A brief summary of the law of implied easements is provided by the Oregon Court of Appeals in its recent decision in Manusos v. Skeels, 263 Or. App. 721 (2014).
The court wrote, “When land in one ownership is divided into separately owned parts by a conveyance, an easement may be created * * * by implication from the circumstances under which the conveyance was made alone.” Rose et ux. v. Denn et ux., 188 Or 1, 19, 212 P2d 1077 (1949), on reh’g, 213 P2d 810 (1950) (quoting Restatement (First) of Property § 474 (1936)). That is, an implied easement is created “when the circumstances that exist at the time of severance of a parcel establish that the grantor of the parcel intended to create an easement.” Bloomfield v. Weakland, 193 Or App 784, 795, 92 P3d 749 (2004), aff’d on other grounds, 339 Or 504, 123 P3d 275 (2005). “A number of factors are used to determine whether an easement has been created by implication, including ‘the claimant’s need for the easement, the manner in which the land was used before its conveyance, and the extent to which the manner of prior use was or might have been known to the parties.'” Fischer v. Walker, 246 Or App 589, 598, 266 P3d 178 (2011) (quoting Penny v. Burch, 149 Or App 15, 19, 941 P2d 1049 (1997)); see also Cheney v. Mueller, 259 Or 108, 118-19, 485 P2d 1218 (1971) (listing relevant considerations regarding creation of an easement by implication); Jack v. Hunt et ux., 200 17 Or 263, 267-70, 264 P2d 461 (1953), on reh’g, 265 P2d 251 (1954) (same). Implied easements are disfavored and must be established by clear and convincing evidence. 19 Thompson v. Schuh, 286 Or 201, 203, 593 P2d 1138 (1979).
It is black-letter law that an easement may be implied “by inference when
the circumstances that exist at the time of severance of a parcel establish that the grantor
of the parcel intended to create an easement.” Bloomfield, 193 Or App at 795. It is equally well established that “severance of a parcel” refers to the division of ownership of land, not a division that occurs through a platting process or partition but does not change ownership of the parcels. That is, without exception, implied easement cases have focused on a common grantor’s intent at the time of conveyance of a parcel. E.g., Cheney, 259 Or at 118 (“Rose and Dressler approved the rule as stated in 5 Restatement, Property § 476, setting forth the following factors as ‘important’ in determining ‘whether the circumstances under which a conveyance of land (was) made imply an easement'” (Emphasis added.)); Eagles Five, LLC, 250 Or App at 424 (“Such an easement arises as an inference of the intention of the parties to a conveyance of land based on the circumstances existing at the time of the conveyance * * *.” (Emphasis added.)); Fischer, 246 Or App at 598 (same); Garrett, 144 Or App at 341 (“[T]he essential question is whether a reasonable purchaser would be justified in expecting the easement under the circumstances in which he or she purchased the land.” (Emphasis 1 added.)). Until the moment of conveyance–when common ownership is severed–the question of an implied easement does not arise, because the owner has unrestricted use of both parcels. Cf. Witt v. Reavis, 284 Or 503, 509, 587 P2d 1005 (1978) (following the Restatement rule that an easement is permanently extinguished when the dominant and servient parcels are acquired by the same owner, and observing that “this rule will enable the parties to focus on the separate issue of whether a new easement was thereafter created by implication and will, we hope, avoid confusion as to the precise issues involved in such cases”). Also See Garrett, 144 Or App at 341 (“If there was a previous apparent and permanent use of the land that is important for the enjoyment of the parcel that the common owner sold, the courts may imply that the purchaser received an easement, measured by the pre-existing use, over the parcel that the common owner retained.”).  If you think you have an implied easement and someone has stopped you from using your easement, then contact Deborah K. Vincent, Attorney at Law to help you at