Hecker v. Fella

A prescriptive easement requires clear and convincing evidence of continuous, open, and adverse use for the statutory period. ORS 33.055(9) requires a court to advise an accused contemnor of the right to retain counsel if they are unrepresented. A contempt judgment must include specific findings of fact, including a finding of willfulness.

Defendants appealed, arguing that the trial court erred by granting a prescriptive easement without defining the burdened area, by finding that the culvert required no permit and was not a public nuisance, and by holding them in contempt for disobeying court orders. The Court found that Defendants failed to preserve their challenge to the easement’s specificity and declined to consider it as plain error. The Court found that the culvert did not need a permit and did not constitute a public nuisance, as the evidence strongly supported those findings. The Court reasoned that Fella was aware of her right to counsel and found no basis to correct any alleged omission in advising her of that right for the first post-trial contempt judgment. The Court vacated the third post-trial contempt judgment because the trial court did not make the required explicit finding of willfulness. The Court rejected the defendants’ claim concerning the absence of a certificate of conferral for the discovery motion, reasoning that the issue was not preserved for review. The Court affirmed the general judgment, the first post-trial contempt judgment, and the discovery sanction judgment, but vacated and remanded the third contempt judgment for further proceedings.