Dayton v. Jordan

Under Cheney v. Mueller, evidence of prior use of real property is one of many factors to be considered in determining whether an implied easement exists, and “cannot of itself establish an easement.”

Defendants appeal a trial court judgment dismissing their implied easement counterclaim. Jordan and Sun Buggy Fun Rentals, Inc. (Defendants) used a road that runs through the Daytons’ (Plaintiffs) property to access the Oregon Dunes. When Plaintiffs sued to enjoin Defendants from using the road, Defendants filed a counterclaim seeking a declaration that they had an easement “implied from prior use” over the disputed road. Plaintiffs moved to dismiss the counterclaim, arguing that Defendants had failed to produce evidence of prior use of the road, and, therefore, Defendants could not establish an implied easement. The court agreed with Plaintiffs and granted the motion to dismiss.

On appeal, Defendants argued that proof of prior use is not essential to an implied easement claim, and, therefore, the court erred in dismissing their counterclaim. In Cheney, the Oregon Supreme Court noted that prior use is one of many important factors in determining whether an implied easement exists, and “cannot of itself establish an easement.” Cheney v. Mueller, 259 Or 108, 120 (1971). Because the trial court relied on evidence of prior use as the dispositive factor in assessing Plaintiffs’ motion, the Court found the trial court erred by relying on a mistaken view of the law when it dismissed the counterclaim. Vacated and Remanded.