89 P.3d 726
No. 51882-8-I.The Court of Appeals of Washington, Division One.
May 10, 2004.
Page 148
Philip J. Buri (of Buri Funston, P.L.L.C.), for appellants.
Page 149
Philip A. Serka (of Adelstein, Sharpe Serka, L.L.P.), for respondents.
[As amended by orders of the Court of Appeals May 26 and July 1, 2004.]
AGID, J.
Appellants Robert and Jane Doe Smersh (Smersh) appeal a trial court decision granting their neighbors, respondents Jess and Sandra Drake (Drake), a prescriptive easement over a driveway located primarily on Smersh’s land. Smersh argues that there is a presumption of permissive use which the trial court improperly ruled had terminated when Smersh’s predecessor in interest sold the servient land in 1975. But we agree with Drake’s position that the permissive use presumption does not apply in this case, and there was sufficient evidence to establish the adverse element of his prescriptive easement claim. We therefore affirm the trial court.
FACTS
In 1952, Floyd Kenneth Massey bought a vacant lot on Lummi Island where he intended to build a cabin. The Wallens family owned the adjacent lot on which an existing driveway ran from South Nugent Road to the Wallens’ cabin. When Massey began to construct his cabin, he extended the existing driveway with a bulldozer to gain access to his property. The Wallens raised no objection, and Massey did not ask their permission to extend the drive. The driveway served as the sole access to Massey’s dwelling, and both property owners used the driveway without incident. In 1975, the Wallens sold their property to the Wright Fish Company. From 1975 until 1984, Massey used the driveway and maintained it when necessary, again without objection or incident.
Page 150
In 1984, Massey sold his property to Jess Drake who surveyed the property before the sale and discovered that the driveway was located largely on Wright’s lot. From 1984 until 1997, Drake used the driveway without objection or incident as access for himself and his employees and agents who maintained the property. He also maintained the driveway when appropriate.[1] In 1997, the Wright Fish Company sold its lot to Robert Smersh.[2] For the next year, Drake continued to use the driveway, but in 1998 Smersh told Drake he wanted him to stop using it. Drake then filed an action to quiet title to a prescriptive easement.
The trial court ruled in favor of Smersh, concluding that Drake and his predecessors in interest “were suffered the use of the driveway as [a] neighborly convenience.”[3] The court found no evidence that Drake or his predecessors made an adverse claim to the driveway,[4] and it concluded Drake did not overcome the presumption of permissive use.[5] Drake moved for reconsideration and after two hearings on the matter, the trial court granted his motion, awarding Drake a prescriptive easement over the driveway. It concluded that any presumption of neighborly accommodation
Page 151
terminated with the original owners and Drake’s driveway use after the Masseys sold the property was adverse.
ANALYSIS
I. Motion for Reconsideration
We review a trial court’s decision to grant or deny a motion for reconsideration for abuse of discretion.[6] A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.[7] Smersh argues that the trial court’s decision to grant Drake’s motion for reconsideration was manifestly unreasonable because there is no evidence of hostile or adverse use and the court had properly applied the law in its first ruling. We conclude that the trial court erred by applying a presumption of permissive use in its original ruling. And because the evidence establishes that the Drake’s use was adverse, the trial court did not abuse its discretion by granting the motion.
II. Adverse Use
To establish a prescriptive easement, a claimant must prove “use of the servient land that is: (1) open and notorious, (2) over a uniform route, (3) continuous and uninterrupted for 10 years, (4) adverse to the owner of the land sought to be subjected, and (5) with the knowledge of such owner at a time when he was able in law to assert and enforce his rights.”[8] A party can establish a prescriptive right even though the owner of the servient estate and others who wanted to go on the property also used it, so long as the claimant exercises and claims his right independent
Page 152
of others.[9] Smersh concedes Drake has proven that his use was open and notorious, over a uniform route, and continuous and uninterrupted for a 10-year period. The only issue on appeal is whether he has proved his use was adverse. In Washington, a claimant’s use is adverse when he “uses the property as the true owner would, under a claim of right, disregarding the claims of others, and asking no permission for such use.”[10] A court may determine adversity from the actions of the claimant and the property owner.[11] Use is not adverse if it is permissive.[12] Whether use is adverse or permissive is generally a question of fact, but if the essential facts are not in dispute, it can be resolved as a question of law.[13]
Smersh argues that a presumption of permissive use applies in this case, and the trial court improperly concluded that the presumption terminated when Wallens, Smersh’s predecessor in interest, sold the servient land to the Wright Fish Company in 1975. Drake asserts that (1) the presumption of permissive use articulated in Kunkel v. Fisher[14] does not apply in this case, (2) there is no evidence from which the court can draw an inference of neighborly sufferance or acquiescence, and (3) even if a presumption of permissive use or neighborly acquiescence did apply, Drake’s evidence rebuts the presumption by clearly establishing the element of adverse use.
First, Kunkel v. Fisher is distinguishable. Kunkel sought a prescriptive easement in an area adjacent to his property over which he drove his trucks to reach a parking area at the rear of his property. There was significant evidence in
Page 153
the record that Kunkel discussed using the easement with Fisher’s predecessor in interest who gave him permission to drive over the property. Even Kunkel testified that his neighbors were very accommodating to him about the use. Based on this evidence, it was clear that Fisher’s predecessor permitted Kunkel’s use or, at a minimum, acquiesced in it.[15] As such, Kunkel did not establish a factual basis for his prescriptive easement claim.
Second, we recognize on reflection that our analysis i Kunkel extended the implication of permissive use by neighborly accommodation too far when we applied a presumption
of permissive use. At least one legal scholar criticizes Kunkel
for applying a presumption of permissive use akin to the “vacant lands doctrine”[16] in a case where both pieces of land were developed and in the face of Washington cases establishing that another’s use of improved land is presumed hostile or adverse.[17] Because Kunkel has been interpreted to apply a presumption of permissive use in prescriptive easement cases involving
Page 154
developed land,[18] we take this opportunity to clarify the rule. In developed land cases, when the facts in a case support an inference that use was permitted by neighborly sufferance or accommodation, a court may imply that use was permissive and accordingly conclude the claimant has not established the adverse element of prescriptive easements. In contrast, courts should apply the “vacant lands doctrine” and its presumption of permissive use only in cases involving undeveloped land because, in those cases, owners are not in the same position to protect their title from adverse use as are owners of developed property.[19]
We now consider whether there is any evidence in this record supporting a reasonable inference of permissive use. We conclude there is no basis on which a court could reasonably infer that Massey’s use was permitted by neighborly sufferance or acquiescence.[20] When Massey purchased the land in 1952, the driveway was the only existing access to the property, and it was located on the Wallens’ lot. There is no evidence that Massey asked for permission or received express consent either to use the driveway or to extend it onto his own property with a bulldozer. In addition, the record shows no relationship between Massey and the Wallens from which one could infer permissive use.[21]
Page 155
Nor does it show any circumstance that suggests neighborly sufferance or acquiescence.[22]
Finally, there is sufficient evidence establishing that the driveway use was adverse. The uncontested findings of fact[23] and the record support the court’s conclusion that Drake’s use was adverse because the Masseys (and later Drake) used the driveway “as the owner himself would . . . entirely disregarding the claims of others, asking permission from no one, and using the property under a claim of right” beginning in 1952.[24] Massey extended the driveway to his property and maintained it, used the driveway to bring in materials and equipment to build his home and garage, and he and his tenants used the driveway as the sole access to the property until he sold it to Drake in 1984. The record shows that Massey could have built a driveway accessing his property from adjacent Nugent Road, but he simply never did.[25] In sum, the Masseys and Drake used the driveway as if they owned it and did so without permission. Accordingly, their use was adverse.
Because we cannot draw a reasonable inference of permissive use from the facts in this case and there are
Page 156
sufficient facts in the record supporting that Drake’s use was adverse, we affirm the trial court’s decision.[26]
COX, A.C.J., and GROSSE, J., concur.
[B]ecause the road primarily serves the servient property[,] there is strong indication that the [driveway] was either created for the benefit of both properties, or that Massey . . . [was] suffered the use of the property as [a] neighborly convenience. . . .
The issue arises, whether during the period of the Masseys and the Drakes, . . . that if permission had been originally granted, or the [driveway] had been used by acquiescence, it had been withdrawn, or had come into issue or thereafter the use became hostile in the manner of prescription or adversity. The evidence shows no issue ever arose until the present owner of the servient parcel sought to end use. . . .
There is nothing to suggest any animosity or difference of opinion between the neighbors respecting the [driveway] in this case. The court concludes there are no facts to overcome the presumption of permissiveness and finds for the defendant.
(citing Mountaineers v. Wymer, 56 Wn.2d 721, 722, 355 P.2d 341
(1960)), review denied, 145 Wn.2d 1010 (2001).
(1999) (citing Hendrickson v. Sund, 105 Wash. 406, 410, 177 P. 808 (1919); Anderson v. Secret Harbor Farms, 47 Wn.2d 490, 494, 288 P.2d 252 (1955)).
that the use was adverse, unless otherwise explained, and, in that situation, in order to prevent another’s acquisition of an easement by prescription, the burden is upon the owner of the servient estate to rebut the presumption by showing that the use was permissive.”); see also 17 STOEBUCK, supra, at 101 (interpreting Washington law as holding that “[I]f the claimant shows use of another’s land that is unexplained and is open and notorious, `continuous,’ and `exclusive,’ there is a `presumption’ that the use was hostile. . . .”).
(1905)).
(1987) (where the parties agreed that it was common for farmers to cross and to park equipment on their neighbors’ fields and that use was recognized as neighborly courtesy suggested the use of a neighbor’s property for this purpose was not adverse for purposes of a prescriptive easement).