2017 ORS 376.180¹
Conditions for way of necessity

A way of necessity established 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) shall:

(1) Be located to cause the least possible damage to land across which it is located;

(2) Be fenced or gated if required by the county governing body;

(3) Not be connected to a public road in a location or manner that creates a traffic hazard or decreases the safety on the public road;

(4) Be established only for uses in connection with the property for which the way of necessity is sought;

(5) Not be subject to any use that is not described in the order establishing the way of necessity;

(6) Not exceed 30 feet in width unless authorized by the county governing body for engineering purposes;

(7) Not be connected to a public road where the rights of access to the road have been acquired by the state or a county unless the state or governing body of the county grants permission for the connection;

(8) Not be established if the property for which the way of necessity is sought has an existing enforceable access to a public road;

(9) Not be established if the petitioner for the way of necessity could acquire an easement for access to a public road through other legal action;

(10) Not be established for land that has been subdivided or partitioned in violation of ORS chapter 92;

(11) Not be established over land owned by the state or a political subdivision of the state unless permission is granted for the way of necessity under ORS 376.185 (Way of necessity over public land); and

(12) Not be established for any land if the owner of the land had knowingly eliminated access to all public roads from the land by the sale of other land owned by the landowner. [1979 c.862 §6; 1991 c.936 §5; 1993 c.18 §91]

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 peti­tioner’s 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)

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.