Summary
The Oregon Supreme Court held that a claimant seeking a prescriptive easement over a pre-existing, nonexclusive road must establish by clear and convincing evidence that the use was adverse. Adversity may be shown by interference with the owner’s use of the road or by a communicated claim of right known or chargeable to the owner; an uncommunicated subjective belief and incidental dust or noise were insufficient. The court reversed the Court of Appeals and the circuit court and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- What must a claimant prove to establish that nonexclusive use of a preexisting road was adverse for purposes of a prescriptive easement?
- Whether plaintiff's use of Lewis Creek Road caused sufficient interference with defendants' use of the road to establish adverse use.
- Whether plaintiff's uncommunicated belief that he had a right to use the road without permission established adverse use or a claim of right sufficient for a prescriptive easement.
Holdings
- When a claimant makes nonexclusive use of a preexisting road of uncertain origin, the claimant must affirmatively establish by clear and convincing evidence that the use was adverse. Adverse use may be shown by evidence that the use interfered with the owner's own use of the road or by evidence that the claimant used the road under a claim of right that the owner knew or should have known about.
- Evidence that plaintiff's vehicles caused dust and noise visible or audible from defendants' house did not establish that plaintiff's use interfered with defendants' own use of Lewis Creek Road and was legally insufficient to prove adverse use.
- A claimant's uncommunicated belief that he or she has a right to use a preexisting road without permission is insufficient to establish adverse use because it does not notify the servient owner that a hostile right is being asserted.
Key quotations
“When a claimant uses a preexisting road, the claimant must affirmatively establish that his or her use of the road is adverse.” (579)
“It is not sufficient, however, for a claimant merely to believe that he or she has the right to use a road.” (580)
“Evidence that his use of the road may have caused dust and noise is legally insufficient; such evidence does not demonstrate any interference with defendants’ own use of the road.” (583)
Factual background
Plaintiff owned rural property whose access to a state highway depended on Lewis Creek Road, an existing private dirt road that crossed defendants' property and passed 60 to 80 feet from their house. Plaintiff used the road nonexclusively from 1998, sometimes performing maintenance, and his use caused some dust and vehicle noise but did not interfere with defendants' use of the road. Plaintiff believed he had a right to use the road without permission, but he did not communicate that belief to defendants; when the county required written access confirmation for a cabin, defendants refused to grant a written easement.
Procedural history
The Jackson County Circuit Court found that plaintiff had established a prescriptive easement based on his use of Lewis Creek Road. The Court of Appeals affirmed. On review, the Oregon Supreme Court reversed both the Court of Appeals decision and the circuit-court judgment and remanded for further proceedings.
Remand instructions
The decision of the Court of Appeals and the judgment of the circuit court are reversed, and the case is remanded to the circuit court for further proceedings.