                                                                                                              FILED
                                                                                                         000, OF
                                                                                                            T       IALA
                                                                                                               DIVIS{ 13

                                                                                                       2014
                                                                                                              JAN 22            1
      IN THE COURT OF APPEALS OF THE STATE OF W                                                                        SHINGT
                                                                                                       BY
                                                 DIVISION II
                                                                                                                 WE
DIANE DUMOND, GREG DUMOND,                           and                          No. 43691- 4- 11
DARREL DUMOND, single individuals,

                                       Appellants,


         V.



VIETNAMESE             BAPTIST          CHURCH       OF                      UNPUBLISHED OPINION
TACOMA, INC,, a Washington corporation;
and CHARLES L. KELLY and JANE DOE
KELLY, as a marital community,




         Penoyar, J. —         Greg and Diane Dumond sought a prescriptive easement in the alley

behind their family' s house after Charles Kelly and the Vietnamese Baptist Church ( Church)
blocked the alley     with    fences.   The trial court determined that the Dumonds established all of the

elements of a prescriptive easement except            the    adverse use element.        Specifically, it found that

the use of the alley was permitted by neighborly courtesy. The court also enjoined the Dumonds
from using the alley         and awarded a    judgment     against    Gregl for the damage he caused when he

removed       the fences.    The Dumonds appeal, arguing that the trial court erred by finding that their

use of the alley was permissive and by ordering Greg to pay damages. We hold that the evidence
did not support an inference of permissive use through neighborly courtesy and that the

Dumonds presented evidence that they used the land like a true owner would. Accordingly, they

have established the adverse use element and the trial court erred by enjoining them from using

the alley and entering damages against Greg. We reverse and remand.




 1
                                       to the Dumonds                first            We intend   no   disrespect.
     Where necessary,       we refer                    by   their           names.
43691 -4 -II



                                                            FACTS


         This action arises over a disputed strip of land on the block between South 60th and

South 62nd Streets and Puget Sound Avenue and Warner Street in Tacoma. The Dumond family

has   owned a     house      on   this block   since   1957.   The surrounding blocks have alleys dedicated on

the   plat   map, but this block does           not.      However, since at least the 1960s, the residents have


treated the strip of land behind the houses as an alley, and the land looks similar to the alleys on
the surrounding blocks.             In the 1960s and 1970s, nine of the houses on the block, including the

Dumonds',        had rear- facing garages that opened into the alley, and the city used the alley for
garbage pick -
             up.         No       permission was asked or        given   for   use of   the alley.   Traffic in the alley

declined in the late 1980s, but the Dumonds continued to use the alley to access their garage, and

they occasionally mowed parts of it and removed trash from it.
                                                    the   north end of   the alley blocked      access   to the alley.   In
             In 2006, property       owners    on




2007, Kelly and the Church erected a series of fences that ultimately blocked access to the alley
from the south. Greg removed a portion of the fences in 2010 to access the alley. The Dumonds
then sought a prescriptive easement in the alley and an injunction barring Kelly and the Church

from interfering with the easement.

             The trial court concluded that the Dumonds failed to establish the elements of a

prescriptive easement because their use of the alley was permissive and the result of neighborly

 courtesy      and, therefore, was not adverse.            As a result, the trial court entered judgment in Kelly' s

 and the Church' s favor and enjoined the Dumonds from using the alley to access their property.

 The trial court also entered a judgment against Greg for the cost of repairing the fences and

                             the Church $396. 61 in attorney fees         and costs.     The Dumonds      appeal.
 awarded       Kelly   and
43691- 4- 11



                                                                ANALYSIS


          The Dumonds argue that the trial court erred by concluding that the use of the alley was

not   adverse         but   was permitted       by    neighborly courtesy.          Because the facts do not support an


inference of neighborly courtesy and the Dumonds proved that they used the alley as an owner

would, we hold that the trial court erred.


          To establish a prescriptive easement, a claimant must prove that the use of the servient

land   was (     1)   open and notorious, (          2)   over a uniform route, (     3) continuous and uninterrupted for


10    years, (   4) adverse to the owner of the servient land, and ( 5) known to the owner at a time

when     he   was able        to   enforce    his   rights.    Drake v. Smersh, 122 Wn. App. 147, 151, 89 P. 3d 726

                                           Fisher, 106 Wn.                599, 602, 23 P. 3d 1128 ( 2001)).    The trial court
 2004) ( quoting Kunkel              v.                            App.

found that the Dumonds                   met all of   the     elements except adverse use.          The Dumonds appeal only

the trial court' s determination that the use of the alley was not adverse.


           Whether the elements of a prescriptive easement are met is a mixed question of law and

                      Lozier; 88 Wn.                  176, 181, 945 P. 2d 214 ( 1997).          We review the trial court' s
fact. Lee        v.                           App.

factual findings to determine if they are supported by substantial evidence in the record. Lee, 88

 Wn.    App.     at    181.   Substantial evidence is evidence sufficient to persuade a rational, fair -
                                                                                                       minded

 person of       the truth     of   the   evidence.       Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873,

 879, 73 P. 3d 369 ( 2003).                   The trial court' s conclusion about whether the facts establish a

 prescriptive easement              is    a question of     law,   which we review     de   novo.    Lee, 88 Wn. App. at 181;

 Wash. State Farm Bureau Fed' n v. Gregoire, 162 Wn.2d 284, 300, 174 P. 3d 1142 ( 2007).




                                                                          3
43691 -4 -II




             A claimant' s use is adverse when he " uses the property as the true owner would, under a

claim of right, disregarding the claims of others, and asking no permission for such use."

Kunkel, 106 Wn.            App.   at   602.   Use is   not adverse   if it is   permissive.    Kunkel, 106 Wn. App. at

602.         An inference of permissive use arises if a court can reasonably infer that the use was

permitted       by   neighborly courtesy.         Imrie v. Kelley, 160 Wn. App. 1, 7; 250 P.3d 1045 ( 2010).

Courts have inferred neighborly courtesy where there is a close relationship between the parties,

see    Granston       v.   Callahan, 52 Wn.        App.    288, 295, 759 P. 2d 462 ( 1988) (             quoting Pickar v.

Erickson, 382 N. W. 2d 536, 538 ( Minn. Ct.                 App.     1986)), the true owner built and continued to


use    the    road, see    Cuillier    v.   Coffin, 57 Wn.2d 624, 627, 358 P. 2d 958 ( 1961), and the parties


agreed that farmers in the area allowed others to cross their land as a neighborly courtesy, see

Crites v. Koch, 49 Wn. App. 171, 177, 741 P. 2d 1005 ( 1987).

             In Drake, the court held that there were no facts to support an inference that the use was

                                                   122 Wn.    App.     at   155.   There, one neighbor extended the
permitted       by   neighborly courtesy.


other' s driveway to access his property. Drake, 122 Wn. App. at 149. The neighbor never asked

permission to use or extend the driveway and the parties did not have a relationship that would

permit an inference of permissive use. Drake, 122 Wn. App. at 154. Further, the user treated the

property as an owner would by extending the driveway and using it as the sole access to his
property. Drake, 122 Wn. App. at 155.

             While this case is closer than Drake, the facts here also do not support an inference of

 neighborly courtesy. The trial court found that there was a tacit agreement among the neighbors

 to leave the alley        open   but it    cited no specific evidence      in   support of   this   finding. Like the party

 in Drake, the Dumonds never asked permission to use the land and they did not have a

 relationship with the other land owners that would imply neighborly courtesy as opposed to a
                                                                11
43691 -4 -II




claim of right.        Until recent years, the alley appeared similar to the legal alleys to the north and

south and there was nothing on the ground to indicate that the passage was open only by

neighborly courtesy.               Moreover, during the prescriptive period, the city used the alley for trash

collection.         The city' s use of the alley is evidence that it was left open for reasons other than

neighborly courtesy.               Furthermore, nine of the owners on the block, including the Dumonds,

built alley- facing garages, indicating that they were relying on more than neighborly courtesy in

making their investments.

            Accordingly, the trial court erred by concluding that the Dumonds' use of the alley was

not adverse. The facts do not support an inference of neighborly courtesy and the Dumonds used

the alley      as   if it   was    their   own    property,   without regard       to the   rights of others.      They built an

alley- facing garage that could only be accessed by driving over the Church' s and Kelly' s land
and they maintained the alley by removing trash and mowing it.
            The Church argues that the Dumonds' shared use of the alley creates an inference that the

use    was permissive.             Although shared use of a road may be evidence of permissive use, see

Cuillier, 57 Wn.2d            at   627, "[ t] he    claimant need not       be the only     person   using the [   road] `   so long

as    he   exercises and claims            his   right   independent   of others. "'   Lingvall v. Bartmess, 97 Wn. App.

245, 252, 982 P. 2d 690 ( 1999) ( quoting Anderson                         v.   Secret Harbor Farms, Inc., 47 Wn.2d 490,


494, 288 P. 2d 252 ( 1955)).                 Here, the Dumonds claimed their right to use the alley independent

 of   their   neighbors.       They used the alley to access their personal garage and in a manner different
 than      general    public      purposes.       We hold that the Dumonds' use of the alley was adverse and


 remand for the trial court to lift the injunction against the Dumonds and define the location and

 scope of the prescriptive easement.




                                                                       5
43 691 -4 -II



         The Dumonds next argue that the trial court erred by assessing damages against Greg for

removing portions of the fences. They contend that the prescriptive easement had ripened by the

time the Church and Kelly constructed the fences, and, therefore, Greg was justified in removing

them from the          easement.     The Dumonds are correct that the easement had ripened before the

fences   were constructed.          The trial court found that, at least from 1960 to 1977,' the Dumonds'

use of the alley was open, notorious, continuous, uninterrupted, over a uniform route, and with

the    owners'       knowledge,    and we    hold that the   use was    also   adverse.    Thus, the easement was



established by 1977, well before the fences were first constructed in 2007.

          A servient land owner may use his property in a reasonable manner that does not interfere
with    the   purpose of     the   easement.   Littlefair v. Schulze, 169 Wn. App. 659, 665, 278 P.3d 218

 2012),    review      denied, 176 Wn.2d 1018, 297 P. 3d 706 ( 2013).             A dominant land owner has the


right to protect his rights in the easement. Littlefair, 169 Wn. App. at 666. Here, the Church and

Kelly interfered with the Dumonds' use of the alley, and the Dumonds had the right to protect
their   easement       by   removing the    portion of   the fence obstructing their      use.   Accordingly, the trial

 court erred by awarding a judgment against Greg for removing the fence.
          ATTORNEY FEES


          The Church requests attorney fees on appeal under RCW 4. 84. 250 and . 290, which allow

 the   court    to   award    fees to the prevailing party in      an   action   involving $     10, 000   or   less.   The


 Church does not prevail here, so we do not award attorney fees.




                                                              3
43691 -4 -II




        We reverse and remand to the trial court.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                               y at


We concur:




         Hunt, J.


          t


         Worswick, C. J.




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