[WSBARP] FW: New Division III Published Opinions

Tue Mar 25 13:22:00 PDT 2014

I remember a law school professor who opined that the primary function of
the law in society is to create a clear set of rules from which society
can function. My simple analogy is, if you have to argue every time how
much you get when you pass go, you can't play the game. It would seem a
quagmire has been, once again, created not dissimilar to the economic loss
rule/independent duty doctrine issue.
     The majority seems to have lost focus that prescriptive rights are
based upon statutes of repose(unlike the practical location doctrines)
which seems to mitigate toward the result that if its been that way for
years, leave it that way. 
     The unfortunate result is that this case will do nothing but foster
litigation over issues we previously had the ability to give clear advice
to our clients on. I can imagine trial judges reading this and wondering
how to apply it. The societal cost of this decision will be unnecessarily
significant.
     The dissent seems like an extremely a masterful rebuttal. The quote
from Justice Hale is worth the read.

Steve Whitehouse

Stephen Whitehouse
Whitehouse & Nichols, LLP
Attorneys at Law
P.O. Box 1273
601 W. Railroad Ave.
Shelton, Wa. 98584
360-426-5885
swhite8893 at aol.com
-----Original Message-----
From: Rob Wilson-Hoss <rob at hctc.com>
To: wsbarp <wsbarp at lists.wsbarppt.com>; 'WSBA RPPT Real Property
Discussion Forum' <wsbarp at LISTSERV.NETHELPS.COM>
Sent: Tue, Mar 25, 2014 10:59 am
Subject: RE: [WSBARP] FW: New Division III Published Opinions

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
<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

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-----Original Message-----

From: COA DIV III Published Opinions - Self Subscribe
[mailto:COADIVIIIPUBLISHEDOPINIONS at LISTSERV.COURTS.WA.GOV
<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
<http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=308260MAJ>
&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
<http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=299163MAJ>
&filename=299163MAJ

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