Scott Swanson
The Oregon Supreme Court last week ruled that the residents of Country Lane do not have to pay to cross the Albany and Eastern Railroad Company line that separates their homes from Highway 20, west of Sweet Home.
In a decision handed down Thursday, July 23, written by Justice Thomas A. Balmer, the Court overruled a state Court of Appeals ruling in 2017 that had found in favor of the railroad.
The case, which centered on whether Country Lane is considered a “common road,” was argued before Supreme Court justices Balmer, Rebecca A. Duncan, Meagan Flynn, Christopher L. Garrett, Lynn Nakamoto, Adrienne C. Nelson and Chief Justice Martha Lee Walters on March 12.
“We’ve been waiting eight years for that one,” said Corvallis attorney Dan Armstrong, who represented the Country Lane neighbors through the course of the legal action.
“I knew we were going to win. The Court of Appeals was so wrong.”
He said it was his first case before the state Supreme Court in 33 years of practicing law.
Mike Martell, one of the 12 defendants in the original lawsuit, said he was “tickled pink” by the ruling.
“The crux ofthe whole deal is the Court of Appeals got it wrong. It didn’t take long for the Supreme Court ro rectify it.”
The case centered on Country Lane neighbors’ claim that they have been trespassing on Albany and Eastern Railroad’s crossing to reach Highway 20 since at least 1953. Under state law, that had to be proven if they were to continue doing so without paying Albany and Eastern a permit fee and an annual maintenance fee.
Both sides agreed that the crossing has been used for some seven decades by that neighborhood and even further back into the fog of history, 1910, before the railroad even existed.
Armstrong said the problem could have been solved by “adding five words in a deed.”
Albany and Eastern argued that the railroad has been giving the neighbors, along with the general public, that right.
After its 2012 purchase of the rail line and the property it sits on, the railroad decided to stop treating Country Lane as a public crossing, treat it like a private crossing and charge residents annual payments for maintenance and insurance, it said.
The case began in 2012 when AERC purchased the land on which the railroad tracks run from Lebanon to Sweet Home.
After it purchased the land, AERC discovered that there was no deeded access to the Country Lane properties located west of The Narrows, across Highway 20 from Harmony Road. The railroad attempted to charge the residents of the eight homes a permit fee and an annual maintenance fee.
When the residents refused to pay, the railroad posted signs labeling the crossing as private and prohibiting trespassing across the tracks, then sued in 2013 to gain quiet title in the disputed crossing and seeking damages for trespass.
Armstrong said the proposed fee required the residents to give up their common-law rights to cross to their homes.
In addition to Martell, named in the lawsuit were his wife Cindy Martell, and neighbors John and Elaine Harcrow, Jeffrey and Beverly Kaiser, Joanne Fagan, Ray and Michelle McMullen, Jeremy and Karen Orr, Richard and Jill Hutchings and Laurae Mithoug.
The residents argued that they had a prescriptive easement, one acquired by continued use of property without permission of the owner for a legally defined period of time, over the railroad crossing because they and their predecessors had been using the crossing “openly, notoriously and adversely” since 1942. Adverse use is that made without consent of the landowner.
Oregon law allows a prescriptive easement in such circumstances and Judge David E. Delsman of the Linn County District Court ruled in 2016 that there was a presumption of adversity and that the residents had proved actual adversity and other elements required to establish a prescriptive easement.
On appeal by the railroad, the state Court of Appeals overruled Delsman last year, finding that the presumption of adversity did not apply because the residents’ use of the crossing was “not likely to put the owner on notice of the adverse nature of the use,” which was a new wrinkle created by a 2017 state Supreme Court ruling that had been handed down after the district court trial.
The appellate judges ruled that the residents’ use of the crossing “in no way interfered with AERC’s use of its property,” and thus failed to meet the requirements for a prescriptive easement.
In the Supreme Court decision, Balmer wrote, in a 29-page opinion reviewing the history of the properties involved and the progression of events leading to the lawsuit, that the Appeals Court erred in determining that the facts of the Country Lane case precluded the application of adversity, and upheld the local judge’s ruling.
“The railroad mistakenly thought it was public,” Armstrong said Monday. “They let everybody go through.”
The decision sets precedent that others throughout the state could cite in similar cases, Armstrong said.
He said he doesn’t know for sure what that number might be, but he’s been told six crossings are similarly affected on the 17-mile stretch between Lebanon and Sweet Home, adding that there are some 2,100 miles of short-line railroad tracks throughout Oregon.
“If you just do the simple math of that, there’s probably hundreds of other people we don’t know about yet,” Armstrong said.
He said that in this case the Country Lane residents’ legal fees will be covered by the railroad, since it lost the case.
“I’m glad we got the result we did,” he said. “Some of those people are in their mid- to upper 80s. If the railroad had won, their homes would have been worthless.”
Martell, who has served as a spokesman and leader for the Country Lane neighbors over the years, said he was only disappointed that some of the original residents, Bill Orr and Larry Fagan, passed during the years of litigation and weren’t there to see the final outcome.
“This win is for Billy Orr,” he said.
“You look at the price tage we paid along the way. Dan Armstrong told us it was going to get long and ugly. We were in this for 8½ years.
“We went with lot of uncertainties, but we stuck together. There really is a silver lining at the end of the day.
We won and we stuck together.”