An Overview of Prescriptive Easements, and How They Differ from Adverse Possession Claims

Previously, I wrote an article giving a general overview of the doctrine of adverse possession.   Related to adverse possession claims, Washington recognizes ‘prescriptive easement’ claims.   This article is meant as an overview and explanation of the main differences between a claim seeking title by adverse possession, on the one hand, and a claim seeking to establish the existence of a prescriptive easement, on the other.

A successful claim for adverse possession culminates in the Court awarding ownership of the disputed land to the ‘claimant,’ i.e., the person making the claim (typically the Plaintiff).   This process is referred to legally as the court “quieting title” to the land – hence the moniker of this type of claim, a “quiet title action.”

In contrast to an adverse possession claim, a successful claim of a prescriptive easement culminates in the court granting an easement to the claimant, allowing the claimant to use the land of another, but leaving title to that land with the original title owner.

One needs to be familiar with some basic terms used by courts and lawyers regarding easements generally in order to understand a discussion of prescriptive easements in particular.   Consider a typical express easement – say, a driveway easement.   John owns “Parcel A” which is adjacent to ‘Main Street.’ John’s neighbor, Harry, owns property (“Parcel B”) that is separated from Main Street by Parcel A.   An express driveway easement (i.e., a voluntarily created written easement) is created allowing Harry to drive over a portion of John’s parcel in order to access Parcel B.   In this scenario, the easement is recorded against John’s title, and thus ‘encumbers’ Parcel A.   Parcel A would be known as the “servient estate,” i.e., the parcel burdened by the easement.   Parcel B would be known as the “dominant estate,” i.e., the parcel benefited by the easement (without which Parcel B might be landlocked and unable to access Main Street).

In the same vein, the owner of Parcel A, John, might be referred to as the “servient owner” and the owner of Parcel B might be referred to as the “dominant owner.”   This terminology is helpful because presumably John might not always be the owner of Parcel A, nor Harry the owner of Parcel B.

Unlike a voluntarily created express easement, a prescriptive easement is typically involuntarily imposed.   To establish a prescriptive easement, a claimant must prove use of the servient land that is: (1) open and notorious, (2) over a uniform route, (3) continuous and uninterrupted for 10 years, (4) adverse to the owner of the servient land; and (5) with the knowledge of the owner of the servient land, at a time when he is able in law to assert and enforce his rights.” See, e.g., Kunkel v. Fisher, 106 Wn.App. 599, 602, 23 P.3d 1128 (citing Mountaineers v. Wymer, 56 Wn.2d 721, 722, 355 P.2d 341 (1960)), review denied, 145 Wn.2d 1010, 37 P.3d 290 (2001).

A party can establish a prescriptive easement right even though the owner of the servient estate and others who wanted to go on the property also used it, so long as the claimant exercises and claims his right independent of others.   Lingvall v. Bartmess, 97 Wn.App. 245, 982 P.2d 690 (1999) (citing Hendrickson v. Sund, 105 Wn. 406, 410, 177 P. 808 (1919); see also Anderson v. Secret Harbor Farms, 47 Wn.2d 490, 494, 288 P.2d 252 (1955)).   Note that this is in contrast to a claim for title by adverse possession, in which the claimant must prove, among other things, that his or her use of the subject property was “exclusive.”

A person’s use of another’s property in this context will be found to be ‘adverse’ when he or she “uses the property as the true owner would, under a claim of right, disregarding the claims of others, and asking no permission for such use.” See, e.g., Kunkel, supra, 106 Wn.App. at 602. A court may determine whether use is ‘adverse’ by examining the actions of the claimant and the actions of the property owner. See Lingvall, 97 Wn.App. at 250, 982 P.2d 690. Unsurprisingly, Washington courts have also stated the rule by articulating the flip side of the coin, i.e., by holding that use is not adverse if it is permissive.

Courts are reluctant to develop rules that will inject acrimony or true hostility between otherwise peacefully coexisting neighbors.   Thus, just as in the context of adverse possession claims, courts will often infer that an owner’s failure to object to his neighbor’s periodic use of part of the owner’s land is simply a neighborly accommodation, often referred to as a neighborly ‘sufferance or acquiescence.’   Even if a presumption of permissive use or neighborly acquiescence applies by default, a claimant can adduce evidence to rebut the presumption by clearly establishing the element of adverse use.

In Kunkel v. Fisher, supra, the Plaintiff, Kunkel, sought to establish 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 that Kunkel discussed using the claimed easement area with the prior owner of his neighbor’s (Fisher’s) land.    The evidence in the case was that Fisher’s predecessor gave Kunkel express permission to drive over the property. Kunkel even testified that his neighbors were very accommodating to him about the use. Based on this evidence, the Court in Kunkel v. Fisher held that Fisher’s predecessor permitted Kunkel’s use or, at a minimum, acquiesced in it.    Lingvall, 97 Wn.App. at 251, 982 P.2d 690 (“permissive use may be implied in ‘any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence’”) (citing Roediger v. Cullen, 26 Wn.2d 690, 707, 175 P.2d 669 (1946) (emphasis added)); see also 17 William B. Stoebuck, Washington Practice: Real Estate: Property Law § 2.7, at 103 (1995) (stating that “[p]ermission may in a proper case be implied …”).    As such, the court held, Kunkel did not establish a factual basis for his prescriptive easement claim.

In a subsequent case called Drake v. Smersh, 122 Wn.App. 147, 89 P.3d 726 (2004), the Court held that its analysis in Kunkel extended the implication of permissive use by neighborly accommodation too far when it applied a presumption of permissive use.

The Court in Drake v. Smersh acknowledged scholarly criticism of the Kunkel Court’s application of a presumption of permissive use that was akin to the so called “vacant lands doctrine.”    That doctrine, in turn, was set forth in a case called N.W. Cities Gas Co., v. W. Fuel Co., 13 Wn.2d 75, 123 P.2d 771 (1942).   The vacant land doctrine states that use of vacant land by a non-owner is presumptively permissive. Thus, the Drake Court affirmed the notion that to prevail on a prescriptive easement claim when the vacant land doctrine applies, it is not enough for the claimant to simply prove that he used the land of another; rather the claimant must present evidence specifically rebutting the presumption that that use was permissive.   The Drake court confirmed that this method of presenting proof was an exception to the general rule applicable in cases involving use of developed land: that if the claimant proves the elements of adverse possession, there is an assumption the use was adverse. See also Stoebuck, 17 Washington Practice at 101.

In contrast to the presumption imposed by the vacant land doctrine, in cases where both pieces of land are developed, Washington cases establish that use is presumptively hostile or adverse.  See N.W. Cities Gas, 13 Wn.2d at 85, 123 P.2d 771 (“[P]roof that use by one of another’s land has been open, notorious, continuous, uninterrupted, and for the required time, creates a presumption that the use was adverse, unless otherwise explained, and, in that situation, in order to prevent another’s acquisition of an easement by prescription, the burden is upon the owner of the servient estate to rebut the presumption by showing that the use was permissive.”).   See also Stoebuck, 17 Washington Practice at 101 (interpreting Washington law as holding that “if the claimant shows use of another’s land that is unexplained and is open and notorious, continuous, and exclusive, there is a presumption that the use was hostile….”).   Just like with adverse possession cases, “adversity” and “hostility” are legal terms of art, and do not, as one might think, require proof of actual enmity or ill will.

Pulling back from what many had interpreted as a presumption of permissive use by the Kunkel court, the Drake Court expressly held that in developed land cases, when the facts support an inference that use was permitted by neighborly sufferance or accommodation, a court may imply that use was permissive, and may accordingly conclude the claimant has not established the adverse element of a prescriptive easement claim.  Thus, Courts will only apply the “vacant lands doctrine” and its presumption of permissive use in cases involving undeveloped land because, in those cases, owners are not in the same position to protect their title from adverse use as are owners of developed property. Although the facts in Kunkel established that the Fishers rarely observed Kunkel traversing the property because they did not always reside on the property, and because Kunkel would depart before they arrived and would return after they had left, it was undisputed that the Fishers were aware of Kunkel’s use. These facts are properly considered when determining whether the use is “open” and “notorious.” They present a scenario quite different from a case in which the owner of vacant land has no opportunity to learn about open and adverse use of his property. See N. W. Cities Gas, 13 Wn.2d at 86, 123 P.2d 771 (even in cases involving open and unenclosed lands, a court may grant a prescriptive easement when “the use … convey[s] to the absent owner reasonable notice that a claim is made in hostility to his title” (citing Watson v. Board of Commissioners of Adams County, 38 Wn. 662, 665, 80 P. 201 (1905)).

There are other considerations that can impact a court’s decision whether to grant a prescriptive easement to one making a claim for such.   For example, if the property that would be benefited by such an easement would, without such a grant, be landlocked and essentially inaccessible, courts are more likely to grant a prescriptive easement. And, just like in adverse possession cases, the right of a neighbor to obtain a court-imposed easement requires landowners to be mindful of a neighbor’s use of the owner’s property.   In this sense, there is an inherent tension in the sometimes competing policies of wanting neighbors to be, well, neighborly, and the policy of granting ownership of, or an easement over, land to a claimant where the title owner sits on his or her hands and does not assert his or her ownership rights to prevent or control another person’s use of his or her land.