Beebe v. DeMarco
157 Or. App. 176, 968 P.2d 396 (1998)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
To establish a prescriptive easement, a claimant's use of another's land must be open, notorious, adverse, and continuous for a ten-year period. Continuous use does not require constant use, but rather use that is consistent with the needs of the user.
Facts:
- In 1957, plaintiff and her husband purchased lot 11. Defendant Shirley Wolf's parents owned the nearby lot 14.
- In 1958, a new six-foot-wide alley was built behind the lots, providing access to 5th Avenue.
- Beginning in 1959, because the alley was too narrow for their boat, plaintiff's family drove across the back portion of lot 14 to reach 5th Avenue, doing so nearly every summer weekend until 1969.
- From 1970 until 1993, plaintiff's husband continued to use the path across lot 14 frequently to take the boat out.
- In 1979, plaintiff's husband built a workshop at the rear of their lot and began using the path across lot 14 approximately five days per week for his woodworking business until the early 1990s.
- This regular use created visible tire ruts across the rear of lot 14.
- The owners of lot 14 never gave plaintiff or her family permission to cross their property.
- In 1994, defendants Shirley and Ray Wolf, who had inherited lot 14, erected a fence along the southern edge of their property, blocking the path plaintiff had been using for over 30 years.
Procedural Posture:
- Plaintiff sued defendants in an Oregon trial court, seeking a prescriptive easement after defendants erected a fence blocking a path she had used for decades.
- The trial court found for the plaintiff, granting a 12-foot-wide prescriptive easement and permanently enjoining defendants from obstructing it.
- Defendants, as appellants, appealed the trial court's judgment to the Court of Appeals of Oregon.
- Plaintiff, as cross-appellant, also appealed, arguing the easement should be wider.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a property owner establish a prescriptive easement when their use of a neighbor's land is not constant, but occurs consistently whenever needed for access over a ten-year period, and is done without the owner's explicit permission?
Opinions:
Majority - Riggs, P. J. pro tempore
Yes. A property owner establishes a prescriptive easement when their use of a neighbor's land is consistent with their needs over the required period, even if not constant, and is done without permission. The court reasoned that 'continuous use does not mean constant use,' but rather that the use is consistent with the needs of the user. Here, the plaintiff and her husband used the path across lot 14 whenever they needed access to the rear of their property, which was sufficient to meet the continuity requirement. The court also held that a use shown to be open and continuous for a 10-year period is presumptively adverse. Since the defendants failed to provide evidence that the use was permissive, they did not rebut this presumption, and the use was therefore deemed adverse.
Analysis:
This decision clarifies the 'continuous use' element for establishing a prescriptive easement, affirming that seasonal or need-based use, rather than constant use, is sufficient if it aligns with the purpose of the easement. It reinforces the strong presumption of adverseness that arises from open and notorious use for the statutory period, placing the burden squarely on the landowner to prove that the use was permissive. This precedent makes it easier for claimants to establish prescriptive easements based on long-term patterns of use that are consistent and purposeful, even if intermittent.
