FILED
000, OF
T IALA
DIVIS{ 13
2014
JAN 22 1
IN THE COURT OF APPEALS OF THE STATE OF W SHINGT
BY
DIVISION II
WE
DIANE DUMOND, GREG DUMOND, and No. 43691- 4- 11
DARREL DUMOND, single individuals,
Appellants,
V.
VIETNAMESE BAPTIST CHURCH OF UNPUBLISHED OPINION
TACOMA, INC,, a Washington corporation;
and CHARLES L. KELLY and JANE DOE
KELLY, as a marital community,
Penoyar, J. — Greg and Diane Dumond sought a prescriptive easement in the alley
behind their family' s house after Charles Kelly and the Vietnamese Baptist Church ( Church)
blocked the alley with fences. The trial court determined that the Dumonds established all of the
elements of a prescriptive easement except the adverse use element. Specifically, it found that
the use of the alley was permitted by neighborly courtesy. The court also enjoined the Dumonds
from using the alley and awarded a judgment against Gregl for the damage he caused when he
removed the fences. The Dumonds appeal, arguing that the trial court erred by finding that their
use of the alley was permissive and by ordering Greg to pay damages. We hold that the evidence
did not support an inference of permissive use through neighborly courtesy and that the
Dumonds presented evidence that they used the land like a true owner would. Accordingly, they
have established the adverse use element and the trial court erred by enjoining them from using
the alley and entering damages against Greg. We reverse and remand.
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to the Dumonds first We intend no disrespect.
Where necessary, we refer by their names.
43691 -4 -II
FACTS
This action arises over a disputed strip of land on the block between South 60th and
South 62nd Streets and Puget Sound Avenue and Warner Street in Tacoma. The Dumond family
has owned a house on this block since 1957. The surrounding blocks have alleys dedicated on
the plat map, but this block does not. However, since at least the 1960s, the residents have
treated the strip of land behind the houses as an alley, and the land looks similar to the alleys on
the surrounding blocks. In the 1960s and 1970s, nine of the houses on the block, including the
Dumonds', had rear- facing garages that opened into the alley, and the city used the alley for
garbage pick -
up. No permission was asked or given for use of the alley. Traffic in the alley
declined in the late 1980s, but the Dumonds continued to use the alley to access their garage, and
they occasionally mowed parts of it and removed trash from it.
the north end of the alley blocked access to the alley. In
In 2006, property owners on
2007, Kelly and the Church erected a series of fences that ultimately blocked access to the alley
from the south. Greg removed a portion of the fences in 2010 to access the alley. The Dumonds
then sought a prescriptive easement in the alley and an injunction barring Kelly and the Church
from interfering with the easement.
The trial court concluded that the Dumonds failed to establish the elements of a
prescriptive easement because their use of the alley was permissive and the result of neighborly
courtesy and, therefore, was not adverse. As a result, the trial court entered judgment in Kelly' s
and the Church' s favor and enjoined the Dumonds from using the alley to access their property.
The trial court also entered a judgment against Greg for the cost of repairing the fences and
the Church $396. 61 in attorney fees and costs. The Dumonds appeal.
awarded Kelly and
43691- 4- 11
ANALYSIS
The Dumonds argue that the trial court erred by concluding that the use of the alley was
not adverse but was permitted by neighborly courtesy. Because the facts do not support an
inference of neighborly courtesy and the Dumonds proved that they used the alley as an owner
would, we hold that the trial court erred.
To establish a prescriptive easement, a claimant must prove that the use of the servient
land was ( 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) known to the owner at a time
when he was able to enforce his rights. Drake v. Smersh, 122 Wn. App. 147, 151, 89 P. 3d 726
Fisher, 106 Wn. 599, 602, 23 P. 3d 1128 ( 2001)). The trial court
2004) ( quoting Kunkel v. App.
found that the Dumonds met all of the elements except adverse use. The Dumonds appeal only
the trial court' s determination that the use of the alley was not adverse.
Whether the elements of a prescriptive easement are met is a mixed question of law and
Lozier; 88 Wn. 176, 181, 945 P. 2d 214 ( 1997). We review the trial court' s
fact. Lee v. App.
factual findings to determine if they are supported by substantial evidence in the record. Lee, 88
Wn. App. at 181. Substantial evidence is evidence sufficient to persuade a rational, fair -
minded
person of the truth of the evidence. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873,
879, 73 P. 3d 369 ( 2003). The trial court' s conclusion about whether the facts establish a
prescriptive easement is a question of law, which we review de novo. Lee, 88 Wn. App. at 181;
Wash. State Farm Bureau Fed' n v. Gregoire, 162 Wn.2d 284, 300, 174 P. 3d 1142 ( 2007).
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43691 -4 -II
A claimant' s use is adverse when he " 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."
Kunkel, 106 Wn. App. at 602. Use is not adverse if it is permissive. Kunkel, 106 Wn. App. at
602. An inference of permissive use arises if a court can reasonably infer that the use was
permitted by neighborly courtesy. Imrie v. Kelley, 160 Wn. App. 1, 7; 250 P.3d 1045 ( 2010).
Courts have inferred neighborly courtesy where there is a close relationship between the parties,
see Granston v. Callahan, 52 Wn. App. 288, 295, 759 P. 2d 462 ( 1988) ( quoting Pickar v.
Erickson, 382 N. W. 2d 536, 538 ( Minn. Ct. App. 1986)), the true owner built and continued to
use the road, see Cuillier v. Coffin, 57 Wn.2d 624, 627, 358 P. 2d 958 ( 1961), and the parties
agreed that farmers in the area allowed others to cross their land as a neighborly courtesy, see
Crites v. Koch, 49 Wn. App. 171, 177, 741 P. 2d 1005 ( 1987).
In Drake, the court held that there were no facts to support an inference that the use was
122 Wn. App. at 155. There, one neighbor extended the
permitted by neighborly courtesy.
other' s driveway to access his property. Drake, 122 Wn. App. at 149. The neighbor never asked
permission to use or extend the driveway and the parties did not have a relationship that would
permit an inference of permissive use. Drake, 122 Wn. App. at 154. Further, the user treated the
property as an owner would by extending the driveway and using it as the sole access to his
property. Drake, 122 Wn. App. at 155.
While this case is closer than Drake, the facts here also do not support an inference of
neighborly courtesy. The trial court found that there was a tacit agreement among the neighbors
to leave the alley open but it cited no specific evidence in support of this finding. Like the party
in Drake, the Dumonds never asked permission to use the land and they did not have a
relationship with the other land owners that would imply neighborly courtesy as opposed to a
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43691 -4 -II
claim of right. Until recent years, the alley appeared similar to the legal alleys to the north and
south and there was nothing on the ground to indicate that the passage was open only by
neighborly courtesy. Moreover, during the prescriptive period, the city used the alley for trash
collection. The city' s use of the alley is evidence that it was left open for reasons other than
neighborly courtesy. Furthermore, nine of the owners on the block, including the Dumonds,
built alley- facing garages, indicating that they were relying on more than neighborly courtesy in
making their investments.
Accordingly, the trial court erred by concluding that the Dumonds' use of the alley was
not adverse. The facts do not support an inference of neighborly courtesy and the Dumonds used
the alley as if it was their own property, without regard to the rights of others. They built an
alley- facing garage that could only be accessed by driving over the Church' s and Kelly' s land
and they maintained the alley by removing trash and mowing it.
The Church argues that the Dumonds' shared use of the alley creates an inference that the
use was permissive. Although shared use of a road may be evidence of permissive use, see
Cuillier, 57 Wn.2d at 627, "[ t] he claimant need not be the only person using the [ road] ` so long
as he exercises and claims his right independent of others. "' Lingvall v. Bartmess, 97 Wn. App.
245, 252, 982 P. 2d 690 ( 1999) ( quoting Anderson v. Secret Harbor Farms, Inc., 47 Wn.2d 490,
494, 288 P. 2d 252 ( 1955)). Here, the Dumonds claimed their right to use the alley independent
of their neighbors. They used the alley to access their personal garage and in a manner different
than general public purposes. We hold that the Dumonds' use of the alley was adverse and
remand for the trial court to lift the injunction against the Dumonds and define the location and
scope of the prescriptive easement.
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43 691 -4 -II
The Dumonds next argue that the trial court erred by assessing damages against Greg for
removing portions of the fences. They contend that the prescriptive easement had ripened by the
time the Church and Kelly constructed the fences, and, therefore, Greg was justified in removing
them from the easement. The Dumonds are correct that the easement had ripened before the
fences were constructed. The trial court found that, at least from 1960 to 1977,' the Dumonds'
use of the alley was open, notorious, continuous, uninterrupted, over a uniform route, and with
the owners' knowledge, and we hold that the use was also adverse. Thus, the easement was
established by 1977, well before the fences were first constructed in 2007.
A servient land owner may use his property in a reasonable manner that does not interfere
with the purpose of the easement. Littlefair v. Schulze, 169 Wn. App. 659, 665, 278 P.3d 218
2012), review denied, 176 Wn.2d 1018, 297 P. 3d 706 ( 2013). A dominant land owner has the
right to protect his rights in the easement. Littlefair, 169 Wn. App. at 666. Here, the Church and
Kelly interfered with the Dumonds' use of the alley, and the Dumonds had the right to protect
their easement by removing the portion of the fence obstructing their use. Accordingly, the trial
court erred by awarding a judgment against Greg for removing the fence.
ATTORNEY FEES
The Church requests attorney fees on appeal under RCW 4. 84. 250 and . 290, which allow
the court to award fees to the prevailing party in an action involving $ 10, 000 or less. The
Church does not prevail here, so we do not award attorney fees.
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43691 -4 -II
We reverse and remand to the trial court.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
y at
We concur:
Hunt, J.
t
Worswick, C. J.
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