[WSBARP] FW: New Division III Published Opinions

[Rob Wilson-Hoss]

I think many will tend to think that the majority made a mess of what could 
be either a very confusing area of the law (the majority's approach), or 
something rather simpler (the dissent).  The dissent reached the same 
conclusion that many others have: you start with the presumption against 
prescriptive easements; then look for the elements of prescriptive use; and 
if they are there, then the servient owner gets the chance to present 
evidence to overcome that. Categories of "overcoming" include open and 
vacant lands, a license, or, as in this case and many we now see litigated, 
neighborly acquiescence.

The trial court is the place to determine the facts. Cases have started to 
give us clues about neighborly accommodation: are they friends or relatives, 
or did they despise each other? did the dominant parcel owner make expensive 
improvements on reliance on the right to use the road? who paid for it, 
maintained it and improved it? how have the parcels developed around it? And 
so on.

Since this is a 2-1 and inconsistent with other decisions (Drake v. Smersh, 
it isn't), perhaps the Supremes will take it.

Rob


Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
236 West Birch Street
Shelton, WA 98584
360 426-2999
www.hossandwilson-hoss.com
rob at hctc.com

This message is intended solely for the use of the addressee and may contain 
information that is privileged, confidential, and exempt from disclosure 
under applicable law.  If you are not the addressee, you are hereby notified 
that any use, distribution, or copying of this message is strictly 
prohibited.  If you received this message in error, please notify us by 
reply e-mail or by telephone (call us collect at the number listed above) 
and immediately delete this message and any and all of its attachments. 
Thank you.

THIS OFFICE DOES DEBT COLLECTION AND THIS E-MAIL MAY BE AN ATTEMPT TO 
COLLECT A DEBT, ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.  To 
the extent the Federal Fair Debt Collection Practices Act (15 U.S.C. § 1692) 
applies this firm is acting as a debt collector for the 
condominium/homeowners' association named above to collect a debt owed to 
it. Any information obtained will be used for collection purposes. You have 
the right to seek advice of legal counsel.


-----Original Message-----
From: wsbarp-owner at lists.wsbarppt.com 
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Clark, Catherine
Sent: Tuesday, March 25, 2014 9:44 AM
To: wsbarp at lists.wsbarppt.com; WSBA RPPT Real Property Discussion Forum
Subject: [WSBARP] FW: New Division III Published Opinions

Folks:

Gamboa v. Clark is an interesting and new case out on prescriptive easements 
and the presumptions which apply to it.

I haven't fully digested it yet (it just came out), but the discussion at 
pp. 24-25 is certainly interesting.

It is a long and detailed statement of the rules applying to prescriptive 
easement cases.

Catherine C. Clark
Law Office of Catherine C. Clark PLLC
701 Fifth Avenue, Suite 4785
Seattle, WA  98104
Phone:  (206) 838-2528
Fax: (206) 374-3003
Email:  cat at loccc.com

NOTICE: The information contained in this electronic information 
transmission is confidential. If you are not the intended recipient, or the 
employee or agent responsible for delivering it to the intended recipient, 
you are hereby notified that any use, dissemination, distribution or copying 
of this communication is prohibited.  If you received this communication in 
error, please immediately notify the sender by telephone at (206) 838-2528. 
Thank you.

-----Original Message-----
From: COA DIV III Published Opinions - Self Subscribe 
[mailto:COADIVIIIPUBLISHEDOPINIONS at LISTSERV.COURTS.WA.GOV] On Behalf Of 
Court Notifications
Sent: Tuesday, March 25, 2014 9:23 AM
To: COADIVIIIPUBLISHEDOPINIONS at LISTSERV.COURTS.WA.GOV
Subject: New Division III Published Opinions

Washington Courts Opinion Notification Email

---------------------------------------------------
New Division III Published Opinions as of Tuesday, March 25

Mar. 25, 2014 - 30826-0 - Magdaleno Gamboa, et ux v. John M. Clark, et ux
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=308260MAJ

Mar. 25, 2014 - 29916-3 - State of Washington v. Chad Edward Duncan 
(Published in Part)
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=299163MAJ


---------------------------------------------------

All opinions filed within the last 14 days can be viewed at 
http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.recent
All opinions filed within the last 90 days can be viewed at 
http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.displayAll

These opinions are slip opinions which do not necessarily represent the 
court's final decision in the case since they are subject to 
reconsideration, modification orders, editorial corrections, and withdrawal. 
The official reports advance sheets and bound volumes supersede the slip 
opinions. To subscribe to the official reports, call 800-223-1940 or visit 
www.lexisnexis.com/waofficialreports.
---------------------------------------------------

If you have any questions about this notification, or any difficulties 
accessing the opinions, please contact our customer support center at 
https://AOC.custhelp.com/.

To update or remove your account, log in at 
http://www.courts.wa.gov/notifications/?fa=notifications.updateaccount





===============================
- To contact the list administrator, send a message to: 
webmaster at wsbarppt.com
- To unsubscribe, send a new message to removeme-wsbarp at lists.wsbarppt.com - 
OR - send a message to webmaster at wsbarppt.com asking that you be removed 
from the wsbarp list.

Information provided on this list should not be considered legal advice. As 
with all lists - let the reader beware! No warranties or representations are 
made as to the accuracy of any information provided. All opinions and 
comments in this message represent the views of the author and do not 
necessarily have the endorsement of the Washington State Bar Association nor 
its officers or agents.



===============================
- To contact the list administrator, send a message to: 
webmaster at wsbarppt.com
- To unsubscribe, send a new message to removeme-wsbarp at lists.wsbarppt.com - 
OR - send a message to webmaster at wsbarppt.com asking that you be removed 
from the wsbarp list.

Information provided on this list should not be considered legal advice. As 
with all lists - let the reader beware! No warranties or representations are 
made as to the accuracy of any information provided. All opinions and 
comments in this message represent the views of the author and do not 
necessarily have the endorsement of the Washington State Bar Association nor 
its officers or agents.