Gamboa v. Clark

• Decision Date: 25 March 2014
• Docket Number: No. 30826–0–III.,30826–0–III.
• Citation: 321 P.3d 1236,180 Wash.App. 256
• Court: Washington Court of Appeals
• Parties: Magdaleno GAMBOA and Mary J. Gamboa, husband and wife, Respondents, v. John M. CLARK and Deborah C. Clark, husband and wife, Appellants.

180 Wash.App. 256

321 P.3d 1236

Magdaleno GAMBOA and Mary J. Gamboa, husband and wife, Respondents,

v.John M. CLARK and Deborah C. Clark, husband and wife, Appellants.

No. 30826–0–III.

Court of Appeals of Washington, Division 3.

March 25, 2014.

Christopher Martin Constantine, of Counsel Inc. PS, Tacoma, WA, for Appellant.

David Allan Thompson, Attorney at Law, Yakima, WA, for Respondent.

PUBLISHED OPINION

SIDDOWAY, J.

¶ 1 To resolve disputes over whether someone's long, unobjected-to use of a neighbor's property gives rise to a prescriptive easement, jurisdictions apply different presumptions of permissive or hostile use and treat different circumstances as overcoming or shifting those presumptions. In this prescriptive easement case the outcome does not turn on any factual dispute but instead on the proper application of the burden of proof and presumptions provided by controlling Washington cases.

¶ 2 For 16 years, Magdaleno (Mack) and Mary Gamboa used a gravel roadway located on the property of their neighbors, John and Deborah Clark—a roadway that the Gamboas did not build, that they occasionally maintained (consistent with their use) but did not improve, and that they used in a manner that never interfered with the Clarks' use or ownership rights until 2008. In the action below, filed in 2009, the trial court found that there had been no dispute over use between the two families before 2008.

¶ 3 We view Roediger v. Cullen, 26 Wash.2d 690, 175 P.2d 669 (1946) and Cuillier v. Coffin, 57 Wash.2d 624, 358 P.2d 958 (1961) as controlling. Both were decided over 50 years ago but neither has been narrowed or overruled. Applying the appropriate presumptions and burden of proof, the trial court's findings do not support its conclusion that the Gamboas' use was adverse for a continuous period of 10 years before litigation commenced. As a result, the Clarks were not time barred from relying on their title to recover full possession of their land. We reverse the trial court's award of a limited nonexclusive prescriptive easement in favor of the Gamboas, and its award of fees and costs.

FACTS AND PROCEDURAL BACKGROUND

¶ 4 The Gamboas and the Clarks have been rural or semirural neighbors in Sunnyside, Yakima County since 1995. The Gamboas own a 17–acre parcel on which they have a home and grow alfalfa. The Clarks own a 25–acre parcel to the east, on which they have a home and farm Concord grapes. The following depiction, modified from an exhibit,¹ shows the two properties and the dirt and gravel roadway running northerly from East Allen Road on the south that is the subject matter of their dispute:

IMAGE

¶ 5 As one can see, the roadway connects to East Allen Road on the Gamboas' property but quickly trends eastward, from which point it is largely located on the Clarks' property. Pictures and testimony describing the field south of the Gamboas' home and garage, which is planted in alfalfa, establish that there is nothing that would prevent the Gamboas from laying a road to their home through their own property, although it would require them to relocate irrigationequipmentand reduce their farmable acreage.

¶ 6 The Gamboas moved to their property in 1992, with the Clarks moving to their property to the east in 1995. The parties had a friendly neighborly relationship for years. Neither disputed the other's use of the dirt and gravel roadway. It was only the Gamboas who used the roadway as a driveway; the Clarks had a different driveway to their home, located to the east. The roadway was essential to the Clarks' farming operations, though, and they regularly used it to farm their westernmost rows of grapes.

¶ 7 In 2008, a dispute arose over the Gamboas' dogs. Letters went back and forth between Mr. Clark and Mr. Gamboa about that and other matters. In a letter sent by Mr. Gamboa in late October 2008, he complained that the Clarks' irrigation spray and runoff caused water stains on his family's vehicles and ruts in the roadway, and demanded that the Clarks keep their irrigation water in their vineyard and off “my driveway.” Ex. 24. In a response sent in early December, Mr. Clark took issue with Mr. Gamboa's characterization of the roadway as “my driveway” and urged him to survey the property. Claiming that he and his wife owned the roadway, he proposed that the parties survey the property and work out an equitable arrangement.

¶ 8 The parties eventually agreed to share the cost of a survey to locate the common corners of their properties; the results suggested that the roadway was predominantly on the Clarks' property. The Clarks' lawyer thereafter proposed a lease for the Gamboas' use of two strips of the Clarks' land as a roadway, for a rental amount of $1 a day. The Gamboas retained their own lawyer, who responded that the Gamboas would not sign a lease for something they already had, expressing his opinion that the Gamboas' use would support a prescriptive easement. Mr. Clark notified the Gamboas that they were trespassing as of mid-July 2009 and this suit followed in September.

¶ 9 Following a two-day bench trial, the trial court concluded that the Gamboas had demonstrated a prescriptive easement. It based its conclusion on findings that the Gamboas had continuously used the roadway as a driveway and that the use had been open, notorious, and uninterrupted for a period of approximately 16 years before the parties' dispute arose in late 2008; that the Gamboas sincerely believed they owned the land on which the roadway was situated and never asked the Clarks for permission to use it (nor was permission given by the Clarks); that the Gamboas bladed the roadway during their 16–year period of use, including to remove snow in the wintertime, ² and on one occasion applied gravel to it; and that while both families were aware of the others' use of the road, neither objected to the others' use until 2008. The court also found that the Gamboas began building a shop and garage building near the eastern edge of their property in 2001 whose doors could only be accessed by vehicles from the disputed roadway,³ but because it found that construction began only eight years before the lawsuit, construction of the building was immaterial.

¶ 10 As for the Clarks, the court found that they used the roadway to farm their most westerly row of grapes, to spray for weeds in the grapes, and for other uses necessary due to ownership of the farm. It found that they maintained the roadway for farming purposes.

¶ 11 The trial court's findings and conclusions included its legal conclusion (expressed in the findings) that “[a] claimant's use is adverse unless the property owner can show that the use was permissive.” Clerk's Papers (CP) at 216 (Finding of Fact 15). Based on that reasoning, it found that “Mr. Clark did not give the Gamboas[ ] express or implied permission to use the road, and therefore, the use of the road by the Gamboas[ ] was adverse.” Id. Having concluded that the Gamboas demonstrated their right to a prescriptive easement, it entered judgment awarding the Gamboas a nonexclusive easement over the Clarks' roadway.

¶ 12 The Clarks appeal.

ANALYSIS

¶ 13 The Clarks assign error to five findings of fact and five conclusions of law. Their overarching argument is that the trial court misapplied the burden of proof and the presumptions that apply or are overcome where the owner of a road allows a neighbor, whose use does not interfere with the owner's own use, to make common use of its road. Should we reverse the trial court on the easement issue, the Clarks ask that we also reverse the trial court's denial of their request for attorney fees and costs incurred in defending what they characterize as a nuisance claim by the Gamboas.

I. Assignment of error to the trial court's findings and conclusions supporting and establishing a prescriptive easement.

A. Did the Clarks waive any objection to the trial court's findings and conclusions?

¶ 14 The Gamboas raise a threshold argument that the Clarks may not assign error to the trial court's findings or conclusions because the Clarks participated in presenting draft findings and conclusions and the trial court substantially relied on the Clarks' submissions. This was after the trial court announced its decision orally and then directed the lawyers that “[c]ounsel need ... to prepare findings and conclusions,” that “we can work out the details of the findings and conclusions,” and “I encourage the parties to work together as they have ... done so far.” Report of Proceedings at 287.

¶ 15 Under CR 46, formal exceptions to a trial court's findings are unnecessary; “it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor.” The Gamboas rely solely on the Clarks' failure to formally object to findings and conclusions in the trial court; they make no effort to show that the court was unaware of, or was misled as to the Clarks' position on the facts and law.

¶ 16 The Clarks have taken no position on appeal that they did not clearly communicate to the court through the briefing, argument, and evidence they presented during the bench trial. A party who clearly presents its factual and legal position at trial, but loses, does not waive error by cooperating when a trial court asks that its lawyer provide draft findings and conclusions that reflect the court's announced decision.

B. Do the trial court's findings of fact support its conclusion that the Gamboas have satisfied all the elements entitling them to a prescriptive easement?

¶ 17 Whether a party has established the elements of a prescriptive easement is reviewed as a mixed question of fact and law. Lee v. Lozier, 88 Wash.App. 176, 181, 945 P.2d 214 (1997). We will uphold factual findings supported by the record. Id. We “must defer to the trier of fact on issues of...