dissenting.
This case offers the chance to eliminate or to exacerbate confusion in the law of prescriptive easements. Here, a well-established line of cases collide with what will become a new line of cases. The conflict requires this court to decide whether the law will continue to require that, in order to claim a prescriptive easement over preexisting roads of unknown origin, the claimants must show that their use interfered with the owner’s use of the road, so as to prove the requisite open, notorious, and adverse use. The majority opinion offers a nascent alternative that will render the long-established rule immaterial. The alternative posited is that the court will now recognize a claimant’s testimony about a prior, unexpressed, and subjective belief in the claimant’s right to use a road as sufficient evidence — indeed, as so-called “direct evidence” — of open, notorious, and adverse use of preexisting roads of unknown origin. The result of this subjective theory of adverseness will be to tacitly overrule eight cases in concept and in practice.
Fearing this alternative to be ill-founded, I respectfully dissent. To explain why, this dissent (1) revisits the facts, (2) recalls the rules on preexisting roads, (3) compares how the parties and the majority grappled with the issues presented here, (4) questions the theory that a subjective belief constitutes “direct evidence” of adverse use of preexisting roads, (5) observes how this case conflicts in concept and in practice with established cases on prescriptive easements, (6) suggests how the law should apply to this case, and (7) concludes with a hope that the conflict between neighbors and between cases might be resolved.
I. FACTS
Plaintiff bought three parcels of land in December 1998 that are reached by Lewis Creek Road.1 Plaintiff testified *813that he could not remember any conversations with his seller about the road access. He admitted that he had noticed a disclaimer that appeared on the face of each of his three deeds, warning, “This property does not have access to or from a legally dedicated street, road or highway and access therefore cannot be insured.” Plaintiff is not the only person served by Lewis Creek Road. It passes through defendants’ property, Larson’s property, public land, Woods’ property, and more public land before reaching plaintiffs parcels. Before his closing, plaintiff had seen purchase documents that included written easements over the Larson and Woods properties, but he did not check to which sections of the road the easements applied. When plaintiff inquired about it, the title company said that it could not give legal advice. Plaintiff choose to assume that the two easements overrode the deeds’ warning and gave him uninterrupted access to his properties. Plaintiffs use of the properties during the relevant years was limited to recreational use in the summer time. One of his parcels had an old cabin, which he improved.
Lewis Creek Road has existed since at least 1934. Plaintiff admitted that he had not built the road over defendants’ property, and he did not know who did. The neighbors shared the cost and tasks of maintaining the road. One neighbor oversaw things, asking others to help. Defendant Le Roy Hippe performed maintenance over his property, cutting brush, filling potholes, and cleaning the ditch. Plaintiff has dragged iron behind his pickup to grade the road; and, after asking defendant Hippe’s permission, plaintiff trimmed branches on defendants’ property along the road. In the last few years before trial, defendants have had a chain across the road as it enters their property, but the chain is usually down or down while defendants were home. Defendants have given keys to the chain’s lock to plaintiff as well as the Larsons, UPS, FedEx, and the power company.
Plaintiff testified that, prior to 2009, he had never had any discussions with defendants about his use of the road across their property. In 2008, less than 10 years after his purchase, the county told plaintiff that, in order to get a building permit for a house, he had to have written *814easements to reach his property. In May 2008, plaintiff wrote to defendants’ brother (in interest) to ask for a written easement, while simultaneously asserting that he already had a right to use the road by reason of a prescriptive easement, an implied easement, and a statutory way of necessity.2 Defendants have not and do not object to plaintiffs use of the road. Because they preferred that future use be permissive use, they declined to grant a written easement. Their refusal prompted this suit.
II. PREEXISTING ROADS
The principles surrounding prescriptive easements are well-established. First among them is the reminder that “[e]asements by prescription are not favored by the law[.]” Wood v. Woodcock, 276 Or 49, 56, 554 P2d 151 (1976). Second, clear and convincing evidence is required when claimants seek to prove the elements of a prescriptive easement. To prove those elements, claimants must show “that they or their predecessors used the roads in an open, notorious, adverse, and continuous manner for a period of ten years.” Webb v. Clodfelter, 205 Or App 20, 26, 132 P3d 50 (2006) (citing Thompson v. Scott, 270 Or 542, 546, 528 P2d 509 (1974)). The first two fundamentals will become important when we turn to the requirements for open, notorious, and adverse use as applied to preexisting roads. And, those two fundamentals will be significant in recognizing a conflict between old and new lines of cases. 269 Or App at 836-40 (DeVore, J., dissenting).
In the varied situations that arise, there are many ways in which a claimant may demonstrate adverseness in making use of another’s land. There is indeed no single way in which adverse, overt, and physical use of another’s land might be manifested. Contrary to the majority’s reading, this dissent and the defendants do not contend that an easement claimant can only rely on the presumption of *815adverseness from use of a road.3 Examples of the many ways to demonstrate an adverse claim range from a claimant who builds a new road on another’s land to a claimant who dams a seasonal creek so as to flood the meadow of an upstream neighbor. See, e.g., Montague v. Elliott, 193 Or App 639, 653, 92 P3d 731 (2004) (physical deviation from written easement for street); Arrien v. Levanger, 263 Or 363, 373, 502 P2d 573 (1972) (flooding as prescriptive use). Merely traveling over an existing road on occasion, however, is not nearly so overt and physical, nor open, notorious, and adverse, as a claimant building a driveway across a neighbor’s lot or as establishing a trail of tire tracks across a neighbor’s fields. See Feldman et ux. v. Knapp et ux., 196 Or 453, 250 P2d 92 (1952); 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) (road becoming tire track trail across field).
When the prescriptive claim involves simply the use of a road and no other demonstrable evidence of adverseness, Oregon’s cases provide a rule that yields one or another answer, depending upon whether the roads were preexisting. The long-standing rule has been expressed in this way:
“It is generally said that the open and continuous use of a road for the prescriptive period is presumed to be adverse and under a claim of right. It is further generally said that the servient owner has the burden to rebut the presumption.
“When the road is preexisting, however, and the claimant’s use is nonexclusive, that presumption may be rebutted by proof that the claimant’s use of the road did not interfere with the servient owner’s use of the road.”
Webb, 205 Or App at 26-27 (citations omitted; emphases added). Ordinarily, the use of the road will be presumed to be adverse, unless the servient owner proves that the use was permissive. But, if it is known that the owner built the road or if the road is of unknown origin, then mere use is not adverse. That use is no longer “adverse and under a claim of right.” To show open, notorious, and adverse use of a road *816of unknown origin, the claimant must show that the claimant’s use of the road interfered with the owner’s use of the road. Id. The importance and reasons for this standard are reflected in a line of cases from the Oregon Supreme Court and continuing through decisions of the Court of Appeals.
The Oregon Supreme Court explained the significance of preexisting roads in Woods v. Hart, 254 Or 434, 436, 458 P2d 945 (1969). In that case, the roadway had been in existence before either the defendants or the plaintiffs acquired their lands. The plaintiffs used the defendants’ road, and the defendants knew it. If the plaintiffs had built the road without asking, the court noted, then the use would have been adverse. Id. But, like our facts here, the most that could be said was that the plaintiffs shared in the work and expense of maintaining the road. Id. The court observed that helping with maintenance does not assert a right to the road, because it is equally possible that the money and work was compensation to the owners for the privilege of using the road. Offering the reason for our rule on preexisting roads, the court declared:
“Where one uses an existing way over another person’s land and nothing more is shown, it is more reasonable to assume that the use was pursuant to a friendly arrangement between neighbors rather than to assume that the user was making an adverse claim.”
Id. Even if the normal notion were imagined — that a presumption of adverseness arises when crossing another’s land — “the fact that the claimant’s use is of an existing way and the use does not interfere with the owner’s use” would “rebut the presumption of adverseness.” Id. at 437 (emphasis added).
“‘[T]he fact that [an owner] sees his neighbor also making use of [the road] under circumstances that in no way injures the road, or interferes with his own use of it, does not justify the inference that he is yielding to his neighbor’s claim of right or that his neighbor is asserting any right. It signifies only that he is permitting his neighbor to use the road * * * “in a neighborly way.’””
Id. at 437-38 (quoting Anthony v. Kennard Bldg. Co., 188 Mo 704, 723-24, 87 SW 921 (1905)) (emphasis added). The court *817was pragmatic: To see a neighbor travel over a road, without interfering with the owner’s use, does not alert the owner that the neighbor may harbor an adverse claim of right to use the road. The court affirmed the decree refusing the prescriptive claim. Id. at 438.
The Supreme Court has made the rule plain in other decisions. In Trewin v. Hunter, 271 Or 245, 531 P2d 899 (1975), there was recent adverse use, but not for a sufficient period of 10 years. Before the recent adverse use, the plaintiffs had used the roadway over the defendants’ land and had never asked permission. The defendants did not object to the use, but they were not shown to have actually given permission. Citing Woods, our state’s high court concluded:
“It is our opinion that when a road is used in common by the dominant and servient owner and there is no evidence to establish who constructed the road, it should be presumed that the servient owner constructed it for his own use.”
Id. at 247-48 (emphasis added). Another decree refusing a prescriptive use was affirmed.
Again, in Boyer v. Abston, 274 Or 161, 544 P2d 1031 (1976), the Supreme Court affirmed another judgment rejecting a prescriptive claim, observing that the road’s “origin is unknown” and that “plaintiffs and their predecessors did not use the road so as to injure it or interfere with defendants’ use.” Id. at 163. Decisions of the Court of Appeals have been in accord, following the same principles. See, e.g., Read v. Dokey, 92 Or App 298, 758 P2d 399 (1988) (reversing judgment for prescriptive easement over a road in common use of unknown origin); Hayward v. Ellsworth, 140 Or App 492, 915 P2d 483 (1996) (reversing judgment for prescriptive easement involving informal center road built by original owner of all lots).
Oregon’s rules on roads — both the general rule and its counterpoint — are paralleled in the commentary to today’s more recent Restatement:
“In states following the majority rule, particular fact situations overcome the presumption of prescriptive use, creating a counter-presumption that the initial use was *818permissive. * * * Evidence that the use was made in common with the owner of the land, or that the road over which a right of way is claim was constructed by the owner for his own use, may also overcome the presumption of prescriptive use.”
Restatement (Third) of Property (Servitudes) § 2.16 comment g (2000) (emphases added).
Because Oregon understands a cooperative use of roads of unknown origin to be a permissive arrangement, it inescapably follows that, in order to demonstrate an open, notorious, and adverse use, a claimant must show the claimant’s use to interfere with the owner’s use of the road. That is so because our rule on preexisting road parallels the same sort of requirement for proof of adverseness when permission was previously granted. See Hamann v. Brimm, 272 Or 526, 537 P2d 1149 (1975) (to repudiate permission, claimant must show a use of a different character and the owner must have a reasonable opportunity to learn of the repudiation).
Curiously, the first Oregon case on which the majority relies to show the court’s reference to the old Restatement is a case illustrating the importance of showing interference in this parallel situation. In Thompson v. Scott, 270 Or 542, 528 P2d 509 (1974), the plaintiffs claimed a prescriptive easement across the defendants’ meadow to reach their timberland. Before a common property was split, the predecessor of the plaintiffs and the defendants had hired the plaintiffs to haul logs out of a timbered area of the property. That area was later sold to the plaintiffs who asserted a prescriptive right to the road to their property. Because the initial use was permissive, something more than ordinary use was required to alert the defendants to an adverse claim. The Supreme Court explained:
“When the use of the servient owner’s land is permissive at its inception, the permissive character of the use is deemed to continue thereafter unless the repudiation of the license to use is brought to the knowledge of the servient owner. This principle is stated in [Restatement of Property § 458 comment j (1944).]”
Thompson, 270 Or at 548-49. To alert the owner that the permitted use is changed to an adverse use, “‘the claimant *819is required to prove the new and different character of the continued use very clearly.’” Id. at 549. In Thompson, the defendants knew the plaintiffs were using the road, but the character of their use — visiting rural land infrequently— was “little or no warning of an adverse claim.” Id. at 551. To like effect, the Supreme Court rejected a prescriptive claim in Hamann, 272 Or at 526, where there was no change in the claimant’s use that would have alerted the owners to an adverse claim.
In both the situation involving preexisting roads with assumed permission and the parallel situation involving prior, express permission, our courts have found one other fact to be noteworthy: A claimant who shares access with a number of other users, and has given no other demonstrable evidence of adverseness, is less likely to demonstrate adverseness by such shared use. In Thompson, the court added:
“Another fact militating against treating plaintiffs’ use as adverse is the non-exclusive character of plaintiffs’ use. Plaintiffs themselves introduced evidence establishing that the road was used by others for a variety of purposes, including the hauling of logs, the hauling of hay, the movement of farm equipment, and for hunting. It has been said that *** £[i]f the claimant is only one of two, or several, or many, who make the user in question, it is perhaps infer-able that all of these uses are permissive. In such a case the claimant must affirmatively prove the adverse character of his behavior.’”
270 Or at 551 (quoting 3 Powell on Real Property ¶ 413, p 483 (1973)). This recognition is consistent with the principle expressed by the Supreme Court as to preexisting roads that, when nothing else is shown, shared use of a preexisting road among a number of users will be understood to be a “friendly arrangement between neighbors.” Woods, 254 Or at 436; Trewin, 271 Or at 247-48; Boyer, 274 Or at 163-64.
A better claim could be made if a claimant were the sole user who establishes a two-track trail across a neighbor’s field. See R & C Ranch, LLC, 177 Or App at 313. The fact that plaintiff, here, used the road across defendants’ *820property in common with others, and used the road no differently than did neighbors Woods and Larson, underscores the principle that use of a preexisting road is itself not adverse, may be understood as a neighborly arrangement, and requires the claimant to show demonstrable or open and notorious adverseness in some other form — that is to say, interference with the owners’ use of the roads. See Thompson, 270 Or at 551.
The same circumstance was presented in Webb, 205 Or App at 20. In a like rural setting, the defendants owned land crossed by the road that served outlying neighbors. Midway along the road, a neighbor Prock owned land through his pension fund. At the far ends of the road system, the plaintiffs owned three parcels. The road existed longer than anyone remembered, and, except for a cut-off road (not relevant here), no one knew who had built the road system. Everyone used the roads in earlier years for moving farm equipment, and, in later years, for hunting or personal uses. The defendants lived on their land and never objected to the plaintiffs’ use of the roads. Conflicts surrounded the plaintiffs’ guests, a hunting club, whom the defendants believed frightened wildlife, brought in noxious weeds, crossed freshly seeded ground in the fall, and rutted wet roads. The defendants granted permission for the plaintiffs to accompany their paying hunters on the road to the plaintiffs’ parcels. The arrangement deteriorated in years too-recent when the defendants found a locked gate had been forced open. The trial court granted the plaintiffs’ claim for a prescriptive easement.
This court acknowledged that ordinarily use of the road would be “presumed to be adverse and under a claim of right.” Id. at 26 (citing Feldman, 196 Or at 473). Where, however, the roads are preexisting and of unknown origin, and claimants’ “use is nonexclusive,” mere use does not show adverse use. Id. at 27. We summarized the factors by which a presumption of adverse use is defeated, quoting an earlier case:
“‘Where, as here, (1) a road is used in common by the owners of a putative servient estate and by others; (2) there *821is no evidence to establish who constructed the road; and (3) the evidence does not establish that the common use interfered, for the requisite period, with the servient owner’s use, the claimants of prescriptive rights have not carried their burden of proof.’”
Id. (quoting Petersen v. Crook County, 172 Or App 44, 53, 17 P3d 563 (2001)).
Webb foreshadowed this case. We recognized the claimants were firmly convinced of their own belief in their right to use the roads. We acknowledged the claimants’ argument “that club members did not seek out [the] defendants’ permission to use the roads because they did not believe they needed it.” Id. at 28. But there was no overt demonstration of the plaintiffs’ belief. Referring to the relevant period, we observed, “There is not evidence of a single hostile encounter between hunting club members and [the] defendants between 1977 and 1995.” Id. at 29. What was shown was not enough to establish adverse use of a neighbors set of preexisting roads. Focusing on what is needed for adverseness, we added, “More importantly, despite causing wear to roads and damage to locks and gates, plaintiffs never interfered with defendants’ own use [of the roads].” Id. We concluded that the plaintiffs’ use of the preexisting roads, bereft of any presumption of adverseness and supported only by their belief that they did not “need” permission, failed to establish a prescriptive easement. Id. We reversed the judgment for the claimants.
We recognized another friendly arrangement as to a road of unknown origin in Skidmore v. Clark, 205 Or App 592, 135 P3d 367 (2006), which shares some facts with the case at hand. There, too, we required that the claimants demonstrate that their use “interfered” with the servient owners’ use of the roads. Like defendants in our case here, the owners or predecessors had given the plaintiffs’ predecessor a key to the lock on the road’s gate, or they had allowed the plaintiffs’ predecessors to add their own lock. As in Webb, there was some testimony about ruts in the road, which damage the plaintiffs denied. Like defendants in our case here, a plaintiff trimmed back trees and bushes. Nevertheless, we noted, “Oregon courts have consistently held that maintenance is more indicative of a friendly *822agreement than it is of adversity.” Id. at 598. Finding little more than ordinary use of preexisting roads and “no evidence of adverse use,” we reversed the judgment for the claimants. Id. at 599.
In Insko v. Mosier, 235 Or App 451, 234 P3d 984 (2010), we confronted the notion that a claimant’s subjective belief was affirmative evidence of adverseness. An early owner had deeded to the defendants’ predecessor a strip of land for east and west access between a county road and the land of the defendants’ predecessors. The defendants’ predecessors had developed the road in dispute. The plaintiffs father and mother had bought landlocked land that lay immediately south of the road strip. Like plaintiff in our case at hand, the plaintiffs father, when buying the land, had thought that his deed included the access strip. Fences lined both sides of the access road, and the plaintiffs fence encroached along the defendants’ access strip. For a couple of weeks in each of two years, the plaintiff had fenced off the access strip in order to enclose yearling cattle within the strip. The plaintiff and his parents made open and continuous use of the road for farming access to their field, and they had never asked permission. Some of their use caused damage to the road, for which the trial court would award the defendants money damages. Trial testimony included evidence of statements the plaintiff’s father had made over the years to neighbors that he owned the disputed strip or had an easement over it. Finding the evidence was sufficient, the trial court granted a judgment recognizing a prescriptive easement.
We reversed, focusing on a critical element needed for a prescriptive easement over a preexisting road. We explained that “the case turns on the question of interference.” Id. at 455. We rejected the argument that the encroaching fence showed interference, because there was “no evidence that the fence encroached on the road.” Id. at 459 (emphasis in original). We rejected the argument that blocking the road for two weeks in each of two years was interference, because it did not continue over 10 years, and the plaintiffs did not do so when the defendants’ predecessors would return to their property. We rejected the argument that the plaintiffs use had actually caused compensable *823damage to the road, because “damage to a road alone will not support a finding of interference if the damage did not actually interfere with the owner’s use." Id. (citing Webb, 205 Or App at 29) (emphases added). And, finally, we rejected the fact that the plaintiffs predecessor over the years had objectively manifested his belief in his ownership or legal right to use the road by making statements to neighbors. Referring to adverse possession, we explained, that, with a prescriptive easement, it is not necessary that the claimant intended to assert ownership. Instead, a prescriptive easement turns on “‘the manner in which the property is used [.]’” Id. at 460 (quoting Wiser v. Elliott, 228 Or App at 489 (emphasis in Insko). Specifically, we rejected the suggestion that the plaintiffs subjective belief in his claim could make ordinary use become adverse use. We emphasized:
“Contrary to the implication of plaintiffs argument, the question of adverse use does not depend on the claimant’s subjective intentions with regard to the disputed road; the question of adverseness turns on whether the property was actually used in a manner that was inconsistent with the owner’s use!’
Id. (emphasis and underscoring added). The essential quality of adverseness lies, not in a “subjective intention,” but in the claimant’s demonstrable “manner” of use that is “inconsistent with the owner’s use” of the road. We reversed and remanded for entry of a judgment for defendants. Id.
III. GRAPPLING WITH THE ISSUES
If the law of prescriptive claims to preexisting roads governed this case, then there should be little doubt that our conclusion is controlled by the Supreme Court decisions in Woods, Trewin, and Boyer and our decisions in Read, Hayward, Webb, Skidmore, and Insko. Defendants presented the issue squarely, and, contrary to the majority, 269 Or App at 800-01, this dissent does not raise an issue that defendants failed to raise.4 Defendants argued in their briefs that plaintiff needed to prove plaintiffs use interfered with defendants’ use of the road. In plain language, defendants *824literally underscored their point, “Thinking you have a right to use a road is not sufficient bv itself.” (Underscoring in original.) Defendants cited and argued Wood, Trewin4 and Boyer, as well as Read, Hayward, Webb, Skidmore, and Insko.
Like the property owners in other cases of preexisting roads, see, e.g., Woods, 254 Or at 436, defendants knew plaintiff was using the road in an ordinary way.5 In that sense, defendants recognized in their first trial memorandum that plaintiff “used the roadway open [sic] and notoriously.” In opening statement, defense counsel said that plaintiffs use gave plaintiff a presumption. He allowed, “[W]e think he’s got that presumption going in.” (Emphasis added.) As a consequence, he continued:
“tilt’s up to Defendants to rebut that with — by showing that his use was of an existing road, did not interfere with Defendants’ use of the road — and it was not exclusive * * * And if Defendants can rebut those three pieces, he [plaintiff] still has to come up with some other way to prove adversity by clear and convincing evidence.”
(Emphases added.) Those were three keys recited in Webb, 205 Or App at 27 (quoted 269 Or App at 815 (DeVore, J., dissenting)), and they were also quoted in the same trial memo.
To construe defendants’ recognition of “open and notorious” travel as an unwitting legal concession that defendants knew or had reason to know of plaintiffs adverse claim (i.e., so-called adverseness reduced to “use not in submission”) is to attribute a meaning that defendants did not intend and should not now be understood to have conceded. Viewed in context, defendants’ counsel wrote and said that plaintiff must show interference or come up with some way other than mere travel to prove open, notorious, and adverse use. In this situation, defendants insisted, plain travel was not adverse. By frankly saying that plaintiffs travel was “open and notorious,” defendants were not conceding half the *825battlefield in an ordinary claim for a prescriptive easement. Defendants were saying that this is no longer an ordinary claim for a prescriptive easement. Because circumstances are different, plaintiff must now prove something more than known travel. Defendants were telling the trial court that plaintiff could not succeed by proving an ordinary claim (:i.e., simply traveling over the road without subordination to the owner) where the context of a preexisting road requires something significantly different. In other words, in a case of preexisting roads in common use, the paradigm shifts.
Defendants’ cases, like the parallel cases of Thompson and Hamann, explain that when roads are preexisting, ordinary use does not suffice as open, notorious, and adverse use. They explain why a plaintiff must show interference with the owner’s use of the road or demonstrate some change in the character of the claimant’s use, in order to bring to the owner’s attention that the claimant’s use is no longer friendly. By implication or expressly, those cases reject the proposition that a claimant’s later testimony about an earlier, subjective, and unexpressed “claim of right” somehow constitutes any evidence, let alone “direct evidence” fully sufficient by itself to prove adverse use of roads of unknown origin. See, e.g., Insko, 235 Or App at 460. Even when the claimant’s subjective belief is objectively manifested during the prescriptive period in statements made to neighbors, a subjective belief cannot serve to recharacterize mere travel over preexisting roads as adverse use.
Our majority opinion acknowledges Woods and Trewin, but misses their significance. The majority “cabins” them as relevant only to presumptions. The majority does not mention Webb or Insko, on which defendants principally relied. The majority explores none of the reasons why our case law requires, as proof of open, notorious, and adverse use, something during the prescriptive period that is demonstrably more than ordinary use of preexisting roads, or why the Supreme Court and Court of Appeals would have erred repeatedly in requiring interference. The majority does not respond directly to defendants’ reliance on these cases, nor do we consider them of any relevance to the prospect of an alternate theory of subjective proof of adverseness.
*826Instead, the majority deems defendants and this dissent to have failed to cite anything that prevents an alternate theory of adverseness (i.e., belated testimony about an earlier, unexpressed, subjective belief); the majority says that defendants gave too narrow of an explanation of Kondor v. Prose, 50 Or App 55, 622 P2d 741 (1981); and the majority sees the dissent’s explanation of Sander v. McKinley, 241 Or App 297, 250 P3d 939 (2011), which follows, as a wholesale rejection of the decision, rather than a reconciliation of it with established principles. 269 Or App at 826. The majority faults these seeming failures, while failing to recognize that defendants’ authorities discredit the theory that an unexpressed, subjective belief suffices to transform unremarkable travel into adverse use. The majority sidesteps defendants’ authorities, because there seems to be an easy and alternate theory of adverseness that renders defendants’ authorities immaterial.
If the criticism were redirected, the majority would be quite right to observe that more could have been said to examine today’s issue — by both parties. At trial and on appeal, the parties predictably spent most of their energies arguing about the conflicting evidence of express permission. Although the trial court did posit an alternate theory of adverseness, citing Kondor, the successful plaintiff, curiously, did not cite or argue Kondor at all in his brief on appeal in support of his judgment. Even the trial court did not cite Sander, which is arguably a better case for an alternate theory of adverseness, and which was decided eight months before the trial court’s judgment. In his brief, plaintiff did not cite Sander, either. Put in context, the majority opinion has done more to develop a subjective theory of adverseness than defendants ever had a chance to see in their opponent’s brief.
Defendants did cite and distinguish Kondor, treating the decision as misconstrued by the trial court. As, however, the majority opinion reflects, an alternate theory of adverseness appears to be developing. In light of Sander, which neither plaintiff nor the trial court mentioned, the prospect of a subjective theory cannot be discounted in a paragraph, as defendants might have hoped. Although *827defendants could not have anticipated the majority’s opinion, precognition would have helped little, because, despite the majority’s claim, an alternate theory of adverseness is not rooted in the Restatement (First) of Property, nor in the cases of the Supreme Court. The theory that a subjective belief or a “lack of subordination” is direct evidence — and itself fully sufficient proof of open, notorious, and adverse use — is a relatively recent conception appearing in our own work, particularly in Sander, a case which could be better explained in other terms. It is a theory that does not stand up well on its own, nor against the established law involving preexisting roads.
IV. EVOLUTION OF A MISCONCEPTION
A. The Old Restatement
The majority traces its analysis upstream to the Restatement (First) of Property. Summarizing the law as it was understood in 1944 as to most situations, the Restatement introduced the concept that an easement is prescriptive, “provided the use is (a) adverse, and (b) for the period of prescription, continuous and uninterrupted.” Restatement (First) of Property § 457 (1944). The Restatement (First) described adverse use as requiring several components, to wit:
“A use of land is adverse to the owner * * * 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 (First) at § 458. Although Oregon speaks of “open and notorious use” as a separate element of a prescriptive easement, Thompson, 270 Or at 546, the old Restatement combines “open and notorious” as one of three components of adverse use. Ordinarily, the difference should matter little, so long as the “open and notorious” prerequisite is not dropped out of consideration of adverse, prescriptive use.6
*828The concept of a mistaken “claim of right” is itself not a described component in the primary text of section 458 in of the old Restatement formulation of adverse use. Instead, the term appears in commentary as an optional possibility pertaining to the first component, which requires that a claimant show that the use was “not made in subordination” to the owner. Use in subordination would defeat a claim. To ask for permission to use a road shows subordination to the owner. For example, although “A” uses a pathway across Blackacre, even telling third persons at various times that he has an easement, “A” asks the owner for permission. Such use would not be found adverse. Id. at comment c (illus 1). A “claim of right” is one way by which a person may show that the use was “not made in subordination” to the owner. But a “claim of right” is not always necessary. “[I]t 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.” Id. at § 458 comment d. A person could build a road or dig a mine on another’s land, while knowing that there was no right and asserting no right and, yet, the physical acts would demonstrate the use was “not made in subordination” to the owner. Id. at § 458 comment c (illus 2).
That said, a “mistaken claim of right” or a lack of subordination does not wholly satisfy all the components of adverse use under the old Restatement formulation, because, by itself, it does not satisfy the second component of wrongfulness or the third component of adverseness, requiring “open and notorious” use. In short, a mistaken “claim of right” is not the equivalent of adverse use. It is an optional factor relating to one component of adverseness (i.e., (a) that the use not be in subordination to the owner).
Section 458 of the old Restatement is only a generalized summary of older American case law. It did not address the specific and varied situations that arose then or that would be developed later in' Oregon’s law. Even so, the old Restatement did anticipate the development of Oregon’s law, when it explained the third component of adverse use, that component which requires that the use be open and notorious. It explained that something more than ordinary use *829was required when the owner would understand that the use was friendly. The Restatement explained:
“Where a user of land and one having an interest affected by the use [e.g., the owner] 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. The responsibility of bringing this knowledge to him lies upon the one making the use. It is not open to a user of land to contend as against one to whom he stands in a relationship sufficient to justify the use that, because the one to whom he stands in this relationship had a reasonable opportunity to learn of the existence of the use and of its nature, the use was as to him open and notorious and therefore adverse. Thus, a licensee cannot begin an adverse use against his licensor merely by repudiating his license under such circumstances that the licensor has a reasonable opportunity to learn of the repudiation. Justice to the licensor requires more than this. It requires that he know of the repudiation. If knowledge does come to him the source is immaterial. It is not necessary that it come from the licensee, but the responsibility of seeing that it does come to him is on the licensee, a responsibility the obligation of which cannot be satisfied by showing that the licensor neglected to avail himself of means of knowledge.”
Restatement (First) at § 458 comment j (1944). This rule, governing a situation more specific than the generalities of section 458, was quoted as explanation for the decision in Thompson, 270 Or at 549, rejecting a prescriptive claim when use had begun with permission. See also Hamann, 272 Or at 529.
This commentary is also consistent with the understanding that, when neighbors use roads of unknown origin, the use is “pursuant to a friendly arrangement between neighbors.” Woods, 254 Or at 436; Trewin, 271 Or at 247-48; Boyer, 274 Or at 163-64; Webb, 205 Or App at 27-28; Skidmore, 205 Or App at 597; Insko, 235 Or App at 458. After the Restatement was updated 56 years later, it acknowledged that such particular fact situations defeat the presumption of adverseness arising from ordinary use and create a “counter-presumption that the initial use was permissive.” Restatement (Third) at § 2.16 comment g. For that *830reason, the claimant must demonstrably interfere with the owner’s use of the road or must let the owner know, directly or indirectly, that the use of the road is no longer friendly, in order that the claimant’s use may be proven openly and notoriously adverse.
To be sure, nothing in the old Restatement elevates a negative component — a lack of subordination — into the positive proof on the element of adverseness, especially without the other prerequisites of adverse use. By its nature, a mistaken belief in the claimant’s right can only go so far, because proof of a mistaken belief is only “evidence” of something that is not. It is proof of a negative circumstance — that the claimant’s use was not in subordination to the owner. It is like a claimant disproving a defense, while still needing to prove the affirmative claim. To prove that the claimant’s use was not nonadverse does not go further to prove the positive proposition that the use is, in fact, adverse. To prove that the claimant had not done something to demonstrate subordination does not prove, thereby, that the claimant had actually done something demonstrably adverse. At best, proof that use was not in subordination means simply that the use still has the potential of being adverse.
In Restatement thinking, in order to be adverse, a claimant must still show the use to be wrongful as to the owner and that the use was open and notoriously so. See Restatement (First) at § 458 (components (b) and (c)). Nothing in the Restatement-old or new-suggests that a subjective and unexpressed belief is somehow complete in itself as “direct evidence” of adverseness. That misconception lies elsewhere — with Sander. Nothing in the Restatement suggests that an unexpressed “claim of right” is a trump card applicable despite specific situations, like preexisting roads, which assume permissive use is the norm. That proposition will rest elsewhere — with this case.
B. Supreme Court Precedent
The majority opinion correctly observes that the Supreme Court has made references to the Restatement (First), but those references are only references to general concepts in ordinary cases. See Feldman, 196 Or at 474 (common driveway built by the claimants’ predecessors); Thompson *831v. Schuh, 286 Or 201, 211, 593 P2d 1138 (1979) (the claimants’ periodic trips to rural land not open and notorious use); Hamann, 272 Or at 529 (prior permissive use and no change in character of use); Arrien, 263 Or at 371 (the defendant’s periodic flooding of owner’s land — a physical invasion — was not in subordination, i.e., was under claim of right, even if the defendant thought he was trespassing); Hay v. Stevens, 262 Or 193, 196, 497 P2d 362 (1972) (the claimant’s use was not in subordination, despite his statement he would have stopped use of beach path upon objection, because that only meant that he did not claim full ownership).
None of these cases does more than treat the old Restatement as a secondary resource involving ordinary principles of prescriptive easements.7 None of these cases cites the Restatement for a theory that, where there has been no physical damage to an owner’s land and no interference with the owner’s use of a preexisting road on his land, a claimant’s unexpressed “claim of right” is somehow “direct evidence” of adverseness. None of these Supreme Court cases employed the Restatement for such a proposition. None of these cases criticized, distinguished, or overruled the Supreme Court’s decisions in Woods, Trewin, and Boyer on roads of unknown origin. In other circumstances, claims of noble lineage may lend authority, but, here, we should find no support for a prescriptive easement either in the Restatement or in decisions of the Supreme Court.
C. Source of the Confusion
The source of today’s confusion can be traced through several cases from correct statements of law to misapplications of those statements. In City of Ashland v. Hardesty, *83223 Or App 523, 527-28, 543 P2d 41 (1975), there was no road of unknown origin. The city had built a roadway to its sewer plant, and the roadway deviated from its easements and trespassed on the defendants’ land. Although city officials testified that they believed that the roadway followed the easements, we observed that their intent to be lawful did not mean that their use was “subordinate to the property owners whose land they crossed [.]” Id. at 528. Giving the text its proper application, we cited the same Restatement commentary at issue here for the proposition that a use is not in subordination to a land owner even when a claimant is mistaken about its claim of right. Id. (citing Restatement (First) at § 458, comment d). This point is paralleled in the law on adverse possession. “An intent to claim land occupied under a mistaken belief of ownership is sufficient to prove hostile intent.” Id. (citing Rider v. Pottratz, 246 Or 454, 456, 425 P2d 766 (1967)). We did not declare that a mistaken “claim of right” was itself “direct evidence” of adverseness. Rather, the city’s construction of the roadway on the defendants’ land — a physical invasion — was the demonstration of adverse use.
In Kondor, there was no road of unknown origin, nor a group of owners sharing a common road in a neighborly arrangement. There were only two tracts of land derived from common owners of both tracts. The northern and southern tracts respectively would become the plaintiffs’ and the defendants’ lands. Before then, the common owners of both tracts had allowed Mayfield, a third-party user, to build a mill on the southern tract “about 1950” and “shortly thereafter” to build the disputed road that connected the northern tract, across the southern tract, to a public road. 50 Or App at 57. “In 1950,” the prior owners of the tracts conveyed the southern tract to the defendants’ predecessors, who apparently knew of the original owners’ permission to Mayfield for his construction and use of the road. Hauling in the logs over the road, Mayfield built a cabin on the northern tract. The road served as the only access for the northern tract. For 16 years, Mayfield or Boats, the subsequent tenants, lived there.
Mayfield “supposed it was legal to go over the road at all times,” because he had built the road and begun renting *833from the original owners of both tracts. Id. at 58. Whether he was right or wrong about that did not matter. We recited the principle from City of Ashland, recalling that, “even if the user mistakenly believes he has the right to use the easement, that use is sufficiently adverse.” Id. at 60. That is to say, a mistaken belief does not make the use “in subordination” to the land owner. Id. The claim was adverse, because the original owner had granted permission for the construction of the road, a fact known to the defendants’ predecessors, and because mere acquiescence by the defendants or their predecessors “does not equal permission.” Id. at 61. A decree for a prescriptive easement was affirmed.
Kondor did not declare that a mistaken belief, standing alone, suffices as affirmative evidence in itself that a claimant’s use is adverse. Kondor declared simply that, even if Mayfield might have been mistaken, his mistake did not mean his use was thereby in subordination to the defendant owners. That was the narrow point borrowed from City of Ashland. Kondor did not say that a subjective belief (lack of subordination) sufficed in itself as “direct evidence” of adverseness. The term “direct evidence” does not appear in the case.
The analysis in Kondor 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. That presumption was especially appropriate when the road was not of unknown origin and was instead a road known to have been constructed by the original third-party user himself. In short, Kondor was just about the defendants’ failure to overcome the plaintiffs’ presumption of adverse use. It did not create a new and alternate theory of adverseness. Kondor was decided on traditional principles; it did not suggest an alternate way to prove adverseness simply by means of self-serving testimony in an eventual trial about a previously held unspoken, subjective belief during the years of allegedly prescriptive use.
The theory that a subjective “claim of right” or lack of subordination might suffice as affirmative evidence to prove adverseness should be attributed to a case that the trial court did not mention and that plaintiff did not cite or *834argue on appeal. In Sander, 241 Or App at 297, the claimants’ devised that theory and, with its spin, gave Kondor a new meaning. As in Kondor, there were in Sander only two adjoining tracts. There was no group of neighbors using a common road in a neighborly arrangement. The defendants’ predecessor bought what was to become the McKinley property in 1969, through which ran a county road. In 1968 and 1971, the plaintiffs’ predecessors bought the adjoining Sander property to the northeast. The upland portion, which immediately adjoined the McKinley property, could not be reached by road.
In 1970, the plaintiffs’ predecessors began crossing from the county road, across the McKinley property, to reach their Sander property to the northeast. Their “primitive road” had never been improved, graded, or surfaced in any way. It consisted of “two narrow dirt tracks in the grass, which [were] the result of vehicles repeatedly following the same route.” 241 Or App at 301. One of the plaintiffs’ predecessors had always assumed that there was an easement in place and had never asked for permission to cross the McKinley property.8
The trial court granted a judgment recognizing a prescriptive easement for benefit of the plaintiffs. The defendants appealed, asserting that their predecessors had given permission, and that the plaintiffs had failed to prove that the primitive road interfered with the defendants’ property. In a creative moment, the claimants reasoned that the lack of interference could only serve to rebut a presumption of permissive use, that they were not relying on any presumption, and that what they offered was affirmative evidence in itself of adverseness. Agreeing with the first premise that use gives rise to a presumption of adverseness and the second premise that a lack of interference serves to rebut the presumption of adverseness, we accepted the logic of the plaintiffs’ syllogism, in these words:
*835“That said, as plaintiffs argue, an easement claimant need not rely on that presumption to establish the element of adverse use. Adverseness can be established directly by showing that the claimant’s use was not in subordinatipn to the rights of the property owner. Kondor [, 50 Or App at 60]. A claimant’s mistaken belief that he or she has the right to use the servient property is sufficient to establish adverse use. Id. In this case, plaintiffs contend that they established adversity directly and thus do not rely on the presumption. Because they do not rely on the presumption, we agree with plaintiffs that it is immaterial that the [plaintiffs’ predecessors’] use of the McKinley property did not interfere with any of its respective owners’ use of it.”
241 Or App at 306-07. Of course, Kondor did not actually hold that a mistaken belief was itself “sufficient to establish adverse use”; the mistaken belief only avoided viewing the use to be in subordination to the owner. It was a constellation of facts — starting with construction of the road on the defendants’ land and ending with the defendants’ failure to overcome the plaintiffs’ presumption — that established adverseness. Nevertheless, in Sander, we went on to conclude “that the [plaintiffs’ predecessors’] use of the road on the McKinley property was not in subordination to [defendants’ predecessors’] rights and, thus, that their use was adverse.” Id. at 309. We affirmed the plaintiffs’judgment.
The language in Sander, adopting the claimants’ novel theory that they were offering an alternate proof of adverseness, would seem to lend support to the majority’s conclusion here, if it were not so overshadowed by Woods, Trewin, Boyer, Webb, Skidmore, and Insko, and if it were not better distinguished and explained on its facts. In Sander, there was only the one adjoining parcel that needed access across the defendants’ property, such that travel by the one neighbor is of more significance. Cf. Kondor, 50 Or App at 57 (road crosses to serve only northern parcel). The plaintiffs and their predecessors made exclusive use of the road. See Thompson, 270 Or at 551. There were no other neighbors traveling the road pursuant to an understood neighborly arrangement. See Woods, 254 Or at 436. This was a unique one-on-one situation of adjoining parcels.
*836Perhaps of more significance, this was an unimproved, primitive road whose use seemingly begun in 1970 around the time the plaintiffs’ predecessors bought their property. It consisted of two tracks through the grass. Therefore, this “road” was like the two track, primitive pathway along or across fields in R & C Ranch, LLC, 177 Or App at 304. Where it appears that the primitive road serves one remote parcel, the adverse use is better explained as the apparent establishment of the road by the claimant’s use of the road to reach the remote parcel. The adverseness lies not in the negative, not in the lack of subordination by itself, and not in just the absence of nonadverseness, but in the positive evidence that the primitive path has been created.
In other words, Sander was correctly decided, even if it strayed when accepting the claimant’s misconception that Kondor could be read to say that a mistaken “claim of right” is sufficient in itself to constitute the full equivalent of adverse use. Sander need not be overruled. If it deserved any attention, which neither the trial court nor plaintiff gave it, the case only needs to be explained in terms of its facts and familiar principles.
V. TROUBLED THEORY
Although Kondor was cited by the trial court and the majority opinion, Kondor is not the problem, for the reasons reviewed above. It does not stand for the proposition attributed to it, and defendants did correctly distinguish it. If, however, Sander cannot be better explained in the terms suggested here, then Sander, together with this case, will present serious problems for the law on prescriptive easements.
Although all cases agree that “[e]asements by prescription are not favored,” Wood, 276 Or at 56, they will now be favored, because prescriptive claims will become much easier to win and often impossible to defend. In nearly every case in which people disagree so vigorously as to hire lawyers, take their dispute to court, and spend life savings in litigation, the easement claimants will insist that they have a right to use the road in dispute, and that, if somehow mistaken, they have a “mistaken claim of right” to use the road. *837If claimants did not believe themselves justified, there would never be lawsuits over prescriptive easements. Because nearly all claimants will come to court to swear that they held a subjective belief in their claims, nearly all prescriptive claims will begin with the element of adverseness established by the simple fact that there is a dispute. Although other elements such as continuity or defenses such as express permission will remain, the element of adverseness, as a practical matter, will be all but removed as a necessary element of the claim. Claimants can simply testify that they thought they could use someone’s road without permission.
Although all cases agree that proof of a prescriptive easement must be established by clear and convincing evidence, proof of adverseness, when offered in the form of a “lack-of-subordination” will be anything but clear and convincing. Proof of a subjective belief in a person’s right to use a road is not a tangible thing and not suitable to meaningful cross-examination. Although circumstantial evidence might be offered to show whether the subjective belief was honestly held, pretrial discovery and trial proof of such matters will prove to be a morass. Because claimants will prove adverseness through their own opinion, efforts at discovery or cross-examination will be a waste of clients’ fees, lawyers’ efforts, and courts’ time.
This problem will be most troubling in this context of roads of unknown origin. Where a number of neighbors cross an owner’s land on a road that predated them all, where they share maintenance, and where they assume a neighborly arrangement of permissive use, an owner cannot know which neighbor secretly harbors a “mistaken claim of right” (or lack of subordination) to use the road. An owner will not know against whom to protect from a future prescriptive claim. Surely, it must remain true that ordinary use of preexisting road is not presumptively adverse. But, if an uncommunicated, “mistaken claim of right” silently transforms ordinary, non-adverse travel over a shared road into adverse use, then an owner cannot know which of the neighbors holds such a subjective belief.
In cases of preexisting roads, this is not just a problem that adverseness is effectively dropped from the disputable *838elements of a claim. The Oregon element requiring open and notorious use is now effectively dropped from the claim, as well, whenever roads preexist where mere travel does not demonstrate adverseness.9 Because an owner cannot tell which neighbor harbors a bad attitude from among those in a cooperative, permissive arrangement, the owner will have no reason to know of an allegedly adverse claim — because a claim now is proven by innocuous travel and an unexpressed attitude.
To suggest that a subjective belief in one’s right to use a road is itself, full and complete, open and notorious, “direct evidence” of adverseness is a contradiction in terms. In most situations, it is an oxymoron, because to prove a subjective belief proves nothing. A mistaken “claim of right” is only relevant to disprove subordination; it is not itself affirmative proof of adverseness. This court has already explained that a subjective belief does not make plain use become adverse use. The statement warrants repetition. We have recognized that
“the question of adverse use does not depend on the claimant’s subjective intentions with regard to the disputed road; the question of adverseness turns on whether the property was actually used in a manner that was inconsistent with the owner’s use.”
Insko, 235 Or App at 460 (emphasis added). It is the conduct of the claimant that matters, not the unseen attitude of the user. See id. (rejecting subjective intent).
The claimants in Sander may have been ingenious. By offering so-called “direct evidence” of adverseness — that is, the claimant’s own belated testimony about a prior, subjective belief — without relying on their travel over the road for a presumption — without any other tangible proof of open, notorious, and adverse activity — without any overtly demonstrable facts that were known or even could be known by the defendants — the claimants avoided our long-established case law on preexisting roads of unknown origin. The claimants avoided the need to explain why, with their novel *839conception, three decisions of the Supreme Court and five decisions of this court should be effectively overruled. To overrule those cases sub silentio is much easier. It is much easier to assume eight cases on preexisting roads are left untouched, when they are ignored as immaterial in light of another theory of adverseness.
Even if there were a subjective theory of adverseness, Woods, Trewin, Boyer, Read, Hayward, Webb, Skidmore, and Insko cannot be ignored. At the least, these cases would stand for the point that, in the case of roads of unknown origin or roads built by the land owner, the claimant’s ordinary use of an owner’s road is a fact of no consequence for a prescriptive claim. This is necessarily true because ordinary travel over roads of unknown origin does not give rise to a presumption of adverseness. This must be doubly true because the majority, like the plaintiffs in Sander, declares that plaintiffs are not relying on any presumptions from use. If so, then they cannot rely on the mere travel over the road as something that the landowner should notice as adverse. Ordinary use of a preexisting road is unlike the demonstrated adverseness of creating a roadway across an owner’s land. Ordinary travel over a preexisting road does not alert an owner that a neighbor’s trip over the road is unfriendly, hostile, or contrary to the owner’s rights in his property. Ordinary travel over a preexisting road can mean nothing for a claimant who would shun the presumption of adverseness from such travel and who instead would assert the “direct evidence” of his or her own subjective belief in a right to use the road.
Because such travel is insufficient for adverseness, and because the claimant does not rely on any presumption based on use of a road, we should ask: How is an owner to know that one of the neighbors harbors the unspoken attitude that is a “lack of subordination” or a “mistaken claim of right”? If the law provides that travel over a preexisting road counts for nothing in itself, because such travel is not open and notorious adverse use, then how could the addition of the neighbor’s eventual testimony at a trial about a previously uncommunicated, subjective belief during the prescriptive period somehow transform unremarkable use into open, notorious, adverse use? There is no good answer. *840In root concept, therefore, a subjective theory of adverseness conflicts with Oregon law on prescriptive claims on preexisting roads. In root concept, established law holds that ordinary travel over preexisting roads does not suffice to signal an open and notorious adverse claim; but now the same unremarkable use, when coupled with a belated disclosure of a subjective claim of right does constitute a purportedly open and notorious adverse claim. By endorsing this recently developed misconception, today’s decision contradicts the principles that underlie eight decisions on prescriptive claims to preexisting roads.
In practice, as in concept, an alternate theory conflicts with Oregon law on preexisting roads. If adverseness can be proven by accepting the claimant’s belated testimony about a prior belief as so-called “direct evidence” of adverseness, then no one will ever again need to bother with relying on the presumption of adverseness that arises from open and continuous use of a road for a prescriptive period. Nor will anyone need to prove one of the many, other, legitimate, manifest ways that adverseness might be shown, ranging from directly telling the owner that the use is adverse to demonstrating adversity with obvious interference with the owner’s own use. To look for such real proof becomes unnecessary. Lawyers will simply choose the easier theory for their clients’ cases. The fact that the user did not interfere with the owner’s use of the road, that the user did not demonstrate that the character of the use had changed, that the owner has been shown no indication of an adverse claim in an “open and notorious” manner will all become immaterial. In practice, the long-settled law on preexisting roads will become a dead letter. If litigants may readily choose an easier theory to prove a prescriptive claim to a preexisting road, then that predictable change in litigation practice should reveal that there is an unacknowledged change in the law.
VI. THIS CASE
If not our own decisions in Read, Hayward, Webb, Skidmore, and Insko, then the decisions of the Supreme Court in Woods, Trewin, and Boyer should control the resolution of this case. Application of that law should be straightforward, accepting the facts as the trial court found them. No one *841knows who built Lewis Creek Road. From the start, plaintiff had deeds that told him that there was no legal access to his parcels. Unlike cases in which claimants may establish use of a two-track road across an owner’s fields, plaintiff admits that he did not build the road. He just used it. His use of a preexisting road, however, has no significance in suggesting open, notorious, adverse use. See, e.g., Webb, 205 Or App at 20. Unlike cases in which the plaintiffs are the lone users of the road, plaintiffs here had nonexclusive use of the road. Thompson, 270 Or at 551. The fact that the neighbors shared the costs and tasks of maintenance reflects a cooperative neighborly arrangement, not adverse claims. Woods, 254 Or at 436. The fact that defendant Le Roy Hippe and others used the road as their only access likewise reflects a cooperative, neighborly arrangement, not adverse claims. Id. The fact that defendant Hippe expressed confusion whether his own use was entitlement or permissive merely expresses the subtlety and confusion of this field of law. An honest and untutored lay witness could not be expected to testify any better, even while resisting an adverse claim.
Although this court defers to the trial court on any factual finding with sufficient evidence, the trial court here did not find “something more” to support a prescriptive claim. The trial court did not believe defendant Hippe’s testimony that, when speaking with plaintiff alongside a highway sometime between 2003 and 2005, Hippe had told plaintiff that plaintiff could use the road. Plaintiff agreed the men had talked, but plaintiff testified, “I don’t remember the conversation.” Plaintiff did not go on to provide “something more.” Plaintiff did not testify that, at some time sufficient for the prescriptive period, plaintiff had told defendants that he did not need permission. In fact, when asked if he ever had any conversation with defendant Hippe, prior to the time plaintiff asked for a written easement, plaintiff testified, “I don’t believe that was ever discussed.” In short, this was the classic situation — or as the majority would say, the default situation — in which neighbors use a road in a cooperative arrangement. In the evidence and the trial court’s findings, there was not “something more.”
Like Webb, during all but a latter year when the issue arose, there was no evidence of even a single hostile *842encounter between the parties. Although the trial court disbelieved that defendant Hippe verbalized permission, there is still no dispute that defendant gave plaintiff and others a key to the lock on the chain across the road at his property line. The fact that plaintiff “did not seek out defendants’ permission to use the roads because [he] did not believe [he] needed it” does not show open and notorious adverseness. Webb, 205 Or App at 28. Although plaintiff may have harbored a subjective belief that he had written easements, a subjective belief does not show adverseness.10 Insko, 235 Or App at 460 (rejecting evidence of subjective intentions, beliefs about an easement or outright ownership, and even overt statements made to others during the prescriptive period). There is no evidence that plaintiff ever told defendants that plaintiff thought he had a right to use the road until plaintiffs letter in May 2008, less 10 years after his purchase. Put another way, plaintiff asserted an adverse claim less than 10 years before this action.
The road passes about 60 to 80 feet from defendants’ house, but, contrary to the trial court’s view, simply viewing a passing car does not bespeak adverse use, especially because defendants had never felt or expressed an objection to plaintiffs use and because a permissive arrangement among neighbors is understood to be the norm.11 See, e.g., Woods, 254 Or at 434. Plaintiff had a cabin on one of his parcels and testified that his trips over the road were limited to recreational use in the summer time. Defendants would have had little reason to have noticed or objected to plaintiffs infrequent trips. See Thompson v. Schuh, 286 Or at 201 (periodic, intermittent visits). Passing by on the road is not adverse use, and, more importantly, it is not interference with defendants’ use of the road.
When asked, defendant Hippe testified that his wife did not care for the road’s dust and that she would like it even less if plaintiffs parcels developed and created heavier use. Yet, because ruts or wear and tear on the road in Webb did *843not suffice, and, because actual, compensable damage to the road did not suffice in Insko, some dust from the road cannot suffice as interference with defendants’ use. Dust would not notify defendants of an adverse claim. In sum, plaintiff offered no evidence that his use of a road that he shared in common with Larson and Woods was openly and notoriously adverse to defendants. The trial court should have dismissed this claim for a prescriptive easement, because plaintiff failed to offer sufficient evidence by any standard.
VII. CONCLUSION
If, in the end, neighbors cannot find a mutually agreeable way to provide access, then the law does provide plaintiff with a remedy in the form of a statutory way of necessity, just as he asserted in his letter in May 2008. See ORS 376.150 - 376.200 (ways of necessity). If, in the end, we do not find a better response than a subjective theory of adverseness, then, in cases of preexisting roads, we will prove the truth of the tired axiom that bad facts make bad law. Oregon landowners, lawyers, and courts will suffer from a misconception — the misapplication of a “mistaken claim of right.”
Ortega, Duncan, Hadlock, and Tookey, J., join in this dissent.A fourth parcel is not at issue on appeal, because it was purchased in 2006 with too little time to support prescriptive use.
An implied easement presupposes a set of circumstances beginning with a common grantor of plaintiffs and defendants’ properties, a fact that this situation lacked. See Thompson v. Schuh, 286 Or 201, 211-12, 593 P2d 1138 (1979) (denying easement by prescription and by implication). A way of necessity requires a court proceeding and a favorable judgment, which had not happened. See ORS 376.150 - 376.200 (petition and proceedings for ways of necessity).
The dispute is whether a claimant’s later testimony about a prior, unexpressed, subjective belief can suffice as direct evidence to prove an open, notorious, and adverse claim, in a context in which travel over a preexisting road does not suffice to prove an open, notorious, and adverse claim.
What the dissent does do is explore conflict between defendants’ authorities and those that seem contrary. That task is the obligation of any court when an issue is presented.
Plaintiff’s counsel did not try to misconstrue defense counsel’s candor about known travel. Plaintiff’s counsel recognized “that the issue that the Defense makes [is] that there wasn’t open and notorious and hostile or adverse use.”
As the dissent will note later, the “open and notorious” aspect of adverse use suffers in the majority’s formulation of adverse use. 269 Or App at 836, 838 (DeVore, J., dissenting).
The majority cites Arrien, 263 Or at 371-72, for its discussion about whether a claimant’s use was in subordination to the servient owner. The case did not involve preexisting roads of unknown origin. A claimant’s dam openly and notoriously flooded land of the servient owner. Because the claimant was alleged to know that he was trespassing and had said he hoped to “straighten up the matter,” the issue was whether that evidence meant his use was in subordination. Id. Consistent with comment d oí Restatement (First) section 458, the court held such flagrant use of the other’s property was not in subordination, regardless whether the claimant believed he was entitled. The decision did not suggest that the claimant’s subjective claim of right, if he actually had one, would have sufficed in itself to prove adverseness. The periodic flooding from his dam accomplished that. The decision does not suggest that a basis for the majority’s conclusion lies in precedent of the Supreme Court.
This summary omits, as unnecessary to our discussion, facts concerning defendants’ predecessors erecting new fencing and gates, the plaintiffs’ predecessor consequently creating a new pathway across a portion of the defendants’ fields, and defendants’ predecessors providing plaintiffs’ predecessor a key to the gate by the county road, as well as the court’s conclusion about relocation by agreement of the location of the prescriptive easement.
In terms of the Restatement (First) formulation, the effect is the same. The third component of adverseness — open and notorious use^ — will become unnecessary.
Misconstruing Kondor, the trial court opined that “[bjecause [pjlaintiff * ** * thought he had a right to use the road, adversity is satisfied * * (Emphasis added.)
The trial court deemed adverseness satisfied by Hippe “[vjiewing vehicle go past his house in close proximity to the subject road[.J”