dissenting.
The majority correctly recognizes that the rights of an easement holder and the owner of the servient tenement are relative and are circumscribed by the unambiguous language of the express grant. The majority also makes proper factual findings:
“[I]n the event of a leak in the pipe, the placement of fill has increased plaintiffs costs, access time, safety risks and liability exposure over what they were before the fill was added.” 122 Or App at 446-47.
Unfortunately, the majority misapplies those facts to the express terms of the grant and perpetuates the error that the trial court committed. Accordingly, I dissent.
The instruments that created the easement conveyed to plaintiffs predecessor a right of way
“to lay, construct, reconstruct, replace, renew, repair, maintain, operate, change the size of, increase the number of, and remove pipe lines and appurtenances thereof, for the transportation of oil, petroleum, gas, gasoline * * *.”
Obviously, the parties to the original grants contemplated that the easement holder required periodic access to the pipe lines to repair or replace them. The rider shows that the parties considered the dangerous nature of the substances that pass through the pipes, and the grantee assumed responsibility for damage that might result from the pipes’ failure.
The original conveyances show that the parties recognized that the grantee required the pipes to be readily accessible. The owner of the servient tenement could not “in any manner impair or interfere with the present or prospective exercise of [the easement holder’s rights].” Plaintiff has the right to install, replace and repair readily accessible pipes for the purpose of transporting volatile and toxic substances. It is beyond peradventure that those rights were impaired *449when defendant began piling dirt, concrete and asphalt on top of the pipes.
The depth of the pipes is now three to seven times as great as it was when defendant began piling rubble above them. Plaintiff responsibly conducts frequent surveillance to detect seepage from the pipes. However, unlike the majority, I am not convinced that
“the presence of the fill does not impair plaintiffs ability to detect a leak, which it does by measuring pressure in the pipe and product volume.” 122 Or App at 447.
Plaintiffs area supervisor, Martoccia, testified that the equipment for detecting a decrease in pressure was “accurate,” but he did not quantify that term. Moreover, he testified that the pressure monitoring equipment would not detect a “weeping leak,” which is smaller than a pin hole. When asked if a weeping leak would create a hazard, Martoccia answered:
“Yes sir, it would. It would create a pollution to the environment, and depending upon the product that’s in it could cause a problem to personnel that were around [the] area where the product is leaking.”
He explained that a weeping leak could be detected by comparing the volume of product that goes into the line to the volume of product that emerges.
Although the volumetric assessments are “accurate,” no measuring system is perfect, and I am convinced that very slow leaks will go undetected. Ultimately, a small undetectable leak may release a substantial amount of product before it is discovered by visual inspection. Increasing the depth of the pipe by covering it with fill material creates a risk of greatly increasing the amount of product that could be released before it is detected. That risk is unreasonable.
The majority improperly relies on the rider, which allows the owner of the servient tenement to continue operating a sawmill on “the lands covered hereby.”1 Recognition of that pre-existing use does not indicate that the grantors had the right to pile debris above the pipes and increase the depth *450of them several fold. That is contrary to the express language of the conveyances. The rider does allow the piling of debris, but only ‘ ‘in close proximity to said pipeline. ’ ’ Close proximity does not mean directly above. It means nearby.
The original parties to this conveyance conscientiously established terms that enable the easement holder to install and maintain pipe lines in an environmentally responsible and efficient manner. Defendant’s conduct violates the terms of his easement, because it profoundly impairs plaintiffs ability to do that.
Defendant contends that, even if he has violated the terms of his easement, plaintiffs claim is barred by laches.2 Defendant had the burden of proving the affirmative defense of laches. Albino v. Albino, 279 Or 537, 552, 568 P2d 1344 (1977); Warren and Joeckel, 61 Or App 34, 38, 656 P2d 329 (1982). Defendant was required to show
“[1] delay by [plaintiff], [2] with knowledge of relevant facts under which it could have acted earlier, [3] to the substantial prejudice [to defendant].” Ellis v. Roberts, 302 Or 6, 10, 725 P2d 886 (1986).
Defendant did not satisfy that burden.
There is evidence that defendant began depositing fill material on or around the easement in the late 1970s, but the record indicates that plaintiff did not become aware that defendant was violating the terms of the easement until much later. Plaintiff observed “activity near the pipe line” in 1977. At that point, plaintiff did not have “full knowledge of all of the facts.” Stephan v. Equitable S & L Assn., 268 Or 544, 569, 522 P2d 478 (1974). At most, plaintiff had information that merely suggested defendant might exceed his permissible use of the easement. It was not until August, 1987, that plaintiff knew about “fill being placed over the pipe line * * * to a depth of ten feet.”
Plaintiff began to complain about the fill material as early as April, 1988. Nonetheless, defendant continued to place additional fill material over the pipe line. Plaintiff hired a right-of-way specialist named Adams. On September 6, *4511989, Adams told defendant not to place any more fill material on the easement area. Defendant apparently ignored that request and continued dumping fill material at the site.
The evidence shows that no more than a few months elapsed between the time that plaintiff had “full knowledge of all of the facts” and the moment when he insisted that defendant stop depositing fill material. The real prejudice to defendant was caused by his own refusal to stop depositing fill material after plaintiff insisted that he do so. This suit is not barred by laches. The trial court erred by denying plaintiffs request for injunctive relief, and so does the majority.
I dissent.
The conveyances do not indicate whether the sawmill was located directly above, adjacent to or near the strip of land subject to the easement.
The trial court apparently considered, but did not decide, this issue.