Bo and Lia Holdings LLC v. 2021 Morrison LLC

Prescriptive easements permit a “person to acquire an interest in land without paying the owner for it,” Wels v. Hippe, 360 Or 569, 578, (2016), modified on recons, 360 Or 807, (2017), and protect “established patterns of land possession” by “rewarding the long-time user of property, fulfilling expectations fostered by long use, and conforming titles to actual use of the property.” Albany & Eastern Railroad Co. v. Martell, 366 Or 715, 720 (2020).

Petitioners appeal trial court’s grant of summary judgment which found a prescriptive easement existed on a wall on the eastern side of a building. On appeal, Petitioners argue that both judgments constitute trial court error because Petitioners’ wall was “not permissive or consensual.” Respondents asserted “prescriptive easement” as an affirmative defense based upon their continuous use of the party wall since 1999. Prescriptive easements permit a “person to acquire an interest in land without paying the owner for it,” Wels v. Hippe, 360 Or 569, 578, (2016), modified on recons, 360 Or 807, (2017), and protect “established patterns of land possession” by “rewarding the long-time user of property, fulfilling expectations fostered by long use, and conforming titles to actual use of the property.”  Albany & Eastern Railroad Co. v. Martell, 366 Or 715, 720 (2020). The court found that the 1998 Agreement was an unambiguous contract, that “no plausible, reasonable construction” of the agreement could be understood to grant permission to use the wall for advertising, and that the use for advertising purposes was “open, notorious, adverse, continuous, and uninterrupted.”Accordingly, the court held that the trial court did not err in granting summary judgment and providing declaratory relief for Respondents.  Affirmed.