On August 10, 2016, the Oregon Court of Appeals issued a decision on an implied easement claim, finding that the lack of evidence regarding the use of the easement before the initial conveyance of the benefited property was not fatal to the claim. Dayton v. Jordan, 280 Or App 236 (2016)

In Dayton, the parties own abutting properties, with the northern property line of the Jordan parcel abutting the southern boundary line of the Dayton parcel. An east-west private road runs along the southern boundary of the Dayton parcel. Both Dayton and Jordan run ATV rental businesses on their respective properties, and both properties use the private road across the Dayton parcel to reach the dunes. Not surprisingly, there is friction between the two property owners with their similar business uses. 

Dayton brought a quiet-title action against Jordan to prevent the Jordan parcel from continuing to use the private road. In response, Jordan brought two counterclaims. The first counterclaim was that the Jordan parcel had an easement implied by reference to a 1999 plat map, and the second was that the Jordan parcel had an easement implied by prior use. The first counterclaim is the subject of a separate court of appeals decision released on July 27, 2016. 

The second counterclaim, which is the subject of Dayton, was dismissed by the trial court because Jordan did not produce any evidence of the use of Jordan’s parcel before it was first conveyed as a separate parcel from Dayton’s parcel. Before 1999, the Jordan and Dayton parcels constituted one parcel. In 1999, the Jordan/Dayton predecessor in interest partitioned the Jordan parcel from the Dayton parcel, sold the Jordan parcel in 2004, and then sold the Dayton parcel sometime later. 

When Jordan submitted his evidence of an easement implied by prior use, he submitted evidence of his parcel’s use of the private road since 2004, but no evidence prior to that year when both parcels were in common ownership. Dayton argued, and the trial court agreed, that this lack of evidence was dispositive. 

On appeal, the court of appeals pointed to Cheney v. Mueller, 259 Or 108, 485 P2d 1218 (1971), as the controlling case for determining the existence of an implied easement. Cheney set forth eight factors that are “important” when determining whether an implied easement exists. Two of the eight factors look to the prior use of the easement as evidence of such an easement, but six do not, and the trial court was required to consider evidence, if any, of each of the Cheney factors with no one factor controlling. Theoretically, then, it is possible to prove the existence of an implied easement even if evidence of prior use is lacking. Other factors may be compelling enough to support an implied easement, including the terms of the conveyance and the extent of necessity of the easement to the claimant. 

The court of appeals vacated and remanded the decision back to the trial court to analyze Jordan’s counterclaim accordingly.