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Albany & Eastern Railroad Co. v. Martell

Court of Appeals of Oregon

June 12, 2019

ALBANY & EASTERN RAILROAD COMPANY, an Oregon corporation, Plaintiff-Appellant,
v.
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.

          Argued and submitted May 30, 2017

          Linn County Circuit Court 13CV00291; David E. Delsman, Judge.

          .John E. Kennedy argued the cause for appellant. Also on the briefs was The Morley Thomas Law Firm.

          Dan Armstrong argued the cause for respondents. Also on the brief was Heilig Misfeldt & Armstrong, LLP.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Powers, Judge. [*]

         Reversed and remanded.

         [298 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 actual adversity.

          [298 Or.App. 101] DEHOOG, P. J.

         This 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.[1] 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.

         We take 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.

         The 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.

         Sharinghousen 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.

         Although 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.

         AERC 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, ...


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