[WSBARP] FW: New Division III Published Opinions
Rob Wilson-Hoss
rob at hctc.com
Tue Mar 25 11:05:08 PDT 2014
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
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-----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
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Seattle, WA 98104
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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
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