2017 ORS 376.175¹
Order granting or denying way of necessity
  • contents
  • liability for costs
  • appeal

(1) Upon consideration of the matters and issues presented under ORS 376.150 (Definitions for ORS 376.150 to 376.200) to 376.200 (Transfer of jurisdiction over establishment of ways of necessity to circuit court), the county governing body shall determine whether or not a need has been demonstrated for the granting of a way of necessity under ORS 376.150 (Definitions for ORS 376.150 to 376.200) to 376.200 (Transfer of jurisdiction over establishment of ways of necessity to circuit court) and shall enter an order granting or denying the way of necessity.

(2) Any order entered under this section shall:

(a) State whether the way of necessity is granted or denied;

(b) Declare as established any way of necessity that is granted;

(c) Describe the exact location and width of any way of necessity established;

(d) Describe those uses that are permitted on any way of necessity established;

(e) Direct the petitioner to pay costs and reasonable attorney fees incurred by each owner of land whose land was subject to the petitioner’s action for a way of necessity under ORS 376.150 (Definitions for ORS 376.150 to 376.200) to 376.200 (Transfer of jurisdiction over establishment of ways of necessity to circuit court);

(f) Establish the amount of compensation due to any owner of land across which any way of necessity has been established and direct the petitioner to pay the compensation; and

(g) Establish the costs incurred by the county in the procedures for the way of necessity under ORS 376.150 (Definitions for ORS 376.150 to 376.200) to 376.200 (Transfer of jurisdiction over establishment of ways of necessity to circuit court) and direct the petitioner to reimburse the county for those costs not already paid by petitioner.

(3) An order entered under subsections (1) and (2) of this section to provide for utility service, as set forth in ORS 376.150 (Definitions for ORS 376.150 to 376.200) (2)(b), shall conform to affected utility policy and standards.

(4) A petitioner shall pay any costs the petitioner is directed to pay under an order issued under this section within 60 days after entry of the order. The petitioner is liable for any costs not paid within the time established in this subsection. If more than one landowner joins in a petition for a way of necessity under ORS 376.155 (Petition to establish way of necessity), every petitioner granted use of the way of necessity shall be jointly and severally liable for any costs ordered to be paid.

(5) Any party to the action for a way of necessity may contest any part of the order of the county governing body in an appeal filed with the circuit court within 30 days after entry of the order of the county governing body. [1979 c.862 §5; 1989 c.674 §2; 1991 c.936 §3]

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 peti­tioner’s 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)

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 peti­tioner’s land does not abut highway, ORS 376.180 (Conditions for way of necessity) 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

1 Legislative Counsel Committee, CHAPTER 376—Ways of Necessity; Special Ways; Pedestrian Malls, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors376.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 376, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano376.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.