13 Wn.2d 75, NORTHWEST CITIES GAS COMPANY, Respondent, v. WESTERN FUEL CO., INC., et al., Appellants
[No. 28439. En Banc. Supreme Court March 27, 1942.]
NORTHWEST CITIES GAS COMPANY, Respondent, v.
WESTERN FUEL CO., INC., et al., Appellants.«1»

[1] EASEMENTS - CREATION - PRESCRIPTION. An easement of right of way across the land of another, including even the establishment of a public highway over private propErty, may be acquired by prescription.

[2] SAME - PRESCRIPTION - DURATION OF USE. The period required to establish a prescriptive right of way is ten years.

[3] SAME - NOT FAVORED IN LAW. Prescriptive rights are not favored in the law.

[4] SAME - PRESUMPTION OF PERMISSIVE USE. When one enters into possession of another's property, there is a presumption that he does so with the true owner's permission and in subordination to the latter's title.

[5] SAME - ADVERSE CHARACTER OF USE. A user which is permissive in its inception cannot ripen into a prescriptive right, no matter how long it may continue, unless there baa been a distinct and positive assertion by the dominant owner of a right hostile to the owner of the servient estate.

[6] SAME - ESTABLISHMENT - PROOF OF ESSENTIAL ELEMENTS. To establish an easement by prescription, all of the elements necessary to constitute a permanent valid claim by adverse user must be shown to be present.

[7] SAME - ESTABLISHMENT - QUESTION OF FACT. The question of adverse user is a question of fact.

[8] SAME - ESTABLISHMENT - BURDEN OF PROOF. The burden of proving a prescriptive right rests upon the one who is to be benefitted thereby.

[9] SAME - ELEMENTS TO BE ESTABLISHED. To establish a prescriptive right of way over the land of another person, the claimant must prove that his use has been open, notorious, continuous, uninterrupted, over a uniform route, adverse to the owner of the land, and with the knowledge of such owner at a time when he was able in law to assert and enforce his rights.

[10] SAME - PRESUMPTION OF ADVERSE USE. Proof that the use by one of another's land has been open, notorious, continuous,

«1» Reported in 123 P. (2d) 771.

[1] See 17 Am. Jur. 971.

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uninterrupted, and for the required length of time, creates a presumption that the use was adverse, unless otherwise explained; and in such a case the burden is upon the owner of the servient estate to rebut the presumption by showing that the use was permissive.

[11] SAME - PRESUMPTION OF ADVERSE USE - UNENCLOSED LANDS. The rule as to the presumption of adverse use does not apply where the land is vacant, open, and unimproved, and in such a case the courts require evidence of facts or circumstances indicating that the use was adverse and not permissive.

[12] SAME - ADVERSE CHARACTER OF USE - KNOWLEDGE AND ACQUIESCENCE OF OWNER. An adverse user will not ripen into a prescriptive right unless the owner of the servient estate knows of, and acquiesces in, such user, or unless the user is so open, notorious, visible, and uninterrupted that knowledge and acquiescence will be presumed.

[13] SAME - EVIDENCE - FAILURE OF OWNER TO OBJECT. Failure of the owner of the servient estate to interrupt the user of a right of way across his land by another is strong evidence that the parties thought that the way was used as a matter of right.

[14] SAME - EVIDENCE - INTENT OF PARTIES. It is not necessary to the establishment of a prescriptive right that the claimant make declarations of an adverse intent during the period relied on to establish such right, or that he testify later that such was his intent; but the intentions and attitudes of the parties may be shown by evidence of their conduct relative to the use of the right of way.

[15] SAME - ADVERSE CHARACTER OF USE - NATURE AND LOCATION OF PROPERTY. In determining whether the user of another's land has been adverse and whether the latter had notice thereof, the nature and location of the property are material and important considerations.

[16] SAME - TERMINATION OF RIGHT. A prescriptive right, once acquired, cannot be terminated or abridged at the will of the owner of the servient estate, nor even by the oral admission of the claimant that his use was not, and is not, adverse.

[17] SAME - DURATION, CONTINUITY, AND ADVERSE CHARACTER OF USE - EVIDENCE - SUFFICIENCY. In an action to establish a right of way by prescription across the land of another, held that the evidence supports the trial court's finding that the claimant's user of a roadway for a period of sixteen years was open, notorious, continuous, uninterrupted, over a uniform route, and at a time when the owner was able in law to assert and enforce her rights, that the claimant's original entry was

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Mar. 1942] Opinion Per STEINERT, J.

made without the owner's knowledge or consent, but that she must be presumed to have known of the use to which her land was being put, and that such use was adverse to the owner.

[18] SAME - RIGHTS OF WAY - WIDTH OF ROADWAY. An easement acquired by prescription cannot be extended except by express grant or by prescription based on an extended user for an additional ten years; hence, a party who has acquired by prescription a right of way twenty feet wide across the land of another does not become entitled to a right of way forty-eight feet wide by reason of the fact that the owner of the servient estate fenced a lane of that width through his property and both parties acquiesced for three years in the use of a roadway running within the fenced lane.

[19] SAME - SHIFT IN RIGHT OF WAY - EFFECT. One who has acquired a right of way by prescription across the land of another is not deprived of his previously matured right by the fact that he acquiesced in a shift of the roadway to conform to the plans of the owner of the servient estate.

Appeal from a judgment of the superior court for Yakima county, Willis, J., entered January 25, 1941, in favor of the plaintiff, in an action to enjoin interference with the use of a right of way easement. Mfirmed, as modified.

Velikanje & Velikanje, for appellants.

Rigg, Brown & Halverson and Paul M. Goode, for respondent.

STEINERT, J. -

This action was instituted by plaintiff Northwest Cities Gas Company, a corporation, to enjoin defendants Western Fuel Co., Inc., a corporation, and James B. Huff, its president, from interfering with plaintiff's alleged prescriptive easement of right of way across the property of the defendant Western Fuel Co. A temporary restraining order, together with an order to show cause, was issued, and thereafter a trial was had resulting in a decree permanently enjoining defendants from interfering with plaintiff's use and enjoyment of the claimed right of way. Both defendants

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have appealed, but the dispute is primarily between the two corporations. Plaintiff corporation will hereafter be referred to as respondent or as the gas company, and the defendant corporation will be denominated as appellant or as the fuel company. Defendant James B. Huff will be referred to by name.

Respondent gas company owns a tract of land in the industrial section of the city of Yakima. Upon this property it operates a gas plant which it acquired from Pacific Power & Light Co. in 1929. The power company had previously operated the gas plant on the same premises since 1906. The deed from the power company to the gas company also included a grant of a perpetual right of way, between the land conveyed and a county road to the west, over a twenty-foot strip of ground belonging at the present time to one Goodman. That right of way, however, is not the one claimed by respondent in this action.

Appellant fuel company owns the land adjoining respondent's property on the north, and at present maintains a fuel yard upon it. This tract of land formerly belonged to one Mary A. Clerf, who on May 8, 1936, conveyed it to Charles S. Huff and Jessie C. Huff, his wife. At that time, Charles S. Huff, now deceased, was the president of the fuel company; later, his son, James B. Huff succeeded him in office. At all times herein mentioned, Mrs. Clerf appears to have been a resident of Ellensburg, which is about forty miles distant from Yakima.

On August 30, 1937, Charles S. Huff and his wife conveyed this latter tract of land to appellant. Both the deed from Mrs. Clerf to the senior Huffs and the deed from the latter to appellant specifically excepted from conveyance and warranty "rights of way for roads, ditches, and pipe lines over and across said premises."

N. W. CITIES GAS CO. v. WESTERN FUEL CO. 79
Mar. 1942] Opinion Per STEINERT, J.

South First avenue in Yakima approaches appellant's property from the north and meets the northerly boundary line thereof near its middle, but the street does not extend into or across the tract. Both tracts of land here involved, owned respectively by respondent and appellant, lie between the Northern Pacific Railway tracks on the east and the Union Pacific Railroad tracks on the west. It may be further noted that respondent's tract of land does not extend as far to the west as does appellant's tract.

Prior to 1915, the tract of land formerly owned by Mrs. Clerf and now belonging to appellant was used for the production and storage of ice, and for that purpose an artificial pond was maintained upon it, impounded by a semicircular dike or dam near the eastern boundary of the property. In 1915, the pond was abandoned and was permitted to dry up. From 1906 to 1920, persons going to the gas plant (then owned by Pacific Power & Light Co.) traveled south along south First avenue, crossed the Clerf land over a road running along the top of the dike at the east edge of the pond, and entered the power company's premises approximately at the northwest corner thereof. Egress from the premises was in the reverse course over the same route. In 1920, a bridge in the middle of the dike collapsed, and as a consequence this particular portion of the route through the Clerf land was abandoned. Shortly thereafter, however, agents of the Pacific Power & Light Co., without permission from Mrs. Clerf, laid a roadway across the dry bed of the pond and hauled in cinders to a depth of about four inches along a strip twelve to fifteen feet wide, in order to make a road passable for trucks. This road crossed Mrs. Clerf's property in a generally north and south direction and constituted, roughly, an extension of south First avenue. Another road was also early developed across

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the southwest corner of the Clerf land, leading from the northwest corner of the power company's premises to a crossing over the Union Pacific Railroad tracks On the west.

Seven witnesses for respondent testified to continuous use of various roads through the Clerf tract from at least as early as 1920 until the time when appellant purchased and began to fence the property as hereinafter more fully described. The testimony of these witnesses shows that they have all made frequent trips over these routes, sometimes several trips a day, and that for many years respondent has annually transported about four thousand tons of Coke over the several roads traversing the Clerf tract. The same witnesses testified further that the north-south route, in its present location, had been in constant use since 1920. They also testified that they had never applied to anyone for permission to cross the Clerf land and had never been forbidden to do so.

During the time prior to the acquisition of the property in question by Charles S. Huff and his wife, the land was also used by various persons as a dumping ground for rocks and dirt which had been removed from excavations in the city of Yakima. It is undisputed that, during all the time prior to 1936, this land was unfenced, uncultivated, and totally unimproved.

In 1936 or 1937, shortly after Mrs. Clerf had conveyed the land to Charles S. Huff and his wife, Mr. Huff had the property surveyed and partly leveled and fenced in order to make it usable as a fuel yard. Respondent's plant superintendent testified to a conversation with Charles S. Huff at the time the land was being surveyed, in the course of which Mr. Huff told the superintendent that the fence would close the roadway across his land to the west, but added that he was going to leave respondent a forty-foot driveway through

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Mar. 1942] Opinion Per STEINERT, J.

to the north. Pursuant to that promise, a lane fortyeight feet wide and fenced on both sides was left open, running approximately through the center of appellant's property and permitting continued traffic between respondent's plant and south First avenue. This lane led from the north line of respondent's tract, across appellant's property, toward south First avenue and approximated an extension of that street, though of somewhat diminished width.

From the time that the fence was completed, in 1936 or 1937, until the evening of August 23, 1940, a roadway through this lane was used by respondent's employees and customers. The roadway as actually used was from ten to twenty feet in width and so did not occupy all the space between the fences on the two sides of the lane. There is some dispute in the evidence as to whether or not the road through the lane was the same as the one previously referred to herein as leading in a north-south direction across the Clerf land. Respondent's witnesses testified that it was the same, whereas appellant's witnesses testified that the original road was some distance west of the lane. The trial court, after hearing the evidence and viewing the premises, found that the location of the roadway was substantially the same at all times from about 1920 to 1937; that, although the road was then shifted a little to the east, to bring it within the newly built fences, the change was made by appellant and was acquiesced in by respondent; and float respondent was not thereby deprived of its previously acquired prescriptive rights.

Sometime after the fencing was completed, appellant affixed a sign at the north entrance to the passageway reading "Private Way, Permission to Pass Over Revocable at Any Time." When respondent's superintendent observed this sign, he told James B. Huff that

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the road could not be closed, to which the latter replied that the sign meant just exactly what it said. However, respondent's employees and customers continued to use the road as before.

In August, 1940, a fire of suspicious origin broke out in appellant's fuel yard and portions of the fences inclosing the lane were burned. Thereafter, on August 23rd, employees of appellant barricaded the north entrance to the passageway and for about twelve hours refused to allow traffic to pass through. This action was thereupon instituted by respondent to establish and protect its alleged prescriptive easement of right of way across appellant's land. The trial court enjoined appellants perpetually from interfering with respondent's use and enjoyment of a specifically described roadway forty-eight feet wide, thus confirming respondent's claim to an easement practically coextensive with the lane as fenced by Charles S. Huff. The action of the court was founded upon the conclusion that a prescriptive right of easement was acquired by respondent and its predecessor in title, Pacific Power & Light Co., during the period from 1920 to 1936, while Mrs. Clerf still owned the land in question, and before it had come into the ownership and possession of appellant.

The first question to be decided is whether or not, under the facts as stated, respondent has become entitled by prescription to a right of way of any width whatever over appellant's property. We preface our decision of that question with a statement of certain principles which either have been definitely established in this jurisdiction or else should, in our opinion, be adopted.

[1] An easement of right of way across the land of another, including even the establishment of a public

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Mar. 1942] Opinion Per STEINERT, J.

highway over private property, may be acquired by prescription. Wasmund v. Harm, 36 Wash. 170, 78 Pac. 777; Seattle v. Smithers, 37 Wash. 119, 79 Pac. 615; Van De Vanter v. Flaherty, 37 Wash. 218, 79 Pac. 794; Watson v. County Commissioners, 38 Wash. 662, 80 Pac. 201; Scheller v. Pierce County, 55 Wash. 298, 104 Pac. 277; Schulenbarger v. Johnstone, 64 Wash. 202, 116 Pac. 843, 35 L. R. A. (N. S.) 941; Brand v. Lienkaemper, 72 Wash. 547, 130 Pac. 1147; Hendrickson v. Sund, 105 Wash. 406, 177 Pac. 808; Downie v. Renton, 167 Wash. 374, 9 P. (2d) 372, Long v. Leonard, 191 Wash. 284, 71 P. (2d) 1 See, also, 17 Am. Jur. 967, Easements, § 55; 28 C. J. S. 641, Easements, § 6; 4 Tiffany, Real Property (3d ed. 1939), 551, 598, §§ 1194, 1211.

[2] The period required in this state to establish such a prescriptive right of way is ten years, by analogy to the provisions of Rem. Rev. Stat., § 156 [P. C. § 8161], which is the statute of limitations relative to actions for the recovery of real property. Wasmund v. Harm, supra; Seattle v. Smithers, supra; Mason v. Yearwood, 58 Wash. 276, 108 Pac. 608, 30 L. R. A. (N. S.) 1158; Berryman v. East Hoquiam Boom &Logging Co., 68 Wash. 657, 124 Pac. 130; Hendrickson v. Sund, supra; Hughes v. Boyer, 5 Wn. (2d) 81, 104 P. (2d) 760. See, also, 17 Am. Jur. 968, Easements, § 55; 28 C. J. S. 659, Easements, § 16.

[3] Prescriptive rights, however, are not favored in the law, since they necessarily work corresponding losses or forfeitures of the rights of other persons. Downie v. Renton, 162 Wash. 181, 298 Pac. 454 (reversed, on other grounds, on rehearing, 167 Wash. 374, 9 P. (2d) 372); Downie v. Renton, 167 Wash. 374, 9 P. (2d) 372 (reversing the preceding case, on other grounds); Long v. Leonard, supra; 2 Kinney, Irrigation

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and Water Rights (2d ed. 1912), 1876, § 1048; 28 C, J. S. 645, Easements, § 10.

[4] When one enters into the possession of another's property there is a presumption that he does so with the true owner's permission and in subordination to the latter's title. Long v. Leonard, supra. Accord, Peoples Savings Bank v. Bufford, 90 Wash 204, 155 Pac. 1068.

[5] A user which is permissive in its inception cannot ripen into a prescriptive right, no matter how long it may continue, unless there has been a distinct and positive assertion by the dominant owner of a right hostile to the owner of the servient estate. Scheller v. Pierce County, supra; Schulenbarger v. Johnstone, supra; Buckley v. Dunkin, 131 Wash. 422, 230 Pac. 429. Accord, Long v. Leonard, supra; Leinweber v. Gallaugher, 2 Wn. (2d) 388, 98 P. (2d) 311.

[6] It is therefore essential that all of the elements necessary to constitute a permanent valid claim by adverse user amounting to a prescriptive right be shown to be present. See the cases and texts cited in the last three preceding numerical subdivisions.

[7] The question of adverse user is a question of fact. While there are no easement cases in this state expressly announcing this rule, we have a number of cases which do apply it in reference to adverse possession, and the rule would seem equally applicable to the issue of adverse user in easement cases. See McAuliff v. Parker, 10 Wash. 141, 38 Pac. 744; Peoples Savings Bank v. Bufford, supra; Murray v. Bousquet, 154 Wash. 42, 280 Pac. 935.

[8] The burden of proving a prescriptive right rests upon the one who is to be benefitted by the establishment of such right. St. Martin v. Skamania Boom Co., 79 Wash. 393, 140 Pac. 355; Downie v. Renton, on rehearing, supra; Long v. Leonard, supra; Rogers v.

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Mar. 1942] Opinion Per STEINERT, J.

Cation, 9 Wn. (2d) 369, 115 P. (2d) 702. Accord, Skansi v. Novak, 84 Wash. 39, 146 Pac. 160; Peoples Savings Bank v. Bufford, supra.

[9] To establish a prescriptive right of way over the land of another person, the claimant of such right must prove that his use of the other's land has been open, notorious, continuous, uninterrupted, over a uniform route, adverse to the owner of the land sought to be subjected, and with the knowledge of such owner at a time when he was able in law to assert and enforce his rights. Wasmund v. Harm, supra; Scheller v. Pierce County, supra; Schulenbarger v. Johnstone, supra; Brand v. Lienkaemper, supra; Buckley v. Dunkin, supra; Long v. Leonard, supra; Hughes v. Boyer, supra. Accord, Downie v. Renton, 162 Wash. 181, 298 Pac. 454; Downie v. Renton, 167 Wash. 374, 9 P. (2d)372. See, also, 17 Am. Jur. 971, Easements, § 59; 28 C. J. S. 645, Easements, § 10.

[10] However, proof that the use by one of another's land has been open, notorious, continuous, uninterrupted, and for the required time, creates a presumption 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. Wendler v. Woodard, 93 Wash. 684, 161 Pac. 1043; 2 Thompson, Real Property (Perm. ed. 1939) 95, § 512; 4 Tiffany, Real Property (3d ed. 1939) 563, § 1196a; 17 Am. Jur. 981, Easements, § 72; 28 C. J. S. 736, Easements, § 68. Accord, Lechman v. Mills, 46 Wash. 624, 91 Pac. 11, 13 L. R. A. (N. S.) 990, 13 Ann. Cas. 923; Berryman v. East Hoquiam Boom &Logging Co., supra; Ochfen v. Kominsky, 121 Wash. 60, 207 Pac. 1050. Cf., Long v. Leonard, supra.

[11] This last mentioned rule does not apply,

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however, to vacant, open, uninclosed, unimproved lands. In such cases, mere use of a way over the land of another, in the manner and for the time referred to in the last preceding rule, will not of itself give rise to a presumption that the use has been adverse, or, as sometimes expressed, to a presumption of a grant. Courts do not, in such cases, infer adverse user, but require evidence of facts or circumstances indicating that the user was indeed adverse and not permissive. 28 C. J. S. 672, 737, Easements, §§ 18(i), 68(a); 2 Thompson, Real Property (Perm. ed. 1939) 111, § 523; 4 Tiffany, Regal Property (3d ed.) 565, § 1196a; note (1919) 1 A. L. R. 1368.

Thus, in Watson v. County Commissioners, supra, this court said:

"While we do not now hold that a right of way by prescription cannot be acquired over wild, unoccupied prairie lands, we do hold that, in order to give a prescriptive right, the use must at least be such as to convey to the absent owner reasonable notice that a claim is made in hostility to his title. It seems to us that any other rule amounts to a practical confiscation of private property for public purposes." (Italics ours.)

In Schulenbarger v. Johnstone, supra, this court seems to have gone even further by saying:

"It can hardly be contended that it was ever she intent of the law to hold that a private easement could be created over the lands of another at a time when they were open and uninclosed. It has never been so held, although the right be asserted by the public, unless under some controlling circumstances such as the expenditure of public moneys under the supervision of the road overseer, or some element of acquiescence on the part of the owner as instanced in the case of State v. Horlacher, 16 Wash. 325, 47 Pac. 748 [where this court upheld a judgment convicting the defendant upon a charge of obstructing a public highway which the county had acquired by prescription,

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and upon which the county had expended money for several years]." (Italics ours.)

We do not now agree with that part of the Schulenbarger opinion which we have italicized. The books reveal many cases wherein, under particular sets of facts, private easements over the lands of others have been acquired by prescription, at a time when such lands were open and uninclosed. While there has been a wide divergence of opinion upon the subject, the prevailing view, and the principle which we now adopt, is that such prescriptive rights may be obtained when the facts and circumstances are such as to show that the user was adverse and hostile to the rights of the owner, or that the owner has indicated by some act his admission that the claimant has a right of easement. 2 Thompson, Real Property (Perm. ed. 1939)111, § 523; 17 Am. Jur. 980, Easements, § 71; 28 C. J. S. 672, Easements, § 18(i); Note (1919) 1 A. L. R. 1368.

[12] An adverse user will not ripen into a prescriptive right unless the owner of the servient estate knows of, and acquiesces in, such user, or unless the user is so open, notorious, visible, and uninterrupted that knowledge and acquiescence on his part will be presumed. Downie v. Rent on, on rehearing, supra; see, also, 2 Thompson, Real Property (Perm. ed. 1939) 94, § 512; 17 Am. Jur. 976, Easements, § 65; 28 C. J. S. 647, Easements, § 12.

[13] Failure on the part of the owner of the servient estate to interrupt the user of a right of way across his land by another is strong evidence that the parties thought that the way was used as a matter of right. Wasmund v. Harm, supra; Long v. Leonard, supra. See, also, Lechman v. Mills, supra.