Opinion
No. 51809-7-I.
Filed: March 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County. Docket No: 01-2-00775-3. Judgment or order under review. Date filed: 12/27/2002. Judge signing: Hon. John M Meyer.
Counsel for Appellant(s), K. Garl Long, Attorney At Law, 1215 So. 2nd St. Ste a, Mount Vernon, WA 98273-4801.
Counsel for Respondent(s), William Reed Allen, Attorney at Law, 120 Woodworth St, PO Box 437, Sedro Woolley, WA 98284.
John Sullivan and Rose Sullivan (Sullivan) and Merl and Myra Benton (Benton) brought an action in Skagit County Superior Court contending that they had acquired an easement by prescription to maintain a water system located on real property owned by Jules Zinter. The trial court entered judgment quieting title in the easement in favor of Sullivan and Benton. Zinter appeals. The trial court's findings of fact are supported by the record, and these findings in turn support the trial court's conclusion that Sullivan and Benton had met the elements of a prescriptive easement for more than ten years. Their use was adverse, open, notorious, continuous, uninterrupted, and Zinter knew or should have known of the use. Sullivan and Benton used the water system as their own, disregarded the claims of others, and sought permission from no one. Zinter's claim that the use constituted a nuisance is without merit. The judgment of the trial court is therefore affirmed.
FACTS
Beginning in at least 1942, the residents of Rockport, Washington had used a rudimentary water system to supply water to their homes. This system was maintained by various residents of the town. Up until 1975, the residents had paid a monthly fee of $2 to those who maintained the system, and from 1975 on, community members maintained the system free of charge. The water system intersects an unnamed creek located on the Zinter property. The system located on the Zinter's property on this creek includes a trough that directs water from the creek into a screening barrel and then into a storage barrel. Pipes connected to the barrels carry water from the creek under Highway 20 to the properties owned by the residents of Rockport, including the plaintiffs.
In 1990, the Skagit County Public Utility District determined that the water conveyed by this water system was unfit for public consumption. The residents of Rockport were therefore required to connect into the P.U.D. system, and to pay for the water supplied by the P.U.D. Due to the cost, many residents of Rockport continued to use the water supplied by the old system for purposes other than drinking water, such as watering lawns and gardens, washing cars, and so forth.
In 1978, Zinter bought the property on which the unnamed creek and the trough, barrels, and other components of the water system are located. It was undisputed at trial that Zinter owned the water rights on the property. According to Zinter, it did not appear to him that the water system was operable at the time he purchased the property. But according to the plaintiffs and their witnesses, they had used the system continuously. They testified that they had gone onto the property to maintain the system regularly. For example, at times the water flow would diminish due to being stopped up with leaves or gravel, and when they cleaned out the system located on Zinter's property, the water would begin flowing normally again.
In 1982, Zinter wrote a letter to the residents of Rockport telling them that he would charge them for using the water system. He then reconsidered his request and apparently took no further action for over a decade. Zinter moved onto the property in 1996 and, according to his testimony at trial, found that new equipment was installed on the unnamed creek. He saw that the system was carrying water through a pipeline under the highway. Zinter disconnected the water supply. Someone came onto the property and reconnected the system. Zinter disconnected the system again and put up a no trespassing sign. That sign was torn down and the system was reconnected again. This back and forth of Zinter disconnecting the system and others in the community reconnecting the system went on for a period of years. Finally, Zinter put up a sign asking whoever was repairing the system to contact him. Shortly thereafter, in June of 1999, plaintiff Sullivan contacted Zinter. Since their discussion, the old water system had not been repaired, and had remained inoperable.
Plaintiffs Sullivan and Benton brought an action for a prescriptive easement. Following a trial, the court below concluded that the plaintiffs held a prescriptive easement for purposes of maintaining, repairing, and replacing the old water system on Zinter's property, and quieted title to the easement in plaintiffs. This appeal follows.
DISCUSSION
To establish a prescriptive easement, the claimant must show: (1) use adverse to the right of the servient owner; (2) open, notorious, continuous, and uninterrupted use for the entire prescriptive period; and (3) knowledge of such use by the owner at a time when he was able to assert and enforce his rights. Dunbar v. Heinrich, 95 Wn.2d 20, 22, 622 P.2d 812 (1980). The prescriptive period in Washington is 10 years. Todd v. Sterling, 45 Wn.2d 40, 42, 273 P.2d 245 (1954). A use of property at its inception is presumed to be permissive. Crites v. Koch, 49 Wn. App. 171, 177, 741 P.2d 1005 (1987) (citing Petersen v. Port of Seattle, 94 Wn.2d 479, 486, 618 P.2d 67 (1980)). The inference of permissive use applies whenever it may reasonably be inferred that the use stemmed from neighborly sufferance and acquiescence. Crites, 49 Wn. App. at 177 (citing Roediger v. Cullen, 26 Wn.2d 690, 707, 175 P.2d 669 (1946)). Possession is adverse if a claimant uses property as if it were his own, entirely disregards the claims of others, asks permission from nobody, and uses the property under a claim of right. Crescent Harbor Water Co., Inc. v. Lyseng, 51 Wn. App. 337, 341, 753 P.2d 555 (1988) (quoting Malnati v. Ramstead, 50 Wn.2d 105, 108, 309 P.2d 754 (1957)).
The facts of this case are similar to those in Crescent Harbor. In that case, in 1969 a nonprofit corporation organized to own and maintain an existing water supply system. A well, pump, and pipes located on the parcel of real property in question served the water system. That property was initially owned by some of the founders of the nonprofit corporation. Property owners using the water system paid fees to the nonprofit corporation. When new owners purchased the property in question in 1982, the nonprofit did not seek permission from the new owners to use or access the water system. The property was sold again in 1985. Representatives of the nonprofit corporation contacted the most recent owners of the property in 1987 and asked for an easement to maintain the water system, but the owner refused.
The nonprofit corporation brought an action for declaratory judgment. The trial court entered a judgment of easement for the well and water system and for access thereto in favor of the nonprofit corporation. The appellate court affirmed. The court's opinion stands for two propositions relevant to this case.
First, Crescent Harbor holds that the existence, or lack thereof, of water rights in a parcel of property is irrelevant to the determination of whether a prescriptive easement exists:
Lyseng's water rights arguments overlook the differences between a determination of easement and a determination of a claim for water rights. The former, as applied to this case, concerns a well, pipes, pumping apparatus and access thereto. The latter concerns the water that flows within the well and pipes. The two subjects are physically distinct. The two subjects are also legally distinct. An easement is a privilege to use the land of another. It is a private legal interest in another's property. Water rights claims are limited to a determination by the Department of Ecology as to whether a water use permit should be granted and to whom. Water rights claims do not and cannot involve property interest questions, as the Department of Ecology has no authority to adjudicate private rights in land
We hold that the water rights statutes cited by Lyseng are irrelevant to Crescent Harbor's claim of easement.
Crescent Harbor, 51 Wn. App. at 340 (citations omitted). Thus, under Crescent Harbor, the fact that the plaintiffs had no water rights does not defeat their claim for an easement to maintain the old water system.
Crescent Harbor also stands for the proposition that even if the use is initially permissive, it may ripen into a prescriptive easement if the user makes a distinct, positive assertion of a right adverse to the property owner. Crescent Harbor, 51 Wn. App. at 341 (citing Washburn v. Esser, 9 Wn. App. 169, 171, 511 P.2d 1387 (1973)). This case differs from Crescent Harbor in that here, the users of the water system had not gone so far as to formalize their use by forming a nonprofit corporation to operate and maintain the system. But the use and maintenance here was of an equivalent length and intensity as in Crescent Harbor, and, as in that case, the claimants used the property as if it were their own, entirely disregarded the claims of others, asked permission from nobody, and used the property under a claim of right. Their use was open, notorious, continuous, and uninterrupted until 1996.
Zinter claims on appeal that the major diversion points for the old water system were actually located on other creeks. But this was not the testimony at trial. The testimony at trial supported the trial court's finding that the water system on the unnamed creek on Zinter's property, consisting of the trough and barrels connected to pipes running under the highway, served the old water system as a whole. This finding is supported by Zinter's own testimony, wherein he describes disconnecting the system at that point, which resulted in the water supply being cut off.
The trial court concluded that the plaintiffs had met their burden of establishing a prescriptive easement at a minimum from the years of 1982 to 1996. Zinter clearly knew that the residents of Rockport were using the water system as of at least 1982, because at that time he proposed to begin charging them for the use. By his own testimony, he withdrew his request for payment not because he acquiesced in the use of the system, but because it would not be feasible to meter usage or to collect fees. And it was not until 1996 that he began disconnecting the water system.
Zinter claims that the plaintiffs' use during this time was not continuous. But the plaintiffs and their witnesses testified that they went onto the property as often as needed to maintain the system. The trial court did not err in finding that the use was continuous for a ten-year prescriptive period.
Somewhat disingenuously, Zinter argues on the one hand that he was unaware of the use of the land, and on the other that the use was permissive. Neither argument is well taken. He was clearly aware of the use, because he proposed to charge for the use of the water system. By the same token, the plaintiffs' use of the system was clearly not permissive. Rather, they disregarded the claims of others, sought permission from no one to use the land, and used the property under a claim of right. This is demonstrated by the fact that when Zinter attempted to bill them, they simply threw his demand letter away. They continued using the land until Zinter physically prevented them from the use of the water system, and they then brought the instant action. The trial court did not err in concluding that the plaintiffs had overcome the presumption that their use of Zinter's property was permissive.
Zinter also claims that the trial court erred in granting a prescriptive easement because no uniform route had been established. It does not appear from the record before us that Zinter raised this argument below. There was some testimony about how one would access the water system. The trial court allowed the parties to negotiate the precise path of the easement so that the Zinter property could remain as undisturbed as possible. We find no error here.
Finally, Zinter argues that the plaintiffs' action constituted a public nuisance. A public nuisance cannot become legal by prescription. RCW 7.48.190. Citing to RCW 7.48.140, Zinter claims that the diversion of water without lawful authority is a public nuisance. But the statute does not so provide. Rather, RCW 7.48.140(3) provides that it is a public nuisance to `obstruct or impede, without legal authority, the passage of any river, harbor, or collection of water.' Citing to Elves v. King County, 49 Wn.2d 201, 299 P.2d 206 (1956), Zinter claims that the plaintiffs committed a nuisance because they diverted polluted water. But while the trial court found that the water in the old water system was not fit for human consumption, it entered no findings to suggest that the water was `polluted.' Zinter has not established that the plaintiffs' actions constituted a nuisance.
The judgment of the trial court is affirmed.
GROSSE and KENNEDY, JJ., concur.