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Dayton v. Jordan, --- P3d --- (2016)

It is well established that a plat is generally sufficient to establish an express easement if it describes and depicts a roadway or trail sufficiently to reflect the intention to create an easement. Bloomfield v. Weakland, 224 Or App 433, 445-48 (2008), rev den, 346 Or 115 (2009).  In cases where a plat is insufficient to establish the intent to create an express easement, an easement may nevertheless be implied. In the typical case, an implied easement is not reflected in a deed or plat. Rather, it arises as an inference of the intention of the parties based on the circumstances existing at the time the land was divided and conveyed.  In those circumstances, the trial court applies the eight factor test established in Cheney v. Mueller, 259 Or 108, 118-19 (1971) to determine whether implied easement exists.  In Dayton v. Jordan, the Court of Appeals addressed the question of whether the trial court may short cut the Cheney test by implying an easement based almost exclusively on the depiction of the purported easement on the plat.  The Court of Appeals determined that the eight factor Cheney case must always be applied to establish an implied easement – even where the purported easement is depicted in a plat.

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