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Oregon Court of Appeals Reaffirms that Absolute Necessity is a Prerequisite for Pursuing an Easement by Necessity Claim

In Relling v. Khorenian, plaintiff filed a declaratory judgment seeking to establish an easement over the defendant's properties for access.  Plaintiff purchased property from N-C-W, Inc. (NCW) pursuant to a land sale contract in 1972.  At the time of the conveyance, plaintiff accessed his property via a logging road on property owned by NCW to McKay Creek Road.  The fulfillment deed held in escrow during the land-sale contract granted plaintiff “an easement for road purposes to McKay Creek Road.”  Three months after conveyance to plaintiff, NCW began conveying the remaining lands surrounding plaintiff's parcel, including parcels containing plaintiff’s existent logging road access across defendant’s property to McKay Creek Road.  The fulfillment deed was recorded in 1978, after adjacent parcels had been transferred to others.

Although plaintiff’s prayer for relief sought declaration of a common law easement of necessity, plaintiff’s arguments emphasized facts suggesting that plaintiff had an implied easement by nature of the fulfillment deed.  Instead, the court held plaintiff to his plea that the landlocked nature of his property warranted granting an easement of necessity.  The Court held that three factors must be present in order to award an easement of necessity: (1) unity of title in the grantor; (2) severance of ownership; (3) actual necessity.  The facts indicated that plaintiff had multiple access points from other adjacent properties at the time of severance that did not rely on use of the logging road crossing defendant's properties.  Therefore, the court held that actual necessity was not present on these facts.  The trial court’s judgment was affirmed. Relling v. Khorenian ___ Or App ___ (Feb. 12, 2014, 2014 WL 554488, A148378)

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