Defendants appeal a judgment declaring that plaintiff has an easement by prescription over a dirt road that runs through defendants’ property to his property. To establish a prescriptive easement, plaintiff was required to show, by clear and convincing evidence, that his use (or use by former owners of his property) of the road on defendants’ property was “open and notorious,” “adverse to the rights of defendants,” and “continuous and uninterrupted” for 10 years. Thompson v. Scott, 270 Or 542, 546, 528 P2d 509 (1974); accord Sander v. McKinley, 241 Or App 297, 306, 250 P3d 939 (2011). On appeal, defendants argue that plaintiff failed to prove that (1) use of the road was sufficiently adverse to defendants’ rights to establish an easement and (2) use of the road continued for at least 10 years. We conclude that legally sufficient evidence in the record supports the trial court’s findings and its determination that (1) plaintiff established adversity through direct evidence of his mistaken claim of right, which does not require that plaintiff show that his use interfered with defendants’ use of their property, and (2) plaintiff established continuous and uninterrupted use for 10 years. Therefore, we affirm.
I. FACTS
Because it was undisputed at trial that plaintiffs use of the road was “open and notorious,” the relevant facts relate to whether plaintiffs use of the road was adverse to defendants’ rights and was continuous for 10 years. We initially address our standard of review of those facts. This case arises in equity, and defendants request that we take de novo review with respect to certain findings made by the trial court. See ORAP 5.40(8)(d). We decline to exercise our discretion to take de novo review, because the disputed findings have support in the record and this case is not an exceptional one that merits such review. Accordingly, we are bound by the trial court’s express and implied findings of fact if supported by evidence, Morton and Morton, 252 Or App 525, 527, 287 P3d 1227 (2012), and we state the facts accordingly.
Plaintiff is the owner of four contiguous parcels, identified as Tax Lots 3300, 3400, 3500, and 3600. He acquired *788Tax Lot 3300 in 2006 after purchasing the other three in 1998. None of plaintiffs parcels has a house on it, although plaintiffs purchase of the first three parcels included a cabin that plaintiff improved and used. Defendants on appeal, a married couple, are the owners of a 20-acre parcel where they have lived since 1973.1
Both plaintiff and defendants get to their respective properties from Highway 62 via Busch Road and Lewis Creek Road. From Highway 62, Busch Road passes through private property, where it connects to Lewis Creek Road. Lewis Creek Road also passes through private property, reaching defendants’ residence on their property, and then continues on through defendants’ property, then through private property owned by Larson, then for a significant distance through federal public land, then through private property owned by Woods, then through additional federal public land, where it ends at plaintiffs parcels. Old records indicate that Lewis Creek Road has been in existence since at least 1934. The part of Lewis Creek Road that runs through defendants’ property is a dirt road, approximately 18-feet wide, and passes within 60 to 80 feet of defendants’ house.
Lewis Creek Road provides the only vehicular access to plaintiffs parcels and was the means by which the seller showed plaintiff how to get to the three parcels that he purchased in December 1998. All the private property owners along Busch Road and Lewis Creek Road use the roads to access their properties. In addition to plaintiff, two other owners of private property beyond defendants’ property— Larson and Woods — use the part of Lewis Creek Road that goes through defendants’ property to get to their properties. Larson has a residence on his property, which includes a home business that requires parcel delivery companies to use the road.
In 2008, plaintiff sought a building permit, but the county would not issue a permit without written confirmation of plaintiffs legal access to his property. As a result, plaintiff sought to obtain written easements to confirm his *789access rights from the owners along the roads between his property and Highway 62, including defendants. In seeking an easement from defendants in June 2008, plaintiff based his request on his asserted established right to use the road. Plaintiff obtained easements from several property owners, but defendants refused his request, prompting plaintiff to seek a judicial declaration that he has a prescriptive easement over Lewis Creek Road across defendants’ property.
At trial, defendants did not dispute plaintiffs open and notorious use of the road. Defendants filed a trial memorandum conceding that element: “Defendants concede that plaintiff has used the roadway open and notoriously. Defendants dispute that plaintiffs use has been adverse and dispute that plaintiffs use, if adverse, has been so for the requisite 10-year period.” In opening statement, defendants’ counsel told the trial court that
“for Plaintiff to prevail, he has to * * * prove that he used this road open and notoriously, adverse to Defendants for a continuous period of ten years. The case is kind of lumped into those three categories. And it’s presumed if he used open and notoriously then it was adverse. And so we think that he’s got that presumption going in.”
Plaintiff and defendant Le Roy Hippe (defendant) provided the only witness testimony. Plaintiff testified that, before seeking a written easement, he and defendants had never discussed whether he had a right to use the road. Plaintiff explained that he had always believed that he had a right to use the road based on the seller’s actions, because the road was his only means of access to his property, and because two easements that came with the property mentioned Lewis Creek Road as his means of access. By the time of trial, though, plaintiff acknowledged that he had come to understand that those easements did not cover the part of the road on defendants’ property. Plaintiff also noted that he had participated in maintaining Busch Road and Lewis Creek Road, along with the other property owners.
Defendant initially testified in plaintiffs case-in-chief. During the course of that testimony, he changed his position several times regarding what he believed concerning his and the other property owners’ rights of access to *790their properties via Busch Road and Lewis Creek Road, including over the part of Lewis Creek Road that crossed defendants’ property. He initially stated on direct examination that he and other landowners had a right of access to their properties over Lewis Creek Road. He stated that he had always assumed that he, and the other property owners, had a right to use the roads for access to their properties. Defendant also admitted that plaintiff was an owner of property on Lewis Creek Road and that plaintiff occupied the same position that defendants and the other property owners occupied and had the same right to use the road. On cross-examination by his counsel, defendant asserted that, if a property owner disputed his right to have access to his property over the roads, then his access was at the “goodwill and grace” of the owner. However, on redirect examination, defendant acknowledged that he had learned that he does not have a written easement to use the roads that crossed the properties of other landowners and then testified that he was confused on the issue and did not know whether he had a right to use the roads.
Testifying during defendants’ case-in-chief, defendant confirmed that he believed that Larson had a right to use the road and did not need defendants’ permission. He also testified that, in “the last few years,” he had put a chain across Lewis Creek Road where it enters his property; however, he left the lock open and gave a key to plaintiff, Larson, UPS, Federal Express, and the power company.2 Defendant stated that he had never prevented plaintiff or the other landowners from crossing his property on the road and had no objections to plaintiffs use of the road. The court then sought to learn why defendant was objecting to the easement, and plaintiff established that defendants had demanded $70,000 for the easement.
Defendant testified on two other subjects during defendants’ case-in-chief: whether plaintiffs use of the road interfered with defendants’ use and whether plaintiff had sought permission from defendants to use the road. Defendant explained that plaintiffs use of the road did not *791interfere with his use of his land, but his wife was always complaining that everything was dusty as a result of people driving on the unpaved road. Defendant further testified that, in 2003 or 2004, during a conversation with plaintiff by the highway, he had told plaintiff that “he did have my permission to go through my property. If he had any concerns.”
In contrast to defendant’s testimony that he gave plaintiff permission to use the road, plaintiff testified that, although he remembered generally the conversation with defendant by the highway, he did not remember defendant ever telling him that he had permission to cross defendants’ land. Defendant had failed to mention that grant of permission in his deposition, and he made no claim of permission in his answer to the lawsuit. The trial court was not persuaded that the conversation about permission had actually occurred and so found. We are bound by that factual and credibility finding.
The trial court ruled that plaintiff had established a prescriptive easement in Lewis Creek Road across defendants’ property as to the three parcels purchased in 1998. The court observed in its letter opinion that the parties agreed that, “for the most part,” the requirements for a prescriptive easement — which it described as “the use was open or notorious, and continuous and uninterrupted and adverse to the interest of the other party for a period of at least ten years” — were met. Addressing plaintiffs adverse use of the road, which the parties had disputed at trial, the court found and concluded as follows:
“Adverse use of a disputed roadway can be shown in two different ways.
“1) Open [use] for ten years equates to a presumption of adversity, Feldman [et ux] v. Knapp [et ux], 196 Or 453, 250 P2d 92 (1952). This presumption can be overcome by showing the easement was over an existing way and the use did not interfere with the owner’s rights, McGrath v. Bradley, 238 Or App 269, 242 P3d 670 (2010). Such presumption can also be overcome by showing the use was ‘permissive,’ but to overcome the presumption the evidence must do more than show ‘mere acquiescence’ in the non-owner’s use of the land, Id. & Feldman Supra; or
*792“2) Direct evidence that claimant mistakenly thought he had a right to use the property (e.g., Plaintiff always thought he had the right and so never asked for permission). Kondor v. Prose, 50 Or App 55, 622 P2d 741 (1981).
“The Court is of the opinion that Plaintiff satisfies ‘adversity’ using both criteria. As to the three parcels acquired by Plaintiff in 1998, Tax Lot 3400, 3500 and 3600, there exists a presumption of adversity which Defendant admitted has on occasion ‘interfered’ with Defendant’s right on his property. (Viewing vehicles go past his house in close proximity to the subject road.) Such interference prevents Defendant from overcoming the presumption.
“Further it is clear that claimant mistakenly thought he had a right to use the subject property and therefore never asked for permission until he requested the easement herein. Since the road had been in existence for many years beyond the time Plaintiff purchased his property and because Plaintiff until the time he requested an easement, thought he had a right to use the road, adversity is satisfied here as well.”
The court also concluded that plaintiff had demonstrated continuous use of the road to reach the three parcels that he purchased in 1998, but that plaintiff had not proved continuous use of Lewis Creek Road to reach Tax Lot 3300 for 10 years and had no easement for that parcel.
The court entered a general judgment, declaring, in favor of plaintiff, a perpetual easement for ingress and egress to Tax Lots 3400, 3500, and 3600 over Lewis Creek Road across defendants’ property. The court also entered a supplemental judgment awarding plaintiff his costs. Defendants appeal both the general and supplemental judgments, challenging the trial court’s conclusion that plaintiff proved the disputed elements of a prescriptive easement in the road.
II. ANALYSIS
A. Statutory bar based on recreational use
Before turning to the merits of defendants’ primary arguments, we first address and reject defendants’ contention that a statute, ORS 105.692 (1), barred the establishment *793of a prescriptive easement. Under ORS 105.692(1), “[a]n owner of land who either directly or indirectly permits any person to use the land for recreational purposes *** does not give that person or any other person a right to continued use of the land for those purposes without the consent of the owner.” Defendants assert that the statutory bar applies because plaintiff, who owned a cabin on his own land, traversed the road for recreational purposes.
The plain text of that statute, though, as supported by its context as part of the Public Use of Lands Act, applies only when a landowner permits the general public to use the landowner’s land for recreational purposes. That reading of the statute is also supported by the legislature’s declared policy in enacting the Public Use of Lands Act and by the case law interpreting other provisions within the same act. See ORS 105.676 (“The Legislative Assembly hereby declares it is the public policy of the State of Oregon to encourage owners of land to make their land available to the public for recreational purposes * * * by limiting their liability toward persons entering thereon for such purposes and by protecting their interests in their land from the extinguishment of any such interest or the acquisition by the public of any right to use or continue the use of such land for recreational purposes ***.”); Liberty v. State Dept. of Transportation, 342 Or 11, 21-22, 148 P3d 909 (2006) (holding that the act’s liability immunity does not apply to an owner who allows the public to cross its land to engage in recreational activities on another’s land); Conant v. Stroup, 183 Or App 270, 276, 51 P3d 1263 (2002), rev dismissed, 336 Or 126 (2003) (explaining that the act was based on a model act that has uniformly been interpreted to apply “only when landowners permit members of the public generally to use private property for recreational purposes”). Thus, ORS 105.692(1) is inapplicable to the facts presented here — plaintiffs use of a road that runs through defendants’ property so that plaintiff may get to and use his own property for recreational purposes — and does not bar the establishment of a prescriptive easement in this case.
B. Proof of adverse use
We turn to defendants’ remaining and primary arguments, which concern whether plaintiff properly established *794the elements of a prescriptive easement. Defendants assert as their first assignment of error that the trial court “erred in granting the plaintiff a prescriptive easement over the defendants’ property, and in ruling that the plaintiffs use of the roadway had been adverse to the defendants, and that such adverse use had been continuous for ten years.” Thus, as noted, defendants assert that plaintiff failed to establish two of the elements required for a prescriptive easement: (1) the adversity of plaintiff’s use of Lewis Creek Road across their property and (2) the length of any adverse use. To establish those elements by clear and convincing evidence, plaintiff was required to show that the truth of the facts asserted was “highly probable.” Sander, 241 Or App at 306.
1. Restatement (First) of Property § 458
This case in large part concerns the appropriate method of proving adverse use for purposes of establishing a prescriptive easement. For its understanding of the adverse use element, the Oregon Supreme Court has repeatedly relied on section 458 of the Restatement (First) of Property (1944). For example, in Thompson, the court stated that “[a]dverse use is defined as follows” in section 458 of the Restatement, and then quoted that section with approval. 270 Or at 548 n 8.
Thompson was not the first case in which the Supreme Court relied on the Restatement formulation of adverse use. In Feldman et ex. v. Knapp et ux., 196 Or 453, 474, 250 P2d 92 (1952), the court relied on the Restatement in a passage addressing the use of property under a claim of right. Other Supreme Court cases relying on section 458 of the Restatement are Thompson v. Schuh, 286 Or 201, 211, 593 P2d 1138 (1979); Hamann v. Brimm, 272 Or 526, 529, 537 P2d 1149 (1975); Arrien v. Levanger, 263 Or 363, 371, 502 P2d 573 (1972); and Hay v. Stevens, 262 Or 193, 196, 497 P2d 362 (1972). The Supreme Court has never disavowed the definition of adverse use in section 458 or the idea that Oregon courts should look to section 458 for their understanding of adverse use for purposes of a prescriptive easement. Indeed, as defendants recognize, in Arrien, the Supreme Court acknowledged the requirement in the Restatement that a claimant seeking a prescriptive *795easement must show that the claimant’s use is “not made in subordination to those against whom it is claimed to be adverse,” 263 Or at 371 (internal quotation marks omitted); the court concluded in that case that, because there was no evidence that the claimant had used the servient owner’s land in subordination to the servient owner, the trial court “erred in finding that [the claimant’s] use was not adverse,” id. at 371-72. We thus disagree with the dissent’s view that the Supreme Court has merely “made references” to “general concepts” in the Restatement that are of little import to the analysis in this case. 269 Or App at 830 (DeVore, J., dissenting).
Accordingly, to set the context, we first discuss at length the Restatement’s formulation of adverse use.3 The Restatement formulates the test for adverse use as follows:
“A use of land is adverse to the owner of an interest in land which is or may become possessory when it is
“(a) not made in subordination to him, and
“(b) wrongful, or may be made by him wrongful, as to him, and
“(c) open and notorious.”
Restatement at § 458.
The Restatement explains that the key concept with respect to sub-element (a) — use not in subordination— is non-recognition of the authority of the owner to prevent the plaintiffs use:
“To be adverse it is not essential that a use be hostile. It is not necessary that it be made either in the belief or under a claim that it is legally justified. It is, however, necessary that the one making it shall not recognize in those as against whom it is claimed to be adverse an authority either to prevent or to permit its continuance. It is the non-recognition of such authority at the time a use is made *796which determines whether it is adverse. * * * A use of land is adverse when made as of right even though no right exists. * * * A use which is not made in recognition of and in submission to a present authority to prevent it or to permit its continuance is adverse though made in recognition of the wrongfulness of the use and, also, of the legal authority of another to prevent it.”
Restatement at § 458 comment c (emphasis added). The Restatement also provides further guidance on what is meant by a “claim of right” as referred to in comment c:
“As indicated in Comment c, it is not necessary in order that a use be adverse that it be made either in the belief or under a claim that it is legally justified. The essential quality is that it be not made in subordination to those against whom it is claimed to be adverse. Yet he who claims a right in himself is impliedly asserting an absence of any right in another inconsistent with the right claimed. Hence one who uses under a claim of right himself is denying a use by the permission of another. Quite commonly, therefore, the absence of submission to another is evidenced by the fact that the one making the use did so under an affirmative claim of right in himself.”
Id. at § 458 comment d (emphasis added).
With respect to sub-element (b) of the Restatement formulation of adverse use — uses that are “wrongful” or “may be made [by the owner] wrongful” — the key idea is whether the landowner against whom the adverse use is claimed could “protect himself by vindicating his rights through legal proceedings.” Restatement at § 458 comment f. Thus, for example, a neighbor could build a structure on the neighbor’s property that receives support from an adjoining owner’s land, but the use is not wrongful and so cannot be adverse to the adjoining owner. Id. at 458 comment e. The parties do not discuss this sub-element, but it is apparent from the nature of the use of the road over defendants’ land that this sub-element was met.
Finally, with respect to sub-element (c) of the Restatement formulation — “open and notorious” use — the Restatement explains that the clause is to protect those owners against whom the adverse use is claimed. Restatement at § 458 comment h. The requirement of open and notorious *797use “enables them to protect themselves against the effect of the use by preventing its continuance.” Id. That sub-element of adversity is satisfied by the owner’s actual knowledge of the use being made or, in the absence of actual knowledge, when the owner has “a reasonable opportunity to learn of its existence and its nature.” Restatement at § 458 comment i. As stated earlier, defendants do not dispute that plaintiffs use of Lewis Creek Road over their property was open and notorious.4
2. The challenged determination
It follows that the only sub-element of adverse use actually in contention in the trial court was whether plaintiffs use of Lewis Creek Road was not made in subordination to defendants. On appeal, the parties dispute the permissible methods of proving that sub-element. As we explain below, the Restatement formulation of adverse use, and particularly of the sub-element pertaining to lack of subordination, is key to an understanding of Kondor v. Prose, 50 Or App 55, 622 P2d 741 (1981), and another of our more recent cases regarding proof of adverse use. It is also key to our conclusion in this case that the trial court’s ruling was correct.
In light of what was actually in dispute, the trial court determined that plaintiff could establish that his use of the road was adverse to the rights of defendants in two ways: (1) through the use of a rebuttable presumption that the use was adverse, which arises through open and continuous use for the prescribed period, citing Feldman, 196 Or at 471, or (2) through direct evidence of the nonsubordinate use, that is, that plaintiff used the road under a claim of *798right, citing Kondor, 50 Or App at 60. The court then concluded that plaintiff had established adversity in both ways. Plaintiff defends that view of the law.
Defendants agree that the trial court correctly stated that a plaintiff may rely on a rebuttable presumption of adverse use that arises from proof of 10 years of open and continuous use of the defendant’s property. McGrath v. Bradley, 238 Or App 269, 274, 242 P3d 670 (2010). Defendants argue, however, that the trial court erred because it was bound to consider only that method of proof because the case concerned a jointly used road and that the evidence at trial established that they had rebutted the presumption. We reject the first premise of defendants’ argument, and, because of that and because the trial court correctly determined that plaintiff had established adverse use given his evidence that his use of the servient property was not in subordination to defendants, we need not — and the dissent should not — reach defendants’ argument that they rebutted the presumption that, according to defendants, applies.
3. Proof by direct evidence and by presumptions
First, defendants cite no case holding that a plaintiff seeking to establish a prescriptive easement over a jointly used road can prove adverse use of the road solely through the rebuttable presumption of adverse use that arises upon proof of 10 years of open and continuous use. We, too, have found no case in which an Oregon court has held that a plaintiffs proof of adverse use to establish a prescriptive easement is so limited.5
Instead, based on our review of the case law on prescriptive easements in Oregon, we conclude that the trial court correctly determined that a plaintiff may also establish a prescriptive easement by proving the disputed sub-element of adverse use — use not in subordination to the servient owner — through direct evidence of a claim of right, in accordance with Kondor. The discussion of adverse use in Kondor adheres closely to the description of adverse use in section 458 of the Restatement.
*799Our case in Kondor, although not directly citing to the Restatement discussion of adverse use, adhered to the Restatement as it had been expressed in earlier Oregon Supreme Court cases. In Kondor, we affirmed a judgment declaring a prescriptive easement in the plaintiffs over a road that ran through the defendants’ property and provided the only access to the plaintiffs’ property. We explained that adverse use means “that the use is not in subordination to [the rights of the property owner]. Therefore, even if the user mistakenly believes he has the right to use the easement, that use is sufficiently adverse.” 50 Or App at 60 (citing Arrien, 263 Or at 371, and City of Ashland v. Hardesty, 23 Or App 523, 527-28, 543 P2d 41 (1975)). We then stated that open and continuous use for 10 years creates a presumption that the plaintiff is using the road by a claim of right that is adverse to the rights of the property owner, which can be rebutted with evidence of permission. Id. (citing Trewin v. Hunter, 271 Or 245, 246-47, 531 P2d 899 (1975), and Feldman, 196 Or at 471-73). That discussion tracks the Restatement formulation of adverse use because it emphasizes sub-element (a) — use that is not in subordination to the servient owner — including an adverse user’s mistaken “claim of right.”
Defendants attempt to distinguish that discussion by reading Kondor narrowly. Defendants contend that the statement in Kondor that, “even if the user mistakenly believes he has the right to use the easement, that use is sufficiently adverse,” 50 Or App at 60, simply means that “mistakenly believing you have the right to use a roadway does not defeat the initial presumption of adversity created by ten years of open and notorious use.” Thus, in defendants’ view, the trial court misread Kondor when the court stated that plaintiff could demonstrate “adversity” — in this case, referring to the sub-element of nonsubordination — through “[d]irect evidence that claimant mistakenly thought he had a right to use the property,” such as by showing that plaintiff “always thought he had the right and so never asked for permission.”
We do not read Kondor as narrowly as defendants and the dissent do, for two reasons. First, defendants and the dissent overlook Kondor’s reference to the sub-element of *800nonsubordinate use. That reference unmistakably points to the Restatement formulation of adverse use and the recognition that using a road based on a “claim of right” is in effect the same as using the road not in subordination to the property owners’ rights, as required by sub-element (a) in section 458 of the Restatement. The gravamen of the sub-element is use “not made in subordination to those against whom it is claimed to be adverse.” Restatement at § 458 comment d. Either a belief in a legal right or a claimed legal right to use the servient property is inconsistent with use by permission of the servient owner, thus establishing use that is not in subordination to the servient owner. Id.6
Second, defendants argue that the trial court’s reading of Kondor was incorrect because the nonsubordination sub-element of adverse use cannot be proved through direct evidence, such as plaintiffs testimony here that he used the road for 10 years believing that he had the right to do so. That is also a focus of the dissenting opinion. See 269 Or App at 830-33. (DeVore, J., dissenting.) However, in Sander, we have more recently addressed and explicitly stated that the nonsubordination sub-element of adverse use is susceptible to proof through direct evidence of a claim of right, as suggested by Kondor.
In Sander, which also involved the plaintiffs’ use of a road across the defendants’ land for access to their property, 241 Or App at 299, we explained that a claimant can “directly” show “that the claimant’s use was not in subordination to the rights of the property owner,” id. at 306. Such direct evidence can be based on the claimant’s “mistaken belief that he or she has the right to use the servient property.” Id. at 306-07.
The dissent deals with Sander by rejecting it in its entirety. 269 Or App at 833-39 (DeVore, J., dissenting.) *801However, we rely on Sander for the narrow issue of permissible proof on the sub-element of nonsubordination at stake in this case. Whatever disagreements the dissent may have with other aspects of Sander should be raised in an appropriate case on another day. As to the narrow issue we decide, the dissent may be contending that there is necessarily mischief to be made by permitting a claimant to testify that the use was not in subordination to the servient landowner because he or she used the servient property without permission of the landowner, believing in a right to use the property. We disagree. Witnesses testify concerning their subjective beliefs and knowledge in all manner of cases; we also routinely call on factfinders to assess the credibility of such testimony.
Defendants’ argument about Kondor is limited, and the rest of their argument focuses on the facts that they established consonant with rebutting the presumption of adverse use. Although neither we nor the Oregon Supreme Court have held that a plaintiff must establish adverse use only by relying on the presumption of adverse use that arises from open and notorious use of the defendant’s property for 10 years, defendants assume that that is so. Defendants rely on two Supreme Court cases, Woods v. Hart, 254 Or 434, 458 P2d 945 (1969), and Trewin, and four of our cases: Read v. Dockey, 92 Or App 298, 758 P2d 399 (1988); Hayward v. Ellsworth, 140 Or App 492, 915 P2d 483 (1996); R & C Ranch, LLC v. Kunde, 177 Or App 304, 33 P3d 1011 (2001), modified on recons, 180 Or App 314, 44 P3d 607 (2002); and Webb v. Clodfelter, 205 Or App 20, 132 P3d 50 (2006). Citing Webb and R & C Ranch, defendants note that a servient owner may rebut the presumption of adverse use by proof that the claimant’s use of a preexisting road did not interfere with the servient owner’s use. Defendants also contend that the facts in this case are indistinguishable from the facts in Woods and Trewin. Specifically, they argue that, as in Woods and Trewin, the following facts were sufficient to rebut the presumption of adverse use: the road was in existence before either of the parties acquired their properties, plaintiff used the road through defendants’ property with defendants’ knowledge, and plaintiffs use did not interfere with defendants’ use. Similarly, defendants argue that the facts in Read and Hayward are *802similar to those in this case and that the claimants in those cases failed to prove adverse use.
The dissent defends defendants’ assumption, offering a rationale for why a plaintiff must establish the element of adverse use solely by relying on the presumption of adverse use that arises from open and notorious use of the defendants’ property for 10 years. Yet, as noted, defendants’ argument about appropriate methods of proof is limited to its argument that the trial court misread Kondor, an argument that we have rejected. The focus of defendants’ appeal concerns whether the record reflects that they rebutted the presumption of adverse use in accordance with the means of rebuttal described in Woods and Trewin. Thus, the dissent would reverse the trial court’s ruling based on an argument that defendants are not actually making. That is a departure from our typical approach to decisions. See Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n 2, 64 P3d 1193, adh’d to as clarified on recons, 187 Or App 472, 68 P3d 259 (2003) (it is not our “proper function to make or develop a party’s argument when that party has not endeavored to do so itself’). Accordingly, we do not reach the balance of the argument that defendants make concerning the proof at trial as to adverse use.
In sum, defendants’ assertion that proof that a claimant used a roadway under the belief that he or she had the right to use it can never establish the sub-element of nonsubordinate use flies in the face of Oregon’s application of the Restatement formulation of adverse use in section 458. Accordingly, we apply Kondor and Sander and turn to the sufficiency of the evidence, which defendants also challenge.
4. Sufficiency of the evidence
The trial court determined that plaintiff had established through clear and convincing evidence that he had used the road by claim of right and had not asked for, nor been given, permission from defendants to use the road on their property during the 10-year prescriptive period. We conclude that the record supports the trial court’s findings.
*803Plaintiff testified that (1) he believed that he had a right to use the road based on the seller showing him the road as the means to gain access to the property, the road’s existence and course through defendants’ property and beyond for a significant distance until its end at his property, and his mistaken belief that certain easements over portions of the road also covered defendants’ property; (2) he had regularly used the road since he acquired the parcels in 1998; and (3) he had never asked for nor was given permission to use the road on defendants’ property. Defendant testified that he, and the other property owners, had a right to use the road for access and that Larson did not need his permission, although Larson also did not have an easement. Although defendant also testified that, if you do not have a written easement you go at the “goodwill and grace” of the owner, defendants behaved as if they believed that plaintiff, along with Larson and Woods, had a right to use the road through defendants’ property, and the trial court found that permission was not actually given.
Thus, the trial court heard evidence from defendant and plaintiff concerning whether plaintiff’s use was in subordination to defendants. And, for a number of good reasons, including the fact that defendant’s trial testimony presented a new factual and legal twist that had never come up in defendants’ pleadings or defendant’s deposition, the trial court found defendant’s testimony concerning permission to be lacking in credibility and accepted plaintiffs testimony.
The trial court did not commit legal error by considering direct evidence that plaintiff had not used the road in subordination to defendants, and we are hound by the trial court’s express and implied findings concerning the factual dispute over whether plaintiff used the road by permission.
C. Proof of 10 years of adverse use
We also reject defendants’ contention that, contrary to the trial court’s finding, plaintiff did not establish 10 years of adverse use because he acted in subordination to defendants when he asked defendants to sign a written easement at a time when he had owned three of his parcels for slightly less than 10 years. Plaintiff, though, asked for a written easement from defendants (and the other property *804owners along the roads) only to confirm his claimed rights in writing, as required by the county. Plaintiffs request did not end his claimed adverse use of the road; he continued to assert that he already had an established, legal right to use the road. See Arrien, 263 Or at 372 (“A willingness to purchase land from the servient owner does not, in itself, negate an adverse use.”). There was no evidence that, following his request, plaintiff made his use subservient to defendants’ rights. Accordingly, the evidence supports the trial court’s finding of 10 years of adverse use of the road by plaintiff. Because all of the elements for a prescriptive easement were satisfied, we affirm the trial court’s judgment.
Affirmed.
The third defendant was also an owner of the property, but he died after plaintiff filed his complaint.
Defendant also testified that he had a key for Woods but had not yet had the opportunity to give it to him.
Section 457 of the Restatement sets forth the elements for creation of an easement by prescription, namely, use that is “adverse” and “for the period of prescription, continuous and uninterrupted.” As stated by the Oregon Supreme Court in Thompson, 270 Or at 546, an additional element of proof — use that is “open and notorious” — is required in Oregon. The Restatement formulation also requires proof of “open and notorious” use, but as a sub-element of “adverse” use instead.
The dissent’s argument that our holding effectively drops the “open and notorious” element from the proof required for a prescriptive easement, see 269 Or App at 838 (DeVore, J., dissenting), is incorrect. First, the dissent fails to fully acknowledge that defendants conceded the “open and notorious” element and that the trial judge proceeded accordingly. 269 Or App at 824 (DeVore, J., dissenting). Use not in subordination to the servient owner is a distinct and separate element from open and notorious use of the road; however, the dissent appears to conflate the two. Second, the dissent’s argument depends on an inference that the trial court assumed that plaintiff had proved open and notorious use from his proof of use not in subordination to defendants. That inference is not supported by the record because defendants conceded at the outset of trial that plaintiffs use of the road was open and notorious.
Neither has the dissent.
We disagree with the dissent’s characterization of the analysis in Kondor, which is that it was divorced from the principles in the Restatement formulation of adverse use and simply “proceeded on the familiar principle that continuous, open, and notorious use of a road would be presumed to be adverse — that is, to be without the defendants’ permission.” 269 Or App at 833 (DeVore, J., dissenting) (emphasis in orginal).