Daily Development for
Monday, September 29, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EASEMENTS; EASEMENT BY PRESCRIPTION; ADVERSE POSSESSION; ABANDONMENT; MISTAKE: Owner of servient estate adverses possessed easement by fencing it off from rightful owner, even when both parties (and predecessors) mistakenly believe easement is located elsewhere.

Faulconer v. Williams, 936 P.2d 999 (Or. Ct. App. 1997).

Lot 300 was sandwiched between a county road to the west, and Lot 100 to the east. In 1956 and 1957, the owners of the lots agreed to an easement consisting of an east-west right of way parallel to Lot 300's northern boundary, connecting the county road to Lot 100. The owners thereafter constructed and used a road that they thought ran across the easement (which was described in metes and bounds) but in fact ran parallel to the other side of Lot 300's northern boundary and across land owned by another.

Later, various owners of Lot 300, believing that the easement was located where the road was, made use of the property underlying the real easement, planted trees and used the property as part of their yard. During the next several decades, Lot 300 was conveyed by deeds which statement it was subject to the "easement," which was assumed to be the old road. When a 1995 survey revealed the mistake, the then-owner of Lot 300 sued to quiet title to the easement, contending that it either had been abandoned or lost through adverse possession.

The Oregon Court of Appeals rejected the abandonment theory but accepted the adverse possession theory and reversed a judgment for the owner of Lot 100, holding that the plaintiff's use of the easement could not have been permissive because plaintiff believed that he owned the land he was possessing and that the easement was located elsewhere. Plaintiff therefore entertained a "pure mistake" regarding ownership which, together with the various obstructions to the easement's use by anyone else, satisfied the hostility requirement for adverse possession.

The court agreed that the easement had not been abandoned because nonuse, by itself, could not suffice for abandonment; plaintiff failed to prove any "expression of an intent to abandon or conduct inconsistent with an intention to make further use." The court also reversed the trial court's finding that the easement, if extinguished, had been recreated by the 1982 and 1989 transfers of Lot 300 through deeds describing the easement. By the time of the conveyances, the easement had been extinguished, so that any "recreation" of the easement by transfer could only benefit the transferor, and not the owner of the former dominant estate.

Comment 1: Of course, innocent possession nevertheless can result in termination of rights of another through adverse possession. Frequently, as the court acknowledges, "innocent possession" can be implicitly permissive. Here, however, the court could not intellectually make its way around the fact that the adverse possessors assumed that they owned the land that they were adversely possessing. But shouldn't the question of whether possession is permissive focus on the knowledge and belief of the "true owner" and not the adverse possessor? The court's emphasis upon the "purity" of the adverse possessor's mistake seems misdirected.

Comment 2: Notwithstanding the comment above, it nevertheless is difficult to make out a "permissiveness" argument under the circumstances here. The dominant owners did not knowingly "permit" the owners of lot 300 blockage of the easement. They were totally unaware that the lot 300 owners were using the area of their easement at all. Their ignorance of true boundaries of their property rights cannot be explained as "permission." Otherwise, most adverse possession would fail by the same test.

Comment 3: The court doesn't say whether the use of the other roadway established a prescriptive easement in favor of the owners of lot 300. Apparently the necessary time has run. Perhaps the court's awareness of that fact made this decision quieting title in the servient owners somewhat easier.

For another decision dealing with abandonment issues, see Devoe v. State, 935 P.2d 256 (Mont. 1997). (Party seeking to prove abandonment by governmental entity of right-of-way easement must prove that governmental entity intended to abandon easement and must show affirmative, official act by governmental entity evidencing such intent; nonuse, by itself, is insufficient. Not even tearing up the asphalt of an existing roadway, followed by nonuse, establishes a definite intent to abandon.)

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