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, meaning 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 owners’ 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 circuit 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 establish 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 adversity 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 therefore 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 parcels. 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 forest land and the intervening private parcels, eventually connecting 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, including plaintiff. Plaintiff sometimes performed general maintenance of the road, including dragging an iron bar behind 

his truck to level the road. On one occasion, he asked defendants 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 necessary 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 property 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 purchased the property in 1998. He further asserted that he 

thought he had the right to do so without defendants’ permission and thus had acquired an easement to use the road 

by prescription.

In response, defendants’ trial memorandum “concede[d] that plaintiff has used the roadway open and notoriously. 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 permissive, 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 presumption 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 nonexclusive 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 mistakenly 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 defendants’ 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, defendants argued that the trial court erred in relying on evidence 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, defendants 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 dispute 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 plaintiff 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 dissent 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 dissent, 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 plaintiff’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 question 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 writing.”). 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 responsible 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 prescription 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 plaintiff “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 servient owner to fully utilize the servient land.”). As a result, 

the law requires that the elements of a prescriptive easement 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 other’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 findings 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 subordination 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 possession). Use by permission is not adverse. See, e.g., Baum 

v. Denn, 187 Or 401, 406, 211 P2d 478 (1949) (“A prescriptive 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 repudiated the owner’s permission and communicated that repudiation 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 permissive 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 owner’s use or enjoyment of the property generally. It is only by 

interfering with the owner’s use of the road that the claimant 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, however, 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), provides an example of use under a claim of right. In that case, 

the plaintiffs sought a prescriptive easement of an existing road. Their use was nonexclusive. The court nevertheless 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 anyway. 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 easement claim, we turn to the question whether there is evidence to support the trial court’s findings that plaintiff satisfied 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 owners 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 burden rests with him to establish by clear and convincing evidence 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 uncommunicated 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 preexisting 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 prescriptive easement claim, because, according to the Restatement 

(First) of Property, an adverse use must be open and notorious, 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 prescriptive easement claim, use of another’s property must be 

open and notorious, the Restatement (First) of Property relegates that consideration to an aspect of the adverse character of a claimant’s use. Wels, 269 Or App at 795 n 3. The 

concurrence similarly noted that the description of what constitutes “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 (citing 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 memorandum 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 existing 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 precisely 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 interference 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 insufficient, 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.