A typical definition of prescription or adverse use is: “The use of another’s land, in some way in which one might use an easement, if continued for 10 years, creates an easement if the use is (1) actual over a uniform route, (2) open and notorious, (3) hostile, (4) continuous, and (5) exclusive.” The Mountaineers v. Wymer, 56 Wash. 2d 721, 355 P.2d 341 (1960). “Hostility” means that the use of the land was without the owner’s permission; this is all that is required for a trespass.
Use of another’s property that is not hostile occurs when the owner of the property grants permission to a non-owner to use the property. Permission may in some cases be implied. In Roediger v. Cullen, 26 Wash. 2d 690, 175 P.2d 669 (1946), a group of landowners whose lands adjoined each other facing along a beach had long used a footpath that meandered over all their parcels. It was held by the court that the neighbors’ use of the property on which the footpath existed was by neighborly accommodation and not hostile.
The case of Gamboa v. Clark, 183 Wash. 2d 38, 348 P.3d 1214 (2015), provides the analysis by which one can understand the concept of neighborly accommodation. For many years, the Gamboas 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, the Clarks. 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 occasionally bladed the road and on one occasion applied gravel to maintain its 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 Gamboas and the Clarks both used the roadway 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.
The court indicated that the Gamboas would need to prove that their use of the road was a prescriptive use. The primary element of prescriptive use in dispute in this matter was whether the use by the Gamboas was ‘adverse’ to the rights of the Clarks over a period of at least ten years. The court defined “adverse use” as follows: A claimant’s use is adverse unless the property owner can show that the use was permissive.
Prescriptive rights are not favored in the law, since they necessarily work corresponding losses or forfeitures of the rights of other people. The law indicates that 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 Gas Co. v. W. Fuel Co., 13 Wash.2d 75, 84, 123 P.2d 771 (1942). However, this presumption of permissive use has been limited to three factual scenarios, one of which is that 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.
The courts have held that when the use of a pathway arises out of mutual neighborly acquiescence, the use is deemed permissive in its inception.
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.
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 rel. Shorett v. Blue Ridge Club, Inc., 22 Wash.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.
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. 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. In the Gamboa v. Clark case, the Gamboas could not 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 until 2008. 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.
The takeaway from these cases is as follows: Use of another’s property that is not hostile occurs when the owner of the property grants permission to a non-owner to use the property. 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.” 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. Applying a presumption of permissive use incentivizes landowners to allow neighbors to use their roads for the neighbors’ convenience. 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. Neighborly accommodation will be presumed unless something indicates an unneighborly relationship has been exhibited.