Granston v. Callahan
| Decision Date | 22 August 1988 |
| Docket Number | No. 20412-2-I,20412-2-I |
| Citation | 759 P.2d 462,52 Wn.App. 288 |
| Parties | William L. GRANSTON and Wilma I. Granston, husband and wife, Appellants, v. Gail Lee CALLAHAN and Lawrence Callahan, wife and husband, Respondents. |
| Court | Washington Court of Appeals |
Frank W. Payne, Payne & Verzani, Federal Way, for appellants William L. Granston and Wilma I. Granston.
Ted D. Zylstra, Zylstra, Beeksma, Waller & Skinner, Oak Harbor, for respondents Gail Lee Callahan and Lawrence Callahan.
The plaintiff William L. (Bill) Granston appeals from a judgment in a quiet title action establishing an easement by prescription in favor of the defendant, Gail Lee Callahan.
In about 1935, two brothers, William R. Granston and Edward L. Granston, acquired adjacent parcels of waterfront property on Camano Island. The two tracts remained undeveloped for more than a decade. The plaintiff, Bill Granston, is William R. Granston's son. The defendant, Gail Callahan, is Edward L. Granston's daughter. In the late 1940s, with the help of his brother William and his nephew Bill, Edward Granston built a permanent home on his tract and occupied that home as his residence until his death in 1982.
A very strong bond existed between William and Edward Granston. Bill Granston testified:
A very, very exceptionally strong bond existed between my father and his brother, Edward.... They were as close as two brothers could conceivably be in all aspects of life. They were--they shared everything, had complete confidence and trust in each other....
* * *
... As I discussed earlier, this relationship, to my knowledge today, is unique and a desirable thing. I wish I had a relationship with another relative or friend to the degree this existed. There was a sense of total cooperation and trust in the usage and the availability of each other's physical items up there and the real property itself was unlimited [remainder of answer stricken by the court].
In addition to building the permanent home, Edward Granston, with the assistance of his brother, also constructed a barn and a corral for horses. The barn was not initially built as a permanent structure. It was located on both sides of the property line dividing the two properties. They also installed an underground fuel storage tank, a concrete walkway to the beach and a concrete driveway. Although they knew where the boundary between the properties was located, the brothers placed these improvements in the most convenient location from the standpoint of taking advantage of natural slopes and level areas, and thus, such improvements are, in part, located on the property now belonging to Bill Granston. The driveway, which was also a joint effort, was placed entirely on Bill Granston's property. Later Edward, William and Bill Granston built a house on William's property.
Bill Granston testified that Edward Granston never attempted to exercise dominion and control over any of the areas to the exclusion of Bill's father. William and Edward Granston and their families had free access to each other's property, including the physical improvements such as the homes, the garage, the garden, the driveway, the walkway and the area around the walkway, the gas pump, the barn, and the corral.
In respect to mutual use and access to the properties involved, Bill Granston testified:
My father and/or myself had free and unencumbered access to all of the property that legally is described as my father's and/or now my property, but to go further we had free and open and unhindered access to all of Edward Granston's property, including the physical improvements such as house, barn, garage and everything else, and it would have been insulting to either one of those gentlemen if anything else would have been suggested.
Bill Granston testified that each of the brothers had "free license" to use each other's property.
Bill Granston acquired title to his father's property in the early 1960s. His father, William Granston, died in 1974. Gail Callahan acquired title to her father's property upon his death in 1982 and continued to occupy that property as her residence.
On May 1, 1971, Bill Granston and his wife, as grantors, executed an agreement for permissive use with Edward and Violet Granston. The agreement referred to the driveway and walkway and provided in part as follows:
The parties agree that the use of the driveway and walkway shall be deemed to be with the permission of the Grantors and shall be continued with the express license and permission of the Grantors provided, however, that such license shall not by the lapse of time or otherwise ripen into any other right, and provided further that the license granted hereby shall be personal and shall not become appurtenant to, run with or be a burden upon either parcel of land, and shall terminate upon the death of either of the Grantors or the Grantee, Edward L. Granston, or sooner upon the sale or other alienation by either party of their respective parcels of property.
Exhibit 1. All signatures were acknowledged before a notary public.
In September 1986, Bill Granston filed suit to enjoin Callahan from further use of the driveway and walkway and to require her to remove all offending structures or improvements, including the barn, the gas tank, and sections of the concrete driveway and walkway physically located on the plaintiff's property. Callahan filed a cross claim seeking to quiet title to the disputed areas by adverse possession.
The case was heard in a bench trial on February 11, 1987. A letter decision was rendered dated March 11, 1987, in which the trial court found that there was a mutual use of the disputed areas and improvements by the two brothers "under a claim of right which was adverse to the separate and exclusive right of the other." Finding of fact 10. The judgment and decree awarded Callahan a prescriptive right to use the driveway and walkway to the beach, together with that part of Granston's property which lies between the true property line and the walkway, and a nonexclusive prescriptive right to use that portion of Granston's property between the driveway and the true property line upon which is situated the barn, corral, garden, gas pump and gas tank. The judgment and decree further awarded Bill Granston a nonexclusive prescriptive right to use those portions of Callahan's property on which is situated the corral, barn, garden, gas pump and gas tank.
Bill Granston appeals from that part of the judgment and decree awarding Callahan a prescriptive right for continued use of the driveway, walkway, garden, barn and corral areas on his side of the property line.
While prescriptive rights are not favored in the law, a prescriptive easement may be acquired by proof of an adverse use known to the owner or conducted in an open, notorious and continuous manner for 10 years. Chaplin v. Sanders, 100 Wash.2d 853, 676 P.2d 431 (1984); Smith v. Breen, 26 Wash. App. 802, 804, 614 P.2d 671 (1980).
Adverse user is such use of property as the owner himself would exercise, entirely disregarding the claims of others, asking permission from no one, and using the property under a claim of right. Hostile use of real property by an occupant or user does not import ill will, but imports that the claimant is possessing or using it as owner, in contradistinction to possessing or using the real property in recognition of or subordinate to the title of the true owner.
Malnati v. Ramstead, 50 Wash.2d 105, 108, 309 P.2d 754 (1957).
In Chaplin v. Sanders, supra, the Washington Supreme Court further defined the meaning of hostility in the adverse possession context 100 Wash.2d at pages 860-61, 676 P.2d 431 as follows:
The "hostility/claim of right" element of adverse possession requires only that the claimant treat the land as his own as against the world throughout the statutory period. The nature of his possession will be determined solely on the basis of the manner in which he treats the property. His subjective belief regarding his true interest in the land and his intent to dispossess or not dispossess another is irrelevant to this determination.
(Footnote omitted.)
While this definition may work well in cases where the only issue is whether the use was adverse, it would appear to have very little practical application in cases such as the one before us today, where the commencement of the use was clearly permissive. Where the use is permissive, the user will normally occupy and use the land in the manner of a true owner. Thus, evidence of such manner of use is not helpful in resolving permissive use cases.
In the Chaplin opinion, the court states at pages 861-62, 676 P.2d 431:
[P]ermission to occupy the land, given by the true title owner to the claimant or his predecessors in interest, will still operate to negate the element of hostility. The traditional presumptions still apply to the extent that they are not inconsistent with this ruling.
In so stating, the Chaplin court made it clear that a different set of rules applies when the initial use is permissive.
Those rules are well stated in Northwest Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75, 84, 123 P.2d 771 (1942) as follows:
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.
A user which is 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.
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