Chapter 376

 

††††† 376.105

 

††††† See annotations under ORS 376.175 and 376.180.

 

††††† 376.150 to 376.200

 

NOTES OF DECISIONS

 

††††† Way of necessity may not be established if petitioner could acquire easement for access to public road through other legal action. Chambers v. Disney, 65 Or App 684, 672 P2d 711 (1983)

 

††††† Way of necessity created under these sections must be open to public and, so construed, sections do not violate article I, section 18 of Oregon Constitution. Chapman v. Perron, 69 Or App 445, 685 P2d 492 (1984)

 

††††† Where petitionerís land does not abut highway, ORS 376.180 requires petitioners to show they lack easement so as to show need for way of necessity. Witten v. Murphy, 71 Or App 511, 692 P2d 715 (1984), Sup Ct review denied

 

††††† Under these sections, if petitioners have existing enforceable access to public road, they are not entitled to way of necessity, notwithstanding whether such access is reasonable. Pike v. Wyllie, 100 Or App 120, 785 P2d 764 (1990), Sup Ct review denied

 

††††† 376.155

 

NOTES OF DECISIONS

 

††††† Proposed point of connection is not practicable if way of necessity established by point of connection cannot be maintained sufficiently to allow motor vehicle access consistent with intended uses of benefited property. Petroff v. Williams, 240 Or App 201, 246 P3d 39 (2010)

 

††††† 376.175

 

NOTES OF DECISIONS

 

Under former similar statute

 

††††† Landowner who successfully appeals amount of damages awarded when land is burdened by way of necessity is entitled to attorney fees. Brookshire v. Johnson, 274 Or 19, 544 P2d 164 (1976)

 

In general

 

††††† This section authorizes award of attorney fees on appeal by property owner or other person claiming interest in property who successfully defends action for statutory way of necessity. Pike v. Wyllie, 103 Or App 30, 795 P2d 1097 (1990), Sup Ct review denied

 

††††† Where land is subject to petitionerís action for way of necessity, attorney fees are available even though land was not included in route proposed by petition. Morgan v. Hart, 325 Or 348, 937 P2d 1024 (1997)

 

††††† 376.180

 

NOTES OF DECISIONS

 

Under former similar statute

 

††††† Way of necessity must be open to public use. Aylett v. Mardis, 59 Or App 109, 650 P2d 165 (1982), Sup Ct review denied

 

In general

 

††††† Where petitionerís land does not abut highway, this section requires petitioners to show they lack easement so as to show need for way of necessity. Witten v. Murphy, 71 Or App 511, 692 P2d 715 (1984), Sup Ct review denied

 

††††† Where petitioners have existing enforceable access to public road, they are not entitled to way of necessity under this section, notwithstanding state of repair of such access. Pike v. Wyllie, 100 Or App 120, 785 P2d 764 (1990), Sup Ct review denied

 

††††† Burden of showing inability to acquire easement for access through other legal action rests on petitioner. Tyska v. Prest, 163 Or App 219, 988 P2d 392 (1999)

 

††††† 376.185

 

NOTES OF DECISIONS

 

††††† That state may not unreasonably withhold consent means state may not arbitrarily and capriciously withhold consent. Where state agency expressed concerns about potential adverse impact of plaintiffsí way of necessity and concerns were supported by evidence in record, agency was not unreasonable. Bradley v. Dept. of Forestry, 262 Or App 78, 324 P3d 504 (2014), Sup Ct review denied

 

††††† 376.705 to 376.825

 

ATTY. GEN. OPINIONS: Application of Ballot Measure 47 (Oregon Constitution Article XI, section 11 g) to issuance of bonds for specific local improvements, (1996) Vol 48, p 67