¶56 (dissenting) — The trial court acted within its fact finding authority when it determined that the Gamboas had established a prescriptive easement. Therefore, I respectfully dissent because I believe the majority misapplies the concepts of presumptions and inferences, which in turn leads it to not give due deference to the trier of fact. Because I agree with much of the majority’s scholarly foundational analysis, I will start by noting our agreements before coming to our disagreements.
¶57 I agree with the majority’s characterization of Northwest Cities Gas Co. v. Western Fuel Co., 13 Wn.2d 75, 123 P.2d 771 (1942), as the seminal case on prescriptive easements in Washington. I also agree that analysis of this issue cannot rest solely on Northwest Cities, but must also take into consideration the subsequent developments made *285in Roediger v. Cullen, 26 Wn.2d 690, 175 P.2d 669 (1946), and Cuillier v. Coffin, 57 Wn.2d 624, 358 P.2d 958 (1961). Based on these cases, I agree that there exists a so-called “presumption” of permissive use, also referred to as neighborly accommodation, and that it weighs against the element of adverseness. I also agree that this so-called presumption can be rebutted by evidence to support all other elements of a claim of prescriptive easement, and that when these elements are shown a true presumption of adverseness arises. Although this is not a case of open unimproved land, I also agree that the presumption of adverseness does not arise in cases of open unimproved lands.
¶58 However, I disagree with the majority’s assertion that Roediger and Cuillier created a class of cases involving occupied, enclosed, or improved land where the presumption of adverseness can be ignored altogether. I also disagree with the Restatement's view that Roediger and Cuillier created a “counter-presumption” to the “counter-presumption” in cases where the land is occupied, enclosed, or improved. Rather, these cases allowed for a reasonable inference. For that reason, I disagree with the majority’s conclusion that the presence of findings sufficient to support an inference of neighborly accommodation entitled the Clarks to a presumption of permissive use. The trial court was not required to find accommodation just because it was permissible to do so.
¶59 Before wading into this esoteric area of law, a few words of warning authored by Justice Hale a half century ago should be recalled:
[This case] compels us to take a look at the whole field of presumptions — an area we enter now albeit with reluctance. We hesitate to go into the legal area where presumptions abound, for it is a place fraught with danger — in some areas an almost impenetrable jungle, in others a mist-laden morass-— where more than one academician has been known to lose his way and, once returned, is never quite the same again.
For presumptions — natural in origin though they may be— having their roots in and drawing their sustenance from the *286common experiences of mankind, have suffered the artificial but inexorable labeling and classifying processes of the law. There are conclusive presumptions and rebuttable presumptions and presumptions of law and also of fact, and mixed presumptions of either. And then there are dry presumptions (Aren’t they all?) but no wet ones, and both natural and artificial presumptions; and then there are pseudo presumptions and violent presumptions, and, of course, there are presumptions which are not really presumptions at all, but mere inferences. Then there are presumptions which are real presumptions, and others which are held to be evidence.
Burrier v. Mut. Life Ins. Co. of N.Y., 63 Wn.2d 266, 274, 387 P.2d 58 (1963).
¶60 In Northwest Cities, the Washington Supreme Court said, “When one enters into the possession of another’s property there is a presumption that he does so with the true owner’s permission and in subordination to the latter’s title.”Nw. Cities, 13 Wn.2d at 84.1 referred to this presumption as “so-called” because it is not a presumption in the true sense of the word; rather, it is an assumption. While most lawsuits begin on a blank slate, some do not. In the law, assumptions are used as starting points in cases and dictate who carries the burden of proof. 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice § 301.9 (5th ed. 2007). The most well-known assumption in the law is that of the “presumption” of innocence in criminal law. Id. Neither of these examples are presumptions in the true sense of the term because they are inserted into the case automatically and do not require the proof of any basic facts before the assumption is imposed. Id.
¶61 The only real presumption in prescriptive easement cases is what has been referred to as the counter-presumption of adverseness: “proof that the use by one of another’s land has been open, notorious, continuous, uninterrupted, and for the required time, creates a presumption that the use was adverse, unless otherwise explained.”Nw. Cities, 13 Wn.2d at 85. This rule creates a “presumption” as the term *287is defined by most authorities: “a rule of law that establishes a standardized practice of assuming that Fact B follows from Fact A until Fact B is disproved.” 5 Tegland, supra, § 301.8, at 220-21. Here, Fact A is “proof that the use by one of another’s land has been open, notorious, continuous, uninterrupted, and for the required time.” When the claimant satisfies his burden as to these elements, the presumption operates to give rise to Fact B: “that the use was adverse.” The presumption of Fact B then remains until Fact B is disproved, i.e., “unless otherwise explained.” The use of the phrase “unless otherwise explained” shows that this presumption is a real presumption because a “presumption is, by definition, rebuttable.” Id. at 222.
¶62 Even in cases where the presumption of adverseness would otherwise arise, an exception to the rule exists, preventing its application: “This last mentioned rule does not apply, however, to vacant, open, uninclosed, unimproved lands.” Nw. Cities, 13 Wn.2d at 85-86. This exception to the stated rule is often referred to as a counter-presumption, but it is actually a different concept altogether. It is a conflicting presumption, also known as a successive presumption. 9 John Henry Wigmore, Evidence in Trials at Common Law § 2493, at 308 (James H. Chadbourn rev. 1981).11
¶63 A counter-presumption is a rare situation in which a party presents sufficient evidence, which one can call Fact C, to defeat the presumed Fact B, and then presents further Fact D, which gives rise to presumed Fact E. Id. at 308-09. A conflicting or successive presumption occurs when a party against whom a presumption has already been placed presents Fact D, which gives rise to presumed Fact E, but has not yet presented Fact C, which is the fact needed to *288defeat the presumed Fact B. In such case the second presumption shifts the burden of production back to the original party. Id.
¶64 To understand the practical difference between a counter-presumption and a successive presumption, it is necessary to discuss how presumptions operate. The initial assumption of permissive use places on the claimant the burdens of production and persuasion. Id. § 2487, at 293. The presumption of adverseness relieves the claimant of these two burdens and prohibits the element of adverseness from going to the trier of fact; it gets decided as a matter of law if the trier of fact is satisfied of Fact A. Id. at 295. To defeat the presumption, the opponent must satisfy a burden of production — a burden of producing evidence of Fact C. Id. at 296. When the opponent satisfies this burden of production, he is back in the same situation as he was originally; like that of the criminal defendant, the opponent has no burden of production or persuasion. Id. When the owner invokes a successive presumption, he simply shifts the burden of production back to the claimant; if the claimant succeeds in this burden of production, the initial presumption remains in force, taking the presumed fact away from the trier of fact. Id. at 308. A counter-presumption, however, does more than just put the opponent back in his original position; it also puts the claimant back in his original position as well by returning to him the original burden of production that he sought to avoid by use of a presumption. Id. § 2487, at 297, § 2493, at 308.
¶65 What has been just described is referred to as the Thayer theory of presumptions. Id. § 2490. Under the Thayer theory, the burden of persuasion never shifts. The burden of production shifts and a failure to satisfy that burden will result in the court directing the trier of fact’s decision as to one fact or another.
¶66 A competing theory, the Morgan theory, operates to shift the burden of persuasion. 5 Tegland, supra, § 301.13, at 237. Rather than conclusively directing the trier of fact’s *289decision as to the disputed fact, the party upon whom the burden has been placed has to defeat the presumed fact by a preponderance of the evidence, or whatever quantum of evidence is required by the particular case. Id. § 301.16, at 249. Like the Thayer theory, this theory also relieves the benefiting party of their burden of production, but once contradictory evidence is produced, the presumption does not disappear. Instead, the party against whom the presumption operates still carries the burden of persuasion on that issue. Id. § 301.15, at 241-42.
¶67 Depending on the underlying case type, Washington follows either the Thayer theory or the Morgan theory, but in many instances, Washington fails to consistently follow either theory. Id. § 301.13, at 237. It is not clear whether Washington applies the Thayer theory or the Morgan theory to the field of prescriptive easement presumptions. The unsettled nature of our approach suggests why readers of our case law can reach contrary positions on what the cases mean.
¶68 It is impossible to tell from the language of Northwest Cities whether the presumption of adverseness and the successive presumption of permissive use in open, unenclosed land cases are Thayer or Morgan presumptions. However, when the two presumptions come into conflict, they do not operate like normal Thayer presumptions— shifting the burden of production back and forth. Instead, the second cancels out the first without requiring any showing of the Fact C, which would negate the presumption of adverseness under the Thayer theory. Nw. Cities, 13 Wn.2d at 85-86. Perhaps not surprisingly, negation is actually what Morgan proposed to do with conflicting or successive presumptions in his great essay on presumptions. Edmund M. Morgan, Some Observations Concerning Presumptions, 44 Harv. L. Rev. 906, 932 (1931). The application of the Morgan theory of conflicting presumptions suggests that the underlying presumptions should also operate like Morgan presumptions.
¶69 Northwest Cities, however, is not the end-all of “presumptions” in prescriptive easement cases. The court *290also dealt with these presumptions prior to and after that decision in Scheller v. Pierce County, 55 Wash. 298, 104 P. 277 (1909); State ex rel. Shorett v. Blue Ridge Club, Inc., 22 Wn.2d 487, 156 P.2d 667 (1945); Roediger, 26 Wn.2d 690; and Cuillier, 57 Wn.2d 624. Each of these cases will be taken up in turn.
¶70 Scheller actually preceded Northwest Cities by decades. Scheller established that evidence of a license prevents application of the presumption of adverseness that had been discussed in other cases. Scheller, 55 Wash, at 301. At that time, the Morgan theory of presumptions was still two decades away and the Thayer theory dominated the law. The Scheller case, applying the Thayer theory, simply held that evidence of a license satisfies that elusive Fact C and defeats the presumed Fact B. Evidence of a license defeats the presumption of adverseness (as opposed to creating a successive presumption like in Northwest Cities) because it is direct evidence of permissive use. Northwest Cities created a successive presumption because evidence that the land was open, unenclosed, and unimproved has no direct bearing on whether the use was permissive or adverse; its weight is merely inferential.
¶71 Shorett came out 3 years after Northwest Cities and nearly 15 years after Morgan’s article popularized an alternative theory of presumptions. Shorett was a case about the successive presumption discussed in Northwest Cities being applied to the facts of an actual case in the manner advocated by Morgan. In Shorett, it was possible that the claimants could have made use of the presumption of adverseness, but the successive presumption of permissive use canceled it out: “The tracts of land in question are wild, uncultivated and unenclosed; hence, the use to which the public subjected those tracts is presumed to have originated by permission.” Shorett, 22 Wn.2d at 494. This left the initial assumption of permissive use in place, and because the claimants did not have any evidence of adverse use, their claim failed. Id. at 495.
*291¶72 The next year, Roediger made changes to the field by introducing inferences into the mix. Inferences, like assumptions and irrebuttable presumptions, are another variety of false presumption. 5 Tegland, supra, § 301.9, at 223-25. “An inference is a conclusion that the jurors are allowed to make upon proof of certain facts.” Id. at 225. Unlike presumptions, inferences do not switch the burden of production or the burden of persuasion and are by definition permissive — not mandatory. Id. (“The cases occasionally use the term permissive inference, but the term is redundant. An inference is, by definition, permissive.”). One of the most well-known inferences is the one found for intent to commit burglary in 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 60.05 (3d ed. 2008): “A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein.” By treating this as an inference, rather than as a presumption, jurors are able to do what they otherwise could not do because of the assumption of innocence.12
¶73 The majority tries to stay above the morass of presumptions and inferences (and save us all from this intellectual headache) by taking the position that Roediger prevents the presumption genie from ever coming out of the bottle as opposed to creating either a conflicting presumption or permissive inference that allows the judge or jury to put it back into the bottle. Despite the majority’s best intentions, the situation described in its opinion is just another successive presumption operating in the Morgan style. The majority recognizes that the Roediger court was faced with a situation where the burden of production with respect to Fact A had been satisfied, and which would normally give rise to the presumption of Fact B — adverse *292use. It then argues that Roediger keeps the presumption from arising in the first place where the judge, acting as gatekeeper, finds that there is some shred of evidence (silent use among neighbors) from which a reasonable person could infer permissive use.
¶74 This argument, however, only creates a distinction without a difference. Under the majority’s view, we have a situation where a presumption would normally arise, and in the pretrial stage the opposing party does not present Fact C — direct evidence of permissive use — that would defeat the presumed Fact B. Instead, the opposing party presents another set of facts that the majority believes Roediger to hold as canceling out the initial presumption or otherwise preventing it from ever coming into effect. As already discussed, a set of facts that does not directly counter a presumed fact, but which could instead call the presumed fact into doubt, can, by operation of the law, give rise to a conflicting or successive presumption that, under the Morgan theory, cancels out the two presumptions.
¶75 Contrary to the majority’s reading of Roediger, that case created the inference of permissive use when it held that the successive presumption of permissive use that applies in cases of unenclosed land can be used in cases where it would be otherwise inapplicable, “where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence.” Roediger, 26 Wn.2d at 707. What Roediger did was to create another set of circumstances from which to presume Fact E. Thus, in cases where the owner of the servient estate fails to present Fact C to defeat presumed Fact B and fails to present Fact D from which the conflicting presumed Fact E arises to defeat presumed Fact B, the owner of the servient estate can still obtain a presumption of Fact E if he convinces the trier of fact that it is reasonable to infer Fact F “that the use was permitted by neighborly sufferance or acquiescence.” Id.
¶76 Consistent with the idea that prescriptive rights are disfavored by the law, Roediger lowered the bar further for *293owners of would-be servient estates to protect their property. By introducing an inference into the mix, the owner of the servient estate no longer had to present actual evidence of neighborly sufferance or acquiescence; he just needed evidence of circumstances where it would be reasonable to infer that that was what happened. The majority suggests in footnote five of its opinion that Roediger used the concepts of implication/inference and presumption interchangeably. However, I see no evidence of confused use of the two concepts by Roediger, indeed, the majority does not point to or explain any such instances. Furthermore, just because Bryan Garner says that modern jurists often confuse the concepts does not mean that we have to and does not mean that the court did not know better in 1946.
¶77 Finally, Cuillier is a case where the Washington Supreme Court agreed that under the circumstances the trial court correctly applied the inference of neighborly accommodation recognized in Roediger. Cuillier, 57 Wn.2d at 627. Cuillier made it clear that application of the Roediger inference is a matter solely for the trier of fact to decide:
The trial court was clearly entitled to find, from all of the circumstances, the ultimate fact that the defendants’ use of the road was permissive and not adverse. Whether or not we would have made the same finding (and we would) is not material; the finding of the trial court on factual issues will not be disturbed where credible evidence and the legitimate inferences therefrom sustain it.
Id. at 628 (emphasis added). The fact that Cuillier placed the decision to apply the disputed presumption/inference in the hands of the trier of fact is further evidence that the court created an inference rather than a presumption.
¶78 It is with this background that the Gamboas, very understandably, rely upon the factually similar case of Drake v. Smersh, 122 Wn. App. 147, 89 P.3d 726 (2004). There, as here, the plaintiff’s predecessor owned an adjoining piece of property that was accessed through the driveway located largely on the defendant’s land. Id. at 149. *294Plaintiff’s predecessor used the driveway extensively and even expanded it onto his own property with the knowledge of defendant’s predecessor. The use continued unchanged over several decades and succeeding owners of both properties. Id. Both plaintiff and his predecessor maintained the driveway as necessary and without objection from the defendant and his predecessors. Id. at 149-50. After originally ruling for the defendant on a theory of neighborly accommodation, the trial court reversed itself on reconsideration and awarded plaintiff a prescriptive easement, reasoning that the accommodation had ended with the original owners of the property. Id. at 150-51.
¶79 Division One affirmed, rejecting the defendant’s argument that the record supported an inference of continued accommodation and concluding that there was sufficient evidence of adverse use. Id. at 149. Noting that adverse use was the only question in the case, Drake summarized the relevant law this way:
In Washington, 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.” A court may determine adversity from the actions of the claimant and the property owner. Use is not adverse if it is permissive. Whether use is adverse or permissive is generally a question of fact, but if the essential facts are not in dispute, it can be resolved as a question of law.
Id. at 152 (footnotes omitted) (quoting Kunkle v. Fisher, 106 Wn. App. 599, 602, 23 P.3d 1128 (2001)).
¶80 Clarifying one of its earlier opinions, Drake ruled that when there is evidence of neighborly accommodation, “a court may imply that use was permissive and accordingly conclude the claimant has not established the adverse element of prescriptive easements.” Id. at 154. It rejected use of a presumption of permissive use, limiting such presumptions solely to the case of undeveloped land. Id. It then turned to the question of whether there was evidence of permissive use of the driveway and found none despite *295the long-term knowledge by the defendant and his predecessors about plaintiff and his predecessor’s use of the driveway. Id. at 154-55. The court ultimately turned to the issue of whether the evidence supported the trial court’s finding of adverse use. Id. at 155. The long use of the driveway as if they were the owners, along with the extension of the driveway onto their own property and development of a house and garage there, was sufficient to establish adverse use. Id.
¶81 The majority speculates that Drake would have reached a different outcome if there had been evidence of permissive use, thus triggering some type of presumption in favor of the property owner. Majority at 273-74. In addition to being speculative, that is not a fair reading of Drake. The analysis in Drake immediately follows the recognition that Division One had erred in an earlier case by treating the implication of neighborly accommodation as a presumption. 122 Wn. App. at 153. Drake explicitly noted that Professor Stoebuck had criticized its earlier decision on that basis. Id. at 153 n.16 (citing 17 William B. Stoebuck, Washington Practice: Real Estate: Property Law § 2.7, at 101 (1995)). In the current version of his treatise, the late Professor Stoebuck maintained his view that our cases provide that only unenclosed land is afforded a presumption of permissive use; in all other cases the claimant can present evidence of nonpermissive use raising a presumption of adverse or hostile use. 17 William B. Stoebuck & John w. Weaver, Washington Practice: Real Estate: Property Law § 2.7, at 102 (2d ed. 2004). There simply is no basis for concluding that there is any type of presumption in favor of the property owner of developed land once the claimant has produced evidence of adverse use. Drake, thus, correctly concluded that there was no presumption in favor of permissive use in cases involving developed property.
¶82 Proper application of these cases to the trial court’s decision leads to the conclusion that this court’s judgment should not be substituted for that of the trier of fact. The *296Gamboas presented evidence sufficient to give rise to the presumption of adverseness by showing that they treated the driveway as their own for many years. The Clarks did not defeat the presumption of adverseness with evidence of the land being open and unenclosed or with credible evidence (as determined by the trier of fact) of actual permission. There was evidence from which the trier of fact could have reasonably inferred that the Gamboas’ use of the road was “permitted by neighborly sufferance or acquiescence.” However, the trier of fact chose not to credit that evidence and apply the inference. It is not for us to disturb that decision.13
¶83 Accordingly, I would affirm. Since the majority decides otherwise, I respectfully dissent.
Reconsideration denied April 22, 2014.
Review granted at 181 Wn.2d 1001 (2014).
Rather than dealing with presumptions, counter-presumptions, and shifting burdens, the rules could be simplified into plain English: a party claiming a prescriptive easement bears the burden of establishing entitlement to the easement and can do so by showing usage of developed property as a true owner would, but a stronger showing is required in cases of undeveloped land where the claimant must also show that permission was never given. The owner, of course, is always free to introduce contrary evidence.
The burglary inference of intent does not violate the constitution because the jurors are free to decide its weight, if any; thus, the inference does not place on the defendant any burden of production or persuasion. State v. Brunson, 128 Wn.2d 98, 111, 905 P.2d 346 (1995).
This appears to be a case where both parties assumed they were owners of the land and acquiesced in the other neighbor using it as good neighbors would. It is unfortunate that their relationship devolved into litigation.