Lingvall v. Bartmess

• Court: Washington Court of Appeals
• Writing for the Court: ARMSTRONG, A.C.J.
• Citation: Lingvall v. Bartmess, 982 P.2d 690, 97 Wn. App. 245, 97 Wash.App. 245 (Wash. App. 1999)
• Decision Date: 27 August 1999
• Docket Number: No. 23302-9-II.
• Parties: Jo Vonne LINGVALL, Respondent, Douglas A. Price and Cindy Sue Price, husband and wife, Third-Party Defendants, v. Robert BARTMESS and Shirley Bartmess, husband and wife, Appellants/Third-Party Plaintiffs.

982 P.2d 690

97 Wn. App. 245

97 Wash. App. 245

Jo Vonne LINGVALL, Respondent, Douglas A. Price and Cindy Sue Price, husband and wife, Third-Party Defendants, v. Robert BARTMESS and Shirley Bartmess, husband and wife, Appellants/Third-Party Plaintiffs.

No. 23302-9-II.

Court of Appeals of Washington, Division 2.

August 27, 1999.

William J. McDowell, Wenatchee, for Respondent.

G. Michael Zeno, Davidson Czeiler et. al, Kirkland, for Appellants.

ARMSTRONG, A.C.J.

Robert and Shirley Bartmess appeal a judgment granting a driveway easement by prescription to Jo Vonne Lingvall and quieting title to a triangle section of property on which the driveway sits ("the triangle") to Lingvall's successor-in-interest, Cindy Sue Price. They argue that Lingvall's use of the driveway and triangle was permissive and that Lingvall did not adversely possess the triangle for the 10-year period. They also argue that the trial court erred in granting Lingvall title to the triangle by adverse possession and a prescriptive easement on the same property. We affirm.

FACTS

Jo Vonne Lingvall sued her neighbors, Robert and Shirley Bartmess, to quiet title to the northwestern corner of the Bartmesses' property or, in the alternative, to establish a prescriptive easement over a driveway in the same location. The Bartmesses brought a third-party complaint for ejectment against Lingvall's daughter, Cindy Sue Price, who now owns the parcel of land adjacent to the property in dispute.¹ The trial court granted Lingvall a prescriptive easement and quieted title to the triangle in Price by adverse possession.

The triangle was originally contained within one parcel of land owned by Grace Blank. When Grace Blank died in 1977, the property went to her sons, Alvin and Bobby Blank. Because the brothers could not agree on a division of their mother's estate, the probate court divided the lot into two parcels. Thus, in 1980, the southern parcel was awarded to Bobby and the northern parcel was awarded to Alvin. The West Sequim Bay Road borders both parcels to the West, and Sequim Bay is the eastern border.

At the time that Grace Blank's property was divided, a driveway, with a fence along its southern border, provided access from West Sequim Bay Road to the northern parcel (Alvin's property). Although it was apparently unknown at the time, a portion of the driveway and fencing encroached on the northwest corner of the southern parcel (Bobby's property). The triangle was defined by a cattle fence on the south and the West Sequim Bay Road to the West.

When Alvin died in 1982, his wife, Jo Vonne Blank (now Lingvall) succeeded to his interest in the northern parcel. Bobby and Alvin Blank were contentious regarding the division of their mother's assets and remained antagonistic towards one another throughout the rest of Alvin's life. Although relations with other family members were cordial, the brothers' animosity carried over to Jo Vonne Lingvall following Alvin's death.

When the property was divided in 1980, there was a house on the northern parcel. This house was rented out by Alvin Blank and/or his wife Jo Vonne Lingvall continuously from June 1980 to July 1989. The tenants used the driveway as their sole access to the rental house. Lingvall, who lived on the other side of West Sequim Bay from 1980 through 1989, built a barn on the northern parcel in 1982 and used the driveway to get to the barn. Bobby Blank and his son used the driveway infrequently to get to a barn on the southern parcel, for clamming and boating, and for a meeting with Lingvall to discuss a powerline easement. A neighbor, Melvin Baker, occasionally used the driveway when he grazed cattle and cut hay on the southern parcel.

When the rental house and barn on Lingvall's property burned to the ground in 1989, she and her second husband built a new house on the northern parcel. They moved in that same year and continued to use the driveway to access their new home. Before she built the house, Lingvall divided the northern parcel into two lots. She gave the western lot to her daughter, Cindy Sue Price, and built her home on the lot to the East. The southwest corner of Price's lot abuts the triangle. Lingvall's short plat of the northern parcel includes an easement, apart from the driveway, that provides access from West Sequim Bay Road across the western lot for the benefit of Lingvall's eastern lot. Sometime between 1982 and 1985, Lingvall planted two flowering plums within the triangle. During the winter of 1985-1986, Lingvall and her husband cleared brush and wild shrubbery from the triangle; they have mowed and maintained the area ever since. Some time after 1986, Lingvall planted pine trees in the area. She and her husband landscaped and maintained the area continuously and exclusively from at least 1986 to December 1997.

Although he had numerous opportunities to do so, Bobby Blank never challenged Lingvall's possession of the triangle or use of driveway until November 7, 1994. On November 7, 1994, Lingvall, Price, and Bobby Blank's son, Jeff, met with several realtors to establish the boundary lines of Bobby's property. When Lingvall was shown a survey of Bobby's property, she allegedly said, "Does this mean I do not get to use the driveway any more?" There was testimony that Jeff Blank, who had power of attorney for his father, gave Lingvall permission to use the driveway until the southern parcel was sold. Apparently, Jeff Blank also told her she could take the plants in the triangle. Within a day of that meeting, Jo Vonne Lingvall consulted an attorney. She continued to use the property as her own, despite Jeff Blank's attempt to block her use with some string along the survey boundary. Bobby Blank conveyed his property to the Bartmesses on June 19, 1996.

ANALYSIS

A. Prescriptive Easement

The Bartmesses contend that the trial court erred in concluding that Lingvall's use of the driveway was adverse. Because the record supports this conclusion, we affirm.²

Although prescriptive rights are not favored, a prescriptive easement can be established by showing: "(1) use adverse to the right of the servient owner, (2) open, notorious, continuous, and uninterrupted use for the entire prescriptive period, and (3) knowledge of such use by the owner at a time when he was able to assert and enforce his rights." Dunbar v. Heinrich, 95 Wash.2d 20, 22, 622 P.2d 812 (1980). The prescriptive period in Washington is 10 years. Compare Wasmund v. Harm, 36 Wash. 170, 176, 78 P. 777 (1904), with RCW 4.16.020.

If the essential factual findings are not in dispute, whether use is adverse or permissive is purely a question of law. See Petersen v. Port of Seattle, 94 Wash.2d 479, 485, 618 P.2d 67 (1980); Lee v. Lozier, 88 Wash.App. 176, 181, 945 P.2d 214 (1997); cf. Peeples v. Port of Bellingham, 93 Wash.2d 766, 771, 613 P.2d 1128 (1980) (outlining standard of review under analogous doctrine of adverse possession), overruled on other grounds by Chaplin v. Sanders, 100 Wash.2d 853, 676 P.2d 431 (1984); but see, e.g., Northwest Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75, 84, 123 P.2d 771 (1942), modified on other grounds by Cuillier v. Coffin, 57 Wash.2d 624, 358 P.2d 958 (1961); Pedersen v. Department of Transp., 43 Wash.App. 413, 417, 717 P.2d 773 (1986); Miller v. Jarman, 2 Wash.App. 994, 997, 471 P.2d 704 (1970); cf. Miller v. Anderson, 91 Wash.App. 822, 828, 964 P.2d 365 (1998) (adverse possession). Unchallenged factual findings are verities on appeal. Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 808, 828 P.2d 549 (1992).

Adverse use does not import "ill will" but means "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." Malnati v. Ramstead, 50 Wash.2d 105, 108, 309 P.2d 754 (1957); Pedersen, 43 Wash.App. at 417, 717 P.2d 773. Adverse use is measured objectively based on the observable acts of the user and the rightful owner. Dunbar, 95 Wash.2d at 27, 622 P.2d 812. The Bartmesses contend that the evidence implies permissive use because there was (1) a family relationship between the parties, (2) mutual use of the driveway by Lingvall and Bobby Blank, and (3) use that occurred on neighboring parcels of land. The Bartmesses are correct that Washington courts have inferred permissive use in each of these circumstances. See e.g., Granston v. Callahan, 52 Wash.App. 288, 294-95, 759 P.2d 462 (1988) (close family relationship between brothers living on adjacent parcels supports inference of permissive use); Jarman, 2 Wash.App. at 997,471 P.2d 704 (mutual use of driveway supports determination of permissive use); Roediger v. Cullen, 26 Wash.2d 690, 707, 175 P.2d 669 (1946) (permissive use may be implied in "any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence"). But, in each case, the facts supported that inference.

Here, the undisputed facts establish adverse use. First, although adverse use does not import ill will, Malnati, 50 Wash.2d at 108, 309 P.2d 754, the antagonistic relationship between Bobby and Alvin Blank negates any inference of permissive use that might typically arise between brothers. Alvin and Bobby Blank could not agree on the division of their mother's property. The probate court had to resolve the dispute, which included the land where the driveway is located. They remained antagonistic throughout Alvin's life, and their mutual animosity carried over to Lingvall. The Bartmesses point out that the animosity between the brothers did not extend to other family members but, given the antagonism between Bobby and Alvin and Lingvall, the parties' relationships with other family members are not relevant.

Relying on Miller v. Jarman and Crites v. Koch, 49 Wash.App. 171, 741 P.2d 1005 (1987), the Bartmesses also argue that mutual use of the driveway on neighboring parcels of land...