dissenting.
This is an action to establish a way of necessity or, in the alternative, a road easement by prescription across defendants’ land. The trial judge granted plaintiffs a road easement by prescription and defendants appeal. On de novo review, I would affirm.
After viewing the property, the trial judge found that a dirt road crossing defendants’ ranch connected plaintiffs’ property with Oregon Highway 140, that plaintiffs and their predecessors in title had used that road for more than ten years in a manner adverse to the rights of defendants and their predecessors in title, exclusive and under claim of right, continuous and uninterrupted, and with knowledge that defendants were the servient owners. Further, the judge found that, by their use under claim of right, plaintiffs had established an easement by prescription to use the road.1
*691Defendants first contend that plaintiffs’ use of the road was permissive. Easements by prescription are not favored. Wood v. Woodcock, 276 Or 49, 56, 554 P2d 151 (1976). In order to establish an easement by prescription plaintiffs were required to establish by clear and convincing evidence that their use of defendants’ land was open, notorious and adverse under a claim of right for a continuous and uninterrupted period of ten years. Thompson v. Scott, 270 Or 542, 546, 528 P2d 509 (1974). Such use raises a presumption that it was “adverse,” and the burden of proving that it was permissive was on defendants. Feldman et ux. v. Knapp et ux., 196 Or 453, 470, 250 P2d 92 (1952); Kondor v. Prose, 50 Or App 55, 60, 622 P2d 741 (1981). I would agree with the trial judge that defendants failed to sustain their burden of proof on the issue of adverseness.
There is no evidence in the record as to who built the disputed road. The record does show that it was substantially in its present location in 1892 when the Kinsels purchased their tract. It is undisputed that the Kinsels used the road for ingress and egress to their tract without interruption from 1892 until 1977, when they sold the tract to plaintiffs.
There is no evidence in the record that the Kinsels’ use of the disputed road was permissive. The only relevant evidence of permissiveness is found in the fact that, after plaintiffs purchased the tract in 1977, defendants purported to give them a revocable license to use the road. Plaintiffs did not ask defendants for a license. At trial, they asserted that their right to use the road was based on the right previously acquired by the Kinsels. Defendants’ evidence, therefore, came nowhere close to rebutting the presumption of adverseness.
Defendants argue that plaintiffs’ use of the disputed road was not calculated to give defendants “knowledge” of adverse use. Plaintiffs and their predecessors have used the disputed road and have crossed defendants’ property for more than 90 years in a manner that is and has been exclusive and *692under claims of right, continuous and uninterrupted, and with knowledge that defendants and their predecessors in title were the servient owners. Defendants’ argument is that they did not know plaintiffs’ use was adverse. However, plaintiffs’ evidence shifted the burden to defendants to rebut the presumption that plaintiffs’ use was adverse. Defendants’ evidence failed to rebut that presumption.
Defendants also contend that the evidence does not support the trial court’s finding that they were the owners of the servient estate. They argue that the servient estate is owned by 13 partners, of whom they are only two. There is evidence in the record that suggests the ranch is owned by defendants, their wives and children. Defendants did not raise this issue until after the trial had commenced. Facts concerning the ownership of the ranch were within defendants’ knowledge, yet they failed to raise the issue of joinder or nonjoinder of their partners in a timely manner. The trial court did not address the issue, nor would I. Defendants’ pleadings admit that they had an interest in the servient estate. As to these defendants, plaintiffs have established their right to a road easement.
In sum, as I read the record, the evidence that plaintiffs and their predecessors in title did, in fact, use the disputed road adversely to defendants and their predecessors in title was overwhelming and virtually uncontradicted. Furthermore, it is more than passing strange that none of the cases relied on by the majority was cited in the parties’ briefs in this court except Wood v. Woodcock, supra, a water rights case that stands for the undisputed proposition that easements by prescription are not favored. On its facts, Wood v. Woodcock is inapposite. Its reference to “unenclosed and unemployed lands” and to “rights of way by prescription which were granted as a neighborly act or out of courtesy,” 276 Or at 56, has no evidentiary basis in the record here.
The trial judge, who inspected the disputed road, implicitly found that plaintiffs had sustained whatever burden of proof they had. The record supports that conclusion. Accordingly, I dissent.
*693
The trial judge concluded that he could not consider plaintiffs’ alternative claim for a way of necessity, because a way of necessity established under ORS 376.150 et seq may not be established if the petitioner could acquire an easement for access to a public road through other legal action. See ORS 376.180(9).