Wels v. Hippe

No. 71 November 17, 2016 569
IN THE SUPREME COURT OF THE
STATE OF OREGON
John B. WELS, Jr.,
Respondent on Review,
v.
Douglas W. HIPPE,
Defendant,
and
Le Roy HIPPE
and Cheryl Hippe,
Petitioners on Review.
(CC 101215E3; CA A150238; SC S063486)
On review from the Court of Appeals.*
Argued and submitted June 15, 2016.
Clayton C. Patrick, Clatskanie, argued the cause and
filed the brief for petitioners on review.
John R. Hanson, Medford, argued the cause and filed the
brief for respondent on review. Also on the brief was Tracey
R. Howell.
Before, Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, and Brewer, Justices, and DeHoog,
Justice pro tempore.**
LANDAU, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
______________
** Appeal from Jackson County Circuit Court, Ronald D. Grensky, Judge.
269 Or App 785, 347 P3d 788 (2015).
**  Nakamoto, J., did not participate in the consideration or decision of this
case.
570 Wels v. Hippe
Case Summary: In a claim for a prescriptive easement, the trial court found
that plaintiff had established a prescriptive easement by using a pre-existing
road across defendant’s property, in a way that created some dust and noise,
under the belief that he had the right to use the road. The Court of Appeals
affirmed the trial court’s decision, and defendants petitioned for review. Held:
(1) To establish a prescriptive easement for a pre-existing road across another’s
property, a plaintiff must show that his or her use of the road was adverse, mean-
ing that use of that road interferes with the owners’ use of the road or that use
of the road was under a claim of right of which the owners were aware; and (2)
plaintiff did not establish either that his use of the road interfered with the own-
ers’ use of the road or that he had communicated his claim of right to the owners.
The decision of the Court of Appeals is reversed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
Cite as 360 Or 569 (2016) 571
LANDAU, J.
Plaintiff seeks a prescriptive easement over an
existing road that crosses defendants’ property. To estab-
lish a prescriptive easement, the law requires (among other
things) that plaintiff’s use of the road was adverse to the
rights of the owners of the property. The dispute in this case
is whether plaintiff satisfied the requirement to prove such
adverse use. The trial court found that plaintiff did establish
adverse use of the road in either of two ways. First, it found
that plaintiff showed that his use of the road interfered with
defendants’ rights, in that defendants could see vehicles
passing in close proximity to their house. Second, and in the
alternative, the court found that plaintiff established adver-
sity through testimony that he believed—although without
communicating that belief 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 P3d 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, a plaintiff must show that the use of the road
interfered with the owners’ use of the road or that the use of
the road was undertaken under a claim of right of which the
owners were aware. In this case, there is a complete absence
of evidence in the record of either of those things. We there-
fore reverse the decision of the Court of Appeals and the
judgment of the trial court.
The relevant facts are not in dispute. Plaintiff owns
three contiguous parcels of rural property near the Rogue
River. He purchased the parcels in 1998. The nearest state
highway, the Crater Lake Highway, is located some distance
away. In between plaintiff’s property and the highway lie
federally owned forest lands and a number of private par-
cels. Defendants own one of those private parcels, a 20-acre
lot, where they have lived since 1973.
A private dirt road, known as “Lewis Creek Road,”
runs from plaintiff’s property across the federally owned for-
est land and the intervening private parcels, eventually con-
necting to another private road and, ultimately, the highway.
572 Wels v. Hippe
Lewis Creek Road crosses defendants’ property and passes
within 60 to 80 feet of their house. No one knows who built
Lewis Creek Road or when it was first constructed, but old
records indicate that it has been in existence since at least
1932. Plaintiff and the other private property owners in the
area have used it to access the Crater Lake Highway.
Cite as 360 Or 569 (2016) 573
At some point, defendants erected a chain across Lewis
Creek Road where it entered their property. But they left
the chain unlocked and provided keys to neighbors, includ-
ing plaintiff. Plaintiff sometimes performed general main-
tenance of the road, including dragging an iron bar behind
his truck to level the road. On one occasion, he asked defen-
dants for permission to trim the brush alongside the road,
and defendants agreed. Plaintiff’s use of Lewis Creek Road
across defendants’ property caused some dust and vehicle
noise, but defendants did not believe that it interfered with
their use of the road or of their land.
In 2008, plaintiff decided to build a cabin on his
property. The county, however, would not issue the neces-
sary permits unless he obtained written confirmation of
his right to use Lewis Creek Road for access to the Crater
Lake Highway. Plaintiff tried to obtain written easements
from each of the private property owners over whose prop-
erty Lewis Creek Road ran. He succeeded in obtaining
easements from some of the private property owners, but
not from defendants. Plaintiff then initiated this action for a
declaration that he had acquired a prescriptive easement to
use the part of Lewis Creek Road on defendants’ property.
Plaintiff advanced no other theory in support of his right to
use the road.
In his trial memorandum, plaintiff asserted that
he had used Lewis Creek Road for access to his property
openly, notoriously, and continuously from the time he pur-
chased the property in 1998. He further asserted that he
thought he had the right to do so without defendants’ per-
mission and thus had acquired an easement to use the road
by prescription.
In response, defendants’ trial memorandum “con-
cede[d] that plaintiff has used the roadway open and notori-
ously. Defendants dispute[d] that plaintiff’s use ha[d] been
adverse.” Defendants argued that, in other words, although
plaintiff’s use of the road may have been obvious, it was
permissive. In support, defendants asserted that, when a
prescriptive easement claim involves the nonexclusive use
of an existing road, such use is presumed to have been per-
missive, and anyone claiming otherwise must establish that
574 Wels v. Hippe
their use of the existing road interfered with the owner’s use
of it. In this case, defendants argued, there was no evidence
that plaintiff’s use of Lewis Creek Road interfered with
their own use of the same road.
In their opening statement, defendants elaborated
on that line of argument:
“And it’s presumed if he used open and notoriously then
it was adverse. And so we think that he’s got that pre-
sumption going in. If that presumption exists, it’s up to the
defendants to rebut that with—by showing that his use
was of an existing road, did not interfere with defendants’
use of the road and—and it was not exclusive. His use was
not exclusive if others used the road, like the defendants
or others. And if defendants can rebut those three pieces,
[plaintiff] still has to come up with some other way to prove
adversity by clear and convincing evidence. And I don’t
think he’s got that.”
In his opening statement, plaintiff acknowledged
that what was in dispute was whether, in light of his nonex-
clusive use of Lewis Creek Road, his use nevertheless was
“open and notorious and hostile or adverse.” His position
was that he had satisfied all those requirements because,
during the years that he used the road, he “never received
anything like permission,” that he “always assumed that
[Lewis Creek Road] was his access,” and that “[h]e had a
right to use it.”
At trial, two witnesses testified—plaintiff and
defendant Douglas Hippe—establishing the foregoing facts.
Following the trial, the court issued a written opinion ruling
for plaintiff. The court explained that, in cases involving the
use of an existing road, there is a presumption that such use
was not adverse, but instead was permissive. Nevertheless,
the court explained, that presumption could be rebutted
with evidence either that plaintiff’s use “interfered with
[d]efendant’s right on his property” or that plaintiff mistak-
enly thought that he had the right to use the road without
defendants’ permission. In this case, the court concluded,
plaintiff established both. As the trial court saw it, evidence
that plaintiff’s vehicles passed in “close proximity” to defen-
dants’ house interfered with defendants’ rights to use their
Cite as 360 Or 569 (2016) 575
property, and, in any event, it was undisputed that plaintiff
mistakenly thought that he had the right to use the road.
Defendants appealed. They argued that the trial
court erred in concluding that plaintiff had rebutted the
presumption of permissive use for two reasons. First, defen-
dants argued that the trial court erred in relying on evi-
dence that plaintiff’s vehicles passed in close proximity to
their house, presumably referring to testimony that such
use kicked up dust and made noise. That evidence, defen-
dants argued, was not sufficient, because noise and dust
“did not interfere with defendants’ use” of the road. Second,
defendants argued that the trial court also erred in relying
on plaintiff’s uncommunicated, subjective belief that he had
the right to use Lewis Creek Road without their permission.
As defendants put it, merely “[t]hinking you have a right to
use a road is not sufficient” to establish adverse use.
The Court of Appeals affirmed. In so doing, the court
did not address whether the trial court erred in concluding
that evidence of dust and noise from plaintiff’s use of the
road was sufficient to rebut the presumption of permissive
use. Rather, it focused on the question whether plaintiff’s
mistaken belief that he had the right to use Lewis Creek
Road was adequate to rebut that presumption. Relying on
the Restatement (First) of Property § 458 (1944), the court
explained that “adverse” use has three elements: (1) it is
not made in subordination to the owner; (2) it is wrongful
as to the owner; and (3) it is open and notorious. Wels, 269
Or App at 795-96. The court noted that there was no dis-
pute that plaintiff’s use was wrongful and defendants had
“conceded” that plaintiff’s use was open and notorious. Id.
at 797 n 4. So, the court explained, the only issue in dispute
was whether plaintiff’s use was made in subordination to
defendants’. Relying on the unrebutted evidence that plain-
tiff used Lewis Creek Road under the mistaken belief that
he had a right to do so without defendants’ permission, the
court concluded that there was evidence sufficient to support
the trial court’s determination that plaintiff had established
that his use was adverse. Id. at 802-04.
The court’s decision was not unanimous. The dis-
sent took the majority to task for framing the issue as it
576 Wels v. Hippe
did, in terms of the three elements set out in a comment
to the Restatement (First) of Property. According to the dis-
sent, that definition of “adverse” use has never been adopted
by this court, and it cannot be reconciled with subsequent
Supreme Court and Court of Appeals case law. Id. at 827-31
(DeVore, J., dissenting). In the view of the dissent, the use
of an existing road gives rise to a presumption that the use
was permissive, and an uncommunicated belief in a right
of use cannot suffice to rebut that presumption. Id. at 814-
23 (DeVore, J., dissenting). The dissent contended that the
majority’s reliance on defendants’ “concession” that plain-
tiff’s use was open and notorious in resolving that issue was
unwarranted; defendants conceded only that plaintiff’s use
was obvious, not that it was adverse in character. Id. at 824
(DeVore, J., dissenting). That left, the dissent said, the ques-
tion whether plaintiff used Lewis Creek Road in a manner
that interfered with defendants’ own use of the road. As the
dissent saw it, the record was uncontradicted that, at best,
plaintiff’s use of the road caused dust and noise, but did not
in any way interfere with defendants’ use of the road. Id. at
841-42 (DeVore, J., dissenting).
A concurring opinion agreed with the dissent that
the trial court erred in concluding that the evidence showed
that plaintiff’s use of the road interfered with defendants’.
The concurrence nevertheless joined the majority on the
ground that defendant’s concession that plaintiff’s use was
open and notorious eliminated any concern about whether
plaintiff’s mistaken claim of right ever was communicated
to defendants. Id. at 804-12 (Lagesen, J., concurring).
We allowed review to address the elements of a
claim for a prescriptive easement to use an existing road.
We begin with some familiar legal principles. An easement
is an interest in another’s land, which grants its owner a
right of limited use or enjoyment. ODOT v. Alderwoods
(Oregon), Inc., 358 Or 501, 512, 366 P3d 316 (2015) (An
easement is “ ‘a nonposessory interest in land because it
generally authorizes limited uses of the burdened property
for a particular purpose.’ ” (Quoting Restatement (Third) of
Property: Servitudes § 1.2 comment d (2000).)); see also ORS
105.170(1) (“Easement means a nonpossessory interest in
the land of another which entitles the holders of an interest
Cite as 360 Or 569 (2016) 577
in the easement to a private right of way.”). Because it is an
interest in land, an easement ordinarily must be created in
writing. Shaw v. Profitt, 57 Or 192, 214, 110 P 1092 (1910)
(“The rule is that an easement can only be created by writ-
ing.”). There are exceptions to that general rule, however.
One is that easements may be created by prescription; that
is, easements may be created through use over time and the
operation of law.
The origin of prescription is a matter of some debate.
Historically, it has been tied to the idea of a fictional “lost
grant”—that long use must have originated in an early, but
lost, lawful grant of the right—or to an analogy to statutes
of limitations that apply to the related doctrine of adverse
possession. See generally Restatement (Third) of Property:
Servitudes § 2.17 comment b (2000) (discussing historical and
theoretical bases of prescription). Whatever the doctrine’s
origins, its principal justification has been that “established
patterns of land possession and use should be protected and
that a diligent occupant should be rewarded at the expense
of a careless owner.” Jon W. Bruce & James W. Ely, Jr., The
Law of Easements and Licenses in Land § 5:1, 5-5 (2008);
see also Restatement (Third) § 2.17 comment c (“Prescription
doctrine * * * penalizes the property owner who sleeps on
his or her rights.”). A critical underpinning of the doctrine
thus is that the owner of land against whom a prescriptive
easement is being claimed must have reason to know of the
adverse use of his or her property before being held respon-
sible for failing diligently to take action to protect it. As the
court explained in Feldman v. Knapp, 196 Or 453, 473, 250
P2d 92 (1952),
“[t]he foundation of the establishment of a right by pre-
scription is the acquiescence on the part of the owner of
the servient tenement in the acts which are relied upon
to establish the easement by prescription. This makes it
necessary that he know of those acts, or be charged with
knowledge of them if he did not in fact know of them.”
Accordingly, this court has held that not just any use
will suffice to establish a prescriptive easement. The plain-
tiff “must establish an open and notorious use of defendants’
land adverse to the rights of defendants for a continuous
and uninterrupted period of ten years.” Thompson v. Scott,
578 Wels v. Hippe
270 Or 542, 546, 528 P2d 509 (1974). Moreover, prescriptive
easements are not favored by the law. Wood v. Woodcock, 276
Or 49, 56, 554 P2d 151 (1976). After all, the doctrine permits
one person to acquire an interest in land without paying the
owner for it. See Bruce & Ely, The Law of Easements and
Licenses in Land § 5:3 at 5-11 (“Courts carefully scrutinize
claims of easement by prescription because the recognition
of such a servitude is inconsistent with the right of the ser-
vient owner to fully utilize the servient land.”). As a result,
the law requires that the elements of a prescriptive ease-
ment claim be established by clear and convincing evidence.
Williams v. Harrsch, 297 Or 1, 6, 681 P2d 119 (1984).
Whether a plaintiff has established the requisite
open and notorious use of another’s land adverse to the oth-
er’s interest for the requisite period is a question of fact.
Historically, because of the equitable nature of a prescriptive
easement claim, appellate review of the trial court’s find-
ings concerning the elements of the claim has been de novo.
Boyer v. Abston, 274 Or 161, 163-64, 544 P2d 1031 (1976).
In 2009, however, the legislature amended ORS 19.415(3)
to provide that de novo review in such equity cases is now
discretionary. In this case, the Court of Appeals declined
to exercise discretion to review this case de novo. Wels, 269
Or at 787. Accordingly, assuming the trial court applied the
correct legal standards, its findings of historical fact will be
upheld if there is any evidence to support them. Sea River
Properties, LLC v. Parks, 355 Or 831, 834, 333 P3d 295
(2014).
With those more general principles in mind, we
turn to the particular elements of a prescriptive easement
claim. Use qualifies as “open and notorious” if it provides
the landowner with “a reasonable opportunity to learn of its
existence and nature.” Thompson v. Schuh, 286 Or 201, 211,
593 P2d 1138 (1979). The purpose of that requirement “is
to give the owner of the servient estate ample opportunity
to protect against the establishment of prescriptive rights.”
Restatement (Third) § 2.17 comment h.
Use is “adverse” if it is inconsistent with the owner’s
use of the property or if it is undertaken not in subordina-
tion to the rights of the owner. Cf. Faulconer v. Williams, 327
Cite as 360 Or 569 (2016) 579
Or 381, 389, 964 P2d 246 (1998) (discussing “adverse” use
in context of extinguishment of easement by adverse pos-
session). Use by permission is not adverse. See, e.g., Baum
v. Denn, 187 Or 401, 406, 211 P2d 478 (1949) (“A prescrip-
tive easement can never ripen out of mere permissive use no
matter how long exercised.”).
It is often stated that open and notorious use for the
prescribed period gives rise to a rebuttable presumption of
adverse use. See, e.g., Coventon v. Seufert, 23 Or 548, 550-
51, 32 P 508 (1893) (“[I]f there has been an uninterrupted
use and enjoyment of an easement in a particular way for
more than ten years, it affords a * * * presumption of right
in the party who shall have enjoyed it.”). That rule applies in
ordinary cases, in which the person claiming the easement
by prescription is a stranger to the landowner; under such
circumstances, it makes sense to assume that obvious use
of the owner’s property is adverse to his or her rights. But
the rule does not apply in all cases; in particular, when the
nature of the land or the relationship between the parties is
such that the use of the owner’s property is not likely to put
the owner on notice of the adverse nature of the use.
When, for example, an owner supplies permission
to use a road across the owner’s property, use in accordance
with that permission will not give rise to a presumption that
it is adverse; there must be proof that the claimant repudi-
ated the owner’s permission and communicated that repudi-
ation to the owner. Hamann v. Brimm, 272 Or 526, 529-30,
537 P2d 1149 (1975). As this court explained in Thompson
v. Scott, “[w]hen the use of the servient owner’s land is per-
missive at its inception, the permissive character of the use
is deemed to continue thereafter unless the repudiation of
the license to use is brought to the knowledge of the servient
owner.” 270 Or at 548-49.
Similarly, 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.
As the court explained in Woods v. Hart, 254 Or 434, 436,
458 P2d 945 (1969), in such cases, “it is more reasonable to
assume that the use was pursuant to a friendly arrangement
580 Wels v. Hippe
between neighbors rather than to assume that the user was
making an adverse claim.” See also Trewin v. Hunter, 271
Or 245, 248, 531 P2d 899 (1975) (if claimant and servient
owner use an existing way of unknown origin, “it should
be presumed that the servient owner constructed it for his
own use” and that the claimant’s use is permissive). That is
especially the case when the use of the road by the claimant
is nonexclusive. Boyer, 274 Or at 163-64.
When a claimant uses a preexisting road, the
claimant must affirmatively establish that his or her use of
the road is adverse. Thompson v. Scott, 270 Or at 551 (“the
claimant must affirmatively prove the adverse character of
his behavior”). Such adverse use may be demonstrated by
clear and convincing evidence that the claimant’s use of the
road interfered with the owner’s own use of the road. Boyer,
274 Or at 163-64. It bears some emphasis that the focus is
on the extent to which the claimant’s use interfered with the
owner’s own use of the road, not on the extent to which the
claimant’s use of the road somehow interfered with the own-
er’s use or enjoyment of the property generally. It is only by
interfering with the owner’s use of the road that the claim-
ant puts the owner on notice of the adverse character of his
or her use. As the court emphasized in Feldman, to establish
that the use of a road is adverse, there must be evidence of
acts “of such nature and frequency as to give notice to the
landowner of the right being claimed against him.” 196 Or
at 473.
The adverse character of the use of a preexisting
road also may be established by evidence that the claimant
used the road under a claim of right. Hay v. Stevens, 262
Or 193, 196, 497 P2d 362 (1972). It is not sufficient, how-
ever, for a claimant merely to believe that he or she has the
right to use a road. There must be evidence that the owner
of the property knew or should have known of that belief.
Davis v. Gassner, 272 Or 166, 169, 535 P2d 760 (1975), pro-
vides an example of use under a claim of right. In that case,
the plaintiffs sought a prescriptive easement of an exist-
ing road. Their use was nonexclusive. The court neverthe-
less concluded that they had demonstrated that their use
was adverse, based on evidence that, when the defendant
had attempted to stop them by stringing a wire across the
Cite as 360 Or 569 (2016) 581
road, the plaintiffs cut the wire and used the road any-
way. Moreover, they complained to the defendant about his
attempts to interfere with their right to use the road. Id. at
168-69.
Having set out the elements of a prescriptive ease-
ment claim, we turn to the question whether there is evi-
dence to support the trial court’s findings that plaintiff sat-
isfied them. At the outset, we note that it is undisputed that
plaintiff did not construct Lewis Creek Road. The road is of
uncertain origin and existed long before plaintiff acquired
his property. It is likewise undisputed that plaintiff’s use of
the road was nonexclusive. In fact, all of the property own-
ers along the road used it for access to and from the Crater
Lake Highway.
Because plaintiff’s prescriptive easement claim is
based on his nonexclusive use of a preexisting road, the bur-
den rests with him to establish by clear and convincing evi-
dence that his use of the road was adverse. The trial court
found that plaintiff met his burden by producing evidence
that his use of the road created noise and dust that could be
viewed or heard by defendants from their house some 60 to
80 feet from the road. That evidence is insufficient. It does
not establish that plaintiff’s use of Lewis Creek Road in any
way interfered with defendants’ use of the same road. In
fact, there is a complete lack of evidence that anything that
plaintiff did interfered with defendants’ use of the road.
The trial court also found that plaintiff met his
burden through testimony that he believed that he had
the right to use Lewis Creek Road without any permission
from defendant. As we have noted, however, an uncommu-
nicated belief in a right to use property provides no notice
to the owner of such a belief. It therefore cannot satisfy the
essential requirement of adverse use, that is, that it inform
the owner of the servient property that the claimant is
asserting a right of use hostile to the rights of that owner.
If a claimant who is engaging in nonexclusive use of a pre-
existing road fails to communicate his or her belief in a right
to do so, there is no way for the owner to know that the
claimant is asserting a right hostile to the owner’s. As the
court observed in Woods, “ ‘the fact that [the owner] sees his
582 Wels v. Hippe
neighbor also making use of it, under circumstances that
in no way injures the road, or interferes with his own use
of it, does not justify the inference that he is yielding to his
neighbor’s claim of right or that his neighbor is asserting
any right.’ ” 254 Or at 437-38 (quoting Anthony v. Kennard
Bldg. Co., 188 Mo 704, 723-24, 87 SW 921 (1905)).
The Court of Appeals concluded that the absence of
any evidence that plaintiff communicated his belief that he
had a right to use the road is no impediment to his prescrip-
tive easement claim, because, according to the Restatement
(First) of Property, an adverse use must be open and notori-
ous, and defendants “conceded” that plaintiff’s use of Lewis
Creek Road was open and notorious. The Court of Appeals
erred in reaching that conclusion.
To begin with, it is not entirely clear that the way
that the Restatement (First) of Property sets out the elements
of a prescriptive easement claim is consistent with the way
that this court has set out the elements of the claim. The
Court of Appeals itself noted that point in observing that,
although this court has emphasized that, to support a pre-
scriptive easement claim, use of another’s property must be
open and notorious, the Restatement (First) of Property rel-
egates that consideration to an aspect of the adverse char-
acter of a claimant’s use. Wels, 269 Or App at 795 n 3. The
concurrence similarly noted that the description of what con-
stitutes “adverse” use in the Restatement (First) of Property
appears to be different from the way this court’s cases
describe such use. Wels, 269 Or App at 811 n 6 (Lagesen, J.,
concurring). To the extent that there is any inconsistency
between a restatement of law and this court’s case law, the
latter—not the former—controls.
Aside from that, although this court has referred
to a particular section of the Restatement (First) of Property
or to a particular comment in some of its prior decisions,
e.g., Thompson v. Schuh, 286 Or at 211 (citing Restatement
(First) of Property § 458 comment i); Hay, 262 Or at 196 (cit-
ing Restatement (First) of Property § 458 comment c), that
does not necessarily mean that it has endorsed all of that
particular restatement’s provisions and comments or that
the court is constrained to ignore later developments in the
Cite as 360 Or 569 (2016) 583
case law. See, e.g., Jones v. Mitchell Bros. Truck Lines, 273
Or 430, 433, 541 P2d 1287 (1975) (declining to follow earlier
version of Restatement of Judgments).
Finally, we do not agree that defendants, by using
the phrase “open and notorious” in reference to plaintiff’s
use of the road, effectively conceded that plaintiff’s use was
adverse. As we have noted, defendants’ trial memorandum
used that phrase in describing the proper method of analysis
in light of the case law that we have described. The mem-
orandum asserted that, although open and notorious use
ordinarily triggers a presumption that the use is adverse,
this is not such a case. Defendants argued, both in their trial
memorandum and in their opening statement, that because
plaintiff in this case engaged in nonexclusive use of an exist-
ing road, plaintiff “still has to come up with some other way
to prove adversity by clear and convincing evidence. And I
don’t think he’s got that.” Defendants’ entire case at trial, in
fact, was that plaintiff’s use of Lewis Creek Road was not
of the sort that would put them on notice as to the adverse
nature of that use. And that, as we have also noted, is pre-
cisely how plaintiff understood defendants’ arguments.
To summarize: The undisputed evidence shows that
plaintiff engaged in nonexclusive use of the existing Lewis
Creek Road. To prevail on his prescriptive easement claim,
therefore, he must supply clear and convincing evidence that
his use of the road was adverse. There is a complete absence
of evidence in the record that plaintiff did so. Evidence that
his use of the road may have caused dust and noise is legally
insufficient; such evidence does not demonstrate any inter-
ference with defendants’ own use of the road. And evidence
that plaintiff believed that he had a right to use the road
without defendants’ permission likewise is legally insuf-
ficient, in the absence of evidence that he communicated
that belief to defendants. The trial court therefore erred
in finding for plaintiff on his prescriptive easement claim,
and the Court of Appeals erred in affirming the trial court’s
judgment.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.