Wels v. Hippe

Citation347 P.3d 788,269 Or.App. 785
Decision Date18 March 2015
Docket NumberA150238.,101215E3
PartiesJohn B. WELS, Jr., Plaintiff–Respondent, v. Douglas W. HIPPE, Defendant, and Le Roy Hippe and Cheryl Hippe, Defendants–Appellants.
CourtCourt of Appeals of Oregon

269 Or.App. 785
347 P.3d 788

John B. WELS, Jr., Plaintiff–Respondent
Douglas W. HIPPE, Defendant
Le Roy Hippe and Cheryl Hippe, Defendants–Appellants.


Court of Appeals of Oregon, In Banc.

March 18, 2015.

347 P.3d 790

Clayton C. Patrick, Clatskanie, argued the cause and filed the briefs for appellants.

Lee S. Werdell, Medford, argued the cause and filed the brief for respondent.




269 Or.App. 787

Defendants appeal a judgment declaring that plaintiff has an easement by prescription over a dirt road that runs through defendants' property to his property. To establish a prescriptive easement, plaintiff was required to show, by clear and convincing evidence, that his use (or use by former owners of his property) of the road on defendants' property was “open and notorious,” “adverse to the rights of defendants,” and “continuous and uninterrupted” for 10 years. Thompson v. Scott, 270 Or. 542, 546, 528 P.2d 509 (1974) ; accord Sander v. McKinley, 241 Or.App. 297, 306, 250 P.3d 939 (2011). On appeal, defendants argue that plaintiff failed to prove that (1) use of the road was sufficiently adverse to defendants' rights to establish an easement and (2) use of the road continued for at least 10 years. We conclude that legally sufficient evidence in the record supports the trial court's findings and its determination that (1) plaintiff established adversity through direct evidence of his mistaken claim of right, which does not require that plaintiff show that his use interfered with defendants' use of their property, and (2) plaintiff established continuous and uninterrupted use for 10 years. Therefore, we affirm.


Because it was undisputed at trial that plaintiff's use of the road was “open and notorious,” the relevant facts relate to whether plaintiff's use of the road was adverse to defendants' rights and was continuous for 10 years. We initially address our standard of review of those facts. This case arises in equity, and defendants request that we take de novo review with respect to certain findings made by the trial court. See ORAP 5.40(8)(d). We decline to exercise our discretion to take de novo review, because the disputed findings have support in the record and this case is not an exceptional one that merits such review. Accordingly, we are bound by the trial court's express and implied findings of fact if supported by evidence, Morton and Morton, 252 Or.App. 525, 527, 287 P.3d 1227 (2012), and we state the facts accordingly.

Plaintiff is the owner of four contiguous parcels, identified as Tax Lots 3300, 3400, 3500, and 3600. He acquired

269 Or.App. 788

Tax Lot 3300 in 2006 after purchasing the other three in 1998. None of plaintiff's parcels has a house on it, although plaintiff's purchase of the first three parcels included a cabin that plaintiff improved and used. Defendants on appeal, a married couple, are the owners of a 20–acre parcel where they have lived since 1973.1

347 P.3d 791

Both plaintiff and defendants get to their respective properties from Highway 62 via Busch Road and Lewis Creek Road. From Highway 62, Busch Road passes through private property, where it connects to Lewis Creek Road. Lewis Creek Road also passes through private property, reaching defendants' residence on their property, and then continues on through defendants' property, then through private property owned by Larson, then for a significant distance through federal public land, then through private property owned by Woods, then through additional federal public land, where it ends at plaintiff's parcels. Old records indicate that Lewis Creek Road has been in existence since at least 1934. The part of Lewis Creek Road that runs through defendants' property is a dirt road, approximately 18–feet wide, and passes within 60 to 80 feet of defendants' house.

Lewis Creek Road provides the only vehicular access to plaintiff's parcels and was the means by which the seller showed plaintiff how to get to the three parcels that he purchased in December 1998. All the private property owners along Busch Road and Lewis Creek Road use the roads to access their properties. In addition to plaintiff, two other owners of private property beyond defendants' property—Larson and Woods—use the part of Lewis Creek Road that goes through defendants' property to get to their properties. Larson has a residence on his property, which includes a home business that requires parcel delivery companies to use the road.

In 2008, plaintiff sought a building permit, but the county would not issue a permit without written confirmation of plaintiff's legal access to his property. As a result, plaintiff sought to obtain written easements to confirm his

269 Or.App. 789

access rights from the owners along the roads between his property and Highway 62, including defendants. In seeking an easement from defendants in June 2008, plaintiff based his request on his asserted established right to use the road. Plaintiff obtained easements from several property owners, but defendants refused his request, prompting plaintiff to seek a judicial declaration that he has a prescriptive easement over Lewis Creek Road across defendants' property.

At trial, defendants did not dispute plaintiff's open and notorious use of the road. Defendants filed a trial memorandum conceding that element: “Defendants concede that plaintiff has used the roadway open and notoriously. Defendants dispute that plaintiff's use has been adverse and dispute that plaintiff's use, if adverse, has been so for the requisite 10–year period.” In opening statement, defendants' counsel told the trial court that

“for Plaintiff to prevail, he has to * * * prove that he used this road open and notoriously, adverse to Defendants for a continuous period of ten years. The case is kind of lumped into those three categories. And it's presumed if he used open and notoriously then it was adverse. And so we think that he's got that presumption going in.”

Plaintiff and defendant Le Roy Hippe (defendant) provided the only witness testimony. Plaintiff testified that, before seeking a written easement, he and defendants had never discussed whether he had a right to use the road. Plaintiff explained that he had always believed that he had a right to use the road based on the seller's actions, because the road was his only means of access to his property, and because two easements that came with the property mentioned Lewis Creek Road as his means of access. By the time of trial, though, plaintiff acknowledged that he had come to understand that those easements did not cover the part of the road on defendants' property. Plaintiff also noted that he had participated in maintaining Busch Road and Lewis Creek Road, along with the other property owners.

Defendant initially testified in plaintiff's case-in-chief. During the course of that testimony, he changed his position several times regarding what he believed concerning his and the other property owners' rights of access to

269 Or.App. 790

their properties via Busch Road and Lewis Creek Road, including over the part of Lewis Creek Road that crossed defendants'

347 P.3d 792

property. He initially stated on direct examination that he and other landowners had a right of access to their properties over Lewis Creek Road. He stated that he had always assumed that he, and the other property owners, had a right to use the roads for access to their properties. Defendant also admitted that plaintiff was an owner of property on Lewis Creek Road and that plaintiff occupied the same position that defendants and the other property owners occupied and had the same right to use the road. On cross-examination by his counsel, defendant asserted that, if a property owner disputed his right to have access to his property over the roads, then his access was at the “goodwill and grace” of the owner. However, on redirect examination, defendant acknowledged that he had learned that he does not have a written easement to use the roads that crossed the properties of other landowners and then testified that he was confused on the issue and did not know whether he had a right to use the roads.

Testifying during defendants' case-in-chief, defendant confirmed that he believed that Larson had a right to use the road and did not need defendants' permission. He also testified that, in “the last few years,” he had put a chain across Lewis Creek Road where it enters his property; however, he left the lock open and gave a key to plaintiff, Larson, UPS, Federal Express, and the power company.2 Defendant stated that he had never prevented plaintiff or the other landowners from crossing his property on the road and had no objections to plaintiff's use of the road. The court then sought to learn why defendant was...

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5 cases
  • State v. S. R. J. (In re S. R. J.)
    • United States
    • Court of Appeals of Oregon
    • October 19, 2016
    ...on de novo case law risks obscuring what our role is when we do not review de novo . As I have pointed out before, Wels v. Hippe , 269 Or.App. 785, 809–10, 347 P.3d 788 (2015) (en banc ) (Lagesen, J., concurring), rev. allowed , 358 Or. 611, 369 P.3d 386 (2016), absent a decision to review ......
  • Towe v. Sacagawea, Inc.
    • United States
    • Supreme Court of Oregon
    • March 26, 2015
  • Wels v. Hippe, CC 101215E3
    • United States
    • Supreme Court of Oregon
    • November 17, 2016
    ...to defendants—that he had the right to use the road without defendants' permission. The Court of Appeals affirmed. Wels v. Hippe , 269 Or.App. 785, 347 P.3d 788 (2015). We conclude that the trial court and the Court of Appeals erred. To establish that the use of an existing road is adverse,......
  • Waters v. Klippel Water, Inc.
    • United States
    • Court of Appeals of Oregon
    • May 13, 2020
    ...either by prescription or implication. After plaintiffs filed the operative complaint, the Oregon Supreme Court issued its decision in Wels v. Hippe , which clarified the standard applicable to prescriptive easements. 360 Or. 569, 580, 385 P.3d 1028 (2016), adh'd to as modified on recons. ,......
  • Request a trial to view additional results

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