2015 ORS 376.197¹
Way of necessity to historic cemeteries

(1) Notwithstanding any other provision of 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), a way of necessity for nonmotorized conveyance is established to any parcel that meets the criteria described in ORS 308A.125 (Historic cemeteries within exclusive farm use zones).

(2)(a) Notwithstanding any other provision of 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), a way of necessity is established to a historic cemetery listed in accordance with the provisions of ORS 97.782 (Listing of historic cemeteries).

(b) The way of necessity established under paragraph (a) of this subsection shall:

(A) Be designated by the owner of the land over which the way of necessity passes; and

(B) Be accessible, at reasonable times to be designated by the property owner for visitation, maintenance or research purposes, to the owner of the historic cemetery, to descendants of those persons buried in the historic cemetery and to persons interested in historical research. The reasonableness of the times designated by the property owner shall be based on the need of the property owner to make use of the property and the need of the historic cemetery visitors for family visitation, maintenance or research access to the historic cemetery. [1999 c.314 §46; 2001 c.364 §1; 2003 c.173 §9]

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 (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 376, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano376.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.