Anderson v. Secret Harbor Farms

• Court: Washington Supreme Court
• Writing for the Court: WEAVER; HAMLEY
• Citation: Anderson v. Secret Harbor Farms, 47 Wn.2d 490, 288 P.2d 252 (Wash. 1955)
• Decision Date: 29 September 1955
• Docket Number: No. 32822
• Parties: Norman B. ANDERSON and Marjorie M. Anderson, husband and wife, and Arthur B. Anderson and Mary Anderson, husband and wife, Respondents, v. SECRET HARBOR FARMS, Inc., a corporation, Lillian Johnson and Thomas Gallagher, Appellants.

Page 490

47 Wn.2d 490

288 P.2d 252

Norman B. ANDERSON and Marjorie M. Anderson, husband and wife, and Arthur B. Anderson and Mary Anderson husband and wife, Respondents, v. SECRET HARBOR FARMS, Inc., a corporation, Lillian Johnson and Thomas Gallagher, Appellants.

No. 32822.

Supreme Court of Washington, En Banc.

Sept. 29, 1955.

McMicken, Rupp & Schweppe, Seattle, for appellants.

Alfred McBee, Mount Vernon, for respondents.

WEAVER, Justice.

Defendants appeal from a judgment which (a) enjoins and restrains them

'* * * from going upon the real property herein mentioned or any part thereof for any purpose at any time,' and (b) quiets title to the real property in plaintiffs.

Plaintiffs and defendants own adjoining tracts of land on Cypress Island. Both tracts border on Secret Harbor. Defendants' land lies generally to the north and west of the harbor. The land of plaintiffs lies along the south side.

Defendants' access to their property is determined by the tide. At high tide, they can enter the harbor by boat and reach their property. At low tide, they must dock at an old boat landing on plaintiffs' land at the entrance to the harbor, and traverse a well-defined footpath across the land of plaintiffs to their own property. The footpath existed prior to 1890 and has been used by defendants and their predecessors in interest since that time. It is described in this proceeding as beginning 'on the western boundary of the plaintiffs' property and runs in a generally northeasterly direction to the eastern side of plaintiffs' property.' Generally, it parallels the southern shore line of the harbor.

The defendants (or certain of them, so far as is here material) purchased their property in 1939 from the Wooten family, who had owned it for many years. T. J. Wooten, who left the island in 1915, testified that he had used the footpath in question for twenty-five years. Philip Wagner, who was almost eighty-two years old at the time of trial, testified that he lived on the island when he was a boy, and that he had used the path many times when plaintiffs' property was owned by the Gadbois brothers.

Plaintiffs purchased their property in 1946 from Clarence Shaw, who had acquired it late in 1940 or early 1941. During the period the Wooten family owned the property now owned by defendants, Mike and Joe Gadbois owned the land now owned by plaintiffs.

On two occasions in 1946, 'No Trespassing' signs were posted at the boat landing in an attempt to close the path. On one occasion, the signs were kicked down; on the other, they were ignored by defendants, who continued to use the path as usual.

Plaintiffs commenced this action to enjoin defendants from using the footpath and to remove the cloud on their title, which exists in the form of defendants' alleged right to use the footpath. As an affirmative defense, defendants claim a prescriptive right to an easement over plaintiffs' property.

There is no evidence that anyone ever gave defendants or their predecessors in interest permission to use the footpath. One of defendants testified that when the owner took her to the island in January, 1938, to inspect the property, they landed at the dock and traversed the path; that it was well defined; that it was not wide, but was clearly a path on which to walk and very obviously one that had been used recently and probably for a long time. After purchasing their property, defendants, and those going to and from their property, used the path openly and constantly. They now have about forty people on their place.

There is no evidence that anyone ever objected to the use of the path by defendants and their predecessors in interest, prior to the erection of the 'No Trespassing' signs in 1946.

In support of the judgment entered, the trial court found:

'VI. That the path hereinbefore referred to has been in existence for many years and has been used by all inhabitants at or near the vicinity of the plaintiffs' and defendants' for a means of ingress and egress and by hunters, vacationers and many other persons, including the defendants, and that the use thereof by all of such persons and these defendants prior to 1946 was with the neighborly permission of the various owners of the plaintiffs' property; that subsequent to 1946 the defendants used the said path openly, continuously and notoriously and adversely under a claim of right but that the use of said path by the defendants prior to 1946 was permissive only.

'VII. No express permission to use said path was given to the defendants or their predecessors in interest by the plaintiffs or their predecessors in interest. However, such use was by an implicit permission as a neighborly act arising out of the necessity that all persons who lived in that vicinity had to use the harbor and thus had to use the only possible access path to the harbor.' (Italics ours.)

Although the doctrine of the establishment of a right-of-way easement by prescription is said to rest upon the presumption of a lost grant, the easement, in fact, springs from the uninterrupted, open, and notorious use and enjoyment thereof for the prescribed statutory period. If the use meets these conditions, and, in addition, is hostile to the title of the owner of the servient estate (as distinguished from permissive), then the conclusion follows that it has been established by adverse user. The presumption furnishes only one of the reasons for the conclusion.

The burden of proving the existence of a prescriptive right always rests upon the one who is to benefit by its establishment. This burden of proof never shifts. An easement by prescription must be established by facts.

The principles which govern the acquisition of an easement by prescription are set forth at considerable length in Northwest Cities Gas Co. v. Western Fuel Co., Inc., 1942, 13 Wash.2d 75, 84, 123 P.2d 771, 776. Therein, it is 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.'

From this, an engaging argument is made in the instant case that the use, being permissive in its inception, cannot ripen into a prescriptive right, no matter how long it may continue, unless there has been a distinct and positive assertion by the dominant owner of a right hostile to the owner of the servient estate, such as tearing down or ignoring 'No Trespassing' signs, as occurred in 1946.

The fallacy of the argument is this: just as soon as there is proof that the use of another's land has been open, notorious, hostile, continuous, uninterrupted, and for the required time, the presumption of a permissive use is spent; it disappears. The one claiming the easement has established a prima facie case. (It is not necessary to say that such proof 'creates a presumption that the use was adverse, unless otherwise explained,' although there is authority for it. See Northwest Cities Gas Co. v. Western Fuel Co., Inc., supra, 13 Wash.2d at page 85, 123 P.2d at page 776. It then becomes incumbent upon the one denying the existence of the easement to contravert the prima facie case. Whether the use was hostile or permissive...