Albany & Eastern Railroad Co. v. Martell

“To establish a prescriptive easement, a claimant ‘must establish an open and notorious use of [the owner’s] land adverse to the rights of [the owner’ for a continuous and uninterrupted period of ten years.’” Wels v. Hippe, 360 Or 569, 577, 385 P3d 1028 (2016). The use of property is “adverse” if “inconsistent with the owner’s use of the property or if it is undertaken not in subordination to the rights of the owner.” Id. at 578.

Plaintiff appealed a judgment granting each Defendant a prescriptive easement over Plaintiff’s railroad tracks to access their homes. Plaintiff assigned error to the trial court’s reliance on the presumption of adversity.  On appeal, Plaintiff argued the presumption of adversity did not apply and Defendants did not prove their use was actually adverse by clear and convincing evidence. In response, Defendants argued the presumption arose when they showed an “open, notorious, and uninterrupted use” for more than 10 continuous years, and since Plaintiff did not rebut this presumption, the trial court did not err. “To establish a prescriptive easement, a claimant ‘must establish an open and notorious use of [the owner’s] land adverse to the rights of [the owner’ for a continuous and uninterrupted period of ten years.’” Wels v. Hippe, 360 Or 569, 577, 385 P3d 1028 (2016). The use of property is “adverse” if “inconsistent with the owner’s use of the property or if it is undertaken not in subordination to the rights of the owner.” Id. at 578. The Court found that Defendants use of the railroad did not interfere with Plaintiff’s use of its property, thus, the trial court erred when it applied the presumption of adversity and without that, there was insufficient evidence to find Defendant’s use adverse. Reversed and remanded.