Magdaleno Gamboa et al. , Petitioners ,
John M. Clark et al. , Respondents
Argued: February 10, 2015.
Kevan T. Montoya and Tyler M. Hinckley (of Montoya Hinckley PLLC ), for petitioners.
Christopher M. Constantine (of of Counsel Inc. ), for respondents.
AUTHOR: Justice Susan Owens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. González, Justice Sheryl Gordon McCloud, Justice Mary I. Yu.
[183 Wn.2d 40] ¶ 1 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.
¶ 2 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. 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 Gamboas 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.
¶ 3 The Gamboas and Clarks own adjoining parcels of land separated by a gravel road in a rural area in Yakima County. The Gamboas 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 [183 Wn.2d 41] in 1992, and the Slouins sold their parcel to the Clarks in 1995.
¶ 4 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 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 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." Clerk's Papers (CP) at 195.
¶ 5 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." Id. 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).
¶ 6 At trial, the trial court listed the elements for a prescriptive easement as follows:
that the claimant'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.
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 [183 Wn.2d 42] period of at least ten years." Id. 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." Id. at 198 (quoting Nw. Cities Gas Co. v. W. Fuel Co., 13 Wn.2d 75, 85, 123 P.2d 771 (1942)).
¶ 7 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. Id. at 267. The Court of Appeals cited this court's decisions in Roediger ...