106 Wn. App. 599, KUNKEL v. FISHER

John Kunkel, et al., Respondents, v. Thomas J. Fisher, Appellant.

[1] Easements - Prescriptive Easement - Elements. The elements of a prescriptive easement are (1) open and notorious use of land, (2) over a uniform route, (3) for a continuous and uninterrupted period of 10 years, (4) adverse to the owner of the land, (5) with knowledge by the owner at a time when the owner was able in law to assert and enforce ownership rights.

[2] Easements - Prescriptive Easement - Adverse Use - Test. For purposes of a claim for a prescriptive easement, the claimant's use of the subject property is not adverse to the rights of the title owner unless the claimant uses the property as the true owner would, under a claim of right, disregarding the claims of others, and not asking permission for such use.

[3] Easements - Prescriptive Easement - Adverse Use -

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Permissive Use - Effect. Use of an easement is not adverse if it is permissive. Permissive use can be express or implied.

[4] Easements - Prescriptive Easement - Adverse Use - Permissive Use - Neighborly Courtesy. Permissive use of an easement may be implied in any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence.

[5] Easements - Prescriptive Easement - Purpose. The purpose of a prescriptive easement is to protect long-established positions with respect to land.

[6] Easements - Prescriptive Easement - Disfavored Status. A prescriptive easement is disfavored at law because it effects a loss or forfeiture of the rights of the owner.

[7] Easements - Prescriptive Easement - Adverse Use - Permissive Use - Presumption - In General. Use of an easement is presumed to be with the permission of, and in subordination to, the title of the true owner.

[8] Easements - Prescriptive Easement - Adverse Use - Permissive Use - Conversion to Prescriptive Easement - In General. Permissive use of an easement does not ripen into a prescriptive use unless the user makes a distinct, positive assertion of a right adverse to the property owner.

[9] Easements - Prescriptive Easement - Adverse Use - Permissive Use - Question of Law or Fact. Whether the use of an alleged prescriptive easement is adverse or permissive is a question of law.

[10] Appeal - Conclusions of Law - Review - Erroneous Identification as Finding of Fact - Effect. A conclusion of law erroneously denominated a finding of fact by the trial court will be reviewed as a conclusion of law.

[11] Easements - Prescriptive Easement - Adverse Use - Permissive Use - Presumption - Rebuttal - Insufficient Evidence - Effect. A claim for a prescriptive easement will fail if the evidence in the record is insufficient to overcome the presumption that the claimant's use of the subject property was permissive.

 June 2001     KUNKEL v. FISHER    601 
106 Wn. App. 599

Randy M. Boyer, for appellant.

Victor E. Haglund, for respondents.

Grosse, J. - In a claim for a prescriptive easement, the use of another's property is presumed to be permissive. The trial court erred when it failed to apply this presumption to the Kunkels' claim of a prescriptive easement over the Fisher property. Because the Kunkels did not put forth sufficient evidence to overcome the presumption, we reverse.

FACTS

The Kunkels operated a house-moving business and kept trucks at their home in Lynnwood, Washington. By at least 1977, John Kunkel began parking trucks at the back of his property. The access to the back of his property was across adjacent property belonging to Thomas Fisher and his predecessors in interest.

In order to park his trucks at the back of his property, John Kunkel traversed the adjacent property on a daily basis. Since 1977, the adjacent property has had several different owners, none of whom objected to or interfered with the Kunkels' use. Fisher purchased the adjacent property in 1997 and attempted to formalize an agreement regarding the Kunkels' access. In response, the Kunkels brought this action seeking a prescriptive easement. The trial court found in the Kunkels' favor and this appeal followed.

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DISCUSSION

[1, 2] The requirements to establish a prescriptive easement are the same as those to establish adverse possession.«1» The 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.«2» Washington employs an objective test for adversity. When the claimant 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, the use is adverse.«3» Adversity may be inferred from the actions of the claimant and the owner.«4»

[3, 4] Under the doctrines of both prescriptive easement and adverse possession, a use is not adverse if it is permissive.«5» Permission can be express or implied.«6» A permissive use may be implied in "'any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence[.]'"«7»

«1» 17 William B. Stoebuck, Washington Practice: Real Estate § 2.7, at 98 (1995); 25 Am. Jur. 2d Easements and Licenses § 57, at 624 (1996).

«2» See The Mountaineers v. Wymer, 56 Wn.2d 721, 722, 355 P.2d 341 (1960) (citing N.W. Cities Gas Co. v. W. Fuel Co., 13 Wn.2d 75, 123 P.2d 771 (1942)). Many cases conflate various elements as different sub-components of the same element. See Lingvall v. Bartmess, 97 Wn. App. 245, 253, 982 P.2d 690 (1999) (listing four elements); ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989) (citing Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984)). Some cases substitute the word "hostile" for "adverse." The requirements of hostility (i.e. adversity) and claim of right are one and the same. See Chaplin, 100 Wn.2d at 858.

«3» See Chaplin, 100 Wn.2d at 860-62; Dunbar v. Heinrich, 95 Wn.2d 20, 27, 622 P.2d 812 (1980); Malnati v. Ramstead, 50 Wn.2d 105, 108, 309 P.2d 754 (1957).

«4» See Chaplin, 100 Wn.2d at 862; Gray v. McDonald, 46 Wn.2d 574, 283 P.2d 135 (1955).

«5» Miller v. Anderson, 91 Wn. App. 822, 828, 964 P.2d 365 (1998); Cuillier v. Coffin, 57 Wn.2d 624, 626-27, 358 P.2d 958 (1961).

«6» Miller, 91 Wn. App. at 828.

«7» See Lingvall, 97 Wn. App. at 251 (quoting Roediger v. Cullen, 26 Wn.2d 690,

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106 Wn. App. 599

[5,6] Although adverse possession and easements by prescription are often treated as equivalent doctrines, they have different histories and arise for different reasons.«8» Adverse possession promotes the maximum use of the land, encourages the rejection of stale claims to land and, most importantly, quiets title in land.«9» Easements by prescription do not necessarily further those same goals. Their principal purpose is to protect long-established positions.«10» Easements by prescription are disfavored in the law because they effect a loss or forfeiture of the rights of the owner.«11» On the other hand, adverse possession is not disfavored.«12» The differences in the historical origins and rationales behind prescriptive easement and adverse possession have resulted in a single but important difference in how they are applied.

[7, 8] In a claim for a prescriptive easement there is a presumption that the servient property was used with the permission of, and in subordination to, the title of the true owner.«13» If the use is initially permissive, it may ripen into

707, 175 P.2d 669 (1946)); Miller, 91 Wn. App. at 828-29 (recognizing that permission may be inferred in adverse possession); Cuillier, 57 Wn.2d at 627. Washington courts have also held that neighborly permission exists where the use occurred on neighboring parcels of land; mutual use of a driveway; the land is vacant, open, unenclosed and unimproved; or where a claimant uses a roadway that has been used first by the owner of the property who continues to use it for the owner's own purposes. Lingvall, 97 Wn. App. at 250-51; Cuiller, 57 Wn.2d at 627.

«8» Stoebuck, supra note 1, § 2.7, at 98; see also 25 Am. Jur. 2d Easements and Profits § 45 (1996) (originally easements were incorporeal hereditaments said to lie in grant); 3 Am. Jur. 2d Adverse Possession § 1 (1986) (adverse possession is a mode of acquiring title).

«9» Chaplin, 100 Wn.2d at 859-60.

«10» 28A C.J.S. Easements § 14 (1996).

«11» Granite Beach Holdings, L.L.C. v. Dep't of Natural Res., 103 Wn. App. 186, 11 P.3d 847 (2000); City of Spokane v. Catholic Bishop, 33 Wn.2d 496, 514, 206 P.2d 277 (1949).

«12» No Washington cases appear to state that adverse possession is disfavored and Washington has enacted the doctrine as a statutory rule. See RCW 4.16.020; RCW 7.28.050; RCW 7.28.070; RCW 7.28.085.

«13» Miller, 91 Wn. App. at 827; Mood v. Banchero, 67 Wn.2d 835, 841, 410 P.2d 776 (1966); Anderson v. Secret Harbor Farms, 47 Wn.2d 490, 493, 288 P.2d 252

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106 Wn. App. 599

a prescriptive easement only if the user makes a distinct, positive assertion of a right adverse to the property owner.«14»

[9-11] Here the trial court erred when it failed to apply the presumption that the Kunkels' use was permissive. In its findings of fact, the court stated that the Kunkels began using the easement under a claim of right, adverse to the owners of the servient property; that the Kunkels' use fulfilled the prescriptive easement requirements; and that the Kunkels had a prescriptive easement. These are conclusions of law«15» and we review them as such.«16» When we consider the factual evidence even in the light most favorable to the Kunkels, it is insufficient to overcome the presumption of permission and insufficient to support the conclusions of law.

The lot that is now the Fisher property is large. Throughout the relevant time period it contained a house on one portion. The area that the Kunkels traversed was a half asphalt/half gravel parking area. There is no dispute that the successive owners were aware of the Kunkels' use and it is undisputed that no one ever objected to the Kunkels' use. While the owners were aware of the Kunkels' use, they rarely observed John Kunkel traversing the property either because they did not reside on the property, or because John would depart before they arrived and return after they had left. John Kunkel did not himself maintain the passage he traversed except on one occasion when he observed a tenant on the property bringing in some gravel and he helped him spread it.

One of the previous owners of the property operated an

(1955) (quoting N.W. Cities Gas. Co., 13 Wn.2d at 84); Catholic Bishop, 33 Wn.2d at 514.

«14» Crescent Harbor Water Co. v. Lyseng, 51 Wn. App. 337, 341, 753 P.2d 555 (1988); Washburn v. Esser, 9 Wn. App. 169, 171, 511 P.2d 1387 (1973); Catholic Bishop, 33 Wn.2d at 514; Roediger, 26 Wn.2d at 709.

«15» See Chaplin, 100 Wn.2d at 863 (stating whether the facts as found constitute adverse possession is a question of law).

«16» In re Dependency of C.B., 79 Wn. App. 686, 692, 904 P.2d 1171 (1995) (citing State v. Hutsell, 120 Wn.2d 913, 918-19, 845 P.2d 1325 (1993)).

 June 2001     CITIZEN ADVOCATES v. UTILS. & TRANSP.    605 
106 Wn. App. 605

insurance business on it. He testified that he and John Kunkel discussed the Kunkels' use numerous times. John Kunkel would ask him if his use was a problem and he would answer that it was not. There is also evidence that on one occasion John Kunkel had to ask someone to move a vehicle so he could pass. Kunkel himself stated that his neighbors were very accommodating to him about the use.

This evidence is not sufficient to overcome the presumption that the use was permissive. Indeed, the only reasonable inference from the evidence is that the Kunkels' use was permissive. Nor is there any evidence that the Kunkels at any time made a distinct positive assertion of a right adverse to any of the property owners prior to this action. Thus, the evidence is also insufficient to support a conclusion that the Kunkels' permissive use ripened into an adverse use.

Taken in the light most favorable to the Kunkels, the evidence is insufficient to overcome the presumption in favor of a permissive use. We reverse.

Becker, A.C.J., and Ellington, J., concur.