An Oregon Court of Appeals held that in order for an easement to be considered abandoned, the beneficiary of the easement must not only abandon the property, but also must verbally express either their intent to abandon the easement or through implication by the beneficiary’s conduct or lack of conduct, must show unequivocally the beneficiary’s intent to abandon the easement.
A court of law will acknowledge an easement as abandoned when it is shown that the beneficiary has physically abandoned the property and by either verbal acknowledgement of their intent to abandon the easement or through the beneficiary’s conduct or lack of conduct, it can be unequivocally determined the beneficiary intended to abandon the property.
In 1964, Central Oregon Fabricators, Inc. (Plaintiff) received a 24,000-acre property through a conveyance from Hudspeth Land and Livestock Company. Fred Hudspeth and his family (Defendants) then received a conveyance from plaintiffs granting fishing and hunting rights on the land. This conveyance stipulated that the Defendants could bring guests onto the property so long as they were hunting or fishing. Plaintiff’s majority owner, Jack Rhoden, eventually set up barriers as well as guard towers on the property in order to monitor the hunting and fishing. Soon after, Rhoden created a hunting business where he would take hunters on guided trips and charge them up to $5,000 per trip. During this time, the Defendants on one occasion in a nearly thirty-year span had hunted or fished on the premises. Shortly thereafter, the Defendants assigned all of their rights to F&M Realty Co. (F&M). F&M in turn, then agreed with Defendants that they both would convey some of their rights to hunters and fisherman interested in the property in consideration of yearly payments. Plaintiffs now concerned with the rise in competition amongst their hunting business brings this action to quiet title. The trial court ruled in favor of the Plaintiffs stipulating that the Defendants could not assign their rights to another person but could only bring non-paying guests. Furthermore, the trial court determined the Plaintiffs adversely possessed the property by building barriers to no objection of the Defendants. Defendants appeal.
If a beneficiary of an easement fails to utilize the easement for a significant period of time but has never expressly mentioned or acted to indicate his or her intent to abandon the easement, then is the easement considered to be abandoned?
No. The Oregon Court of Appeals ruled that the beneficiary must both abandon the easement and either expressly or by use of conduct indicate their intent to abandon the easement. The Court further notes that the act or conduct which may prove abandonment must be clear as to show the beneficiary’s intent to abandon the lease.
The Court notes that the absent of use of the easement does not satisfy the conduct element necessary to prove the beneficiary’s intent to abandon the easement. Furthermore, the Court ruled the trial court erred in its ruling that the Plaintiff adversely possessed the land because the Plaintiffs never brought the claim in its pre-trial pleadings. Trial court’s decision is reversed.