boyer, Read, Hayward, Webb, Skidmore, and Insko cannot be ignored. At the least, these cases would stand for the point that, in the case of roads of unknown origin or roads built by the land owner, the claimant’s ordinary use of an owner’s road is a fact of no consequence for a prescriptive claim. This is necessarily true because ordinary travel over roads of unknown origin does not give rise to a presumption of adverseness. This must be doubly true because the majority, like the plaintiffs in Sander, declares that plaintiffs are not relying on any presumptions from use. If so, then they cannot rely on the mere travel over the road as something that the landowner should notice as adverse. Ordinary use of a preexisting road is unlike the demonstrated adverseness of creating a roadway across an owner’s land. Ordinary travel over a preexisting road does not alert an owner that a neighbor’s trip over the road is unfriendly, hostile, or contrary to the owner’s rights in his property. Ordinary travel over a preexisting road can mean nothing for a claimant who would shun the presumption of adverseness from such travel and who instead would assert the “direct evidence” of his or her own subjective belief in a right to use the road.
Because such travel is insufficient for adverseness, and because the claimant does not rely on any presumption based on use of a road, we should ask: How is an owner to know that one of the neighbors harbors the unspoken attitude that is a “lack of subordination” or a “mistaken claim of right”? If the law provides that travel over a preexisting road counts for nothing in itself, because such travel is not open and notorious adverse use, then how could the addition of the neighbor’s eventual testimony at a trial about a previously uncommunicated, subjective belief during the prescriptive period somehow transform unremarkable use into open, notorious, adverse use? There is no good answer.
In practice, as in concept, an alternate theory conflicts with Oregon law on preexisting roads. If adverseness can be proven by accepting the claimant’s belated testimony about a prior belief as so-сalled “direct evidence” of adverseness, then no one will ever again need to bother with relying on the presumption of adverseness that arises from open and continuous use of a road for a prescriptive period. Nor will anyone need to prove one of the many, other, legitimate, manifest ways that adverseness might be shown, ranging from directly telling the owner that the use is adverse to demonstrating adversity with obvious interference with the owner’s own use. To look for such real proof becomes unnecessary. Lawyers will simply choose the easier theory for their clients’ cases. The fact that the user did not interfere with the owner’s use of the road, that the user did not demonstrate that the character of the use had changed, that the owner has been shown no indication of an adverse claim in an “open and notorious” manner will all become immaterial. In practice, the long-settled law on preexisting roads will become a dead letter. If litigants may readily choose an easier theory to prove a prescriptive claim to a preexisting road, then that predictable change in litigation practice should reveal that there is an unacknowledged change in the law.
VI. THIS CASE
If not our own decisions in Read, Hayward, Webb, Skidmore, and Insko, then the decisions of the Supreme Court in Woods, Trewin, and Boyer should control the resolution of this case. Application of that law should be straightforward, accepting the facts as the trial court found them. No one
Although this court defers to the trial court on any factual finding with sufficient evidence, the trial court here did not find “something more” to support a prescriptive claim. The trial court did not believe defendant Hippe’s testimony that, when speaking with plaintiff alongside a highway sometime between 2003 and 2005, Hippe had told plaintiff that plaintiff could use the road. Plaintiff agreed the men had talked, but plaintiff testified, “I don’t remember the conversation.” Plaintiff did not go on to provide “something more.” Plaintiff did not testify that, at some time sufficient for the prescriptive period, plaintiff had told defendants that he did not need permission. In fact, when asked if he ever had any conversation with defendant Hippe, prior to the time plaintiff asked for a written easement, plaintiff testified, “I don’t believe that was ever discussed.” In short, this was the classic situation — or as the majority would say, the default situation — in which neighbors use a road in a cooperative arrangement. In the evidence and the trial court’s findings, there was not “something more.”
Like Webb, during all but a latter year when the issue arose, there was no evidence of even a single hostile
The road passes about 60 to 80 feet from defendants’ house, but, contrary to the trial court’s view, simply viewing a passing car does not bespeak adverse use, especially because defendants had never felt or expressed an objection to plaintiffs use and because a permissive arrangement among neighbors is understood to be the norm.
When asked, defendant Hippe testified that his wife did not care for the road’s dust and that she would like it even less if plaintiffs parcels developed and created heavier use. Yet, because ruts or wear and tear on the road in Webb did
VII. CONCLUSION
If, in the end, neighbors cannot find a mutually agreeable way to provide access, then the law does provide plaintiff with a remedy in the form of a statutory way of necessity, just as he asserted in his letter in May 2008. See ORS 376.150 - 376.200 (ways of necessity). If, in the end, we do not find a better response than a subjective theory of adverseness, then, in cases of preexisting roads, we will prove the truth of the tired axiom that bad facts make bad law. Oregon landowners, lawyers, and courts will suffer from a misconception — the misapplication of a “mistaken claim of right.”
A fourth parcel is not at issue on appeal, because it was purchased in 2006 with too little time to support prescriptive use.
An implied easement presupposes a set of circumstances beginning with a common grantor of plaintiffs and defendants’ properties, a fact that this situation lacked. See Thompson v. Schuh,
The dispute is whether a claimant’s lаter testimony about a prior, unexpressed, subjective belief can suffice as direct evidence to prove an open, notorious, and adverse claim, in a context in which travel over a preexisting road does not suffice to prove an open, notorious, and adverse claim.
What the dissent does do is explore conflict between defendants’ authorities and those that seem contrary. That task is the obligation of any court when an issue is presented.
Plaintiff’s counsel did not try to misconstrue defense counsel’s candor about known travel. Plaintiff’s counsel recognized “that the issue that the Defense makes [is] that there wasn’t open and notorious and hostile or adverse use.”
As the dissent will note later, the “open and notorious” aspect of adverse use suffers in the majority’s formulation of adverse use.
The majority cites Arrien,
This summary omits, as unnecessary to our discussion, facts concerning defendants’ predecessors erecting new fencing and gates, the plaintiffs’ predecessor consequently creating a new pathway across a portion of the defendants’ fields, and defendants’ predecessors providing plaintiffs’ predecessor a key to the gate by the county road, as well as the court’s conclusion about relocation by agreement of the location of the prescriptive easement.
In terms of the Restatement (First) formulation, the effect is the same. The third component of adverseness — open and notorious use^ — will become unnecessary.
Misconstruing Kondor, the trial court opined that “[bjecause [pjlaintiff * ** * thought he had a right to use the road, adversity is satisfied * * (Emphasis added.)
The trial court deemed adverseness satisfied by Hippe “[vjiewing vehicle go past his house in close proximity to the subject road[.J”