Cuillier v. Coffin

• Decision Date: 26 January 1961
• Docket Number: No. 35303
• Citation: Cuillier v. Coffin, 57 Wn.2d 624, 358 P.2d 958 (Wash. 1961)
• Parties: Laurence J. CUILLIER and Avis Jeanne Cullier, husband and wife, Respondents, v. B. Howard COFFIN and Audrey E. Coffin, husband and wife, Appellants.
• Court: Washington Supreme Court

Page 624

57 Wn.2d 624

358 P.2d 958

Laurence J. CUILLIER and Avis Jeanne Cullier, husband and wife, Respondents, v. B. Howard COFFIN and Audrey E. Coffin, husband and wife, Appellants.

No. 35303.

Supreme Court of Washington, Department 2.

Jan. 26, 1961.

Tonkoff, Holst & Hopp, Yakima, for appellants.

Halverson, Applegate & McDonald, Walter E. Weeks, Jr., Yakima, for respondents.

HILL, Judge.

The principal issue in this case is whether the defendants had a prescriptive right to use an orchard road along a portion of the south line of the plaintiffs' property (east half of the southwest quarter of the northwest quarter of a certain section which we will refer to as Section 29).

The plaintiffs asked that the defendants be enjoined from trespassing thereon and for damages to certain young fruit trees planted on or in close proximity to the orchard road.

The defendants, who owned the east half of the northwest quarter of the southwest quarter of the same section, asserted a prescriptive right to use of the roadway by their cross-complaint.

The trial court determined that the defendants had not established their claimed prescriptive right; granted the injunction and awarded damages for injuries to plaintiffs' young fruit trees caused by acts of the defendants.

The defendants appeal, conceding the issue of adverse possession is one of fact and that this court will not weigh the testimony in such a case, but will only examine the record to determine whether there is credible evidence to sustain the findings of the trial court. They urge, however, that they have established their prescriptive right by a clear preponderance of the evidence.

If we assume the use of the orchard road in question, by the defendants and their predecessors in interest for the requisite period of time (and there is evidence to the contrary), we are still confronted with the issue of whether the use was adverse or permissive.

The defendants assert that it could not have been permissive, because the plaintiffs and their predecessors in interest testify that no permission was ever asked and none was ever granted until 1957, which was long after the time when the prescriptive right, if any, had attached.

The fact that no permission was expressly asked, and that no permission was expressly given, does not preclude a use from being permissive under the circumstances of this case.

There was evidence that the plaintiffs' predecessors in interest had first used this orchard roadway, along the south line of their property, and that it had then been used by their neighbors (the defendants' predecessors in title) to the south in connection with the operation of the orchard on the northern portion of their property. There was no asking of permission, but neither was there any action that was, in itself, indicative of a claim of a right to use it.

The most that can be said for the defendants' case is that their evidence established a use without formal permission for the prescriptive period. It is the position of the defendants that such use for the prescriptive period having been established, there was a presumption that their use was adverse and that the burden was then upon the owner to show the use was permissive. Some of our opinions so state. Hovila v. Bartek, 1956, 48 Wash.2d 238, 292 P.2d 877; Gray v. McDonald, 1955, 46 Wash.2d 574, 283 P.2d 135; Todd v. Sterling, 1954, 45 Wash.2d 40, 273 P.2d 245; Sharp v. Kieszling, 1950, 35 Wash.2d 620, 214 P.2d 163; King County v. Hagen, 1948, 30 Wash.2d 847, 194 P.2d 357; Northwest Cities Gas Company v. Western Fuel Company, 1942, 13 Wash.2d 75, 123 P.2d 771.

We think, however, a more accurate statement, based on the results and holdings in all of our cases, would be that such unchallenged use for the prescriptive period is a circumstance from which an inference may be drawn that the use was adverse. Such unchallenged use is but one circumstance, and there may well be a combination of circumstances from which the trier of the facts could determine that such use was permitted as neighborly courtesy and was not adverse. Roediger v. Cullen, 1946, 26 Wash.2d 690, 175 P.2d 669, State ex rel. Shorett v. Blue Ridge Club, Inc., 1945, 22 Wash.2d 487, 156 P.2d 667.

Another circumstance to be considered is who made the road and who used it. If one, for his exclusive use, makes a road across the land of another and uses it for the prescriptive period, it is much more persuasive of adverse use, than if the claimant had merely used a road for the prescriptive period, which had been used first by the owner of the property and who continued, at all times, to use the road for his own purposes. Indeed, the latter circumstance, we have consistently held, justifies the...