    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                        DIVISION ONE                                                   rjt '



                                                                                en
ANNE WHYTE, a married person on                 No. 69174-1-1
                                                                                          -r.
behalf of her marital community,
                                                                                           "in ;'•'•
                    Appellant,

             V.



CHRISTOPHER JACK and PETRA                      UNPUBLISHED OPINION
JENNINGS and their respective
marital community,                              FILED: September3, 2013

                    Respondents.


      Verellen, J. —Anne Whyte shares a driveway with Christopher Jack and Petra

Jennings (collectively Jack). The driveway is the sole means of ingress to and egress

from their houses on Mercer Island. Whyte brought claims against Jack for adverse

possession and prescriptive easement, which the court dismissed on summary

judgment. Whyte appeals, contending the trial court ignored genuine issues of

material fact and misapplied the legal standard governing both her claims. The trial

court properly dismissed the adverse possession claim because Whyte presented no

evidence of hostile use. The trial court properly dismissed the prescriptive easement

claim because Jack's predecessors permitted use of their driveway as a neighborly

accommodation. We affirm.
No. 69174-1-1/2


                                         FACTS


       This property dispute arises out of the use of a shared driveway serving two

adjacent parcels on Mercer Island. Anne Whyte purchased the north parcel1 (Whyte
parcel) in 2003 from June Skidmore. Skidmore owned the parcel from 1975 through

the sale in 2003. Jack purchased the south parcel2 (Jack parcel) in 2010 from the
Moores, who lived there from 1990 through 2010.3 The Moores purchased the parcel
from the Gingriches in 1990, and the Gingriches purchased the parcel from the

Skugstads in 1986. Before the Skugstads, the Christensons owned the parcel.

      The shared driveway runs along the property line dividing the Whyte parcel, to

the north, from the Jack parcel, to the south. The shared driveway has existed in its

current form since at least 1975. In August of 1972, the then-owners of the two

parcels entered into a declaration of joint use maintenance agreement and easement

(easement agreement). Under the easement agreement, 15 feet on either side of the

property line is subject to an "easement for the construction, improvement, repair and

maintenance for roadway and utilities."4 The easement agreement imposes on both
parties and their successors and assigns a duty to "forever be required to maintain the

road and utilities on said easement in a reasonable state of repair at all times, and any

expense or cost thereof shall be borne equally by the beneficial owner or owners of



      1The parties also refer to the north parcel as Lot 9.
      2The parties also refer to the south parcel as Lot 8.
      3Before Jack purchased the parcel, the Moores and Whyte had a strained
relationship. The Moores obtained an antiharassment order against Whyte and
painted a line along the property boundary. Jack then also obtained an
antiharassment order against Whyte after the purchase.
      4Clerk's Papers at 35.
No. 69174-1-1/3


said Lots 8 and 9."5 The owners of the two parcels jointly constructed the shared
driveway soon after recording the easement agreement. Most of the shared driveway

is located within the 30-foot-wide easement boundaries. However, the end of the

shared driveway curves south beyond the easement boundary onto the Jack parcel.

The shared paved driveway then splits into a Y, with each branch continuing to the

garage on each parcel. There is no change in the paving where the shared paved

driveway ends and the paved individual driveways begin. Until very recently, when

Jack installed a curb along the southern edge of the easement boundary, there was no

other demarcation of the shared driveway and Jack's individual driveway.

       There are two distinct pieces of land in dispute. The first piece in dispute is a

small sliver of land Whyte contends she adversely possessed and is located south of

her property line, within the part of the Jack parcel burdened by the easement

agreement, but north of the paved shared driveway. In 1975, when Skidmore

purchased the Whyte parcel, there was no landscaping along the property line.

Skidmore installed a rockery shortly after she moved in 1975,6 and then planted some
grasses and ground cover just north of where the driveway curved to the south. There

were two trees already existing near the rockery. Sometime after 1991, Skidmore also

installed a sprinkler system near the rockery, and, over the years, planted some

flowering bushes.7 Skidmore never weeded the area because the groundcover made


       5Clerk's Papers at 35.
       6 It appears from her deposition that the "rockery" included a few "good sized
boulders." Clerk's Papers at 124-26. Photograph exhibits provide some reference as
to the limited size of the rocks.

       7 Mrs. Skidmore testified that after her husband died in 1991, she had the
sprinkler system installed.
No. 69174-1-1/4



weeding unnecessary. Skidmore did not ask permission of the prior owners of the

Jack parcel to build or maintain the rockery and vegetation.

       The second piece in dispute is another small sliver over which Whyte contends

she has a prescriptive easement. The disputed land is located just south of the

easement boundary, exclusively on the Jack parcel. When Skidmore purchased the

Whyte parcel, the paved driveway already existed in its current form. From 1975

through the 2003 sale to Whyte, Skidmore used the driveway on a daily basis.

Mr. Skidmore, Mrs. Skidmore and their son would sometimes drive onto the Jack

parcel when entering or exiting their individual driveway. They would frequently back

out of their driveway and onto the Jack parcel to turn around before exiting the shared

driveway.8 They would also sometimes back into a different area ofthe shared
driveway, closer to the rockery and within the easement boundaries, to turn around

before exiting the shared driveway.

       Mrs. Skidmore testified that her family was "very good friends" with the

Skugstads, the owners ofthe Jack parcel in the late 1970s.9 Skidmore never asked
the Skugstads whether her family could use their property as a turnaround. Skidmore

did not ask permission from any of the other subsequent owners of the Jack parcel

(the Moores, or the Gingriches) to use the portion of the driveway to the south of the

easement boundary.10


       8Whtye did not designate for inclusion in the clerk's papers the exhibit to
Skidmore's deposition where Mrs. Skidmore indicated with arrows the precise direction
and location of the turnaround. See Clerk's Papers at 131.
       9Clerk's Papers at 144.
       10 In 2010, Jack installed a concrete curb and planting strip along the southern
boundary of the easement. The curb is one foot tall and six inches wide. Whyte
complained to the city, but the city determined the barrier did not violate any applicable
No. 69174-1-1/5


       Whyte filed a complaint seeking declaratory judgment regarding the adverse

possession and prescriptive easement theories, trespass and damages to property,

injunctive relief, and damages. Jack moved for summary judgment on the adverse

possession and prescriptive easement claims. The trial court granted Jack's motion.

                                      DISCUSSION


       We review summary judgment determinations de novo, engaging in the same

inquiry as the trial court.11 Summary judgment is appropriate if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.12
This court considers the facts and all reasonable inferences from the facts in the light

most favorable to the nonmoving party.13 If reasonable minds could reach but one
conclusion from all the evidence, summary judgment is correct.14 Bare assertions that
a genuine issue of material fact exists will not defeat summary judgment in the

absence of actual evidence.15

                                   Adverse Possession


       To establish ownership of a piece of property through adverse possession, a

claimant must prove that possession of the property was "(1) open and notorious,

(2) actual and uninterrupted, (3) exclusive, (4) hostile and under a claim of right, (5) for


code. While the barrier limits the area of paved roadway on the Whyte parcel to
approximately six feet, the total accessible area between the barrier and the southern
boundary of the new rockery is just shy of ten feet.
       11 Cole v. Lavertv. 112Wn.App. 180, 184, 49 P.3d 924 (2002).
       12 id,
       13 kL
       14 Harberd v. City of Kettle Falls. 120 Wn. App. 498, 507-08, 84 P.3d 1241
(2004).
       15 Id. at 508.
No. 69174-1-1/6


a period of 10 years."16 Title automatically vests in a claimant who satisfies the
elements for the 10-year period.17 "'Where there is privity between successive
occupants holding continuously and adversely to the true title holder, the successive

periods of occupation may be tacked to each other to compute the required 10-year

period of adverse holding.'"18 Subjective belief in ownership does not establish the
hostility element.19 Rather, satisfaction ofthe adversity element requires the
claimant's use to be hostile to the title owner's interest.20 "Adverse possession is a
mixed question of law and fact: whether the essential facts exist is for the trier of fact,

but whether the facts constitute adverse possession is for the court to determine as a

matter of law."21

       Whyte argues that the court ignored genuine issues of material fact pertaining

to adverse use.22 Skidmore, Whyte's predecessor, installed rocks in 1975 just north of



       16 Shelton v. Strickland. 106Wn. App. 45, 50, 21 P.3d 1179 (2001).
       17 Gorman v. City ofWoodinville. 175 Wn.2d 68, 72, 283 P.3d 1082 (2012).
       18 Lilly v. Lynch. 88 Wn. App. 306, 312-13, 945 P.2d 727 (1997) (quoting Row,
Cunningham. 46 Wn. App. 406, 413, 731 P.2d 526 (1986)).
       19 Chaplin v. Sanders. 100 Wn.2d 853, 861, 676 P.2d 431 (1984).
       20 Herrin v. O'Hern. 168Wn. App. 305, 311, 275 P.3d 1231 (2012).
       21 Linqvall v. Bartmess. 97 Wn. App. 245, 253, 982 P.2d 690 (1999).
       22 Whyte also contends the trial court applied an incorrect legal standard,
subjecting her to a "heightened" standard of hostility. App. Br. at 25. The trial court
analyzed Whyte's adverse possession claim in the context of the easement agreement
because the portion of land Whyte seeks to adversely possess is located within the
easement. Although we decline to analyze the adverse possession claim through the
lens of the easement agreement, the trial court did not err by considering the
easement agreement, nor did it impose a heightened burden. It simply noted that
where a party (usually the servient estate owner) seeks to terminate an easement by
adverse possession, courts must focus on the uses already contemplated by the
easement in examining whether the hostility element is satisfied. Cole, 112 Wn. App.
at 184 ("to start the prescriptive period, the adverse use of the easement must be
No. 69174-1-1/7


the driveway, and then planted grasses and ground cover. Two tall trees already

existed near the rockery. Sometime after 1991, more than 10 years after the 1975

rockery installation, Skidmore installed a sprinkler system and planted a few flowering

bushes.        Skidmore never weeded the area, because the groundcover made weeding

unnecessary.


          Whyte relies chiefly on Maierv. Giske23 and Lingvall v. Bartmess,24 two cases in
which the claimants had landscaped and continuously maintained the disputed land.

In Lingvall. the court affirmed a grant of title by adverse possession over a triangle of

land where the claimant had planted two trees, cleared the land of wild brush and

shrubbery, landscaped, and consistently (and exclusively) mowed and maintained the

land.25

          In Maier. the court held the claimant had adversely possessed land where she

had installed planks and built a berm on the disputed land, planted trees and shrubs

between the planks, extensively landscaped, and maintained the area as her own.26
The court noted, "Giske used the land in ways that would cause a reasonable person

to assume she was the owner. . . . She treated the land as an owner, satisfying the

'hostility' element.'"27 However, the appellate court affirmed the trial court's refusal to




clearly hostile to the dominant estate's interest [in the easement] in order to put the
dominant estate owner on notice").
          23 154Wn. App. 6, 19, 223 P.3d 1265 (2010).
          24 97 Wn. App. 245, 253, 982 P.2d 690 (1999).
          25 97 Wn. App. at 248-49.
          26
               154Wn. App. at 12.
          27 Id. at 19.
No. 69174-1-1/8


find the claimant had adversely possessed a different portion of land also at issue in

the case because the claimant had only planted one tree and some other vegetation.28
       Jack relies on Anderson v. Hudak. where the court held the claimant's planting

of a row of trees and maintaining of the land around the trees was insufficient evidence

of hostility.29 There was no evidence that the claimant watered, pruned, trimmed or
cared for the trees.30 The court noted that in successful claims ofadverse possession,
"the parties furnish[ ] some evidence of usage," which "include[s] acts such as clearing

land, mowing grass, and maintaining shrubs and plants."31
       Jack rightly argues that Whyte's predecessor's use of the disputed adverse

possession area—installing a rockery, planting a few bushes, and installing a sprinkler

system next to existing trees and north of the jointly constructed shared driveway—

does not constitute adverse use as a matter of law. While Skidmore's initial placement

ofthe rockery and planting ofgrasses and shrubs in 197532 is consistent with Maier
and Lingvall. Skidmore testified that she never maintained the area after the initial

planting. All she did was plant a few more flowering bushes, and then, sometime after

1991, she installed a sprinkler system.33 The intermittent and insubstantial planting
over the years is insufficient as a matter of law to demonstrate a prima facie case of

adverse use, because Skidmore never consistently used or maintained the land. Nor

      28 id at 20.
      29 80 Wn. App. 398, 401-02, 404-05, 907 P.2d 305 (1995)
      30 id at 402.
      31 ]d at 404 (emphasis omitted).
      32 The record does not reflect a date certain on which the planting ofgrasses
and shrubs occurred.

      33 The record does not contain a precise date on which the installation occurred,
nor does it suggest how frequently Skidmore used the sprinkler system.
No. 69174-1-1/9


did Skidmore's use ever prevent Jack or his predecessors from using the land. When

the original owners of the two parcels constructed the shared paved driveway, they

avoided the area containing the preexisting trees. Skidmore's addition of ground

cover, bushes and rocks to that same area where the existing trees already blocked

ingress and egress was not a hostile use. Whyte depends on the use by Skidmore to

establish the required 10 years of adverse use, but she fails to establish Skidmore's

use was hostile. We affirm the trial court's grant of summary judgment to Jack on

Whyte's adverse possession claim.

                                 Prescriptive Easement

       Whyte also contends the court erred in granting summary judgment on her

prescriptive easement claim. A prescriptive easement requires the claimant to prove

"use of the servient land that is: (1) open and notorious, (2) over a uniform route, (3)

continuous and uninterrupted for 10 years, (4) adverse to the owner of the land sought

to be subjected; and (5) with the knowledge of such owner at a time when he was able

in law to assert and enforce his rights."34 A use is adverse when the claimant "uses
the property as the true owner would, under a clam of right, disregarding the claims of

others, and asking no permission for such use."35 Use is not adverse if it is
permissive.36 Adverse versus permissive use is generally a question offact, but where
the essential facts are not disputed, a court may determine adversity as a matter of




       34 Drake v. Smersh. 122 Wn. App. 147, 151, 89 P.3d 726 (2004).
       35 id
       36 Id. at 152.
No. 69174-1-1/10


law.37 Whyte contends the court erred by presuming her use ofthe driveway was
permissive, and by ignoring genuine issues of material fact concerning hostile use.

       In Drake v. Smersh, we clarified the circumstances in which the inference of

permissive use applies: "In developed land cases, when the facts ... support an

inference that use was permitted by neighborly sufferance or accommodation, a court

may imply that use was permissive and accordingly conclude the claimant has not

established [the adversity element]."38 On the other hand, in undeveloped land cases,
courts may apply a presumption of permissive use.39
       In Drake, the court concluded there was no reasonable inference to support

permissive use where the disputed land was a driveway providing sole access to the

claimant's lot, the claimant never asked the owner for permission or received express

consent to use the driveway, and there was no "relationship between Massey [the

claimant] and the Wallens [the owners] from which once could infer permissive use."40
      The facts here support the inference that Whyte's predecessors' use of the land

was permissive. First, unlike in Drake, the Skidmores had a very friendly relationship

with the owners ofthe Jack parcel.4142 The small portion of the Jack parcel overwhich


      37 id
      38 122 Wn. App. 147, 154, 89 P.3d 726 (2004).
      39 id at 153-54 (clarifying the rule announced in Kunkel v. Fisher, 106 Wn. App.
599, 23 P.3d 1128 (2001) in which the court discussed the presumption of permissive
use rather than the inference of permissive use in a developed land case).
      40 Id at 154.
      41 Miller v.Jarman, 2 Wn. App. 994, 997, 471 P.2d 704 (1970) ("A friendly
relationship between parties is a circumstance more suggestive of permissive use than
adverse use.").
      42 Whyte argues the record does not contain evidence of Skidmore's
relationship to the owners of the Jack parcel after Skugstad, who owned the land from


                                          10
No. 69174-1-1/11


the Skidmores occasionally drove was not the sole area which the Skidmores used as a

turnaround, nor was it the only means by which the Skidmores could enter or exit the

driveway. To the contrary, the Skidmores sometimes used another portion of the

shared driveway within the easement as a turnaround. Further, there is no evidence in

the record that the Skidmore's use of the Jack parcel as a turnaround interfered with the

use ofthe easement by the owners of the Jack parcel.43 We conclude the record
supports an inference of permissive use based on the evidence of neighborly

accommodation.


       The record also supports a determination as a matter of law that Whyte cannot

establish adverse use. Adverse use is measured objectively based on the observable

acts ofthe user and the rightful owner.44 In Drake, we determined there was sufficient
evidence45 establishing adverse use where the claimant extended the driveway to his
own property, maintained the driveway, and used it to bring in materials and




1987 through 2010, but Mrs. Skidmore testified she did not ask permission from Moore
or Gingrich, either. See Clerks Papers at 144; Appellant's Br. at 20. Whyte has the
burden as a respondent to a summary judgment motion to come forward with prima
facie evidence of her claim. Young v. Key Pharm.. Inc., 112 Wn.2d 216, 226, 770
P.2d 182 (1989). She cannot defeat summary judgment by bare assertions that a
genuine issue of material fact exists. Harberd. 120 Wn. App. at 508 (quoting Trimble
v. Wash. State Univ.. 140 Wn.2d 88, 93, 993 P.2d 259 (2000)).
       43 Miller. 2 Wn. App at 997-98 (noting the claimant's use ofthe owner's
driveway did not interfere with the owner's use, which also justified "the inference that
such use ... is with the permission of the owner").
       44 Dunbar v. Heinrich. 95 Wn.2d 20, 27, 622 P.2d 812 (1980).
       45 Drake was an appeal after a bench trial. Drake. 122 Wn. App. at 149.

                                            11
No. 69174-1-1/12


equipment to build his home and garage 46 Further, the claimant in Drake used the
driveway as the sole access to his property.47
      The Skidmores did not alter or maintain the disputed portion of land, as did the

claimant in Drake. Nor is there any physical indication of the prescriptive easement

area. Rather, from the time the road was jointly built, Whyte's predecessors used this

area occasionally to turn around, but the use of the disputed area was not necessary

for ingress and egress. Nor was use of this area the sole means by which to turn

around their vehicles to exit the driveway. We conclude the Skidmores' insignificant

and intermittent use of the driveway, coupled with undisputed evidence of neighborly

cooperation, does not constitute adverse use as a matter of law.

      Whyte relies on two cases, Smith v. Breen48 and Washburn v. Esser49 for the
proposition that joint construction of a shared roadway constitutes adverse use. Jack

correctly distinguishes these cases on the basis that the parties had not entered into a

mutual easement agreement, as the parties did here.50 Because the previous owners
of the Whyte and Jack parcels had already created the mutual easement agreement,

jointly built the shared driveway, and mutually used the shared driveway, the adversity

•n Smith and Washburn is not present here.



      46 Id at 155.
      47 id
      48 26 Wn. App. 802, 614 P.2d 671 (1980).
      49 9 Wn. App. 169,511 P.2d 1387(1973).
      50 Smith, 26 Wn. App. at 806 (holding the mutual use ofthe shared driveway,
which ran along the boundary line, ripened into mutual easements by prescription);
Washburn. 9 Wn. App. at 171-73 (holding that use of a common beach access road
running across the property of four adjoining landowners constituted adverse use, and
affirming conclusion that a prescriptive easement had been created).


                                           12
No. 69174-1-1/13


      We affirm the trial court's summary judgment in favor of Jack on Whyte's

prescriptive easement claim. As the prevailing party on appeal, Jack is entitled to

costs on appeal under RAP 14.2.




WE CONCUR:




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