Plaintiff sued to quiet title in a prescriptive easement over a driveway, which was primarily on Defendant’s lot. The trial court ruled in Plaintiff’s favor.
For the purpose of establishing a prescriptive easement, a claimant’s use is not adverse if it is permissive.
The Wallens family owned a cabin on Lummi Island. A driveway extended from the Wallens family lot to a public road. Floyd Kenneth Massey purchased a vacant lot adjacent to the Wallens family lot. Because Massey’s lot lacked a driveway, Massey used a bulldozer to extend the Wallens’ driveway to his lot. Massey did not ask the Wallens’ permission, but the Wallens did not object. Both Massey and the Wallens used the driveway until the Wallens sold their lot to the Wright Fish Company (Wright) in 1975. Massey continued to use the driveway without incident. In 1984, Massey sold his lot to Jess Drake (Plaintiff). Plaintiff was aware the driveway was primarily on Wright’s lot, but continued to use and maintain it without objection from Wright. In 1997, Wright sold the lot to Robert Smersh (Defendant). A year later, Defendant informed Plaintiff that he should no longer use the driveway. Plaintiff brought an action to quiet title in a prescriptive easement. The trial court initially ruled in Defendant’s favor, but after reconsideration, granted Plaintiff a prescriptive easement over the driveway.
Whether a claimant’s use is adverse if it is permissive for the purpose of establishing a prescriptive easement.
No. The trial court’s ruling is affirmed. For the purpose of establishing a prescriptive easement, a claimant’s use is not adverse if it is permissive.
A prescriptive easement is established if use of the servient land is: (1) open and notorious; (2) over a uniform route; (3) continuous and uninterrupted for a period of ten years; (4) adverse to the owner; and (5) with the knowledge of the owner. Here, the issue is whether the use of the driveway was adverse. Use is not adverse if it is permissive. According to the “vacant lands doctrine,” there is a presumption of permissive use by neighborly accommodation in cases involving undeveloped lands. In Kunkel v. Fisher, 23 P.3d 1128 (2001), this court also found a presumption of permissive use based on neighborly accommodation in a case involving developed lands. Legal scholars have criticized Kunkel for extending the vacant lands doctrine in this manner. In response, this court clarifies that in cases involving developed lands, if the facts support an inference of use based on neighborly accommodation, the courts may imply permissive use. But courts should only apply the vacant lands doctrine in cases involving undeveloped lands. Here, this court finds no inference that Plaintiff or Massey’s use of the driveway was permitted by neighborly accommodation. Massey used and extended the driveway without permission and there is no indication that Massey and the Wallens had a relationship from which this court could draw an inference of permissive use. There is, however, sufficient evidence that Massey and Plaintiff’s use was adverse. By extending, maintaining, and using the driveway without permission, Massey used the driveway as if he owned it. Plaintiff came to use and maintain the driveway as if he owned it, as well. Their use of the driveway was therefore adverse.