198 August 7, 2024 No. 540

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

ERNEST W. BLOCK, JR.,

Plaintiff-Appellant,

and

MARVIN C. LEACH et al.,

Plaintiffs,

v.

DEA PROPERTIES-2 LLC,

Defendant-Respondent.

Tillamook County Circuit Court

17CV37076; A179046

Jonathan R. Hill, Judge.

Submitted October 25, 2023.

Gregory S. Hathaway, Trinh C. Tran, and Hathaway 

Larson LLP filed the briefs for appellant.

Steve C. Morasch and Landerholm, P. S. filed the brief for 

respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and 

Pagán, Judge.

MOONEY, J.

Reversed.
Cite as 334 Or App 198 (2024) 199

MOONEY, J.

Plaintiff Ernest Block, Jr. (Block) appeals a general 

judgment that declares that his neighbor, defendant DEA 

Properties-2 LLC (DEA), “has an implied easement * ** over 

the flag stem portion of *** Block’s [property] to access” 

DEA’s property.

This is the second time that this case has come 

before us. The first appeal was filed after the trial court 

entered a judgment granting declaratory relief on plaintiffs’ claim by validating Block’s assignment of beach-access 

easement rights across DEA’s property to someone who owns 

neither the dominant nor the servient estate, and on DEA’s 

counterclaim by declaring that DEA has an implied easement across Block’s property to access DEA’s property. We 

concluded that the trial court erred on both claims, and we 

reversed the judgment. Block v. DEA Properties-2 LLC, 315 

Or App 525, 527, 501 P3d 545 (2021) (Block I). We concluded 

that the trial court applied an incorrect legal standard to 

the evidence produced at the bench trial on the implied 

easement counterclaim, and we remanded on the counterclaim with the following explanation and instruction:

“In this case, the relevant severance took place in 1997, 

when the Hatch heirs sold parcel 2 to [the] DeCarrico[s] 

and retained ownership of parcel 1. However, in reaching 

its determination that an implied easement exists, the trial 

court relied significantly on events and circumstances that 

took place later. For example, it relied on the beliefs and 

actions of Block and Anderson, who purchased their properties after 1997; it evaluated the necessity of the easement 

based on circumstances at the time of trial, rather than the 

circumstances that existed in 1997; and it considered the 

use of the property and the parties’ knowledge of that use 

since 1997, rather than at the time of the Hatch heirs’ 1997 

conveyance to [the] DeCarrico[s]. That was error.

“The question before the court was whether an easement arose ‘as an inference of the intention of the parties 

to a conveyance of land’—here, the Hatch heirs and [the] 

DeCarrico[s]—‘based on the circumstances existing at the 

time of the conveyance’—here, in December 1997. Eagles 

Five, LLC v. Lawton, 250 Or App 413, 424, 280 P3d 1017 

(2012). As a result of the court’s incorrect legal analysis, it 
200 Block v. DEA Properties-2 LLC

did not make explicit or implicit findings of fact on many of 

the relevant issues. Accordingly, we reverse and remand for 

the trial court to reevaluate the evidence under the correct 

legal standard.”

Id. at 536-37. On remand, the trial court received further 

briefing and arguments of counsel, and after issuing a letter ruling explaining its decision, it signed a general judgment again declaring that DEA has an implied easement 

over Block’s property to access DEA’s property. This appeal 

followed. The beach-access easement issues are not before 

us on this second appeal. The only matter before us is that 

of the implied easement raised in DEA’s counterclaim. For 

the reasons explained below, we conclude that DEA failed to 

carry its burden to prove the existence of an implied easement by clear and convincing evidence. We therefore reverse.

I. STANDARD OF REVIEW

We decline Block’s request to review the record 

de novo because such review is not warranted. It is true that 

this is the second time that this case is before us, and it 

is also true that this appeal raises a claim of legal error 

essentially identical to the one raised in the first appeal. 

In Block’s view, the 2018 judgment on the counterclaim 

that we reversed and remanded for further analysis and 

the 2022 judgment rendered on remand “can hardly be differentiated.” That is not a fair characterization of the two 

judgments, especially considering that the 2022 judgment 

incorporates the trial court’s four and a half page letter ruling of June 10, 2022. He argues that “there is no evidence 

in the record to support several of the trial court’s factual 

findings” and also that “the trial court has misconstrued 

the law for a second time.” We view the factual record differently than does Block, however, and decline to “try the cause 

anew.” ORS 19.415(3)(b); ORAP 5.40(8).

We review for legal error the trial court’s ruling 

that DEA proved its counterclaim for an implied easement. 

Manusos v. Skeels, 263 Or App 721, 724, 330 P3d 53 (2014). 

We state the relevant facts “in a manner consistent with the 

trial court’s express and implicit factual findings.” Id. If the 

record so viewed supports the inference, by clear and convincing evidence, that at the time of the conveyance in 1997, 
Cite as 334 Or App 198 (2024) 201

the Hatch heirs and the DeCarricos intended for there to 

be an easement providing access to parcel 2 across the flag 

stem of parcel 1, then we must affirm. Otherwise, we must 

reverse.

II. THE FACTS

Block and DEA are neighboring landowners. They 

own adjoining parcels of real property that were previously 

part of a larger tract of land held by Phillip Hatch and other 

tenants in common (the Hatch heirs). Their respective parcels were created in 1994 when the Hatch heirs subdivided 

their property into three parcels, with parcel 1 (presently 

owned by Block) shaped like a flag, with its “flag stem” running generally south to Ocean Boulevard between parcel 2 

(presently owned by DEA) and parcel 3, as shown below.1

In February 1995, the Hatch heirs recorded an 

easement granting parcel 3 a “permanent, non-exclusive 

easement for access and utility purposes” over the flag stem. 

1 The diagrams in this opinion are intended only to facilitate the reader’s 

understanding of the subdivisions and conveyances in question. The drawings do 

not depict all elements included in the relevant survey records.
202 Block v. DEA Properties-2 LLC

They did not record the grant of similar easement rights for 

the benefit of parcel 2. Several months later, the Hatch heirs 

subdivided the third parcel into two parcels. The recorded 

“replat” of the property in 1995 reflects the subdivision of 

parcel 3 into parcels 1-East and 2-East and adds a reference 

to the easement serving the parcel thus subdivided.

In 1997, Melvin and Jeanette DeCarrico purchased 

parcel 2 from the Hatch heirs. Parcel 2 was conveyed “free of 

liens and encumbrances” except for a beach access easement 

expressly reserved in the deed of conveyance over a portion 

of parcel 2 for the benefit of parcel 1. At the time of the 1997 

conveyance, there was “an existing dirt road” that was part 

of parcel 1’s flag stem. At the time they purchased parcel 

2 from the Hatch heirs, the DeCarricos believed that they 

would have legal access to parcel 2 from that dirt road. The 

DeCarricos employed a contractor to build a house for them 

on parcel 2. While building the house, the contractor “graveled [the] DeCarrico[s’] driveway area and at the same time 
Cite as 334 Or App 198 (2024) 203

graveled [the] DeCarrico[s’] frontage along the existing dirt 

road” that went alongside the eastern boundary of parcel 2.

Parcel 2 was also accessible directly from Ocean 

Boulevard at a point west of the flag stem, but that access 

was difficult given its topography and vegetation. From the 

time they first purchased parcel 2 from the Hatch heirs, 

the DeCarricos used the flag stem road primarily, but not 

exclusively, to gain access to their property. The access point 

directly off of Ocean Boulevard was not modified or developed leading up to or around the time of the 1997 conveyance of parcel 2 from the Hatch heirs to the DeCarricos. 

Mr. DeCarrico eventually roped off the Ocean Boulevard 

access to parcel 2, and he used and maintained the access 

road on the flag stem as the primary access for his property.

The Hatch heirs continued to own parcel 1 until 

2003 when they sold it to Block. Block believed that the existing dirt road extending from Ocean Boulevard to his parcel 

was a county road. He did not discover that the road was, in 

fact, on the flag stem of his property until 2015. That was 

the year that DEA purchased parcel 2 from the DeCarricos. 

It was also the year when Block initiated the underlying litigation concerning the validity of his assignments to others 

of beach access rights over parcel 2.
204 Block v. DEA Properties-2 LLC

III. ANALYSIS

We recently described the general legal principles 

applicable to implied easements as follows:

“When land in one ownership is divided into separately 

owned parts by a conveyance, an easement may be created 

by implication from the circumstances under which the 

conveyance was made alone. That is, an implied easement 

is created when the circumstances that exist at the time 

of severance of a parcel establish that the grantor of the 

parcel intended to create an easement.

“Although the grantor must have intended to create an 

easement at the time of severance, that does not mean that 

the grantor had to form such intent consciously. Rather, 

the circumstances must be such as to permit an inference 

that had the grantor put his mind to the matter he would 

have intended the servitude to be created. To make that 

determination, the court views the circumstances from the 

putative grantee’s point of view: We think that the proper 

adjustment of the conflicting claims of the parties in this 

type of case can be arrived at more directly by attempting 

to determine what a reasonable grantee would be justified 

in expecting as a part of his bargain when he purchases 

land under the particular circumstances. Thus, the essential question is whether a reasonable purchaser would 

be justified in expecting the easement under the circumstances in which he or she purchased the land.”

Ghiglieri v. Tomalak, 304 Or App 717, 721-22, 469 P3d 262 

(2020) (citations and ellipses omitted; emphasis in original).

The inquiry into whether an implied easement 

exists is necessarily fact-driven. The Supreme Court 

has identified a list of eight nonexclusive factors that are 

“important” to the analysis: (1) whether the claimant is the 

conveyor or the conveyee; (2) the terms of the conveyance; (3) 

the consideration given for it; (4) whether the claim is made 

against a simultaneous conveyee; (5) the extent of necessity 

of the easement to the claimant; (6) whether reciprocal benefits result to the conveyor and the conveyee; (7) the manner 

in which the land was used prior to its conveyance; and (8) 

the extent to which the manner of prior use was or might 

have been known to the parties. Cheney v. Mueller, 259 Or 

108, 118-19, 485 P2d 1218 (1971) (internal quotation marks 
Cite as 334 Or App 198 (2024) 205

omitted). As we apply those factors and weigh the evidence 

here, we keep in mind that “[i]mplied easements are disfavored and must be established by clear and convincing evidence.” Manusos, 263 Or App at 724.

Because we are reviewing for legal error, the question we must answer is whether the evidence is sufficient 

to support the trial court’s ruling that DEA met its burden 

to establish the existence of an implied easement over the 

flag stem in favor of parcel 2 by clear and convincing evidence. The key question is whether DEA established that 

a reasonable purchaser in the DeCarricos’ position would 

have been “justified in expecting the easement” under the 

facts and circumstances that were present in 1997 when 

the DeCarricos purchased parcel 2 from the Hatch heirs. 

Ghiglieri, 304 Or App at 723 (explaining that the dispositive 

question at issue in an implied easement case is whether 

a reasonable buyer would have been justified in expecting 

the easement under the circumstances that existed at the 

time of purchase) (internal quotation marks omitted). Our 

review of the record using the Cheney factors as a framework for our analysis leads us to conclude that the evidence 

was not sufficient to support a determination that an easement arose “as an inference of the intention of the parties 

to a conveyance of land—here, the Hatch heirs and [the] 

DeCarrico[s]—based on the circumstances existing at the 

time of the conveyance—here, in December 1997.” Block I, 

315 Or App at 536-37 (internal quotation marks omitted). 

We reverse.

A. Whether the Claimant is the Conveyor or the Conveyee

This factor weighs in DEA’s favor because the 

DeCarricos, DEA’s predecessors in interest, were the conveyees in the 1997 real estate transaction and the law will 

generally “imply an easement in favor of a grantee more 

readily than in favor of a grantor.” Cheney, 259 Or at 123. 

We read the trial court’s finding on this factor to be consistent with ours.

B. The Terms of the Conveyance

The trial court’s finding with respect to this factor 

was this:
206 Block v. DEA Properties-2 LLC

“Mr. DeCarrico bought the land from Hatch heirs to 

build a house.

“Mr. DeCarrico built the house that is accessed from the 

road that parties thought was Ocean Blvd. However, the 

road was actually on the flag stem lot.”

The finding itself is clearly supported by the record, but it 

does not directly address the terms of the conveyance. We 

read the trial court’s finding to suggest that the court was 

persuaded by the evidence that building a house on parcel 2 

oriented with access from and over parcel 1’s flag stem was 

an essential part of the bargain between the DeCarricos 

and the Hatch heirs and that the terms of the conveyance 

itself, therefore, do not weigh against the existence of an 

implied easement.

The 1997 statutory warranty deed from the Hatch 

heirs to the DeCarricos specifically reserved a beach access 

easement over parcel 2 in favor of parcel 1, and it was otherwise “free of liens and encumbrances.” The Hatch heirs did 

not include language in the warranty deed expressly conveying to the DeCarricos an easement over the flag stem of 

parcel 1. They had, however, granted an express easement 

for access over the flag stem of parcel 1 to parcel 3 in 1995. 

And while we reject Block’s argument that the absence of an 

express easement over parcel 1 for the benefit of parcel 2 is 

dispositive, we do find that the conscious decision to grant 

express access rights over the flag stem in favor of parcel 3 

is evidence that the Hatch heirs knew how to create such 

access rights over the parcel 1 flag stem for the benefit of 

parcel 2 should they have wanted to do so. That evidence 

also significantly undermines DEA’s central contention 

that the Hatch heirs intended the flag stem to function as 

a “common roadway” for all the parcels in the subdivision, 

including the DeCarricos’ property.

C. The Consideration Given for it

This factor weighs in DEA’s favor, and that is how 

we interpret the trial court’s finding as well. The court wrote 

that the DeCarricos “bought the lot, leveled it, graded it and 

built a house with the driveway oriented to the roadway in 

question,” and the evidence clearly supports that.
Cite as 334 Or App 198 (2024) 207

Block relies on Thompson v. Schuh, 286 Or 201, 593 

P2d 1138 (1979), to argue that the giving of consideration 

weighs against finding an easement by implication; we disagree with that contention. As the Supreme Court explained 

in Rose et ux. v. Denn et ux., 188 Or 1, 212 P2d 1077 (1949), 

reh’g den, 188 Or 1, 213 P2d 810 (1950), the fact that one 

gives consideration in exchange for an interest in property 

weighs in the conveyee’s favor: “If a conveyance is gratuitous 

the implications are less favorable to the conveyee than is 

true if he pays value for it.” Id. at 20-21 (internal quotation 

marks omitted). By contrast, in Thompson, the court noted 

that “[w]here the claimant is the grantor, the fact that the 

grantee paid consideration for the land *** suggests that an 

implied easement * * * was not contemplated.” 286 Or at 214 

(emphasis added). DEA is the DeCarricos’ successor in interest, and the DeCarricos were the conveyees in the pertinent 

transaction who gave consideration for parcel 2.

D. Whether the Claim is Made Against a Simultaneous 

Conveyee

The trial court correctly concluded that this factor does not apply to this case. Where a common grantor 

divides property and simultaneously conveys that property 

to multiple conveyees, we assume that the grantor intended 

“very considerable privileges of use” to exist between the 

parcels. Rose, 188 Or at 21. The Hatch heirs retained ownership of parcel 1 for several years after conveying parcel 2 

to the DeCarricos. This case does not involve simultaneous 

conveyances.

E. The Extent of Necessity of the Easement to the Claimant

The trial court concluded that, despite the fact that 

the access point from parcel 2 directly onto Ocean Boulevard 

existed and could be developed, DEA had established reasonable necessity for an easement over the flag stem because 

the dirt road on it existed in 1997, the “practice for access 

to” parcel 2 at the time of the 1997 conveyance was over that 

dirt road, and the DeCarricos oriented their house for access 

from and over that dirt road. We do not agree. The evidence 

does not support a finding of reasonable necessity by clear 

and convincing evidence.
208 Block v. DEA Properties-2 LLC

While it is true that absolute necessity is not 

required, reasonable necessity must be established for an 

easement to arise by implication. Jack v. Hunt et ux., 200 

Or 263, 269, 264 P2d 461 (1953), reh’g den, 200 Or 263, 

265 P2d 251 (1954). “Reasonable necessity is a line drawn 

somewhere between literal necessity and mere convenience, 

being driven by policy considerations, but ultimately being 

judged by what a reasonable grantee would be justified in 

expecting as a part of his bargain when he purchases land 

under the particular circumstances.” Ghiglieri, 304 Or App 

at 725 (internal quotation marks omitted).

We relied heavily on reasonable necessity and recognized an implied easement over neighboring property in 

Ghiglieri where the placement of a fence made it difficult, 

though not impossible, to access residential property without “substantial inconvenience and safety concerns[,] * * * 

including the inability to come and go from the property at 

night.” Id. at 726. We ultimately concluded that a reasonable purchaser would be justified in expecting “not to have 

to drive backwards to get to the parking area for the house, 

particularly given the steepness of the driveway.” Id. at 

726-27.

By contrast, the Supreme Court declined to recognize an implied easement in Jack where the conveyee purchased the property for residential use and subsequently 

made improvements for business purposes. 200 Or at 272. 

The court did not find those improvements to be significant 

to the analysis because “at the time of th[e] transaction, in 

the minds of both the plaintiff and the defendants, the plaintiff’s property was to be used solely for residential purposes.” 

Id. As to necessity, because there was sufficient space for a 

walkway, the plaintiff failed to show that accessing the back 

of the house by car was more than a mere convenience. Id. at 

272-73.

Here, the fact that the DeCarricos oriented their 

house toward access over the flag stem after they had purchased the property does not provide clear or convincing 

evidence that, at the time of the conveyance, they were justified in expecting that they would receive the right to that 

access as a part of their transaction with the Hatch heirs, or 
Cite as 334 Or App 198 (2024) 209

that such access was more than a mere convenience. Even 

though testimony from DEA’s principal Anderson and from 

Mr. DeCarrico explained that using the direct access from 

Ocean Boulevard posed certain challenges, the significance 

of that testimony is undermined by Mr. DeCarrico’s own 

admissions that he sometimes used the Ocean Boulevard 

access after his purchase until eventually roping it off. 

Although access from Ocean Boulevard might be less than 

ideal, the evidence does not establish the sort of safety concerns or limitations on ingress or egress present in Ghiglieri

such that a reasonable purchaser in the DeCarricos’ position would expect access from the flag stem as part of the 

bargain.

We accept that the DeCarricos believed that the dirt 

road on the flag stem was a public roadway, but parcel 2 had 

been created with other direct access to Ocean Boulevard 

that was separate and apart from the dirt road. And while 

the conveyee’s perspective may provide insight into the conveyor’s intent, the fact remains that when the Hatch heirs 

subdivided their property into smaller parcels in the mid1990s, they created parcel 1 as a flag lot. As designed, the 

parcel 1 flag stem provides the necessary access to Ocean 

Boulevard for three of the four parcels. Parcel 1 extends to 

Ocean Boulevard. Parcels 2-East and 1-East require easement rights to assure access to Ocean Boulevard and the 

Hatch heirs, in fact, gave express access rights to Ocean 

Boulevard for those two parcels over the parcel 1 flag 

stem. Parcel 2 was not granted similar express easement 

rights, but it already had access to Ocean Boulevard by 

way of the separate access that was part of parcel 2 when 

the DeCarricos purchased it and that they later physically 

roped off. Evidence of the DeCarricos’ mistaken belief about 

the dirt road and of their post-conveyance development of 

parcel 2 does not provide clear evidence of the Hatch heirs’ 

intent in 1997 when they sold parcel 2 to the DeCarricos. 

Therefore, this factor weighs in Block’s favor.

F. Whether Reciprocal Benefits Result to the Conveyor and 

the Conveyee

The trial court found that DEA could help Block 

with the maintenance costs of the road. We extrapolate from 
210 Block v. DEA Properties-2 LLC

that finding that DEA’s predecessor in interest at the time 

of the 1997 conveyance—the DeCarricos—could help with 

road maintenance costs. The record certainly reflects that 

the DeCarricos improved the dirt road after the conveyance 

occurred. But neither party points to evidence at the time 

of the conveyance on this factor and we have found none. 

Moreover, the reciprocal benefit factor focuses on reciprocal 

use of the parties’ respective properties, as opposed to any 

shared costs. Compare Rose, 188 Or at 25 (reasoning that 

the road in question was “indispensable to both conveyor 

and conveyee” where the road crossed through both parties’ 

properties and enabled one party to access other portions 

of their property and enabled the other party to access a 

county road) and Ghiglieri, 304 Or App at 727 (weighing this 

factor in favor of an implied easement because the record 

suggested that both parties relied on use of a portion of each 

other’s properties for ingress and egress) with Thompson, 

286 Or at 215 (distinguishing the case from Rose on the 

basis that no reciprocal benefit was shown where use of the 

disputed road did not provide any mutual benefit of access to 

the parties’ respective properties). Without evidence of reciprocal benefit, this factor weighs against finding an implied 

easement.

G. The Manner in Which the Land was Used Prior to its 

Conveyance

The trial court found, among other things, that the 

Hatch heirs developed four lots that could be accessed by the 

dirt road on the flag stem, that the dirt road existed at the 

time of the conveyance to the DeCarricos, that Mr. DeCarrico 

used the dirt road to access parcel 2 after he purchased it, 

and that the Hatch heirs “intended” for that use to continue.

“Parties to a conveyance may *** be assumed to 

intend the continuance of uses known to them which are 

in a considerable degree necessary to the continued usefulness of the land.” Cheney, 259 Or at 121 (internal quotation 

marks omitted). While evidence of prior use “cannot of itself 

establish an easement,” it “strongly support[s] an implied 

easement claim, because prior use consistent with a claim 

provides a firm basis from which to infer intent.” Dayton v. 

Jordan, 280 Or App 236, 242, 381 P3d 1041 (2016).
Cite as 334 Or App 198 (2024) 211

The record does not establish use of the flag stem 

to access parcel 2 until after the 1997 conveyance had 

occurred. We accept that a purchaser visually inspecting 

the property might make assumptions about the dirt road 

and its relationship to Ocean Boulevard. But recorded property records such as the 1994 and 1995 plat records would 

have made clear that the dirt road was in fact private, or, at 

a minimum, caused a reasonable purchaser to make further 

inquiry. Given that parcel 1 was itself created with direct 

access to Ocean Boulevard vis-à-vis its flag stem, that the 

Hatch heirs gave an express easement over the flag stem for 

the benefit of parcel 3 (which later became parcels 1-East 

and 2-East in 1995), and that parcel 2 had its own direct 

access to Ocean Boulevard without having to use the flag 

stem, the lack of evidence of pre-1997 conveyance use weighs 

against finding an easement by implication.

H. The Extent to Which the Manner of Prior Use Was or 

Might Have Been Known to the Parties

The trial court found that the roadway in question 

existed at the time of the conveyance to the DeCarricos, that 

the DeCarricos used the roadway to access their parcel, that 

the DeCarricos built their house and driveway to be oriented for access from that roadway, and that in the six years 

between the sale to the DeCarricos and the sale to Block the 

Hatch heirs raised no questions about the DeCarricos’ development of parcel 2 with a home and driveway that incorporated and used the dirt road, and therefore the flag stem, in 

its access design. The trial court erred in concluding that 

the “clear inference is that at the time of the conveyance 

the Hatch heirs intended that Mr. DeCarrico use the existing roadway to access his property,” because the bulk of the 

evidence of use was post-conveyance. The parties’ actions 

following the conveyance cannot by themselves establish the 

parties’ intent at the time of the conveyance. As we have 

said:

“At its core, [the claimants’] argument is that they have 

used the road without complaint for many years. And yet 

that fact is irrelevant to an analysis of whether an implied 

easement exists. That analysis involves a historical inquiry 

and [the claimants] have failed to allege historical facts to 
212 Block v. DEA Properties-2 LLC

inform it. Accordingly, we agree with the trial court that 

[the claimants] are not entitled to an easement.”

Waters v. Klippel Water, Inc., 304 Or App 251, 259, 464 P3d 

490 (2020). The prior use factor does not provide support for 

an implied easement, and it weighs against DEA.

IV. CONCLUSION

Of the eight Cheney factors, two weigh in favor of an 

implied easement, one factor does not apply to this situation, 

and the other five factors weigh against an implied easement. But we do not reach our conclusion by simply tallying 

the score. We rely on our discussion of each of the factors, 

adding that there is overlap between and among the factors 

that weigh against an implied easement. The evidence is not 

sufficient to clearly and convincingly establish an easement 

by implication. The trial court erred in concluding otherwise. To be clear, it is apparent from the trial court’s rulings 

that it was using the correct legal standard on remand. It 

nevertheless erred because the factual record does not support the legal conclusion that an easement arose by implication at the time of conveyance in 1997.

Reversed.