Dayton v. Jordan, --- P3d --- (2016)
It is well established that a plat is generally sufficient to establish an express easement if it describes and depicts a roadway or trail sufficiently to reflect the intention to create an easement. Bloomfield v. Weakland, 224 Or App 433, 445-48 (2008), rev den, 346 Or 115 (2009). In cases where a plat is insufficient to establish the intent to create an express easement, an easement may nevertheless be implied. In the typical case, an implied easement is not reflected in a deed or plat. Rather, it arises as an inference of the intention of the parties based on the circumstances existing at the time the land was divided and conveyed. In those circumstances, the trial court applies the eight factor test established in Cheney v. Mueller, 259 Or 108, 118-19 (1971) to determine whether implied easement exists. In Dayton v. Jordan, the Court of Appeals addressed the question of whether the trial court may short cut the Cheney test by implying an easement based almost exclusively on the depiction of the purported easement on the plat. The Court of Appeals determined that the eight factor Cheney case must always be applied to establish an implied easement – even where the purported easement is depicted in a plat.
Justice Antonin Scalia passed away last week after almost 30 years as a justice of the U.S. Supreme Court. Although his impact was felt throughout the country, it is worth pausing to look at how he affected the land use system more broadly and, in particular, Oregon’s system.
Adverse possession and prescriptive easements are scary concepts to landowners. Valuable property rights can be lost to neighbors and strangers, seemingly rewarding longtime bad behavior. The Washington Supreme Court has recently struck a chord to promote harmony in our state, and make prescriptive easements tougher to establish in the case of Gamboa v. Clark, 183 Wn.2nd 38, 348 P.3d 1214 (2015).
The Gamboas and Clarks owned adjoining parcels of enclosed agricultural land which had originally been part of one larger parcel separated by a gravel road, largely crossing the Clarks’ property. The road was used by the Gamboas to access their home and by the Clarks for farming grapes on their parcel. The road had been used by both parties and their predecessors for these purposes for decades. Each was aware of the other’s use of the road, and neither party gave the other permission, objected or interfered with the other’s use. After an unrelated dispute arose between the parties in 2008, the Gamboas brought an action seeking a prescriptive easement to use the gravel road to the extent on the Clarks’ property.
The Court found that the elements of a prescriptive easement were all present in this case, with the possible exception of “adversity”. The Gamboas’ use of the road was “open, notorious, continuous, hostile and uninterrupted over the prescriptive period of ten years” and the Clarks had “knowledge of such use at the time when [they] would be able at law to assert and enforce his or her rights.” Incidentally, it’s not clear to me how the use can be found to be “hostile” without also being “adverse”.
In certain circumstances, Washington courts have found that a use of someone’s property will be presumed to be with the owner’s permission and therefore not “adverse”. For example, in the case of unenclosed lands, the regular crossing of another’s property is presumed to with permission. Roediger v. Cullen, 26 Wn.2d 690. A presumption of permissive use also applies to enclosed or developed land cases when it is “reasonable to infer that the use was permitted by neighborly sufferance or acquiescence.” The third situation recognized was when the owner created the road and the claimant’s use did not interfere with the owner’s use. Cuillier v. Coffin, 57 Wn.2d 624, 627 (1961).
In this case, the trial court ruled that because the land was enclosed, there was no presumption of permission from the Clarks, and in effect, accepted a presumption of adverse use. In this close case, that shift from a presumption of permissive use, to placing on the Clarks the burden of establishing permissive use, led to the ruling that the Gamboas were entitled to a prescriptive easement to use the gravel road over the Clarks’ property.
Division III of the Court of Appeals disagreed, and found that the trial court erred in not recognizing that the Clarks should enjoy a presumption of permissive use, placing on the Gamboas the burden of rebutting that presumption to show their use was “adverse”. Gamboa v. Clark, 180 Wn. App. 256, 321 P.3d 1236 (2014). This can be done by presenting evidence that the claimant’s use was “adverse and hostile to the rights of the owner” such as by showing he “interfered with the owner’s use of the land in some manner” or that the owner’s acts or statements acknowledged the claimant’s right to an easement.
Interestingly, Division I of the Washington Court of Appeals (Drake v. Smersh, 122 Wn. App. 147, 153-54, 89 P.3d 726 (2004)) as well the Oregon Court of Appeals (Wels v. Hippe, 269 Or. App 785, 787 (2015)) have recently taken positions more closely aligned with the trial court approach to the presumption of adversity. However, the Washington’s Supreme Court held that even in cases of enclosed land, “an initial presumption of permissive use applies to enclosed or developed land cases in which there is a reasonable inference of neighborly sufferance or acquiescence.” Id. at 1220. “Showing a reasonable inference of neighborly sufferance or acquiescence is a fairly low bar.” Id. at 1221. In this case the fact that both parties knew the other used the road and didn’t object, and the use did not interfere with the owner’s use of its land, was enough to create this inference. Bingo. No prescriptive easement.
I like this decision, and it fits the traditional Scandinavian silent but friendly culture of the Northwest. Why put the burden on the neighbor who allows a neighbor to use his or her road to be nasty to make sure he or she doesn’t lose property rights? Why encourage more fence building when a policy which assumes that neighbors will be generous with each other creates a more pleasant atmosphere? Here’s to a neighborly Washington!
Improvement districts are authorized by statute to construct and operate permanent utilities for irrigation, drainage, diking, water improvement and water control throughout the State of Oregon. See Oregon Revised Statutes Chapters 545, 547, 551, 552 and 549. In some instances, the permanent utilities constructed and operated by these districts have been in existence for over 100 years. Often, these districts do not have title to the land on which the permanent utility is located nor do they hold recorded easements allowing access to maintain the infrastructure of the permanent utility. The lack of recorded property rights can lead to uncertainty as to what rights a district has to enter onto its members’ lands to operate, repair and improve the existing infrastructure of its permanent utility. Current landowners in a district may feel that their district does not have the right to enter onto their lands or that the district must obtain the right to enter their lands through voluntary acquisition or through condemnation. This creates a potential nightmare for an improvement district and its members when a landowner seeks to prevent a district from entering onto his or her land for the purpose of operating, repairing or improving the permanent utility. If this occurs, litigation may be the only option for the district or the landowner. This was the case in Davis v. Nye Ditch Users Improvement District, 247 Or App 266, 268 P3d 778 (2011).
In Nye Ditch, the predecessors-in-interest to the plaintiffs joined with neighboring landowners in the 1920s to dig the Nye Ditch to irrigate their lands for agriculture. Id. at 268. The plaintiffs Davis and Ritters each purchased property in the district in 2003 and 2006, respectively. Id. The plaintiffs’ properties benefitted from the Nye Ditch and it was visible from their land. Id. The Nye Ditch Users Improvement District was formed under Chapter 554 in 2006 and the plaintiffs’ lands were within the district. Id. at 268–69. The plaintiffs used the Nye Ditch and paid assessments to the district. Id. at 269. The district contracted with an excavation contractor to make improvements to the Nye Ditch on the Ritters’ property. The Ritters barred the excavation crew from entering their property and filed a lawsuit challenging the district’s authority to enter onto their lands. Id. The trial court granted summary judgment to the district finding that the district had the right to enter the land based on “(1) the easements belonging to landowners who draw water from the ditch, (2) ORS Chapter 554, and (3) defendant’s articles of incorporation.” Id. at 270. The plaintiffs appealed.
The Court of Appeals began its analysis by noting that the landowners drawing water from Nye Ditch, as neighbors who receive a “mutual benefit” through a “common enterprise,” hold easements to cross their neighbors’ property to access the Nye Ditch. Id. at 270–71 (citing Foster v. Foster, 107 Or 355, 368, 213 P 895 (1923); Luckey v. Deatsman, 217 Or 628, 634, 343 P2d 723 (1959)). The easements are appurtenant to and run with the land. Nye Ditch, 247 Or App at 271; Luckey, 217 Or at 636–37. The Court of Appeals further held that landowners’ easement rights included the right to access their neighbors’ property for repairs. Id. at 271 (citing Baumbach v. Poole, 266 Or 154, 157–58 n.1, 511 P2d 1219 (1973)). “The general rule, that a party who has a right of enjoyment, has also a right to enter and make necessary repairs, is essential to the enjoyment of the thing granted.” Id. at 271–72 (quoting Thompson v. Uglow, 4 Or 369, 372 (1873)).
The Court of Appeals went on to explain that the Nye Ditch Users Improvement District was entitled to exercise its members’ easement rights to enter onto its members’ lands to improve or repair the Nye Ditch. Id. at 275. The holding was based on the statute authorizing the formation of the district, ORS Chapter 554. In particular, the Court noted that ORS 554.110 gave the district’s board “full authority and power to . . . (1) Build, construct and complete any works and improvements . . . (3) Operate and maintain such works as are necessary, convenient and beneficial for said purposes . . . .” Id. at 274. The Court of Appeals found that the statute granted the district the right to enter the land of its members to improve or repair irrigation ditches by implication.
[W]here a power is conferred by an act, everything necessary to carry out that power and make it effectual and complete will be implied. Further that which is implied in a law is as much a part of it as that which is expressed. These long-established principles of statutory construction are universally recognized [.]
Id. at 275 (quoting Pioneer Real Estate Co. v. City of Portland, 119 Or 1, 10, 247 P2d 319 (1926)). “The legislature granted improvement districts the authority to act on behalf of individual landowners and to exercise, on their behalf, their common-law rights of improvement and repair and access necessary for that purpose.” Id. at 275.
The decision in Nye Ditch has a number of interesting aspects. First, it acknowledges that the landowners who band together to build a permanent utility have property rights in each other’s lands. Second, it takes that concept a step further to allow statutorily created and governed improvement districts to exercise its members’ property rights to operate, maintain and improve its existing infrastructure. Third, by allowing the districts to exercise its members’ property rights, the Court of Appeals appears to have bypassed the question of whether the District’s operation, maintenance and improvement of a permanent utility on the lands of its members constitutes a constitutional taking. By doing so, it removes the possibility that the members of the district may have to pay for the permanent utility twice – once when it was built and a second time to gain access to it. Thus, the Court of Appeals created an elegant solution to what is otherwise an intractable problem for improvement districts around the Oregon.
The law recognizes that under certain circumstances, continued unauthorized crossing of another’s land for a long time can lead to the right to do so indefinitely, notwithstanding that there is no agreement from the landowner. The right so gained is called a prescriptive easement. When the law allows one landowner to lose property rights in favor of another, without compensation, disputes often occur. No surprise. If it were my land, I’d be upset, too.
The Oregon Court of Appeals, in Wels v. Hippe, 269 Or App 785, 787 (2015), recently dealt with such a dispute, and provided the litigants and practitioners of the law with an in-depth analysis of one element of a prescriptive easement case – “adversity”.
In order to obtain a prescriptive easement to cross over or use the property of another under Oregon (as well as Washington) law, a plaintiff claiming a prescriptive easement is 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.” Id, at 787.
There are three types of easements that can be created without an express agreement: an implied easement, an easement by necessity, and a prescriptive easement. It is not uncommon to see all three types of unwritten easements pled in a lawsuit seeking quiet title even though the elements for establishing each type of easement are quite different. The following is a quick primer of the elements necessary to establish each type of easement where there is no written agreement to convey an easement.
Implied Easement. An implied easement can only be created where property held under one ownership is divided into separately owned parts. An easement may be implied when the circumstances existing at the time ownership is divided establishes that the grantor intended to create an easement. The following factors are considered by the Court in deciding whether an implied easement exists: (1) whether the claimant is the conveyor or the conveyee; (2) the terms of the conveyance; (3) the consideration given for it; (4) whether the claim is made against a simultaneous conveyee; (5) the extent of necessity of the easement to the claimant; (6) whether reciprocal benefits result to the conveyor and conveyee; (7) the manner in which the land was used prior to its conveyance; and (8) the extent to which the manner of prior use was or might have been known to the parties. Cheney v. Mueller, 259 Or 108, 118-119 (1971). The Court of Appeals recently clarified that the key time point for analyzing whether the grantor intent to provide an easement is the date ownership of the land is divided and not the date the land was partitioned or platted. Manusos v. Skeels, 263 Or App 721, 730 (2014). The Court of Appeals also clarified that the “necessity” needed to establish an implied easement is not the “absolute necessity” required for an easement by necessity (discussed next). Id. at 732.
Easement by Necessity. An easement by necessity is created when the following three factors are present: (1) unity of title in the grantor; (2) severance of ownership; (3) actual necessity. Unlike an implied easement, an easement by necessity is terminated once the necessity ceases to exist. Relling v. Khorenian, 261 Or App 1, 8-9 (2014).
Prescriptive Easement. In order to establish a prescriptive easement, the claimant must show by clear and convincing evidence that they or their predecessors, under a claim of right, used the alleged easement adversely to the rights of the respondent or their predecessors for a continuous and uninterrupted period of 10 years. Thompson v. Scott, 270 Or 542, 546, 528 P2d 509 (1974). It is important to note that the adverse possession statute (ORS 105.620), which includes the additional requirement of an “honest belief” of ownership by the claimant, does not apply to prescriptive easements. Uhl v. Krupsky, 254 Or App 736, 740-741 (2013). Although courts recognize that a presumption of adversity arises from open and continuous use of property, that presumption may be rebutted by showing the use was permissive or by showing the claimant’s use of an existing roadway over a neighbor’s land does not interfere with the neighbor’s use. Woods v. Hart, 254 Or 434, 437, 458 P2d 945 (1969).
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