ALBANY & EASTERN RAILROAD COMPANY, an Oregon corporation, Plaintiff-Appellant,
Michael MARTELL and Cindy Martell, a married couple; John Harcrow and Elaine Harcrow, a married couple; Jeffrey Kaiser and Beverly Kaiser, a married couple;Joanne Fagan, an individual; Ray McMullen and Michelle McMullen, a married couple; Jeremy Orr and Karen Orr, a married couple; Richard Hutchins and Jill Hutchins, a married couple; Laura Mithoug, an individual, Defendants-Respondents.
and submitted May 30, 2017
County Circuit Court 13CV00291; David E. Delsman, Judge.
E. Kennedy argued the cause for appellant. Also on the briefs
was The Morley Thomas Law Firm.
Armstrong argued the cause for respondents. Also on the brief
was Heilig Misfeldt & Armstrong, LLP.
DeHoog, Presiding Judge, and Hadlock, Judge, and Powers,
Or.App. 100] Case Summary: Defendants regularly access their
homes via a railroad crossing over a narrow strip of land
owned by plaintiff, the Albany & Eastern Railroad Company
(AERC). Plaintiff brought suit against defendants, alleging
trespass and seeking to quiet title in the disputed crossing.
In response, defendants raised various affrmative defenses
and counterclaims, including a claim that they were entitled
to use the crossing by virtue of a prescriptive easement. The
trial court ruled in favor of defendants, concluding that
they had proved the elements of their prescriptive easement
claim by clear and convincing evidence. Plaintiff appeals,
arguing that the trial court erred (1) in concluding that a
presumption of adversity applied to defendants' use of
the crossing; and (2) in alternatively fnding that
defendants' use of the crossing was actually adverse to
plaintiff. Held: The trial court erred. The
presumption of adversity did not apply, because the nature of
the railroad crossing was such that defendants' use of
the crossing was not likely to have put plaintiff on notice
that the use was adverse. Nor was there suffcient evidence to
show that defendants' use of the property interfered with
AERC's use of its property, as necessary to establish
Or.App. 101] DEHOOG, P. J.
case requires us to determine when, for purposes of a
prescriptive easement claim, a showing of open and notorious
use of land gives rise to a presumption of adversity; more
specifically, we must decide whether that presumption is
unavailable here, even though the claimants did not have
permission for their use, and their dispute does not involve
a common road constructed by the landowner or of unknown
origin. Plaintiff, the Albany & Eastern Railroad Company
(AERC), appeals from a judgment in which the trial court
relied, in part, on a presumption of adversity in awarding
each of the defendants a prescriptive easement to cross
plaintiffs railroad tracks to access their homes. Plaintiff
contends that the court erred, because the presumption of
adversity did not apply and defendants did not prove, by
clear and convincing evidence, that their use was actually
adverse. Defendants counter that the presumption
arose upon their showing of an open, notorious, and
uninterrupted use of the crossing for more than 10 continuous
years and that, because AERC did not rebut the presumption,
the court correctly awarded them each a prescriptive easement
to cross AERC's land. We conclude that the court erred in
applying a presumption of adversity. We further conclude that
no evidence supports the court's finding that
defendants' use was actually adverse. Defendants,
therefore, did not establish the elements of prescriptive
easement, and the court erred in concluding otherwise.
Accordingly, we reverse and remand.
the relevant facts from the trial court's unchallenged
findings and undisputed evidence in the record. Defendants
are the owners and residents of eight developed lots in a
subdivision known as the Country Lane neighborhood. The
Country Lane neighborhood is bounded to the east by the South
Santiam River; to the west is a narrow strip of land owned by
AERC. AERC maintains and actively uses railroad tracks that
run along its property. A road (Country Lane) runs through
the subdivision and abuts [298 Or.App. 102] AERC's strip
of land. There is a marked railroad crossing at the juncture
of Country Lane and the tracks. Defendants all use the
crossing to access their homes from the South Santiam
Highway, and they and their predecessors have done so for
many years. The Country Lane crossing, which is the subject
of the parties' dispute, is defendants' only way to
travel between their homes and the South Santiam Highway or
any other public roadway.
history of the parties' interests in their respective
properties is relatively straightforward. In 1910, the owner
of a large parcel of land deeded it in two parts to his son,
Sharinghousen, and his daughter, Murray. Sharinghousen
received the southern parcel and later divided it into the
eight lots that became the Country Lane neighborhood. In
1928, before Sharinghousen subdivided his parcel, he and
Murray each sold a strip of land to the railroad company that
was AERC's predecessor in interest. In Murray's deed
to the railroad company, she reserved an easement permitting
the owner of her property to cross the railroad tracks to
access the highway on the other side; Sharinghousen's
deed did not reserve an easement and, in fact, warranted that
the transferred property was free from all encumbrances.
divided his parcel into lots in 1942. Since at least that
time, the residents of what is now the Country Lane
neighborhood have regularly accessed their properties by
crossing the railroad tracks at the disputed location.
According to two early residents of the subdivision, their
access across the tracks has never been restricted; they did
not believe themselves to be trespassing, nor did they see
any need to obtain permission from the railroad to use the
crossing. Defendants also introduced evidence at trial that
the deeds to five of the eight lots in the subdivision
contained easement language that purported to grant a right
of ingress and egress over the railroad's property.
the record is silent on the point, the trial court reasoned
that AERC's predecessor likely established the crossing
to accommodate Murray's easement when it laid its
railroad tracks. Since no later than 1953, however, the
owners of the railroad property have treated the disputed
[298 Or.App. 103] crossing as public. That is, the crossing
has not historically been restricted to the owner of the
Murray property or to anyone else. Rather, the railroad
owners posted "crossbuck" signs indicating a public
crossing and maintained the crossing at their own expense.
And, since 1970, the United States Department of
Transportation has listed the crossing as public.
acquired the railroad in 2007 and, in 2012, purchased the
land on which its tracks ran. Upon conducting an inventory of
all crossings, AERC determined that the Country Lane
residents did not have deeded access across its tracks. AERC
attempted to persuade defendants to enter into an agreement
requiring them to buy permits and pay annual maintenance
fees, but those negotiations failed. Accordingly, ...