Country Lane residents, A&E day in (Supreme) Court Thursday

Scott Swanson

Country Lane residents expect to get a final resolution of their dispute with Albany and Eastern Railroad beginning Thursday, March 12, when the Oregon Supreme Court hears their case at the University of Oregon Law School in Eugene.

Fourteen residents of Country Lane have resisted a demand by A&E to pay for an easement across the company’s railroad tracks, which parallels Highway 20, across from Harmony Road, west of the Narrows.

After it purchased the railroad line connecting Sweet Home and Lebanon, A&E 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. The residents won in District Court, but lost in the state Court of Appeals.

“It will just right a wrong, as far as I’m concerned,” said Mike Martell, who has been the primary spokesperson for the Country Lane residents since the dispute began. “It’s obvious the Court of Appeals got it radically wrong.”

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.

It will likely be months, perhaps the end of the year, before the Supreme Court hands down its ruling, Martel said.

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.

After Albany & Eastern appealed, the Oregon Court of Appeals last June 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 in November to hear the case.

Albany & Eastern argues that the community’s use of the railroad crossing was “permissive,” not adversarial and that the crossing was treated as a public crossing for nearly 60 years. In a filing with the Supreme Court, the railroad’s lawyers Francis Hansen & Martin LLP of Bend, “have no evidence of actual interference with AERC’s use of its property,” which would be necessary under the Wels decision to establish adverse use.

Martell said he’s “optimistic” that the Supreme Court agreed to hear the case, noting that the justices could have opted to agree with the Court of Appeals decision and decline to hear the case.

“It’s just a matter of the law,” he said. “To me, it serves as a case in point that the simple fact that we got an invite, as I understand it, they saw a flaw in what the Appellate Court reached. So that breathes a little light and sanity back into this thing.”

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