§7.4 - Creation of Easements by Prescription

• Jurisdiction: Washington

§7.4 CREATION OF EASEMENTS BY PRESCRIPTION

An easement by prescription is acquired by the exclusive and uninterrupted adverse use and enjoyment of an easement. Miller v. Jarman, 2 Wn.App. 994, 471 P.2d 704, review denied, 78 Wn.2d 995 (1970).

(1) Rationale

It is sometimes said that prescriptive easements rest on the presumption of a grant that has been lost. Anderson v. Secret Harbor Farms, 47 Wn.2d 490, 288 P.2d 252 (1955); Drainage Dist. No. 2 of Snohomish County v. City of Everett, 171 Wash. 471, 18 P.2d 53 (1933). Historically, the basis of an easement by prescription was the fiction that at some point in the past (so long ago that the memory of man ran not to the contrary of the use), a grant had been made by the owner of the servient parcel to the dominant owner. The elements required to create an easement by prescription might be seen as those that would lead to the inference that a grant had been made. This inference might be drawn from the fact that the use was acquiesced in, was known or should have been known to the grantor, and that the use was one that would have required a grant. The prescription might be defeated by demonstrating that the use was under permission (a license) or that it was interrupted during the statutory period. The grant was a fictionprescription could not be directly defeated by showing that there was no grant. The modern approach is to treat prescriptive easements as an analog to adverse possession, substituting use for possession in discussing the elements and making some modifications as discussed below. It is now clear that Washington follows this approach, treating prescription as a analog of the doctrine of adverse possession, using RCW 4.16.020 to find the prescriptive period, and using the same elements as adverse possession, substituting "use" for possession in evaluating the claimant's conduct. Older cases certainly speak in terms of acquiescence and some modern opinions do also, but the better view is that adverse use for the statutory period bars the now servient owner from suing. One difference that might continue to exist is that courts will sometimes speak of adverse possession more favorably as a doctrine of repose and view prescription as simply a doctrine that imposes burdens on land without compensation. See, e.g., Kunkel v. Fisher, 106 Wn.App. 599, 23 P.3d 1128 (2001).

(2) Requirements

The requisite elements are (1) that the use by the claimant be adverse to the right of the servient owner; (2) that the use be open, notorious, continuous, and uninterrupted over the prescriptive period; and (3) that the owner have knowledge of such use at a time when he or she would be able at law to assert and enforce his or her rights. Mood v. Banchero, 67 Wn.2d 835, 410 P.2d 776 (1966); Gray v. McDonald, 46 Wn.2d 574, 283 P.2d 135 (1955); Long v. Leonard, 191 Wash. 284, 71 P.2d 1 (1937). Close examination of each of the individual elements necessary for a prescriptive easement is essential because of their importance in determining the presence or absence of such an easement. The elements for prescription are, like the elements for adverse possession, generally those that will give rise to a cause of action in the owner of the property (adverse, hostile) and will also give that owner notice (or are likely to give notice) that there is a cause of action. If the owner then chooses not to act for the prescriptive period, the nonowner user will acquire the right to continue the prescriptive use.

(a) Adverse use

First, the use must be adverse or hostile to the servient owner. Nw. Cities Gas Co. v. W. Fuel Co., 13 Wn.2d 75, 123 P.2d 771 (1942). Adverse use is "such use of property as the owner himself would exercise," disregarding the claim of others, asking no permission for such use, and using the property under a claim of right. Malnati v. Ramstead, 50 Wn.2d 105, 108, 309 P.2d 754 (1957). Declaration of an adverse intent by the claimant is not necessary. Gray v. McDonald, 46 Wn.2d 574, 283 P.2d 135 (1955). The adverse intent is instead inferred from the actions of both the claimant and the owner of the servient estate. Gray, 46 Wn.2d 574.

Permissive usethat is, use with the full knowledge and cooperation of the servient ownerdoes not constitute adverse use and cannot result in an easement by prescription. Ormiston v. Boast, 68 Wn.2d 548, 413 P.2d 969 (1966); Millard v. Granger, 46 Wn.2d 163, 279 P.2d 438 (1955). Therefore, use permitted out of neighborly courtesy does not constitute prescriptive use. Roediger v. Cullen, 26 Wn.2d 690, 175 P.2d 669 (1946); Bulkley v. Dunkin, 131 Wash. 422, 230 P. 429 (1924), aff'd, 236 P. 301 (1925); Miller v. Jarman, 2 Wn.App. 994, 471 P.2d 704, review denied, 78 Wn.2d 995 (1970). Adverse use requires more than mere utilization of the right-of-way without the owner's consent. Roediger, 26 Wn.2d 690. Similarly, use that is unchallenged by the owner of the servient estate is merely one circumstance from which one determines whether use is permissive or adverse. Cuillier v. Coffin, 57 Wn.2d 624...