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socrateaser, Lawyer
Category: Real Estate Law
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Experience:  Attorney and Real Estate broker -- Retired (mostly)
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This is an easement or trespass question. I live in Jackson

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This is an easement or trespass question. I live in Jackson County Oregon in a rural area on a private road. Properties 1, 2, 3, and 4 lie north of mine between my residence and the public road. Property 6 lies south of mine and my property lies between property 6 and the public road. The owners of each of the 6 properties own the portion of the road that is on their property. Only the owner of property 6 has an ingress/egress easement across my portion of the road. No other owners have any easement rights across my property. My portion of the road is approximately one quarter mile long. Owner 6 does not live on the property and visits it infrequently.
Owner 1 wishes to use my portion of the road for walking his dog. I have required only that he have a collar on his dog and carry a leash in case the dog needs to be restrained for safety purposes and informed owner 1 that he has no permission to cross my property with his dog unless the dog is wearing a collar and owner 1 is carrying a leash. .
Owner 1 has refused to collar his dog and carry a leash and claims that he has and may actually have permission from owner 6 to check up on property 6 and therefore claims the right to take his dog with him across my portion of the road, uncollared and unleashed. Owner 1 is actually using this “permission” from owner 6 as a ruse to walk his dog on my portion of the road. The home on property 6 is, for the most part, not visible from my portion of the road but the land is. Owner 1 does not actually check up on property 6 but claims he does.
Can I require owner 1 to collar his dog and carry a leash? Is owner 1 trespassing if he does not. Can I exclude owner 1 from my property. What is the legal authority for your answers?
Jackson county has no leash law and requires only that dogs be “under control.”
I have provided the relevant law concerning easements at the bottom of this answer. Parsing the "legaleze," the first question that you must resolve is: what does the easement grant actually state, and what would an objective person make of that grant?

If the easement is ambiguous, and states that the neighbor has a "right-of-way," then the reasonable interpretation, in my view, is that the neighbor can make use of the road to access his or her property, and to provide access for any other persons who reasonable require access.

In your case, your other neighbor claims to be checking up on the easement holder's property. If that is true, then that is a reasonable use of the easement, and you cannot prevent the neighbor, and/or his dog from using the easement. But, if the dog or the neighbor strays from the road, or does not actually access the easement holder's property, then the neighbor is trespassing, because he is not using the road for the purpose for which the easement was originally granted.

If I were in your shoes, I would contract the easement holder in writing and ask if he has engaged the other neighbor to watch his property. If the response is 'no," then the other neighbor is a trespasser, plain and simple. Or, if you can video the dog off of the easement road, then that too is trespassing, because the easement is only the road, and nowhere else on your property.

One other issue is that Oregon law generally requires property owners to post signs at routine intervals notifying potential trespassers that they are crossing onto your land. So, unless the road is fenced in (even just a single wire fence), and no trespassing signs are posted, then you will have difficulty proving a civil trespass, except by accident, which is not actionable in court except for actual damages.

Conversely, if you take all the precautions, and the neighbor is still tresspassing, then you can provide a written warning, and if the neighbor persists, you can call the police/sheriff and make a report -- or, sue the neighbor in small claims to discourage further trespassing.

Hope this helps.

Case Law:

[A]n easement holder can make only such use of an easement as is reasonably necessary to accomplish the purpose for which the easement is granted and the remaining dominion over the land upon which the easement lies continues with the servient landowner. Ericsson v. Braukman, 111 Or App 57, 824 P2d 1174, rev den 313 Or 210, 830 P2d 595 (1992).

"In construing an easement, our fundamental task is to discern the nature and scope of the easement's purpose and to give effect to that purpose in a practical manner." Watson v. Banducci, 158 Or App 223, 230, 973 P2d 395 (1999) (citing Bernards et ux. v. Link and Haynes, 199 Or 579, 593, 248 P2d 341 (1952), on reh'g 199 Or 579, 263 P2d 794 (1953)). In Tipperman v. Tsiatsos, 327 Or 539, 964 P2d 1015 (1998), the Supreme Court explained the legal principles that govern the proper construction of an easement:

"First, in [easement] cases, 't is the duty of the court to declare the meaning of what is written in the instrument.' Minto v. Salem Water Etc. Co., 120 Or 202, 210, 250 P 722 (1926). Further, the court will look beyond the wording of the instrument 'only where there is an uncertainty or ambiguity.' Fendall v. Miller, 99 Or 610, 619, 196 P 381 (1921). If the wording at issue is uncertain or ambiguous, then the court must determine the intent of the original parties by examining the relevant surrounding circumstances. Doyle v. Gilbert, 255 Or 563, 566, 469 P2d 624 (1970) * * *. Such circumstances include the purpose and nature of the easement, the circumstances existing at the time of the grant or reservation, and the manner in which the easement was used by the original parties." Id. at 544-45.
Customer: replied 6 years ago.

part of my question remains unanswered. "can i require owner 1 to collar his dog and carry a leash?"

the easement to owner 6 reads for ingress/egress. what I understand from your answer is that 6 can authorize 1 to use his easement to the extent 6 could use it. if there is authority to impose a limitation on 6 that 6 must collar any dog and carry a leash in order to walk the dog on the easement, would not that also be a limitation on 1's dog walking? is there any authority for me to impose such a limitation on 6 and would it then apply to 1?

Since you stated that the county provides no ordinance concerning leashing of dogs, I'm taking you at your word, that there is no general legal authority to leash the dog.

What remains is that the only authority is that the neighbor is trespassing by permitting the dog to wander off the road. Put another way, if the neighbor is entitled to access the road to check on the easement holder's property, then bringing a dog with him is reasonably within the scope of the easement. That's how I would rule if I were sitting as a judge in the matter.

I would also order the dog leashed, because it's likely that it is wandering off of the road (that's what dogs do, after all).

However, this is all the sort of thing that would be hashed out in a court. You won't find any dispositive statutory authority that you could hand to the neighbor or to the sheriff. You have to catch the neighbor's dog wandering off the road, and then sue for trespass. Or, get a letter from the easement holder that the neighbor isn't authorized to watch the property.

Edited by socrateaser on 11/13/2010 at 7:38 AM EST
Customer: replied 6 years ago.

yes I understand that if I could witness or better yet photo the dog off the road or 1 not actually setting foot on 6's property, then there's trespass. It seems to me though that easement law both precludes unreasonable interference by the servient tenant but also allows reasonable limitations, like for instance, the servient could impose a speed limit on vehicular traffic, so what I'm looking for is authority of the servient to impose reasonable limitations. Is there? thx

btw, what state do you practice in, are you licensed in?

I worked in Oregon for 12 years. I currently live in California.

Just for grins, I looked up the Jackson County Code. JCC § 612.09(c)(3) prohibits a dog from trespassing on the land of another. So, if you catch the dog running somewhere off the easement, then you can call animal control, because that's a misdemeanor.

But, there is no specific "collar" law.

The authority you're looking for doesn't exist. If it did, I would have provided it. I have access to all Oregon statutes, ordinances and case law.

Your issue is all within the reasonable discretion of a court of equity. If you want to deal with the situation, you will have to do as I suggest, or you'll just spin your wheels.
Customer: replied 6 years ago.

ok so when no authority exists in one state, courts often look to the law of another. any U.S. authority for a right of the servient to impose limitations on the easement that do not unreasonably interfere with it?


know of any hungry lawyer who might want to take this in the medford OR area.


btw, I practiced IP and PI and GP in SD for 30 years. and I appreciate your help.

You don't need to go outside of Oregon for pursuasive case law, because there is binding precedent available in Oregon:
  • ...ordinarily, a "grantee [of an easement] is not restricted to the methods of use which were current at the time of the grant," but reasonably may change that use over time as long as the burden on the servient estate is not increased. Bernards et. ux. v. Link and Haynes, 199 Or 579, 593-97, 248 P2d 341, on reh'g 199 Or 605, 263 P2d 794 (1953). To restrict an easement grantee's use, the Supreme Court requires express language clearly imposing a use limitation or extrinsic evidence that the parties so intended. Jones v. Edwards, 219 Or 429, 433-35, 347 P2d 846 (1959). Where the language is equivocal and there is no evidence or only scant evidence of what the parties intended, as is true here, the Supreme Court gives an easement its ordinary scope, permitting the use reasonably to change with changing needs. Id.

Re hungry lawyers, I don't know any in the South. And, I wonder why you would want to spend the money. If I were prepared to start forking out legal fees, I would just offer the neighbor $500 to sign a contract agreeing to leash the dog.

But, I'm sort of an efficiency fanatic. Most people can be bribed into compliance for less than it costs to fight with them.

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