Hay v. Stevens

• Decision Date: 24 May 1972
• Citation: 497 P.2d 362,262 Or. 193,94 Or.Adv.Sh. 1617
• Parties: William G. HAY and Georgiana F. Hay, husband and wife, Respondents, v. Irving C. and Jeanette STEVENS, husband and wife, Appellants.
• Court: Oregon Supreme Court

Page 362

497 P.2d 362

262 Or. 193

William G. HAY and Georgiana F. Hay, husband and wife, Respondents, v. Irving C. and Jeanette STEVENS, husband and wife, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 3, 1972.

Decided May 24, 1972.

Hayes Patrick Lavis, Astoria, argued the cause for appellants. With him on the brief were Anderson, Fulton, Lavis & Van Thiel, Astoria.

Jerry K. McCallister, Astoria, argued the cause for respondents. With him on the brief were MacDonald, Dean, McCallister & Snow and Jeanyse R. Snow, Astoria.

O'CONNELL, Chief Justice.

This is a suit in which plaintiffs seek to establish a prescriptive easement in the form of several pathways across defendants' land. Defendants appeal from a decree in favor of plaintiffs.

Defendants own a parcel of land at Cannon Beach, Oregon, between plaintiffs' land and the beach. Plaintiffs purchased one parcel of their property (Lot 4) from a Mrs. Morrison and an adjoining parcel (Lot 5) from a Mr. and Mrs. Wolff. Plaintiffs and their predecessors in title to both parcels used the pathways above to get to the public part of the beach.

The only question on appeal is the sufficiency of the evidence to sustain plaintiffs' claim to a prescriptive easement.

In 1933 the Wolffs began crossing defendants' parcel to get from their house on Lot 5 of the beach. The house sat close to the edge of a steep decline described as a 'cliff' by some witnesses. Paths from each of two sides of the house converged into a single path down the 'cliff' so steep that steps were cut into it for footholds. Three pathways led from the house on Lot 4 to the beach; each followed a steep gradient similar to that of the paths on Lot 5. Since the houses on both lots were used principally during summers and week-ends, use of the paths was intermittent.

Defendants contend that there was not adequate proof to establish a prescriptive right. They first argue that plaintiffs failed to prove the element of continuity of use. There was evidence that the paths were used regularly during the periods when the homes on Lots 4 and 5 were occupied. Although, as indicated above, these periods were intermittent, we are of the opinion that the evidence demonstrates the necessary continuity of use.

As pointed out in 5 Restatement of Property (Servitudes), § 459, comment b, p. 2936 (1944):

'To satisfy the requirement that the use be continuous it is not necessary that it be constant. A use may be continuous though there are periods of time more or less extended between the specific acts of use. Many easements, such as rights of way and rights of hunting or fishing, which are periodical or only occasional in use may be acquired by prescription. The requirement means that there be no break in the essential attitude of mind required for adverse use rather than that the use be constant.'

In cases in which title was claimed by adverse possession we have acknowledged continuity of use despite considerable periods of time during which there was no use of the property. Thus in Springer v. Durrette et ux., 217 Or. 196, 352 P.2d 132 (1959) we held that the fact that the land was used for grazing only from April to November did not preclude the claim for lack of continuity. There we pointed out that an important consideration in testing continuity is the character of the property and the manner in which an average owner would use it. ¹

In the present case the pathways were used in a normal manner for owners of beach property and therefore the use was sufficiently continuous.

It is further contended that plaintiffs failed to establish the element of adverseness in the use of the...