Reck LLC v. Bird

374                  January 8, 2025                No. 31

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                      RECK LLC,
         a domestic limited liability company;
    Chris Borgerding; Alvin Decker; Lee Kaseberg;
 Donald Richelderfer; Terry Kaseberg; Larry Thompson;
 David Wehinger; Kathleen Keihert; and Gary MacNab,
                Plaintiffs-Respondents,
                           v.
                      David BIRD
          and Lynda Bird, husband and wife,
                Defendants-Appellants.
            Wallowa County Circuit Court
                 22CV15878; A182372

  Wes Williams, Judge.
  Argued and submitted December 13, 2024.
  George W. Kelly argued the cause and filed the briefs for
appellants.
   Bruno J. Jagelski argued the cause for respondents. Also
on the brief were Simmone Landau and Yturri Rose, LLP.
  Before Tookey, Presiding Judge, Kamins, Judge, and
Nakamoto, Senior Judge.
  KAMINS, J.
  Reversed and remanded.
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          KAMINS, J.
          Defendants appeal from a judgment, entered after
the trial court granted plaintiffs’ motion for summary judgment, declaring that plaintiff Reck LLC has an implied easement and that plaintiffs Borgerding, et al. (the Borgerdings),
have a prescriptive easement for the use of a gravel road
over defendants’ property. On appeal, defendants assert that
there are genuine issues of material fact that preclude summary judgment for plaintiffs. We conclude that the record on
summary judgment demonstrates genuine issues of material fact as to both the Borgerdings’ claim of easement by
prescription and Reck LLC’s claim of implied easement,
and that the trial court therefore erred in determining that
plaintiffs are entitled to judgment on their easement claims
as a matter of law. ORCP 47 C. We therefore reverse and
remand the judgment for plaintiffs.
          The record on summary judgment includes evidence that the parties’ properties consist of rural acreage
in Wallowa County. Defendants’ property, consisting of Tax
Lots 2400 and 2600, borders a county road, from which a
gravel road branches off and travels across defendants’ property. It is not known when the road was built or who built
it. The road is gated and locked from the county road. After
passing across defendants’ property, the gravel road terminates on national forest land and just below the property of
Reck LLC. The Reck LLC property involved in this dispute
consists of Tax Lot 2800, which is to the north-east of plaintiff’s property and shares a corner with Tax Lot 2400. The
Borgerding property, Tax Lot 2700, is due north of the Reck
LLC property, and Tax Lots 2700 and 2800 are contiguous
at their north/south boundaries.
          The disputed gravel road, with the exception of the
short segment crossing national forest land, gives access
to the Reck LLC property, which must then be crossed for
access to the Borgerding property. Tax Lots 2700 and 2800
are otherwise landlocked.1
    1
      A road crosses a corner of Tax Lot 1900, other acreage owned by Reck LLC,
which is contiguous to a corner of Reck LLC’s tax lot 2800, but the evidence in
the record on summary judgment is that, because of rough terrain, that road does
not give vehicular access to the Tax Lot 1900 or to plaintiffs’ properties. There is
evidence that there might be access from that road by horseback.
376                                                 Reck LLC v. Bird

        Defendants’ and plaintiff Reck LLC’s properties
(Tax Lots 2400, 2600, and 2800) were once held in the common ownership of John Huffman. In 1936, Huffman carved
out Tax Lot 2800 and deeded it to his son, L. C. Huffman. As
mapped, Tax Lot 2800 was and is landlocked.
        Reck LLC acquired tax lot 2800 in 2019.2 The evidence in the record on summary judgment is that, from
1971 until April 2021, when defendants changed the lock
to the gate and began to require their permission to use
the gravel road, the owners of Tax Lots 2700 and 2800 had
a combination or key to the gate’s lock and used it freely,
without asking permission from defendants. When Reck
LLC acquired the property, Makin, Reck LLC’s managing
member, received a key to the gate’s lock from the seller.
Reck LLC uses Tax Lot 2800 and Tax Lot 1900 for cattle
ranching and, until defendants blocked access, Makin regularly used the gravel road across defendant’s property to
access Tax Lots 2800 and 1900 for ranching purposes.
        With the exception of one brief period, Tax Lot 2700
has been in the ownership of the Borgerding family for 100
years. As mapped, it is landlocked. The current owners
acquired the property in 1988 and used the gravel road for
access without asking defendants’ permission, until April
2021, when defendants changed the lock on the gate and
began to require permission.
         The trial court held on summary judgment that
the Borgerdings had established a prescriptive easement
for use of the gravel road to gain access to Tax Lot 2700.
A prescriptive easement arises when a claimant demonstrates, by clear and convincing evidence, the open, notorious, and adverse use of another’s property for a continuous
and uninterrupted period of at least 10 years. Thompson v.
Scott, 

, 

 (1974). Because the
doctrine permits one person to acquire an interest in land
without paying the owner for it, prescriptive easements are
not favored by the law. Wood v. Woodcock, 

, 

 (1976); Wels v. Hippe, 

, 

(2016). For that reason, the person seeking a prescriptive
   2
     Reck LLC also acquired Tax Lot 1900 at that time, which meets tax lot
2800 at its northeast corner.
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easement must establish its elements by clear and convincing evidence.
         On appeal, in their first assignment of error, defendants challenge the trial court’s determination that plaintiffs have established a prescriptive easement with respect
to the Borgerding property, Tax Lot 2700, contending that
there are material questions of fact as to whether plaintiffs have established the element of adversity by clear and
convincing evidence. As a preliminary matter, we reject
plaintiffs’ argument that defendants did not preserve their
contention. Below, defendants argued that plaintiffs had
permission to use the gravel road, which defeats the element of adversity. We conclude that defendants’ argument
was sufficiently raised to satisfy the requirements of preservation on the issue of adversity.
         And we further agree with defendants that the
record on summary judgment demonstrates a genuine issue
of material fact with respect to adverse use that precludes
summary judgment. Use is “adverse” where it is “inconsistent with the owner’s use of the property” or “undertaken
not in subordination to the rights of the owner.” Wels, 

. The general rule is that open and notorious use
for a continuous and uninterrupted 10-year period gives rise
to a rebuttable presumption that the use was adverse to the
owner’s rights. Albany & Eastern Railroad Co. v. Martell,

, 

, adh’d to as modified on recons,

, 

 (2020). Thus, when use of the road
is open, continuous, and uninterrupted for the prescriptive
period, it is the servient owner’s burden to disprove adversity by showing that the use was permissive. 

         But there are circumstances when no presumption arises, and when a claimant must affirmatively show
adversity without the aid of the presumption. For example,
adverse use cannot be undertaken with the owner’s permission. Wels, 

. In Wels, the court said that
when the person claiming the easement by prescription is a
stranger to the landowner, it makes sense to assume that an
obvious use of the owner’s property is adverse to his or her
rights. 

. But “when the nature of the land or the
relationship between the parties is such that the use of the
378                                        Reck LLC v. Bird

owner’s property is not likely to put the owner on notice of
the adverse nature of the use,” the presumption should not
apply, and a claimant should be required to affirmatively
show adversity. 

 For example, “when a claimant uses a
road that the landowner constructed or that is of unknown
origin, the claimant’s use of the road—no matter how
obvious—does not give rise to a presumption that it is
adverse to the owner,” especially when the claimant’s use
of the road is nonexclusive. 

. Under those circumstances, “ ‘it is more reasonable to assume that the use
was pursuant to a friendly arrangement between neighbors
rather than to assume that the user was making an adverse
claim.’ ” 

 (quoting Woods v. Hart, 

, 

 (1969)). In those cases, there is no presumption, and the
claimant is required to affirmatively show adverse use by
demonstrating that the claimant’s use of the road interfered
with the owner’s use of the road, or that the claimant used
the road under a claim of right of which the owner was or
should have been aware. Wels, 

.
         We have reviewed the record on summary judgment and conclude that it presents a question of fact as to
whether this is a case in which the presumption of adversity applies. That is because the record shows that the road
is of unknown origin and that the Borgerdings’ use is not
exclusive. See Wels, 

. In that case, it would be
the Borgerdings’ burden to establish adversity by showing
that their use was adverse because it interfered with defendants’ use or because they claimed a right of use of which
defendants had notice. The record on summary judgment
includes disputed issues of material fact on both of those
issues. Plaintiffs point out that the Borgerdings’ deed from
their grantor of Tax Lot 2700 granted an easement over
“any existing driveway or existing access road,” and contends that it should be viewed as record notice to defendants
of plaintiffs’ claim of right. However, the Borgerdings’ deed
is not within defendants’ chain of title and therefore is not
definitive of notice to defendants of a claim of right by the
Borgerdings. See Phair v. Walker, 

, 

 (1977) (a property owner is “bound by the recitals in
the conveyances necessary to his chain of title”). Similarly,
the record contains a disputed issue of material fact as to
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whether defendants’ predecessor gave plaintiffs’ predecessor
permission to use the road, which would negate the element
of adversity. For those reasons, we conclude that the trial
court erred in granting the Borgerdings’ motion for summary judgment on their prescriptive easement claim.
         We move on to defendants’ contention, in their second assignment of error, challenging the trial court’s ruling
on summary judgment that plaintiff Reck LLC had established its claim of implied easement for use of the road. The
elements of an easement by implication are:
   “ ‘When land in one ownership is divided into separately
   owned parts by a conveyance, an easement may be created
   … by implication from the circumstances under which
   the conveyance was made alone.’ Rose et ux. v. Denn et ux.,
   

, 19, 

 (1949), reh’g den, 

, 

 (1950) (quoting Restatement (First) of Property
   § 474 (1936)). ‘That is, an implied easement is created when
   the circumstances that exist at the time of severance of a
   parcel establish that the grantor of the parcel intended to
   create an easement.’ Manusos v. Skeels, 

, 

 (2014).”
Ghiglieri v. Tomalak, 

, 

(2020). Thus, as defendants correctly argue, the focus here in
determining the existence of an easement by implication is
the intentions of the parties under the circumstances when,
in 1936, Huffman carved out Tax Lot 2800 and deeded it
to his son, L. C. Huffman. As appears to be undisputed,
Tax Lot 2800, as mapped, would have been accessible on
horseback but inaccessible by vehicle, unless the conveyance
included an implied easement to use a road crossing defendants’ property, with a short jaunt over national forest land.
Although the record on summary judgment is undisputed
that some portion of Huffman’s holding was used in cattle
ranching, the record does not include evidence specifically
as to the use of Tax Lot 2800 during that time. Nor does
it include evidence as to the existence of the gravel road.
It may be that a factfinder could make inferences that a
road was in existence on Tax Lots 2400 and 2600, and that
the parties to the 1936 transaction intended that Tax Lot
2800 have an easement over the road for vehicles used in
cattle ranching. But like prescriptive easements, implied
380                                       Reck LLC v. Bird

easements are disfavored and must be established by clear
and convincing evidence. Manusos, 

. We
are not able to conclude that the record on summary judgment contains clear and convincing evidence that, at the
time of the 1936 conveyance, the intention was that the
grantee would have vehicular access across a gravel road
on Tax Lots 2400 and 2600. We conclude, therefore, that the
trial court erred in granting plaintiff Reck LLC’s motion for
summary judgment.
         Our conclusions on defendants’ first and second
assignments of error require reversal and obviate the need
to address defendants’ third assignment, which challenges
the trial court’s determination of the width of the easement,
their fourth assignment, which challenges the trial court’s
extension of the easement to Tax Lot 1900, and their fifth
assignment, which challenges the trial court’s award of
costs to plaintiffs.
        Reversed and remanded.