Country Lane case goes to state Supreme Court

Scott Swanson

Country Lane residents will get another day in court – the Oregon State Supreme Court – in their dispute with Albany and Eastern Railroad over an easement to cross A&E’s tracks without paying the company for that access.

The Supreme Court is scheduled to hear the case on March 12, 2020 at the University of Oregon Law School in Eugene.

That development is the latest in a nearly seven-year legal battle between residents on the dead-end lane across Highway 20 from Harmony Road, and A&E, which attempted to bill the residents on Country Lane after it purchased the railroad line connecting Sweet Home and Lebanon.

A&E had demanded that property owners pay a permit fee to cross its tracks and provide liability insurance coverage naming the railroad as the beneficiary. Country Lane residents refused.

A&E filed a lawsuit on Jan. 25, 2013 naming the 14 defendants representing eight Country Lane properties to stop residents from crossing its tracks to their homes unless they agreed to its permit. The case went to trial that August.

Residents named in the case are Mike and Cindy Martell, John and Elaine Harcrow, Jeffrey and Beverly Kaiser, Joanne Fagan, Ray and Michelle McMullen, Jeremy and Karen Orr, Richard and Jill Hutchins and Laura Mithoug.

The case has focused on a legal principle called “adverse use.” Previous court rulings have established that to establish a prescriptive easement – the legal right to cross the tracks, in this case, the Country Lane residents must establish that they had an “open and notorious use of the owner’s land” continuously for a period of 10 years that is adverse to the right of the owner continuously for a period of 10 years. “Adverse” means that the use of the property is inconsistent with the owner’s use of the property or contrary to the rights of the owner.

Linn County Circuit Court Judge David E. Delsman, in an opinion letter dated Jan. 13, 2016, ruled that the Country Lane residents had used the crossing in an “open, notorious and continuous” manner in a way that was “adverse to the interests of the railroad” since as early as 1953, which qualified them for an easement at the existing crossing.

“The court finds that this adverse use continued continuously and that by 1973 the use had ripened into a prescriptive easement,” Delsman said in his opinion.

Albany & Eastern appealed, and last June the Oregon Court of Appeals overturned Delsman’s ruling.

A three-judge panel of Appeals Court justices disagreed with the Circuit Court judge that there was a “presumption of adversity” in the residents’ use of the railroad crossing.

“In this case, the parties agree that defendants proved that their use was open and notorious for 10 continuous and uninterrupted years. Thus, as at trial, the only issue on appeal is whether defendants’ use was adverse,” appellate court Judge P.J. DeHoog wrote.

Referencing a 2017 U.S. Supreme Court decision in Wels v. Hippe, which, DeHoog noted, was handed down following Delsman’s ruling, a claimant’s use of property 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.”

He stated that because the residents’ crossing of the railroad did not interfere with A&E’s use of its property, that Delsman erred in applying the presumption of adversity and without that, there was insufficient evidence to find the residents’ use adverse.

While the trial court did not have the benefit of the more recent Supreme Court decision, the appeals court’s reading of the case “leads us to conclude that the presumption is not as broadly applicable as the trial court understood it to be.”

The trial court’s decision found that the crossing had been treated as public since at least 1953. The railroad had maintained the crossing at its own expense and installed crossbuck signs, with no evidence of restrictive signs, like “no trespassing” or “private crossing.” It was erroneously listed as a public crossing by the U.S. Department of Transportation in 1970.

“The fact that defendants’ use of the crossing created maintenance and liability costs for plaintiff is not evidence that defendants’ use of the crossing interfered with AERC’s use of its property, and no other evidence in the record supports the trial court’s finding of adverse use,” DeHoog wrote. “Without benefit of a presumption of adversity and without evidence of actual adversity, defendants’ prescriptive easement claim fails. The trial court erred in concluding otherwise.

Following the Appeals Court ruling, the Country Lane neighbors appealed to Oregon’s highest court, which agreed last week to hear the case.

“We appealed and they accepted,” said Mike Martell, who has served as a leader and spokesman for the Country Lane residents throughout the legal battle.

“We’re in. That is the good news. This gives us the opportunity for the judges there to hear our side, look at the facts of the matter. Just the simple fact that we’re allowed in there, I’m pretty confident that they believe the Appeals Court was wrong.

Martell said the case’s implications go far beyond him and his neighbors who, he said, will have to pay to cross the railroad tracks.

“If we lose, it’s over for hundreds of people up and down this railroad,” he said. “This wasn’t about Country Lane. It never has been, though the railroad always made it out to be that. This is about control.”