is necessary for its beneficial use and enjoyment and to retain whatever is necessary for the <br />use and enjoyment of the land retained. An implied intent may be rebutted by evidence of an <br />agreement or understanding, at or prior to the conveyance, that the easement was not to pass. <br />In Oregon, implied easements are disfavored, Cheney v. Mueller, 259 Or 108, 118-119, 485 <br />132d 1218 (1971), and are established only in accordance with a seven-factor test. <br />5. Easement by necessity - ORS 376.150-376.200 govern easements by necessity. The statutory <br />scheme may be used only if the claimant is unable to gain access to the property. ORS <br />376.180(9). The process requires a petition listing certain information (ORS 376.155), service of <br />the petition on the landowners and a report to the county (ORS 376.160), the right.of the <br />landowner to answer (ORS 376.170), an order granting or denying the petition and the <br />landowner's right to appeal (ORS 376.175), and certain conditions that any established way of <br />necessity shall meet (ORS 376.180). Note that ORS 376.175(2)(e) requires the court to "[d]irect <br />the petitioner to pay costs and reasonable attorney fees incurred by each owner of land whose <br />land was subject to the petitioner's action for a way of necessity under ORS 376.150 to <br />• 376.200." <br />6. Easement by prescription A prescriptive easement requires that the claimant establish by <br />clear and convincing evidence that his use was: 1) for the prescriptive period (10 years under <br />ORS 12.050); 2) open, notorious, and adverse to the rights of the servient owner; and 3) <br />continuous and uninterrupted according to the nature of the use. Thompson v. Scott, 270 Or <br />542, 546, 528 P2d 509 (1974). By showing open, continuous and uninterrupted use, a claimant <br />may give rise to a presumption that the use was adverse to the servient owner, who may then <br />disprove the adversity by showing the use to be permissive. Doyle Miling v. Georgia Pacific, <br />256 Or 271, 278, 473 132d 135 (1970). As to the elements of open and notorious use, see <br />Beers v. Brown, 204 Or App 395, 129 P3d 756 (2006). There, defendants tried to assert <br />prescriptive easement as a defense against nuisance, trespass, and negligence claims arising <br />from golf balls hit from their driving range landing on plaintiff's real property. Because golf balls <br />only occasionally landed on plaintiff's property, the court held that defendants failed to meet the <br />• open or notorious requirements over the statutory period. <br />1-5 <br />© 2007 Hutchinson, Cox, Coons, DuPriest, Orr & Sherlock, P.C. <br />All Rights Reserved <br />56 <br />