## Facts

- A landscaping-supply business began operating on Drayton’s property in 1984, storing and handling materials such as gravel, rock, bark dust, compost, topsoil, and sand.
- James Drayton purchased the property and continued the same type of operation beginning in 1991.
- For more than a decade, small particulates—mainly bark dust—regularly blew by wind from Drayton’s property onto the adjoining property.
- The neighboring property was owned by Scott and Andrea Torrance (and related business entities); they purchased it in 2002 and later operated a nursery on the site.
- The Torrances complained to the City of Lincoln City in 2006. The City cited Drayton under a municipal provision barring “land disturbing activity” that causes “erosion or deposits of material on the property of another.”
- Drayton was found to have violated the ordinance in municipal court.
- Drayton then filed a civil action against the Torrances and the City seeking, among other relief, a declaratory judgment recognizing a prescriptive easement to continue the windblown deposits as a byproduct of his operations.
- The Torrances counterclaimed for damages and injunctive relief under public nuisance, private nuisance, and trespass.
- After a trial that included equitable issues tried to the court (and damages issues tried to a jury), the trial court found that Drayton had a prescriptive easement and entered judgment for Drayton on the Torrances’ counterclaims.
- Scott Torrance appealed, arguing (among other points) that the municipal-court matter should have been admitted and treated as conclusive proof that Drayton’s operation created a public nuisance.

## Issues

1. Whether the trial court erred in concluding that Drayton proved a prescriptive easement based on long-running, visible, and recurring windblown deposits onto the neighboring property.
2. Whether the municipal-court citation and violation determination should have been admitted in the civil case.
3. Whether the municipal-court violation determination had issue-preclusive (or otherwise conclusive) effect establishing a public nuisance in the Torrances’ favor.
4. Whether the prescriptive easement, if proved, defeats nuisance and trespass claims to the extent they seek relief for the same conduct within the easement’s scope.

## Decision

- The Oregon Court of Appeals affirmed the judgment for Drayton.
- The court declined de novo review and treated the trial court’s supported factual findings as binding.
- The evidence supported the trial court’s conclusion that Drayton acquired a prescriptive easement permitting the recurring, windblown particulate deposits as they had occurred for the statutory period.
- The municipal-court ordinance violation did not conclusively establish the elements of a common-law public nuisance and did not defeat the prescriptive easement claim.
- The trial court did not commit reversible error in excluding the municipal citation/violation materials from evidence.
- Because Drayton’s conduct was privileged to the extent it fell within the prescriptive easement’s established scope, the trial court properly rejected the Torrances’ nuisance and trespass counterclaims based on that same conduct.

## Legal Principles

- On appeal from equitable rulings, the Court of Appeals generally reviews legal conclusions for legal error and accepts supported factual findings rather than retrying the facts de novo.
- A prescriptive easement may be established by showing open and notorious, adverse use under a claim of right that is continuous and uninterrupted for the statutory period; recurring invasions such as regular windblown deposits may qualify when their presence is observable and ongoing.
- A municipal ordinance violation (including an infraction-level determination) does not automatically decide, for issue-preclusion purposes, the distinct elements of a common-law public nuisance claim, which requires proof of additional components beyond a local code violation.
- Trial courts have discretion to exclude evidence when its limited probative value is substantially outweighed by risks such as confusion of issues or misleading the factfinder.
- A prescriptive easement operates as a privilege for the specific use proven by prescription; nuisance and trespass theories cannot impose liability for conduct that is within the easement’s proven scope.

## Conclusion

The Court of Appeals affirmed a judgment recognizing Drayton’s prescriptive easement to continue longstanding landscaping operations that regularly resulted in windblown particulate deposits onto neighboring property, holding that the prior municipal-code violation did not conclusively establish public nuisance (or otherwise control the civil dispute) and that, to the extent the deposits were within the easement’s scope, they could not support nuisance or trespass liability.


Drayton v. City of Lincoln City, 260 P.3d 642 (2011)