2017 ORS 376.200¹
Transfer of jurisdiction over establishment of ways of necessity to circuit court
  • local court rules
  • procedure after transfer

(1) Notwithstanding any 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 county governing body may adopt an ordinance removing the county governing body from jurisdiction over the establishment of ways 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).

(2) If the county governing body adopts an ordinance described in subsection (1) of this section, the circuit court of that county shall have jurisdiction of the establishment of ways of necessity for that county. Except as otherwise provided in this section, a court with jurisdiction of the establishment of ways of necessity under this section shall follow the procedures for establishment of a way of necessity provided 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 court may adopt local court rules to supplement the procedures provided 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).

(3) Notwithstanding ORS 376.175 (Order granting or denying way of necessity), if jurisdiction for establishment of ways of necessity is in the circuit court as provided under this section, an appeal from the decision of the court shall be to the Court of Appeals.

(4) Notwithstanding ORS 376.160 (Notice to landowners) (1), if jurisdiction for establishment of ways of necessity is in the circuit court as provided under this section, upon filing a petition the petitioner shall:

(a) Provide for service of the petition on all persons owning land across which the way of necessity could be located; and

(b) Post a bond or security deposit with the court clerk in an amount required by the court to pay for the cost of the investigation and report under subsection (5) of this section.

(5) If jurisdiction for establishment of ways of necessity is in the circuit court as provided under this section, upon receipt of a petition the court shall appoint a person to investigate the proposed way of necessity and submit a written report to the court and the petitioner. The cost of the investigation and report shall be charged against the bond or security deposit posted under subsection (4) of this section. If the bond or security deposit is more than the actual cost of the investigation and report, the difference shall be refunded to the petitioner. If the bond or security deposit is less than the actual cost of the investigation and report, the petitioner shall pay to the county governing body the amount of the deficiency. A judgment of the court shall not become final until the full cost of the investigation and report has been paid.

(6) Notwithstanding ORS 376.160 (Notice to landowners) (3), if jurisdiction for establishment of ways of necessity is in the circuit court as provided under this section, upon receipt of the report under subsection (5) of this section, the petitioner shall serve a copy of the petition and report on all persons owning land across which the way of necessity is proposed to be located under the petition or report. [1979 c.862 §10; 1995 c.265 §1]

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.