concurring.
I join fully in the majority opinion with the understanding that its discussion of the content of the “open and notorious” element of a prescriptive easement, see 269 Or App at 796-97, is dictum. I write separately for two reasons: (1) to elaborate on why the notice concerns raised by the dissent do not provide a basis for reversing the trial court’s judgment under the circumstances present in this case; and (2) to highlight the fact that, in general, we no longer review de novo a trial court’s determination as to the existence of a prescriptive easement, and to emphasize the significance of the applicable standard of review to my determination that the trial court’s judgment should be affirmed.
A. My understanding of the Oregon law of prescriptive easements
Under Oregon law of prescriptive easements, a plaintiff seeking to establish a prescriptive easement generally must prove that the use for which the plaintiff seeks the easement had three characteristics: (1) the use must have been “continuous and uninterrupted” for the prescriptive period; (2) the use must have been “adverse to the rights” of the defendant; and (3) the use must have been “open and notorious.” Thompson v. Scott, 270 Or 542, 546, 528 P2d 509 (1974).
The meaning of the element of “continuous and uninterrupted” is not in dispute in this case, and I therefore *805do not discuss it further. With respect to the “adverse” element, a plaintiffs use of land is “adverse to the rights” of a defendant landowner if the use is under claim of right rather than by permission of the landowner. See generally Feldman et ux. v. Knapp et ux., 196 Or 453, 467, 250 P2d 92 (1952); see also Parrott v. Stewart, 65 Or 254, 260-61, 132 P 523 (1913) (explaining that a use of land is adverse to the rights of the owner if the use is by claim of right rather than permission); Kondor v. Prose, 50 Or App 55, 60, 622 P2d 741 (1981) (“In the context of prescriptive easements, the requirement that the use be ‘adverse’ to the rights of the property owner means that the use is not in subordination to those rights.”).
Under Feldman, the open and continuous use of land for the prescriptive period gives rise to a rebuttable presumption that the use was adverse.1 196 Or at 470-73. A servient landowner may then introduce evidence to rebut that presumption. Woods v. Hart, 254 Or 434, 437, 458 P2d 945 (1969). What a landowner must show to rebut the presumption depends on the nature of the particular use. In all circumstances, a landowner may rebut the presumption by affirmatively proving that the use was, in fact, permissive. See McGrath v. Bradley, 238 Or App 269, 274, 242 P3d 670 (2010);2 Wiser v. Elliott, 228 Or App 489, 501-02, 209 P3d 337 (2009). However, in some circumstances, a landowner may rebut the presumption by presenting evidence that does not affirmatively prove that the use was permissive, thereby shifting the burden of proving actual adverse use back to the plaintiff. Woods, 254 Or at 437 (observing that, “[e]ven if the rebutted presumption is regarded as having some evidentiary value, it alone cannot preponderate in favor of plaintiff’); see *806also McGrath, 238 Or App at 274 n 5; cf. Sander v. McKinley, 241 Or App 297, 306-07, 250 P3d 939 (2011) (if presumption of adverseness is not available to plaintiff, to obtain prescriptive easement, plaintiff must directly prove that use was adverse); Nice v. Priday, 137 Or App 620, 625, 905 P2d 252 (1995), rev den, 322 Or 644 (1996) (plaintiffs failed to prove that use was adverse where defendants rebutted presumption of adverse use and plaintiffs adduced no other evidence of adverse use); J. E. Macy, Annotation, Easement by prescription: presumption and burden of proof as to adverse character of use, 170 ALR 776, 790-91 (1947)3. For example, where a plaintiff seeks a prescriptive easement over a roadway, a landowner rebuts the presumption that the use is adverse by demonstrating that the roadway was either constructed by the landowner or is of unknown origin, and that the plaintiffs use of the road did not interfere with the landowner’s use of the roadway. Woods, 254 Or at 437; Trewin v. Hunter, 271 Or 245, 247-48, 531 P2d 899 (1975); McGrath, 238 Or App at 274 n 5; Chambers v. Disney, 65 Or App 684, 689-90, 672 P2d 711 (1983). Proof of those circumstances rebuts the presumption that a use is adverse because those circumstances are more indicative of “a friendly arrangement between neighbors” than they are of a use under claim of right. Woods, 254 Or at 436-37. However, such proof does not necessarily result in a de facto showing of permissiveness or preclude a finding of adversity. Id.
With respect to the “open and notorious” element, a plaintiffs use of land is “open and notorious” if it is “such *807that the landowner has a reasonable opportunity to learn of its existence and nature.” Thompson v. Schuh, 286 Or 201, 211, 593 P2d 1138 (1979). In particular, the landowner must have had a reasonable opportunity to learn of the adverse character of the use, that is, “that [the plaintiff] claimed a prescriptive right” to the use. Winters v. Knutson, 154 Or App 553, 558-59, 962 P2d 720 (1998).
In most instances a showing that the landowner knew of the use, or had a reasonable opportunity to learn about the use, is sufficient to establish that the landowner had a reasonable opportunity to learn of both the fact of the use and its adverse character. However, in some circumstances a greater showing is required. Restatement (First) of Property § 458 comments h - k (1944) (describing how different circumstances affect what a plaintiff must prove to establish the “open and notorious” element of a prescriptive easement); see also Thompson, 270 Or at 548-49 (when use begins as permissive, prescriptive-easement claimant must show that landowner knew that claimant had repudiated permission in order to establish that use was “open and notorious”);4 Hamann v. Brimm, 272 Or 526, 529, 537 P2d 1149 (1975) (same); Winters, 154 Or App at 558-59 (where parties seeking prescriptive easement concealed adverse character of their use, fact that landowner was aware of use was insufficient to establish that use was “open and notorious”). In particular, as comment j to section 458 of the Restatement (First) of Property makes clear, in some circumstances, to establish that a use was “open and notorious,” a plaintiff must prove that the defendant knew of the adverse character of the plaintiffs use.
*808Although we have not explicitly addressed the issue (and, as explained further below, this case does not present the opportunity to do so), Woods suggests that one situation in which a plaintiff must prove that a landowner had actual knowledge of the adverse character of the use in order to prove the “open and notorious” element of a prescriptive easement is where the use is over an existing roadway in a manner that does not interfere with the landowner’s use of the road or damage the road. That is because, as Woods recognizes, under such circumstances a landowner reasonably would assume that the landowner was being “neighborly” in permitting the use, not that the neighbor was using the road under claim of right; in other words, the fact of the use alone — and knowledge of that fact — would not, under such circumstances, put a landowner on notice that the character of the use was adverse.
B. Application to this case
Applying the above standards to the present case, I would conclude that the trial court erred when it concluded that defendants had not rebutted the presumption of adverseness, because it applied the wrong legal standard in making that determination. In particular, the trial court applied the wrong legal standard when it found that plaintiff’s use of the road “interfered” with defendants’ property because defendants had to view vehicles traveling by their house on the road. As a matter of law, that sort of “interference” has no bearing on whether defendants rebutted the presumption of adverse use. Rather, to rebut the presumption in the context of an existing roadway of unknown origin, a landowner need only establish that the plaintiffs use of the road did not interfere with the landowner’s use of the road (or damage the road). Woods, 254 Or at 437-38. Because we are not reviewing de novo, that legal error by the trial court ordinarily would require a remand to make the required factual findings (that is, the findings as to whether defendants proved that plaintiffs use of the road did not interfere with defendants’ use of the road, and did not damage the road, thereby rebutting the presumption of adverse use) under the correct legal standard. Nevertheless, a remand is not required here because the trial court correctly concluded — based on the evidence presented and *809defendants’ concession in court — that plaintiff established the elements of a prescriptive easement.
First, defendants conceded in their trial memorandum before trial that the “open and notorious” element of a prescriptive easement was met in this case: “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.” The trial court— appropriately so — relied on that concession in determining that plaintiff had established the elements of a prescriptive easement. Second, for the reasons stated in the majority opinion, the evidence in the record is sufficient to support the trial court’s factual findings that the other two elements for a prescriptive easement are satisfied: (1) that plaintiffs use was adverse to defendants’ rights (that is, under claim of right rather than by permission); and (2) that the adverse use was continuous for long enough to give rise to a prescriptive easement.
The question of adverseness is a close one for me, albeit not for the same reasons that it is a close question for the dissent. In some of our previous cases we have concluded on similar evidence that prescriptive-easement claimants have not demonstrated that a use was adverse; we have even found that such evidence demonstrated affirmatively that a use was permissive. See Nice, 137 Or App at 624-25 (on de novo review, finding that defendants rebutted presumption of adverse use and plaintiffs failed to prove adverse use where claimed easement was based on use of road in common with others and where defendants had put gate up on road but gave plaintiffs a key); see also Bridston v. Panther Crushing Co., Inc., 206 Or App 178, 184-85, 136 P3d 84 (2006). In particular, in Bridston we found — again on de novo review — that a party’s use of a road was permissive on facts similar to those present here: (1) the landowner had put up a gate across the road and given the user a key; (2) where the party used the road in common with others; and (3) where the party had assisted in the maintenance of the road. Id. However, in those cases we reviewed de novo and were ourselves acting as factfinders, charged with weighing *810the evidence and determining for ourselves whether we were convinced by the evidence that the use was under a claim of right, rather than permissive. Now, however, we review de novo a trial court’s determination that a party has proved a claim for a prescriptive easement only in exceptional circumstances, ORS 19.415(3)(b) and ORAP 5.40(8)(c), and we have not elected to conduct de novo review in this case. As a result, we are bound by the trial court’s factual finding that plaintiffs use of the road was under a claim of right, rather than by permission, if there is any evidence to support that factual finding. 269 Or App at 787. There is such evidence here. That evidence, viewed in the light most favorable to the trial court’s determination, shows that plaintiff used the road under the belief that he had the right to use the road, that plaintiff did not ask for permission to use the road and defendants did not give permission to use the road, and that defendants themselves, like plaintiff, believed that they had the right to use the road over other neighbors’ properties. From that evidence, the trial court reasonably could infer that plaintiffs use of the road was under claim of right and not by virtue of defendants’ permission.5
The dissent contends that the evidence is insufficient to support a factual finding that plaintiffs use of the roadway was adverse because, in the dissent’s view, the evidence is insufficient to support a factual finding that defendants were on notice of the adverse character of plaintiffs use. 269 Or App at 823-43 (DeVore, J., dissenting). From that, the dissent reasons that the majority has adopted a “subjective theory of adverseness” that will result in the granting of prescriptive easements in circumstances in which the servient landowner was not given fair warning that a use of a road might ripen into a prescriptive easement.
I tend to agree with the dissent that the evidence would not support a factual finding that defendants were on *811notice of the adverse character of plaintiffs use of the road. However, that does not suggest that the majority’s formulation of the “adverse” element of a prescriptive easement is wrong. Whether defendants were on notice of the adverse character of plaintiffs use of the road does not bear on whether that use was by claim of right. Instead, the absence of notice bears on whether the use was “open and notorious,”6 and, to obtain a prescriptive easement, a plaintiff will have to show that the owner of the servient estate had whatever notice of the adverse character of the plaintiffs use was required under the circumstances of the case. See Winters, 154 Or App at 558-59.
As I noted above, Woods suggests that under the circumstances present here, a prescriptive-easement plaintiff may need to prove that the servient landowner had actual knowledge of the adverse character of the plaintiffs use in order to prove that the use was “open and notorious.” However, in the light of defendants’ express written concession in the trial court that plaintiffs use of the land met the “open and notorious” element of a prescriptive easement (a concession that, in my view, relieved plaintiff of the obligation to further develop the evidence on that element), this case does not present the opportunity for us to address the scope of the “open and notorious” element of a claim for a *812prescriptive easement for use of an existing road across a neighbor’s property.
With those considerations, I concur in the majority opinion.
Sercombe, J., joins in this concurrence.This court sometimes misstates the presumption articulated in Feldman as being established by a showing of “open and notorious” use. McGrath v. Bradley, 238 Or App 269, 274, 242 P3d 670 (2010). In the future, we should take care to use the correct phrase because in the law of prescriptive easements, “open and notorious” is a term of art with a well-defined meaning. See Restatement (First) of Property § 458 comments h - k (1944) (defining “open and notorious” element of prescriptive easement).
Of course, proof by the landowner that the use was, in fact, permissive does more than simply rebut the presumption that the use is adverse; it affirmatively disproves the element of adverse use, thereby defeating a plaintiff’s claim for a prescriptive easement. See Baum et ux. v. Denn et al., 187 Or 401, 405-06, 211 P2d 478 (1949) (finding that no adversity existed because the use “was merely permissive in character”).
Macy describes the burden-shifting dynamic for the presumption of adversity as follows:
“The weight of reason and authority supports the proposition that the burden of proof as to the adverse nature of the use remains on the claimant throughout. Analogy with the claim of adverse possession, as well as general principles, require him to sustain the burden as to all the elements of prescriptive right. The presumption of adverseness which supports him in the first instance is a typical legal presumption. It is not a mere evidential inference, although that may lie back of it. It is one which requires a trial judge, when no evidence opposes it, to direct a verdict for the claimant. Being a typical legal presumption, it disappears when confronted with evidence of permission or license, leaving the issue as one of fact. And upon that issue the burden to support the allegation of adverseness by a preponderance of the evidence remains on the claimant.”
170 ALR at 790-91.
As we observed in Winters, in formulating the “open and notorious” element of a prescriptive easement, the Supreme Court has relied on the comments to the Restatement (First) of Property (1944) that discuss what it means for a use to be “open and notorious.” 154 Or App at 559, 559 n 3. However, this court has relied on the comments to the Restatement (Third) of Property (2000) to support the proposition that, notwithstanding the word “and”, we treat “open and notorious” as a disjunctive term with specific and separate definitions for each element. See Montague v. Elliot, 193 Or App 639, 651, 92 P3d 731 (2004) (stating that “open and notorious” element of prescriptive easement, in reality, means “open or notorious”). I believe that that is an incorrect formulation of the term under Oregon law, to the extent that it conflicts with the old Restatement, which treats “open and notorious” as a legal term of art with a well-defined meaning. See 269 Or App at 796-97 (discussing the meaning of “open and notorious” based on the comments to the Restatement (First) of Property (1944)).
I do not believe that the trial court’s inference that plaintiff’s use was under claim of right and not permissive is the only reasonable inference that can be drawn from the evidence in this case; on this record, had the trial court inferred that plaintiffs use was permissive, I believe that we would be bound to uphold that factual finding as well, absent a decision to engage in de novo review. Put simply, different reasonable factfinders could view the evidence in this case in different ways.
The dissent relies on comment j to section 458 of the Restatement (First) of Property for the proposition that the lack of notice as to the character of the use bears on the determination of whether the use itself is adverse. 269 Or App at 828-29 (DeVore, J., dissenting). That comment states, in pertinent part: “[w]here a user of land and one having an interest affected by the use have a relationship to each other sufficient in itself to justify the use, the use is not adverse unless knowledge of its adverse character is had by the one whose interest is affected.” Restatement § 458 comment j (emphasis added). Notwithstanding the emphasized wording, it is clear from the context of the comment that it is referring to what must be shown to establish the “open and notorious” element of a prescriptive easement, and not to what must be shown to establish that a use is “adverse” as that term is employed in the Oregon cases. First, the comment is titled “Open and notorious use — Special relationship.” Id. Second, as the majority opinion explains, the Restatement defines “adverse” more broadly than the Oregon cases define the term. 269 Or App at 795 n 3. Under the Restatement formulation, to qualify as “adverse” a use must be “open and notorious,” among other things. Id. at 795. Accordingly, under the Restatement definition of “adverse”, a use that is not “open and notorious” can never be “adverse.” By contrast, under Oregon law, the question of whether a use is “adverse” is distinct from the question of whether it is “open and notorious.” As the majority also explains, Oregon’s definition of “adverse” equates to the nonsubordination element of ths Restatement’s definition of “adverse.” Id. at 795.