Gamboa v. Clark

IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MAGDALENO GAMBOA and MARY J. )
GAMBOA, husband and wife, ) No. 90291-7
)
Petitioners, ) EnBanc
)
v. )
)
JOHN M. CLARK and DEBORAH C. )
CLARK, husband and wife, )
)
Respondents. )
) Filed APR 1 6 2015
OWENS, J. - For many years, Magdaleno and Mary Gamboa have used a
gravel road adjacent to their property as a driveway to access their home. The road is
primarily on the property of their neighbors, John and Deborah Clark. The Gamboas
and Clarks used the road for their respective purposes for many years without an
objection from either family. After disputes arose between them, the Gamboas filed
suit to obtain a legal right to use the road.
This case requires us to determine whether the Gamboas met one of the
requirements of the rule that would allow them to continue using the road.
Gamboa v. Clark
No. 90291-7
Specifically, the Gamboas must show that their use of the road was adverse to the
Clarks (i.e., without the Clarks' permission). Since the evidence shows a reasonable
inference that the Clarks let the Gamboas use the road out of neighborly acquiescence,
we hold that the Gam boas did not show that their use of the road was adverse to the
Clarks. Therefore, the Gamboas may not continue using the road, and we affirm the
Court of Appeals.
FACTS
The Gam boas and Clarks own adjoining parcels of land separated by a gravel
road in a rural area in Yakima County. The Gam boas own a 17-acre western parcel to
farm alfalfa, and the Clarks own a 25-acre eastern parcel to farm grapes. The parcels
were created in 1964 when the original co-owners, the Padghams and McConnells,
split up the 42-acre parent parcel into the 17- and 25-acre parcels described above.
The Padghams and McConnells sold the 25-acre eastern parcel (which included the
road) to the Slouin family, the family preceding the Clarks to that parcel. The
Padghams and McConnells retained the 17-acre western parcel. The Padghams and
McConnells sold their parcel to the Gamboas in 1992, and the Slouins sold their
parcel to the Clarks in 1995.
Since coming to the parcel in 1992, the Gamboas used the gravel road as a
driveway to access their home and some of their alfalfa crop. The Gamboas have
occasionally bladed the road and on one occasion applied gravel to maintain its
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condition. When the Clarks came to their parcel in 1995, they used the road to farm
grapes, including watering the grape plants and spraying for weeds. The trial court
found that "[t]he Gamboas and the Clarks both used the roadway as described above
without any disputes until2008. Each party was aware of the other's use of the
roadway, but no one objected to the other's use until a dispute arose in 2008." Clerk's
Papers (CP) at 195.
A dispute arose in 2008 over the Gamboas' dogs and the Clarks' irrigation
practices, and "it eventually escalated into a dispute over which of them owned the
land on which the roadway was situated." !d. Land surveys revealed that a small
portion of the gravel road (the portion where it connects with East Allen Road) is on
the Gamboas' property, but that the rest of the gravel road is on the Clarks' property
until the road reaches an area where the Gamboas have an express easement over the
Clarks' property (the express easement dating back to 1964 when the parent parcel
was split).
At trial, the trial court listed the elements for a prescriptive easement as
follows:
that the claimaint's use must be adverse to the right of the owner of the
servient parcel; that the use by the claimant be open, notorious,
continuous, hostile and uninterrupted over the prescriptive period of ten
years, and that the servient owner has knowledge of such use at the time
when he or she would be able at law to assert and enforce his or her
rights.
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Id. at 196. The trial court noted that "the primary element in dispute ... is whether
the use by the Plaintiffs Gamboa was 'adverse' to the rights of the Defendants Clark
over a period of at least ten years." !d. at 196-97. The court defined "adverse use" as
follows: "A claimant's use is adverse unless the property owner can show that the use
was permissive." Id. at 197. It found "that Mr. Clark did not give the Gamboas[]
express or implied permission to use the road, and therefore, the use of the road was
adverse." Id. Additionally, the court concluded that the Gamboas' land use was
adverse "[i]n view of the fact that the use made of the roadway ... by the Plaintiffs
Gamboa was 'open, notorious, continuous, uninterrupted,' and in a fashion that a true
owner would use his own land, all for more than a ten-year period." !d. at 198
(quoting Nw. Cities Gas Co. v. W. Fuel Co., 13 Wn.2d 75, 85, 123 P.2d 771 (1942)).
The Court of Appeals reversed, concluding that the trial court applied the
wrong legal presumption and burden of proof regarding adverse use. Gamboa v.
Clark, 180 Wn. App. 256, 280-82, 321 P.3d 1236 (2014). The Court of Appeals held
that the trial court erred by applying a presumption that the claimant's use is adverse
unless the property owner can show it was permissive. Id. at 280-81. Instead, the
Court of Appeals cited Northwest Cities for the proposition that the initial
presumption is that the claimant's use is permissive and the claimant can shift the
presumption from permissive use to adverse use depending on the facts. !d. at 267.
The Court of Appeals cited this court's decisions in Roediger v. Cullen, 26 Wn.2d
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690, 175 P.2d 669 (1946), and Cuillier v. Coffin, 57 Wn.2d 624,358 P.2d 958 (1961),
however, to say that the presumption of permissive use will not shift to adverse use if
the evidence supports a reasonable inference of neighborly accommodation or if the
evidence demonstrates noninterfering use of a roadway constructed by the
landowners' predecessor. Gamboa, 180 Wn. App. at 282. Here, the Court of Appeals
found the evidence supported a reasonable inference of neighborly accommodation
and demonstrated noninterfering use of a roadway constructed by the Clarks'
predecessor. !d. Thus, the court held that those inferences prevented the presumption
of permissive use from shifting to a presumption of adverse use. !d.
We granted discretionary review. Gamboa v. Clark, 181 Wn.2d 1001, 332 P.3d
984 (2014).
ISSUE
Is there an initial presumption that a claimant's use of land is permissive in
prescriptive easement cases?
ANALYSIS
The seminal case on prescriptive easements is Northwest Cities, 13 Wn.2d 75.
In that case, we articulated a set of principles about prescriptive easements by looking
to both our case law and scholarly texts. See id. at 82-86. Although we did not
originally intend the principles to be a "compendium of the general law of
easements," id. at 88, we have reaffirmed many of those principles, calling them
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"fundamental propositions" that are "binding upon us." Roediger, 26 Wn.2d at 706.
The propositions relevant to this case are as follows.
"Prescriptive rights ... are not favored in the law, since they necessarily work
corresponding losses or forfeitures of the rights of other persons." Nw. Cities, 13
Wn.2d at 83. To establish a prescriptive easement, the person claiming the easement
must use another person's land for a period of 10 years and show that (1) he or she
used the land in an "open" and "notorious" manner, (2) the use was "continuous" or
"uninterrupted," (3) the use occurred over "a uniform route," (4) the use was
"adverse" to the landowner, and (5) the use occurred "with the knowledge of such
owner at a time when he was able in law to assert and enforce his rights." Id. at 83,
85. Whether the Gamboas' use was adverse is the sole issue in this case.
The claimant bears the burden of proving the elements of a prescriptive
easement. Id. at 84. We review whether a claimant has established those elements as
a mixed question of law and fact. Petersen v. Port ofSeattle, 94 Wn.2d 479,485, 618
P.2d 67 (1980). A trial court's factual findings are reviewed for abuse of discretion; a
trial court's "conclusion that the facts, as found, constitute a prescriptive easement" is
reviewed de novo. Lee v. Lozier, 88 Wn. App. 176, 181, 945 P.2d 214 (1997).
1. Adverse Use and the Presumption ofPermissive Use
We generally interpret adverse use as meaning that the land use was without
the landowner's permission. See, e.g., Roediger, 26 Wn.2d at 707. There is no
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requirement that the claimant believe he or she owns the property to establish adverse
use-a claimant's subjective intent is irrelevant. Dunbar v. Heinrich, 95 Wn.2d 20,
27, 622 P.2d 812 (1980); see Chaplin v. Sanders, 100 Wn.2d 853, 860-61, 676 P.2d
431 (1984) (abandoning a subjective intent requirement to establish hostility, i.e.,
adversity, in adverse possession cases). That being said, we start with the
presumption that when someone enters onto another's land, the person "does so with
the true owner's permission and in subordination to the latter's title." Nw. Cities, 13
Wn.2d at 84. However, we have limited the presumption of permissive use to three
factual scenarios. First, the presumption applies to cases involving unenclosed land.
See Roediger, 26 Wn.2d at 710-11 (saying that "[i]fit be true that the lands are
un[ e]nclosed, the presumption is that the use was permissive, and, therefore, that no
easement was acquired"). Second, the presumption applies to enclosed or developed
land cases in which "it is reasonable to infer that the use was permitted by neighborly
sufferance or acquiescence." !d. at 707. Third, the presumption applies when the
evidence demonstrates that the owner of the property created or maintained a road and
his or her neighbor used the road in a noninterfering manner. Cuillier, 57 Wn.2d at
627. The claimant may defeat the presumption of permissive use "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." Nw. Cities, 13 Wn.2d at 87.
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Our decision in Roediger used the word "impl[ying]" permissive use
interchangeably with the word "presumption" of permissive use, and it has caused
confusion and led to a split in the Court of Appeals. 26 Wn.2d at 707-11. Division
One has strictly limited the presumption of permissive use to vacant and unenclosed
land cases-in all enclosed and developed land cases, it has held that courts may infer
permission only if the record "support[s] a reasonable inference of permissive use."
Drake v. Smersh, 122 Wn. App. 147, 153-54, 89 P.3d 726 (2004). Differently, in this
case, Division Three broadly held that a presumption of permissive use applies to all
cases, regardless of whether the land is enclosed or developed. Gamboa, 180 Wn.
App. at 268.
The confusion over a use being implied or presumed permissive is compounded
by another presumption rule from Northwest Cities in which a court can find a
person's land use "permissive in its inception." 13 Wn.2d at 84. When a court finds a
use "is permissive in its inception," it "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." Id. A land
use is "permissive in its inception" when a landowner actually gives a claimant
permission to use the land-the claimant's license to use the land can never ripen into
a prescriptive right unless the user distinctly asserts that he or she is using the land as
of right. Bulkley v. Dunkin, 131 Wash. 422, 425, 230 P. 429 (1924), aff'd, 236 P. 3018
Gamboa v. Clark
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(1925). Additionally, we have held that when "the use of [a] pathway [arises] out of
mutual neighborly acquiescence," the use is deemed "permissive in its inception."
Roediger, 26 Wn.2d at 713-14 (emphasis added). This presumption is more difficult
for claimants to rebut because it requires them to distinctly and positively assert a
claim of right. .
2. The Competing Presumption ofAdverse Use
The Court of Appeals did not limit the presumption of permissive use to the
factual scenarios discussed above. Instead, it found that an initial presumption of
permissive use applies in every case and that a competing presumption of adverse use
can potentially apply in every case. Gamboa, 180 Wn. App. at 267-68. In Northwest
Cities, we said that a presumption of adverse use can be created when a claimant
meets all of the elements of a prescriptive easement other than adverse use "unless
otherwise explained." 13 Wn.2d at 85. The Court of Appeals interpreted that
language as saying that certain "explanations" or factual scenarios will prevent the
shift from a use being presumed permissive to being presumed adverse. Gamboa, 180
Wn. App. at 267-68. The three scenarios that the Court of Appeals stated would
prevent this shift are the same three scenarios that prescribe the presumption of
permissive use, as discussed above. See id. at 270-72 (listing vacant and unenclosed
land cases, cases where there is a reasonable inference of neighborly accommodation,
and cases where the property at issue is a road constructed by the servient owner used
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in common with the claimant). However, in a later case, we questioned whether this
competing presumption of adverse use is actually a "presumption." See Cuillier, 57
Wn.2d at 627 (stating that "a more accurate statement" of the law is that there are
"circumstance[s] from which an inference may be drawn that the use was adverse").
That discrepancy is an academic question in this case, and we leave it for another day.
Here, we must determine whether there is a presumption of permissive use under our
precedent.
3. An Initial Presumption ofPermissive Use Applies to Enclosed or Developed
Land Cases in Which There Is a Reasonable Inference ofNeighborly
Sufferance or Acquiescence
We find that our case law, particularly our Roediger decision, and policy
considerations support applying an initial presumption of permissive use to enclosed
or developed land cases in which there is a reasonable inference of neighborly
sufferance or acquiescence. In Roediger, a group of claimants sought a prescriptive
easement to use a footpath over the land of beachfront homeowners on Vashon Island
that they had used for roughly 30 years. 26 Wn.2d at 691-92, 700. The path was
located between the beach and the homes. !d. at 692. The path was created by
"neighborly usage," and none of the persons claiming an easement had ever asked for
or received permission to cross the property of the homeowners. !d. at 692, 697. We
"suspect[ed] that all the properties involved in this case [were] un[e]nclosed," but we
did "not decide the case on that theory." !d. at 710-11. We rejected a presumption of
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adverse use in this scenario, saying it "completely disregards the well-established rule
that permissive use may be implied." !d. at 707. We said that although the rule of
inferring permissive use "has been chiefly applied in cases involving un[ e]nclosed
lands, ... it is applicable to any situation where it is reasonable to infer that the use
was permitted by neighborly sufferance or acquiescence." !d. That language about
"inferring" or "implying" permission notwithstanding, we also said that there is a
presumption of permissive use whenever there is a reasonable inference of neighborly
accommodation. !d. at 711 ("'where persons traveled the private road of a neighbor in
conjunction with such neighbor and other persons, nothing further appearing, the law
presumes such use was permissive, and the burden is on the party asserting a
prescriptive right to show that his use was under claim of right and adverse to the
owner of the land."' (quoting 2 GEORGE W. THOMPSON, COMMENTARIES ON THE
MODERN LAW OF REAL PROPERTY§ 521, at 106 (perm. ed. 1939))).
Considering the facts of the case, we went on to hold that the claimants' use
was "permissive in its inception" because we found a reasonable inference that "the
use of the pathway arose out of mutual neighborly acquiescence." !d. at 713
(emphasis added). Because we deemed the use permissive in its inception, we applied
the stronger presumption of permissive use, requiring the claimants to put forth
evidence that they made a positive assertion that they claimed to use the path as of
right. !d. at 713-14. We determined that the claimants failed to provide any evidence
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that they "ever made a positive assertion to the [landowners] ... that [they] claimed to
use the path as of right," and we therefore held that the claimants failed to show
adverse use. !d. at 714.
We discussed policy considerations that uniformly supported applying a
presumption of permissive use. We said,
"The law should, and does encourage acts of neighborly courtesy; a
landowner who quietly acquiesces in the use of a path, or road, across his
uncultivated land, resulting in no injury to him, but in great convenience
to his neighbor, ought not to be held to have thereby lost his rights. It is
only when the use of the path or road is clearly adverse to the owner of
the land, and not an enjoyment of neighborly courtesy, that the
landowner is called upon 'to go to law' to protect his rights."
!d. at 709 (quoting Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2, 3 (1926)). Applying a
presumption of permissive use incentivizes landowners to allow neighbors to use their
roads for the neighbors' convenience. We do not want to require a landowner "to
adopt a dog-in-the-manger attitude in order to protect his title to his property." State
ex rei. Shorett v. Blue Ridge Club, Inc., 22 Wn.2d 487, 495-96, 156 P.2d 667 (1945).
Not applying a presumption of permissive use in these circumstances punishes a
courteous neighbor by taking away his or her property right.
The Gamboas' Argument That the Presumption ofPermissive Use Is
Limited to Unenclosed Land Cases Under Roediger and Cuillier Is
Incorrect
The Gamboas primarily rely on Roediger and Cuillier to support their argument
that there is no presumption of permissive use in enclosed or developed land cases.
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They contend that permission or adversity is a question of fact for the trier of fact to
infer from the circumstances of the case. However, they misinterpret the holdings
from Roediger and Cuillier.
First, the Gamboas contend that Roediger did not apply the presumption of
permissive use that is ordinarily applicable in vacant land cases, but rather held
narrowly that a "use that is permissive in its inception cannot become adverse until 'a
distinct and positive assertion of a right hostile to the owner' is 'brought home to [the
servient owner].'" Suppl. Br. ofPet'rs at 9 (alteration in original) (quoting Roediger,
26 Wn.2d at 714). They fail to recognize, though, that in Roediger, we also stated that
there is a presumption of permissive use whenever there is a reasonable inference of
neighborly accommodation. 26 Wn.2d at 711 ('"where persons traveled the private
road of a neighbor in conjunction with such neighbor and other persons, nothing
further appearing, the law presumes such use was permissive, and the burden is on the
party asserting a prescriptive right to show that his use was under claim of right and
adverse to the owner of the land."' (quoting THOMPSON, supra, § 521, at 106)). The
"permissive in its inception" discussion occurred in the context of our finding that the
evidence supported a reasonable inference that the land use arose out of, or resulted
from, neighborly sufferance and acquiescence. !d. at 707, 713-14. That finding
created a stronger presumption of permissive use than would be typical in neighbor
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accommodation cases. See id. Thus, the petitioners misinterpret Roediger-Roediger
does not limit the presumption of permissive use to vacant and unenclosed land cases.
Second, the Gamboas' reliance on Cuillier is misguided. Cuillier does not limit
the presumption of permissive use to unenclosed land cases-to the contrary, it
recognizes an additional factual scenario in which the presumption of permissive use
is appropriate. 57 Wn.2d at 627. Cuillier primarily limits the competing presumption
of adverse use, and thus the main focus of Cuillier is irrelevant to this case. In
Cuillier, the claimants wanted to use a landowner's orchard road. I d. at 625. The
claimants argued that because they used the road for the prescriptive period without
permission, "there was a presumption that their use was adverse and that the burden
was then upon the owner to show the use was permissive." Id. at 626. We called the
rule presuming adverse use into doubt, saying, "We think, however, a more accurate
statement, based on the results and holdings in all of our cases, would be that such
unchallenged use for the prescriptive period is a circumstance from which an
inference may be drawn that the use was adverse." Id. at 627. However, we also
recognized that there is a presumption of permissive use when the evidence
demonstrates that the owner of the property created or maintained a road and his or
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her neighbor used the road in a noninterfering manner. 1 !d. Thus, the core portion of
Cuillier that is about "inferences" applies only to the competing presumption of
adverse use and is irrelevant to this case. Further, Cuillier actually recognizes a
scenario (in addition to unenclosed land cases) in which a presumption of permissive
use is appropriate.
Thus, the petitioners misinterpret Roediger and Cuillier. We hold that an initial
presumption of permissive use applies to enclosed or developed land cases in which
there is a reasonable inference of neighborly sufferance or acquiescence.
4. The Evidence Supported a Reasonable Inference of Neighborly Sufferance
or Acquiescence
What constitutes a reasonable inference of neighborly sufferance or
acquiescence is a fairly low bar. As discussed above, we have cited the following as
an example of a neighborly accommodation: '"persons travel[ing] the private road of
a neighbor in conjunction with such neighbor and other persons, nothing further
appearing."' Roediger, 26 Wn.2d at 711 (quoting THOMPSON, supra,§ 521, at 106).
Again, that case involved people using a private footpath over homeowners'
beachfront property without express permission in conjunction with the homeowners.
1
Unlike the Court of Appeals below, we do not find that this presumption from Cuillier
applies to this case. Here, the record does not demonstrate that the Clarks or their
predecessor (the Slouins) created or maintained the gravel road. The road preexisted both
the Clarks and Gamboas coming to the property.
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Jd. at 691-92, 697-98. We inferred from those facts "no more than the usual
accommodation between neighbors." Jd. at 712.
Here, there is a similar reasonable inference of the usual accommodation
between neighbors. The trial court found that the Gamboas used the road as a
driveway to access their home and that the Clarks used it to farm grapes. Both the
Gamboas and Clarks "used the roadway as described above without any disputes until
2008. Each party was aware of the other's use of the roadway, but no one objected to
the other's use until a dispute arose in 2008." CP at 195. Like the example in
Roediger, here the Gamboas and Clarks are neighbors and they used the road for their
own purposes in conjunction with each other without incident. Thus, we find a
reasonable inference of neighborly sufferance or acquiescence.
5. The Gamboas Failed To Overcome the Presumption ofPermissive Use
As mentioned above, a claimant may defeat the presumption of permissive use
when the facts demonstrate ( 1) "the user was adverse and hostile to the rights of the
owner, or" (2) "the owner has indicated by some act his admission that the claimant
has a right of easement." Nw. Cities, 13 Wn.2d at 87 (citing THOMPSON, supra,§ 523,
at 111 ). For a claimant to show that land use is "adverse and hostile to the rights of
the owner" in this context, the claimant must put forth evidence that he or she
interfered with the owner's use of the land in some manner. See id. at 90-91 (finding
that the claimant's direct predecessor's acts of laying out a "definite road across the
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premises" and regularly improving and maintaining the road were sufficient to
indicate a hostile intent to the owner's rights and use of the property).
Here, the Gamboas cannot demonstrate either that they interfered with the
Clarks' use of the driveway or that the Clarks indicated that the Gamboas had an
easement over the driveway. The Gamboas' occasional blading of the road did not
interfere with the Clarks' use of the road in any manner because the Clarks used the
road as a road (to access their grape plants). Indeed, the trial court found that both
parties "used the roadway ... without any disputes until2008. Each party was aware
of the other's use of the roadway, but no one objected to the other's use until a dispute
arose in 2008." CP at 195. The fact that the Gamboas thought they owned the road
was irrelevant. Dunbar, 95 Wn.2d at 27. Thus, the Gamboas failed to overcome the
presumption of permissive use because they did not demonstrate a use that was
adverse and hostile to the rights of the Clarks, and they did not demonstrate that the
Clarks indicated that they had an easement.
CONCLUSION
Regarding the "adverse use" element in prescriptive easement cases, our
precedent supports applying an initial presumption of permissive use to enclosed or
developed land cases in which there is a reasonable inference of neighborly sufferance
or acquiescence. We find that the evidence supports a reasonable inference of
neighborly sufferance or acquiescence because the Gamboas and Clarks both used the
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road for their own purposes in conjunction with each other without incident. The
Gamboas failed to overcome the presumption of permissive use. Accordingly, the
Gam boas failed to establish a prescriptive easement, and we affirm the Court of
Appeals.
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WE CONCUR:
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