## Facts

- In 1964, Central Oregon Fabricators, Inc. (COF) acquired more than 24,000 acres in Wheeler County, Oregon.
- The same day, COF executed a separate deed granting 11 named individuals (including Alan and Barry Hudspeth and another predecessor in interest later succeeded by F & M Realty Co.) the right to hunt and fish on the property.
- The deed used conveyancing language and granted the right to “shoot, kill and take away” wild game and to fish, to be held by the grantees, “their heirs and assigns,” and referenced “personal guests while accompanying the Grantees.”
- For decades, the grantees made little to no use of the hunting and fishing rights.
- COF later installed gates and other access controls and began operating a guided, fee-based hunting business on the property.
- In the mid-1990s, some grantees assigned their hunting and fishing rights to F & M, and defendants planned to transfer access privileges to others for yearly payments.
- COF sued to quiet title and to restrict or terminate defendants’ claimed hunting and fishing rights.

## Issues

1. Whether prolonged nonuse, coupled with the landowner’s access controls and commercial hunting activity, proved abandonment of an express profit à prendre.
2. Whether the landowner could extinguish the recorded hunting and fishing rights by adverse possession when adverse possession was not pleaded.
3. Whether the 1964 deed created an assignable profit à prendre or a personal, nontransferable permission, and what limits the deed imposed on third-party use and commercialization.

## Decision

- The court reversed the trial court’s finding of abandonment because the evidence did not show clear conduct reflecting intent to relinquish the recorded rights.
- The court rejected the trial court’s alternative ruling that the rights were extinguished by adverse possession because that theory was not pleaded and defendants lacked notice to litigate it.
- The court held the deed created an express profit à prendre, not a revocable personal license.
- The court affirmed in part and reversed in part the trial court’s construction of the deed’s scope and assignability and remanded for further proceedings consistent with its interpretation.

## Legal Principles

- Abandonment of an express easement or profit à prendre requires nonuse plus clear, unequivocal conduct showing intent to abandon; nonuse alone, even for many years, is insufficient.
- A party may not obtain relief on an adverse possession theory that was not pleaded when the opposing party was not put on notice to defend against that distinct claim.
- A deed granting hunting and fishing rights to named grantees “their heirs and assigns,” using conveyancing terms and authorizing removal of game and fish, creates an alienable profit à prendre rather than a mere personal license.
- Specific deed language (such as references to “personal guests while accompanying the Grantees”) can limit how the profit is exercised, including limits on third-party access and the manner of transferring or using the rights.

## Conclusion

The court held that the recorded hunting and fishing rights were an express profit à prendre that had not been abandoned by long-term nonuse, and it disallowed extinguishment by unpleaded adverse possession; it remanded for further proceedings on the deed’s proper construction regarding transfer and permissible third-party use.


Cent. Or. Fabricators, Inc. v. Hudspeth, 159 Or. App. 391, 977 P.2d 416 (Or. Ct. App. 1999)