Hisey v. Patrick

"The presumption of adversity applies where 'the person claiming the easement by prescription is a stranger to the landowner.'" Wels v. Hippe, 360 Or at 579.

Defendant appealed a judgment granting Plaintiffs a prescriptive easement to a neighbor’s use of another neighbor’s driveway. Defendant argued that the lower court erred because Plaintiffs failed to prove that their use of the property was open, notorious, and adverse for at least ten years. Plaintiffs argued that the history of conflict between both neighbors gives rise to a presumption of adversity. A prescriptive easement arises when a plaintiff demonstrates by clear and convincing evidence open, notorious, and adverse use of another’s property for a continuous and uninterrupted period of at least ten years. Thompson v. Scott, 270 Or 542, 546-47, 528 P2d 509 (1974). "The presumption of adversity applies where 'the person claiming the easement by prescription is a stranger to the landowner.'" Wels v. Hippe, 360 Or at 579. The Court found that Plaintiffs did not meet their burden to affirmatively show adversity and presented no evidence that the neighbors interfered with their use of the driveway. Reversed and remanded.