Miller v. Jarman
| Decision Date | 06 July 1970 |
| Docket Number | No. 5--39854--I,5--39854--I |
| Citation | 471 P.2d 704,2 Wn.App. 994 |
| Parties | Charles J. MILLER and Millicent A. Miller, his wife, Appellants, v. Roger D. JARMAN and Janice R. Jarman, his wife, Respondents. |
| Court | Washington Court of Appeals |
Jones, Grey, Kehoe, Bayley, Hooper & Olsen, Richard I. Sampson, Seattle, for appellants.
Houger, Garvey & Schubert, Nyle G. Barnes, Seattle, for respondents.
The Millers brought this action against their neighbors, the Jarmans, seeking a permanent injunction against the Jarmans' interference with an alleged easement for ingress and egress to and from the Millers' garage.
The Millers claim they have established an easement by prescription over and across the Jarmans' driveway which lies immediately north of the platted common boundary line of the parties. All the elements necessary to establish an easement by prescription were established except adverse use. Roediger v. Cullen, 26 Wash.2d 690, 175 P.2d 669 (1946). The trial court found the use of the Jarmans' portion of the common driveway by the Millers and their predecessors was permissive, and concluded an easement by prescription had not been established. The Millers appeal.
The sole question presented by this appeal is whether there is substantial evidence to support the trial court's finding the use of the Jarmans' driveway by the Millers and their predecessors was permissive.
The Millers and Jarmans own adjoining lots in the University District in Seattle. The lots face 19th Avenue Northeast and are framed by an alley to the rear. Parallel to and abutting the alley are two concrete driveways in front of the respective garages of the parties. The exact date the respective driveways were constructed remains unclear, although installation occurred sometime prior to 1927. The Millers' single garage faces north, while the Jarmans' double garage faces south. These short concrete drives join at a point which approximates the platted boundary line between the two lots.
For over 40 years the respective owners of these adjacent homes made mutual use of each other's driveways for purposes of ingress and egress to their respective garages. There was no evidence of any discussion among the respective property owners concerning mutual use of the driveways until September, 1966.
A critical shortage of parking for roomers in the University area existed and the Jarmans, who rented rooms in their house, conceived a plan to convert their driveway, as well as the remainder of their yard and garage area, into permanent multiple parking. They ceased using their garage for parking, and painted a white line and erected a small barricade at the platted boundary which divides the driveways.
The Millers obtained a temporary injunction and commenced the present action seeking a permanent injunction and an adjudication that they are vested with an easement for ingress and egress across the Jarmans' driveway.
Whether use is adverse or permissive is a question of fact. Northwest Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75, 123 P.2d 771 (1942), (modified on other grounds by Cuillier v. Coffin, 57 Wash.2d 624, 358 P.2d 958 (1961)). The trial court must examine all the circumstances surrounding each case. Unchallenged use for the prescriptive period is a circumstance from which an inference of adverse use may be drawn. Such unchallenged use is, however, 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. Cuillier v. Coffin, Supra.
There are a number of circumstances in this case which are supportive of a determination that use was permitted as a neighborly courtesy and was, therefore, permissive. The testimony indicated there...
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Hawaiian Ins. & Guaranty Co., Ltd. v. Federated Am. Ins. Co., 2508--I
...State v. Johnson, 12 Wash.App. 40, 527 P.2d 1324 (1974); Diel v. Beekman, 7 Wash.App. 139, 499 P.2d 37 (1972); Miller v. Jarman, 2 Wash.App. 994, 471 P.2d 704 (1970). The evidence supports the findings, insofar as they go, concerning the activities and intentions of Mr. and Mrs. Smith. Albe......
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...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 finding......
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...303, 98 P. 1126 (1908). Wash.2d 75, 123 P.2d 771 (1942); Spear v. Basagno, 3 Wash.App. 689, 477 P.2d 197 (1970); and Miller v. Jarman, 2 Wash.App. 994, 471 P.2d 704 (1970). Diels have claimed throughout the litigation that they were not there as tenants, but as beneficiaries of a resulting ......
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...v. Hudak, 80 Wash.App. 398, 401-02, 907 P.2d 305 (1995). "Whether use is adverse or permissive is a question of fact." Miller v. Jarman, 2 Wash.App. 994, 997, 471 P.2d 704 (citing Northwest Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75, 84, 123 P.2d 771 (1942)), review denied, 78 Wash.2......
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Table of Cases
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§7.4 - Creation of Easements by Prescription
...An easement by prescription is acquired by the exclusive and uninterrupted adverse use and enjoyment of an easement. Miller v. Jarman, 2 Wn.App. 994, 471 P.2d 704, review denied, 78 Wn.2d 995 (1) Rationale It is sometimes said that prescriptive easements rest on the presumption of a grant t......