[WSBARP] Prescriptive Easement - Circumstantial Evidence

Fri Apr 17 10:08:54 PDT 2015

Thanks Roger

I had not yet read the published Supreme Court decision in Gamboa but had been reading briefs filed in the case.  It certainly gives my client – the Estate owner of the vacant lot – some hope that the Court will infer neighborly acquiescence giving rise to the presumption of permissive use and then the “crapshoot” is whether the neighbor can overcome the presumption.

Ron

I AM TYPICALLY IN THE SEATTLE OFFICE ON TUESDAY AND THURSDAY AND IN THE MOUNT VERNON OFFICE ON MONDAY, WEDNESDAY AND FRIDAY 

Ronald G. Housh, P.S.

Attorney at Law

Seattle Office:

1420 Fifth Avenue, Suite 3000

Seattle, WA 98101-2393

Phone:   206-381-1341

Fax:        206-464-0461

Email:     <mailto:ron at housh.org> ron at housh.org

Mount Vernon Office:

21411 Bluejay Place

Mount Vernon, WA 98274

Phone:  206-235-2459

Email:    <mailto:ron at housh.org> ron at housh.org

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Roger Hawkes
Sent: Thursday, April 16, 2015 6:08 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Prescriptive Easement - Circumstantial Evidence

Did you see Gamboa, published today?

Roger Hawkes, WSBA # 5173

19909 Ballinger Way NE

Shoreline, WA 98155

 <http://www.hawkeslawfirm.com> www.hawkeslawfirm.com

206 367 5000

Fax is 206 367 4005

From: Ron Housh [mailto:ron at housh.org] 
Sent: Thursday, April 16, 2015 5:02 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Prescriptive Easement - Circumstantial Evidence

Since we are on the topic of prescriptive easements, anyone ever successful in establishing permissive use based solely on circumstantial evidence?

I am working on an interesting case.  Parcel A with a home next to vacant Parcel B which is next to Parcel C with a home.  Vacant parcel B and improved parcel C are owned by Mrs. C.

40 years ago the owner of Parcel A allegedly planted trees, bushes, etc. along the side of vacant parcel B and claims that she periodically (regularly?) pruned, trimmed, etc.

Mrs. C was known as very friendly, neighborly, etc.  When one stands on Parcel C, the row of trees and other vegetation on the other side of the vacant parcel B actually provides a screen that blocks out the home on Parcel A that frankly is not particularly attractive.  It is not difficult to recognize the strong possibility that Mrs. C gave permission because of the screening effect of the plantings.

OK – here is the problem.  The friendly neighborly Mrs. C dies last year and so far I cannot uncover anyone who will testify that Mrs. C gave the owner of Parcel A permission to plant on the vacant Parcel B.

Sure enough, the Estate wants to sell Parcel B and now the owner of Parcel A says “I own a roughly 10 foot strip along the edge of Parcel A by adverse possession.”

I’ve been reading the cases dealing with neighborly accommodation.   

This is arguably one of the reasons adverse possession principles are viewed by many with disfavor.  What might well have been a neighborly accommodation now creates the risk that the estate loses a chunk of land because the very friendly Mrs. C did not run to a lawyer to draft the permission letter or license or revocable easement.

Any thoughts or experience with use of circumstantial evidence in the adverse possession/prescriptive easement context will be much appreciated!

Ron

I AM TYPICALLY IN THE SEATTLE OFFICE ON TUESDAY AND THURSDAY AND IN THE MOUNT VERNON OFFICE ON MONDAY, WEDNESDAY AND FRIDAY 

Ronald G. Housh, P.S.

Attorney at Law

Seattle Office:

1420 Fifth Avenue, Suite 3000

Seattle, WA 98101-2393

Phone:   206-381-1341

Fax:        206-464-0461

Email:     <mailto:ron at housh.org> ron at housh.org

Mount Vernon Office:

21411 Bluejay Place

Mount Vernon, WA 98274

Phone:  206-235-2459

Email:    <mailto:ron at housh.org> ron at housh.org

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Roger Hawkes
Sent: Thursday, April 16, 2015 3:33 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Prescriptive Easement for a Well?

In most cases that will be true; but the permission can be altered later by user asserting a ‘right’.

Roger Hawkes, WSBA # 5173

19909 Ballinger Way NE

Shoreline, WA 98155

 <http://www.hawkeslawfirm.com> www.hawkeslawfirm.com

206 367 5000

Fax is 206 367 4005

From: Rich Holland [mailto:rich at pnwle.com] 
Sent: Thursday, April 16, 2015 2:18 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Prescriptive Easement for a Well?

I don’t know the answer to that specifically but you can’t have adverse or prescriptive claims if they began permissively.

Thank you,

Rich Holland

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of David Faber
Sent: Thursday, April 16, 2015 1:59 PM
To: wsbarp
Subject: [WSBARP] Prescriptive Easement for a Well?

I have a prospective client up here in Jefferson County who owns a parcel which is fed water from a neighboring parcel. The PC has owned the parcel for 15 years and has used that well for the full 15 years. Now, the PC wants to sell the property but there is no recorded well agreement or easement to the benefit of the PC's property. The neighbor is now demanding $10,000.00 from PC to sign a well agreement. 

My question: does Washington State recognize a prescriptive right to access a well? Any alternative routes that members of this listserv can think of?

Best,

David J. Faber

Faber Feinson PLLC

210 Polk Street, Suite 1

Port Townsend, WA 98368
(360) 379-4110

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