Opinion
No. 26549-8-III.
July 31, 2008.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 06-2-00901-1, Donald W. Schacht, J., entered October 2, 2007.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Kulik, A.C.J., and Sweeney, J.
Tomkins-Flowers, LLC (Tomkins-Flowers) appeals the trial court's dismissal of its prescriptive easement complaint against Counterpoint Design Development, LLC (Counterpoint). They challenge the court's determination that they did not establish the elements required to prove a prescriptive easement and that they were not entitled to an easement under color of title. The record supports the trial court's findings and its judgment. Accordingly, we affirm.
Tomkins-Flowers and Counterpoint own adjoining parcels of land in Walla Walla. Tomkins-Flowers's parcel is situated on the western corner of Main Street and Colville Street. Counterpoint's parcel lies adjacent to and southwest of the Tomkins-Flowers's parcel. Both parcels of land house commercial buildings owned by the parties. The Red Apple Restaurant once operated in the building now owned by Tomkins-Flowers.
After Tomkins-Flowers purchased the property, they removed the rear entrance to its building and installed a large garage door. Tomkins-Flowers then began to cross Counterpoint's rear parking lot to enter their garage. On December 19, 2006, Counterpoint barricaded the perimeter of its property with concrete blocks and a fence. Tomkins-Flowers then filed suit to establish a prescriptive easement or easement under color of title across Counterpoint's parking lot. Following a bench trial, the trial court determined that neither easement was established. Tomkins-Flowers appeals.
We review the trial court's decision following a bench trial to determine whether the findings are supported by substantial evidence and whether those findings support the conclusions of law. Dorsey v. King County, 51 Wn. App. 664, 668-669, 754 P.2d 1255, review denied, 111 Wn.2d 1022 (1988). Substantial evidence is the quantum of evidence sufficient to persuade a rational, fair-minded person the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). In determining the sufficiency of evidence, an appellate court need only consider evidence favorable to the prevailing party. Bland v. Mentor, 63 Wn.2d 150, 155, 385 P.2d 727 (1963). In evaluating the persuasiveness of the evidence and the credibility of witnesses, we must defer to the trier of fact. Burnside v. Simpson Paper Co., 123 Wn.2d 93, 108, 864 P.2d 937 (1994). "[C]redibility determinations are solely for the trier of fact [and] cannot be reviewed on appeal." Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003). Unchallenged findings of fact are also verities on appeal. In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004); RAP 10.3(g). We review questions of law de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879-880, 73 P.3d 369 (2003).
Tomkins-Flowers first challenges the trial court's conclusion that they did not establish a prescriptive easement across Counterpoint's property. They specifically argue that the court's findings of fact do not support this conclusion. Whether the court's findings support its conclusions is a question of law. Dickson v. Kates, 132 Wn. App. 724, 730, 133 P.3d 498 (2006).
To establish a prescriptive easement, Tomkins-Flowers must prove their use of the servient land is: (1) open and notorious, (2) over a uniform route, (3) continuous and uninterrupted for 10 years, (4) adverse to the owner of the land, and (5) with the owner having knowledge of the use at a time when he or she was able to assert and enforce his or her rights. Mountaineers v. Wymer, 56 Wn.2d 721, 722, 355 P.2d 341 (1960). Tomkins-Flowers argues that the court erred by finding that they failed to prove that their use of Counterpoint's property was adverse or hostile rather than permissive and that the use was not over a uniform route. Both findings are amply supported in the record and justify the bench verdict.
Prescriptive rights are not favored. Roediger v. Cullen, 26 Wn.2d 690, 706, 175 P.2d 669 (1946). A claimant who proves that its use of the land of another has been open, notorious, continuous, and uninterrupted for 10 years creates the presumption of adverse use. Nw. Cities Gas Co. v. Western Fuel Co., 13 Wn.2d 75, 83, 123 P.2d 771 (1942). The mere use of the lands of another without express permission does not by itself establish a prescriptive right. Roediger, 26 Wn.2d at 710.
Use of an easement is not adverse if it is permissive. Kunkel v. Fisher, 106 Wn. App. 599, 602, 23 P.3d 1128, review denied, 145 Wn.2d 1010 (2001). Whether the use of an alleged prescriptive easement is adverse or permissive is a question of fact, but the nature of the use may be a question of law if the essential facts of the case are undisputed. Lingvall v. Bartmess, 97 Wn. App. 245, 250, 982 P.2d 690 (1999). The person to be benefited by the prescriptive right has the burden of proving the prescriptive right. Nw. Cities Gas Co., 13 Wn.2d at 84.
At its inception, the use of a property is presumed to be permissive. Petersen v. Port of Seattle, 94 Wn.2d 479, 486, 618 P.2d 67 (1980). In Washington, a claimant's use is adverse if he or she uses the property as a true owner would, under a claim of right, without regard for the claims of others, and without asking permission for the use. Kunkel, 106 Wn. App. at 602. Under these circumstances, there is a presumption that the use is adverse and the owner must rebut the presumption by showing that the use was permissive. Nw. Cities Gas Co., 13 Wn.2d at 85. However, "[i]n developed land cases, when the facts in a case support an inference that use was permitted by neighborly sufferance or accommodation, a court may imply that use was permissive and accordingly conclude the claimant has not established the adverse element of prescriptive easements." Drake v. Smersh, 122 Wn. App. 147, 154, 89 P.3d 726 (2004).
In Kunkel, a neighboring property owner sought a prescriptive easement in an area adjacent to his property over which he drove his trucks to reach a parking area at the rear of his property. There was significant evidence in the record that the property owner discussed using the easement with the adjacent property owner's predecessors in interest, who gave him permission to drive over the property and that the current property owners were very accommodating about the use. Based on this evidence, the court found that the use was permissive or, at a minimum that the property owners acquiesced in it and that the property owner did not establish a factual basis for his prescriptive easement claim. Kunkel, 106 Wn. App. at 601.
Here, as in Kunkel, the facts support the trial court's determination that Tomkins-Flowers's use of the property was permissive. Although there was no evidence that Tomkins-Flowers or its predecessors ever asked for permission to use the property, there was evidence that Counterpoint's predecessors were aware that their property was often used to accept deliveries to the Red Apple Restaurant and that they were very accommodating of this use — only asking that the restaurant's employees and customers, as well employees of other businesses in the building, not park their cars on its property. Moreover, Craig Richards, a tenant of Counterpoint's predecessors, stated that he did not know which property belonged to which owner, but that "everybody's vehicles freely came and went through that alley. All the delivery vehicles did." Mutual use of an area by neighbors supports an inference of permissive use because it is assumed that the owner is permitting his or her neighbor to use the road as a neighborly accommodation. See Cuillier v. Coffin, 57 Wn.2d 624, 627, 358 P.2d 958 (1961).
The evidence thus was sufficient to raise the inference that the use of Counterpoint's property by Tomkins-Flowers's predecessors was permitted by neighborly sufferance or acquiescence. The evidence supported the court's finding that prior use of the property was permissive. Thus, the trial court also properly concluded that Tomkins-Flowers failed to establish that their use of the property was adverse.
Tomkins-Flowers next claims that the trial court erred by finding that they did not establish the elements of a prescriptive easement because their use of the property was not over a uniform route. But, according to the record, there was no uniform route across Counterpoint's property. At trial, the court heard testimony that there was a "main path" that crossed Counterpoint's parking lot but that there were also two other alternate paths that were used if the main path was blocked by a vendor's delivery truck. Moreover, the owner of the Red Apple Restaurant testified that he did not know whether delivery trucks ever crossed the paved area of Counterpoint's parking lot, because he said that most delivery trucks stopped in the alley next to the parking lot. Finally, there was evidence presented that delivery trucks would park in the alley to unload and then would bring items to the tenants on hand trucks. Based on this testimony, the record supports the finding that there was no uniform route of travel by Tomkins-Flowers's predecessors. Accordingly, the court did not err by concluding that Tomkins-Flowers for this reason also failed to establish a prescriptive easement over Counterpoint's property.
Tomkins-Flowers also contends that the court erred by concluding that they were not entitled to a prescriptive easement under color of title. They claim that the original deed belonging to their predecessors described an easement and "rights of way" over the entire paved portion of Counterpoint's property.
To acquire an easement by prescription under color of title that is a matter of public record, one's use of a portion of the property is regarded as coextensive with the entire tract described in the instrument under which possession is claimed. Yakima Valley Canal Co. v. Walker, 76 Wn.2d 90, 94, 455 P.2d 372 (1969).
But here, nothing in the deed establishes that either an easement or right of way over the paved portion of Counterpoint's property was given to Tomkins-Flowers's predecessors. Only the existing 10-foot easement to access Tomkins-Flowers's property, which the parties do not dispute, is identified in this deed. The court did not err by concluding that Tomkins-Flowers failed to prove the existence of a prescriptive easement under color of title.
The evidence supported both the trial court's factual findings and its conclusion that plaintiff failed to establish the existence of any easements. The prescriptive easement claim failed because prior use was permissive and was not over a uniform route. The color of title claim also was not supported by the evidence. Accordingly, the judgment is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J. and SWEENEY, J., concur.