                                                                               FILED

                                                                          March 5,2013

                                                                  In tbe Office oftbe Clerk of Court
                                                                W A State Court of Appeals, Division III


            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

PAT MCINTYRE, a single man; DAVID              ). 

THOMPSON, a single man; and GARY               )

PETERS, a single man,                          )         No. 30351-9-III 

                                               )
                      Appellants,              )
                                               )
       v.                                      )
                                               )
SPOKANE VALLEY HERITAGE                        )
MUSEUM, d/b/a SPOKANE VALLEY                   )
LEGACY FOUNDATION, a non-profit                )
corporation,                                   )
                                               )         UNPUBLISHED OPINION
                      Respondent.              )

       SIDDOWAY, A.C.J. - The trial court rejected the claims of three owners of retail

businesses in Spokane County to prescriptive rights, in favor of their patrons, to drive

through and park in a parking lot owned by their neighbor to the west. While the

business owners raise a number of objections to the trial court's findings and procedure,

one issue is dispositive: substantial evidence supports the trial court's finding that the

patrons' use of the lot-occurring largely during its ownership by Spokane County-was

permissive. Because hostile use is an essential element of the business owners' claim, we

affirm the trial court's dismissal.
No.30351-9-III
McIntyre v. Spokane Valley Heritage Museum


                       FACTS AND PROCEDURAL BACKGROUND

       Pat McIntyre, David Thompson, and Gary Peters are owners of retail businesses

that front on the south side of Sprague Avenue, a major east-west arterial in Spokane

County. To the west end of the block on which their businesses are located is the fonner

town hall of the township of Opportunity, built in or about 1910. The township deeded

the town hall property and its adjoining parking lot to Spokane County in 1990. In 2004,

the county conveyed the property to the newly-incorporated city of Spokane Valley,

which conveyed it, in turn, to the Spokane Valley Legacy Foundation, doing business as

the Spokane Valley Heritage Museum.

       In 2010, McIntyre, Thompson, and Peters brought this action asking the court to

decree a prescriptive easement to the Museum property for parking, ingress, and egress,

in favor of them and their patrons. Specifically, McIntyre, doing business as Ichabod's,

and Thompson, doing business as Dave's Bar and Grill, asserted a prescriptive right in

their patrons to park in the Museum's parking lot. They and Peters, who owns and

operates Peters Hardware, asked the court to enjoin any limitation on access to their

properties through the Museum's property. The following is a depiction of the relative

locations of the parties' properties, prepared by the trial court:!




       I   As pointed out by the trial court, its depiction is rough and not to scale.

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No. 30351-9-III
McIntyre v. Spokane Valley Heritage Museum



                                          SPRAGUE AVE.


                 MUSEUM      1CAB00S   PETER'S     SALON               RITEAID
                                       HARl)WARE
                 E. '12114   E 12116               E. 12122            E. 12222
                                       E. t2118


     PARKING 

     LOT 




    - --------------______-2A~L=LEY~__
                                                                       -------
                                                              _===::::::=
                                                                       -----
Clerk's Papers (CP) at 65.

       The business owners' claims were presented in a two-day bench trial, during

which the trial court viewed the property. At the conclusion of trial, the court issued a

memorandum opinion that it later incorporated into abbreviated findings and conclusions.

Among the incorporated findings were the following statements that appear

(nonsequentially) within the court's memorandum opinion:

       Plaintiff Pat McIntyre has owned Ichabod's, a bar and grill, since June of
       1981. The establishment itself has been in business at the current location,
       12116 E.Sprague, since 1970.

       Plaintiff Gary Peters owns Peters' Hardware. The hardware store, located
       at 12118 E. Sprague, has been in his family since 1940[.] 


       Plaintiff David Thompson owns Dave's Tavern, a bar and grill, located at 

       12124 E. Sprague.... In 1989 he purchased [what was then Sig's Tavern] 

       and re-named it Dave's Tavern. 


       In approximately 1999, [Thompson] purchased the building between
       Dave's Tavern and Peters' Hardware, located at 12122 E. Sprague .... For

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No. 30351-9-111
McIntyre v. Spokane Valley Heritage Museum


      a while Plaintiff Mcintyre [sic] rented that space to someone for use as a
      hair salon, but it is currently vacant.

      Thompson also owns the parking lot to the south of his business, across the
      alley. In 2007, the City of Spokane Valley "took a piece" of his parking lot
      and rerouted the alley around [a] new Rite Aid [constructed at the east end
      of the block].

      All three of the businesses (as well as the unoccupied space where the hair
      salon used to be) have back entrances only. In the front, facing Sprague
      Avenue, there is a sidewalk but no parking.

      Each business has parking areas behind their businesses (to the south, at the
      back entrances).

      For years, the three businesses and their customers have used the
      [Museum's] parking lot as a thoroughfare (long before it was owned by the
      foundation), to access the three businesses, and for parking and their own
      uses.

      In 1956, [Opportunity] Township came to own [the property at issue in this
      case].

      In November of 1990, Opportunity Township quitclaimed the (now
      Museum) lots to Spokane County.

      The Museum property [was] managed and maintained by Spokane County
      from 1996 to 2004. The property was vacant during that time except for
      one year when the building was leased as a frame shop.

      For years there was a "for rent" sign posted at the location, placed there by
      the Spokane County Department of Parks and Recreation .... [0 ]ver the
      years there were occasional ("sometimes") wedding receptions or other
      events held at the premises.

      The County did some remodeling over the years, and in 1996 or 1997 the
      County placed some Jersey (concrete) barriers along the east property line
      of the county property, between the County property and the Ichabod
      property. Mr. McIntyre, proprietor of Ichabod's complained, so the County

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No. 30351-9-111
McIntyre v. Spokane Valley Heritage Museum


      took the Jersey barriers down.

      In 2000, the ... property was rented for approximately one year as a frame
      shop. The patrons of the three neighbor businesses continued to drive
      through and use the parking areas as they wished. The proprietor of the
      frame shop ... wanted people to stop driving through the parking area of
      the frame shop, so she "put up bumpers" approximately 4 feet high and 5
      feet long. The customers just pushed them aside and used the area to drive
      through and park anyway[.]

      On January 5,2004, Spokane County quitclaimed the property to the City
      of Spokane Valley[.] On March 10,2004, the City of Spokane Valley
      quitclaimed the (Museum) property to the Spokane Valley Legacy
      Foundation[.]

      When the Museum started having events, [Museum director Jayne
      Singleton] placed flyers on cars of the businesses stating they could not
      park on the Museum property.

      [S]ometime in the late 2000's the Museum put up a sign that said
      "MUSEUM PARKING ONLY."

      In approximately April of 2009, the Museum put up a fence to keep people
      from using their parking lot as a thoroughfare, as such traffic (which is
      described as fast) created a danger to patrons of the Museum (including
      school children on field trips) and interfered with the Museum's usage of
      their property.

      Plaintiffs' witness Andrea Owens testified she had been going to
      Ich[a]bod's three times a week for twenty-three years, and parked on what
      she now knows to be [M]useum property; she thought that parking area
      belonged to Ichabod's. She testified that Ichabod's patron[s] continued to
      park there after the bumpers were put up, even though there were "Rouse's
      Towing" signs and "Museum Parking" was painted on the pavement itself.
      However, on cross-examination, Ms. Owens testified that she told Jayne
      Singleton, the [M]useum director, that if the [M]useum had a function they
      (the patrons ofIchabod's) would park elsewhere.

      Since the new Rite Aid has been built on the comer of Sprague and Pines,

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No.30351-9-III
Mclntyre v. Spokane Valley Heritage Museum


       directly to the east of Dave's Bar, patrons of the three businesses have had
       access to the businesses through the large Rite Aid parking lot, and also
       been able to park there .... The Rite Aid construction was completed
       around October of 2009.

CP at 51-56. None of these findings is separately assigned error by the business owners.

See RAP 10.3(g). In any event, each is supported by substantial evidence.

       The trial court concluded that the business owners had demonstrated only three

elements required to establish a prescriptive easement. 2 It concluded that they failed to

demonstrate hostile use and also failed to demonstrate exclusive use, which it concluded

was a fifth required element. With respect to its conclusion that the business owners

failed to demonstrate hostile use for the 10-year period, the court stated that it "must look

at the totality of the circumstances," and set forth the following findings as relevant:

       The lot in question was basically vacant for many years. It had ample room
       to permit parking and create an alleyway. For most of the time the
       Plaintiffs claim they were using the property adversely the property was
       owned by the County of Spokane. Given the fact that the County of
       Spokane owns a considerable amount of real property, allowing three small
       businesses to use one of their currently unoccupied properties can certainly
       be viewed as neighborly acquiescence. If this were a single-family home
       that, for ten years, allowed three businesses to use 75% of their land the
       circumstances would be substantially different. Certainly the use of a
       single-family home's property would be viewed as hostile rather than
       impliedly permissive. However, since this is property owned (at the time in
       question) by an entity as large as the County of Spokane, it is more than
       reasonable to expect such neighborly acquiescence since such acquiescence


       2The trial court characterized the three elements that were demonstrated by the
business owners as (1) actual use for 10 years over a uniform route, (2) open and
notorious use, and (3) continuous and uninterrupted use.

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No. 30351-9-III
McIntyre v. Spokane Valley Heritage Museum


       would not work any hardship on the true owner. One specific example of
       such acquiescence was when the County of Spokane erected Jersey barriers
       on the eastern property line of the two lots. After the Plaintiffs had
       demonstrated their objections to the barriers, the County of Spokane
       acquiesced and removed them.

CP at 59.

       The trial court denied the relief requested by the business owners and dismissed

their claims with prejudice. They timely appealed.

                                        ANALYSIS

       The business owners have set forth 14 "objections" in the section of their brief

devoted to assignments of error. The objections can be reduced, in simpler terms, to the

following material assignments of error: 3

       The trial court's conclusion that the property was used in a governmental
       capacity, thereby preventing prescriptive rights from arising, was not
       supported by substantial evidence;

       The trial court erred in concluding that the IO-year period of hostile use
       required to establish a prescriptive easement must transpire during a period
       of continuous ownership by a single owner of the servient estate;


       3 A number of the business owners' assignments of error and objections are to the
trial court's refusal to enter findings and conclusions presented by the parties. After
being presented with two unsatisfactory proposals, the trial court entered her own skeletal
findings and conclusions, incorporating her memorandum opinion. While CR 52(a)(l)
requires the trial court to "find the facts specially and state separately its conclusions of
law," thereby facilitating challenges and review on appeal, we recognize that the trial
court's overarching concern here was that any findings and conclusions she signed
reflected her actual reasoning. The trial court recognized that the lack of enumerated
findings might require a remand. We do not find it necessary to remand in this case and
disregard those objections.

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No. 30351-9-111
McIntyre v. Spokane Valley Heritage Museum



       The trial court erred in concluding that exclusive use is a necessary element
       in establishing the right to a prescriptive easement; and

       Substantial evidence did not support the trial court's conclusion that they
       had failed to demonstrate the required "hostile" use.

We address the last assignment of error first.

       To establish a prescriptive right-of-way over the land of another person, the party

claiming the right must prove that his use of the other's land has been open, notorious,

continuous, uninterrupted, over a uniform route, adverse to the owner of the land sought

to be subjected, and with the knowledge of such owner at a time when he was able in law

to assert and enforce his rights. Nw. Cities Gas Co. v. W. Fuel Co., 13 Wn.2d 75, 85, 123

P.2d 771 (1942).

       Whether use is adverse or permissive is a question of fact. Miller v. Jarman, 2

Wn. App. 994, 997, 471 P.2d 704 (1970). The trial court must examine all the

circumstances surrounding each case. Id. "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.': Id. (citing Cuillier v.

Coffin, 57 Wn.2d 624, 358 P.2d 958 (1961)). "[W]hen the facts in a case support an

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


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No.30351·9·III
McIntyre v. Spokane Valley Heritage Museum


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

established the adverse element of prescriptive easements." Drake v. Smersh, 122 Wn.

App. 147, 154, 89 P.3d 726 (2004).

       A variety of circumstances are relevant to the question of whether use was hostile

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

circumstances that have been determined to be relevant are the nature and location of the

property, Nw. Cities, 13 Wn.2d at 88; the relationship between the parties, Miller, 2 Wn.

App. at 997; and whether the type of use of the other's property is common and unlikely

to be perceived as a trespass, Crites, 49 Wn. App. at 177·78.

       With respect to roadways, there is no evidence of adverse use where the claimant

uses his neighbor's established private road in a manner that does not interfere with the

owner's use of that same road. Imrie v. Kelley, 160 Wn. App. 1, 10-11,250 P.3d 1045

(2010). Mutual use of a road by neighbors supports an inference of permissive use

because it is assumed the owner is permitting his or her neighbor to use the road as a

neighborly accommodation. Cuillier, 57 Wn.2d at 627. '''It is only when the use of the

path or road is clearly adverse to the owner of the land, and not an enjoyment of

neighborly courtesy, that the land owner is called up "to go to law" to protect his rights.'"

Roediger v. Cullen, 26 Wn.2d 690, 709, 175 P.2d 669 (1946) (quoting Weaver v. Pitts,

191 N.C. 747, 133 S.E. 2,3 (1926)).

       "Prescriptive rights are not favored by the law." Imrie, 160 Wn. App. at 7 (citing

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No. 30351-9-II1
McIntyre v. Spokane Valley Heritage Museum


Nw. Cities, 13 Wn.2d at 83). The law should and does encourage acts of neighborly

courtesy. Roediger, 26 Wn.2d at 709 (quoting Weaver, 133 S.B. at 3). The burden of

proving the existence of a prescriptive right always rests upon the party benefited by the

easement. 810 Props. v. Jump, 141 Wn. App. 688, 700,170 P.3d 1209 (2007) (citing

Anderson v. Secret Harbor Farms, Inc., 47 Wn.2d 490,288 P.2d 252 (1955)),

       A trial court's challenged findings of fact are reviewed for substantial evidence.

Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003).

"Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth

of the declared premise." In re Marriage ofHall, 103 Wn.2d 236,246,692 P.2d 175

(1984). We view substantial evidence in the light most favorable to the respondent. Pub.

Uti!. Dist. No.2 ofGrant County v. N. Am. Foreign Trade Zone Indus., LLC, 159 Wn.2d

555, 576, 151 P.3d 176 (2007).

       The business owners rely predominantly on the years of county ownership for the

1O-year period of adverse use and first contend, as a matter of law, that their and their

patrons' use of the parking lot could not have been permissive during the period the

property was owned by the county. They argue that by statute and controlling case law a

county may not informally relinquish its interest in real property. Questions of law are

reviewed de novo. Sunnyside Valley Irrigation Dist., 149 Wn.2d at 880.

       Chapter 36.34 RCW, on which they rely, applies only to the sale or lease of county

property; they cite no provision that would prevent the county from pennitting members

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No.30351-9-III
McIntyre v. Spokane Valley Heritage Museum


of the public to use a county parking lot. Nelson v. Pacific County, 36 Wn. App. 17,22,

671 P.2d 785 (1983), on which they also rely, is no more helpful. That case holds that

"[p]roperty once acquired and devoted to public use is held in trust for the public and

cannot be alienated without legislative authority, either express or implied." ld. at 23.

Permission to use property that can be freely withdrawn does not constitute alienation.

The county was not incapable, legally, of engaging in a neighborly accommodation. 4

       Turning to permissive versus hostile use as a question of/act, the evidence

establishes circumstances that support the trial court's finding and conclusion of

permissive use. During the period of county ownership, the relationship of the parties

was that of elected government and public-inherently one in which the government

would be expected to be accommodating, unless there was some reason it could not be.

As the trial court found, "[T]he County of Spokane owns a considerable amount of real

property" and "allowing three small businesses to use one of their currently unoccupied



       4 The business owners' reliance on Nelson also places them in a paradox. As the
Museum points out, Nelson deals with property held in a governmental capacity. If the
business owners concede that the county owned the Museum property in a governmental
capacity, then the 10-year period required to establish prescriptive rights could not have
commenced until the property came into private ownership in 2004. See RCW 4.16.160
(statutes of limitation do not run against actions brought by or for the benefit of a
county); Gorman v. City o/Woodinville, 175 Wn.2d 68, 72, 283 P.3d 1082 (2012) (the
statute of limitations for adverse possession will not run against the state or city acting in
its governmental capacity); Finley v. Jordan, 8 Wn. App. 607,609,508 P.2d 636 (1973)
(period for establishing adverse possession commences no earlier than transfer from the
government to a private owner).

                                              11 

No.30351-9-III
McIntyre v. Spokane Valley Heritage Museum


properties can certainly be viewed as neighborly acquiescence." CP at 59.

       The nature of the property-a "basically vacant" parking lot-also supports an

inference of permissive use. CP at 59. Where a parking lot is not being operated

commercially for parking and is not posted as private (and the evidence established that

this lot was posted as private only for a relatively short period of time), it is not

uncommon for it to be used as a thoroughfare or for short-term parking without being

perceived as a trespass. In this respect, a parking lot is similar to a private road.

Washington cases holding that mutual use of a private road supports an inference of

permissive use unless the use is clearly adverse are persuasive authority here.

       The business owners argue that their patrons' use was clearly adverse insofar as

they not only ignored, but also moved around and messed up the barriers put into place

by the county and its tenant. But barr~ers were installed on only a couple of occasions

over the years, including during the year in which the property was leased and, as the trial

court found, the county removed the barriers in the face of these objections. The business

owners insist that the inference that must be drawn from the patrons' actions and the

county's response is that the county acquiesced in a claim of right by the business owners

and their patrons. We disagree. An equally valid inference is that members of the public

(some presumably county residents and taxpayers) were not asserting an adverse claim,

but only expressing frustration at the county for preventing them from using an empty

parking lot for no good reason. The county's response can be explained as government

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No.30351-9-II1
McIntyre v. Spokane Valley Heritage Museum


recognizing that it should be more accommodating of the convenience of its residents and

other members of the public.

       Our role is not to reweigh the evidence and substitute our judgment for that of the

trier of fact. Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 724, 225 P.3d

266 (2009). Substantial evidence supports the trial court's findings of permissive use.

       Because the business owners' failure to establish hostile use is fatal to their claims,

we need not reach their remaining assignments of error.

       Affirmed.

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

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.




Kulik, J.




                                             13 

