What Are You Doing in My Easement – Or How Not to Lose an Easement

The case Slak v. Porter, 875 P.2d 515, 128 Or.App. 274 (1994), is a great example of how a property owner may take deliberate action to terminate or extinguish an easement that runs across their property. To summarize the case, plaintiffs had an access easement across defendants’ property. The purpose of the easement was to provide a foot path to the river front. Defendants blocked the easement with a fence and planted trees and hedges along the length of the easement making it impossible to use. Because no one object for more than 10 years, the court held that defendants successfully terminated the easement due to adverse possession.

A more detailed statement of the facts and the courts analysis follows:

Before 1958, plaintiffs’ and defendants’ predecessor owned a single tract of land on the west bank of the Willamette River. In 1958, the predecessor divided the single tract into two parcels, an eastern parcel that bordered the river and a western parcel that was situated on the upland side of the eastern parcel. The predecessor sold the eastern, riverfront parcel to defendants, subject to an easement in favor of the western parcel. The easement was described in the deed as a three-foot wide path along the northern edge of the property running eastward to the river. The western parcel was sold to a series of owners, and ultimately, in 1989, to plaintiffs.

In 1959, defendants developed the eastern, riverfront property. Among the improvements was a six-foot-high fence. The fence angles directly across the easement and completely blocks it. Defendants constructed the fence with the deliberate intention of blocking access to the easement. The fence has been maintained continuously since its construction.

Beginning in the late 1970’s, defendants planted substantial shrubbery and other vegetation in and along the easement. At least six rhododendrons were planted directly in the path, as was a 60-foot-long photinia hedge, a holly tree and several cedars. Defendants have maintained the vegetation continuously since the time of planting.

When considering the two competing claims – plaintiff’s continuing right to use the easement versus defendants’ claim that the right no longer existed, the Court of Appeals held that to establish that they extinguished the three-foot easement to the river, defendants needed to show that their use or occupancy of the easement was actual, open, notorious, exclusive, continuous and hostile for a 10-year period. The same basic elements for an adverse possession claim when a party is attempting to acquire property. In addition, defendants needed to show that their use or occupancy was inconsistent with plaintiffs’ use of the easement. Each element needed to be established by clear and convincing evidence – a high evidentiary standard reflecting the general hostility to adverse possession.

To establish “actual” possession, defendants needed to show occupation or use of the land that would be made by an owner of the same type of land, taking into account the uses for which the land is suitable. Applying the facts to the test, the court found that by erecting a fence and planting trees, shrubs and other vegetation in the easement, defendants had established actual possession.

Next, the court found that defendants had satisfied the “open” and “notorious” element through the construction of a fence, which the court said is a “classic” example of the type of use that satisfies the requirement of open and notorious use.

The construction of the fence and planting of the shrubs and other vegetation which “completely obstructed that portion of the easement so as to make it impassable satisfied the “exclusiveness” element as well as the “hostility” element, which required defendants show that they possessed the easement intending to be its owner and not in subordination to the true owner.

The final element – defendants use of the easement was inconsistent with plaintiffs’ use of the easement, was also satisfied by the construction of a fence and plantings.

While the Slak case dealt with pedestrian access rights to a river, the same principals could apply to any easement, whether it be a driveway or a waterline.

The take away, if you have an easement, it is important that you monitor and use it on a regular basis or it may be lost.

This blog post is offered for general information and educational purposes only. It is not offered as legal advice and does not constitute legal advice or opinion. Although I intend to keep this information current, I do not promise or guarantee that the information is correct, complete, or up-to date. You should not act or reply upon the information in this post without seeking the advice of an attorney.

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