Kunkel v. Fisher
Kunkel v. Fisher
Opinion of the Court
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.
The requirements to establish a prescriptive easement are the same as those to establish adverse possession.
Under the doctrines of both prescriptive easement and adverse possession, a use is not adverse if it is permissive.
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.
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
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
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.
Review denied at 145 Wn.2d 1010 (2001).
17 William B. Stoebuck, Washington Practice: Real Estate § 2.7, at 98 (1995); 25 Am. Jdr. 2d Easements and Licenses § 57, at 624 (1996).
See 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 subcomponents 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.
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).
See Chaplin, 100 Wn.2d at 862; Gray v. McDonald, 46 Wn.2d 574, 283 P.2d 135 (1955).
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).
Miller, 91 Wn. App. at 828.
See Lingvall, 97 Wn. App. at 251 (quoting Roediger v. Cullen, 26 Wn.2d 690,
Stoebuck, supra note 1, § 2.7, at 98; see also 25 Am. Jue. 2d Easements and Profits § 45 (1996) (originally easements were incorporeal hereditaments said to he in grant); 3 Am. Jub. 2d Adverse Possession § 1 (1986) (adverse possession is a mode of acquiring title).
Chaplin, 100 Wn.2d at 859-60.
28A C.J.S. Easements § 14 (1996).
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).
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.
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
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.
See Chaplin, 100 Wn.2d at 863 (stating whether the facts as found constitute adverse possession is a question of law).
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)).
Reference
- Full Case Name
- John Kunkel v. Thomas J. Fisher
- Cited By
- 37 cases
- Status
- Published