THE LAW OF PRECRIPTIVE EASEMENTS:
In Motes v. PacifiCorp, 230 Or App 701, 706-07 (2009), the Oregon Court of Appeals court summarized the general law of prescriptive easements as follows:
“Easements by prescription are not favored in the law, Wood v. Woodcock, 276 Or 49, 56, 554 P2d 151 (1976), and, consequently, must be shown by clear and convincing evidence. _ Petersen v. Crook County, 172 Or App 44, 49, 7 P3d 563 (2001). "Clear and convincing" evidence is evidence that establishes that the existence of the facts asserted is highly probable. _ Shields v. Villareal, 177 Or App 687, 694, 33 P3d 1032 (2001).
“A party seeking to establish a prescriptive easement must show open or notorious use of the property that is adverse to the rights of the owner for a continuous and uninterrupted period of 10 years. _ Martin v. G. B. Enterprises, LLC, 195 Or App 592, 595-96, 98 P3d 1168 (2004). The "continuous use" requirement is satisfied by evidence that the alleged use was consistent with the needs of the user during the prescriptive period. _Kondor v. Prose, 50 Or App 55, 59, 622 P2d 741 (1981). The "open or notorious use" requirement serves the function of giving the owner of the servient estate ample notice to protect itself against the establishment of prescriptive rights, Restatement (Third) of Property § 2.17 comment h (2000), and is satisfied by evidence that the use was such that the owner had a reasonable opportunity to learn of its existence and nature. _ Baylink v. Rees, 159 Or App 310, 317, 977 P2d 1180 (1999) (citing _Thompson v. Schuh, 286 Or 201, 211, 593 P2d 1138 (1979)). Open use for the prescriptive period gives rise to a rebuttable presumption of adverseness. Feldman et ux. v. Knapp et ux., 196 Or 453, 472-73, 250 P2d 92 (1952)." (Emphasis added).
(1)Use of road of unknown origin not Adverse where it does not interfere with servient owner’s use.
“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." Webb v. Clodfelter, 205 Or App 20, 26 (2006). However, when the road is preexisting and the claimant’s use is nonexclusive, that presumption is rebutted by proof that the claimant’s use of the road did not interfere with the servient owner’s use of the road.
“Our most recent opinions have followed that lead in holding that the use of an existing road of unknown origin over the servient owner’s property in a way that does not interfere with the servient owners’s use will defeat a presumption of adverseness."
Id. at 27.
Where the exact origin of a driveway is unknown, Oregon cases presume a friendly agreement among neighbors. In Woods v. Hart, 254 Or 434, 436 (1969), the Court recognized that when one uses an existing way over another person’s land without objection of the land owner, “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."
“Even if we were to hold that a presumption of adverseness arises in every case where one person uses a way across another person’s land for the prescriptive period, the fact that the claimant’s use is of an existing way and the use does not interfere with the owner’suse is, in our opinion, enough to rebut the presumption of adverseness."
254 Or at 437.
In Trewin v. Hunter, 271 Or 245, 247-48 (1975), the Court explained that when there is no evidence of who constructed a commonly used road, “it is presumed that the servient owner constructed it for his own use," thereby establishing that the neighbor’s use is permissive and not adverse. Here there is no evidence of construction by Plaintiff or its predecessors.
The Court in Petersen v. Crook County, 172 Or App 44, 53 (2001), said:
“Where as here, (1) a road is used in common by the owner of a putative servient estate and by others; (2) there is 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."