Waters v. Kippel Water Inc.

Under ORS 20.105(1) "a trial court shall award reasonable attorney fees to a party who prevails against a claim if the court determines that there 'was no objectively reasonable basis for asserting the claim.'"

Petitioner requested declaratory judgement to an implied or prescriptive easement on Respondent’s road. Before trial, the court dismissed the case and granted attorney’s fees to Respondent. On appeal, Petitioner argued for a prescriptive easement because Respondent should have known that Petitioner believed that they could use the road. In the alternative, Petitioner argued an implied easement existed because use of the road was necessary. Under ORS 20.105(1) "a trial court shall award reasonable attorney fees to a party who prevails against a claim if the court determines that there 'was no objectively reasonable basis for asserting the claim.'" A prescriptive easement exists only when use of another’s property is “open, notorious, and adverse” for a ten-year period. Courts presume use was non-adverse if road preexisted the user’s parcel. See Woods v. Hart, 254 Or 434 (1969). However, an implied easement exists if the original grantor objectively intended to convey an easement. Intent is discerned by weighing eight factors, including necessity. See Cheney v. Mueller, 259 Or 108, 118-19 (1971). Because the road preexisted Petitioner’s parcel, the Court presumed that use was non-adverse. Little evidence presented related to the original conveyance, and so the Court found that Petitioner’s implied easement argument is similarly unfounded. Although not sufficient to prevail, the Court found that the presence of a 1975 surveyor map provided a “reasonable basis” to the implied easement claim. Thus, the Court held that the trial court erred when it granted attorney’s fees. Vacated in part and remanded; award of attorney fees reversed.