Opinion
No. 22611-5-III
Filed: March 29, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kittitas County. Docket No. 01-2-00484-3. Judgment or order under review. Date filed: 11/17/2003. Judge signing: Hon. Michael E. Cooper.
Counsel for Appellant(s), Kevan Tino Montoya, Attorney at Law, PO Box 22550, Yakima, WA 98907-2550.
Counsel for Respondent(s), Kenneth Duncan Beckley, Attorney at Law, 701 N Pine St Ellensburg, WA 98926-2939.
The trial court awarded the Ellensburg Masonic Temple Association (Masonic Temple) a prescriptive easement for a staircase and buried utility lines that had been on the property of Bob Kelley Realty, Inc. (Kelley) for well over 10 years. On appeal, Kelley asserts that there was insufficient evidence to establish (1) that the staircase was adverse to the permission granted by the servient estate; and (2) that the servient estate had knowledge of the buried utility lines. We conclude there was sufficient evidence to establish that the staircase was adverse to the permission granted by the servient estate. We further conclude there was sufficient evidence to establish that the servient estate had knowledge of the buried utility lines. Accordingly, we affirm the judgment of the trial court.
FACTS
The Masonic Temple has been owned by the Masons since 1890. In 1947, the Masons wanted to build a staircase along the north wall of the Masonic Temple. Because of the close proximity of the Masonic Temple to the property boundary, the staircase would have to be located on adjoining property.
The adjoining property was owned by Milton Camozzy, Esther Camozzy, George Williams, and Vera Williams. Mr. Camozzy and Mr. Williams were both Masons. The Masons promote working together in the bond of friendship, compassion, and brotherly love.
The Williamses and the Camozzys signed an express easement granting the Masonic Temple the staircase. The easement was not recorded. The easement was not signed by the Masons. However, the Masons built a staircase along the north wall as expressly granted in the unrecorded easement. The staircase has remained in place since 1947.
Between 1972 and 1974, the Williamses and the Camozzys transferred their interest in the adjoining property to Preston Williams, Glenn Warner, Helen Warner, L.G. Carmody, and Betty Jean Carmody. L.G. Carmody was a Mason. In 1999, the adjoining property was transferred to Kelley.
Underneath the staircase, there are buried utility lines for gas, electricity, and air conditioning. Although the Masons knew that there were buried utility lines, Bob Kelley did not know about the buried lines when he purchased the property. Instead, he became aware of the utility lines when he subsequently completed a survey of the property.
The electrical line, which has been in place for well over 10 years, was repaired between 10 and 15 years ago. It is unclear from the record how long the gas or air conditioning lines have been in place. The electrical line is located partly on the outside of the Masonic Temple. Kelley knew that there was an electrical line located partly on the outside of the Masonic Temple.
In 2001, the Masonic Temple filed a complaint to establish a prescriptive easement for the staircase and the buried utility lines. At trial, the trial court found that the express easement was rejected because it was not signed or recorded. From this finding, the trial court determined that the Mason's staircase was adverse. Similarly, the trial court found that the servient estate had knowledge of the buried utility lines. Accordingly, the trial court reached the conclusion that a prescriptive easement existed for both the staircase and the buried utility lines.
ANALYSIS
Standard of Review. Review of findings of fact is limited to whether they are supported by substantial evidence and whether they support the conclusions of law. Wilhelm v. Beyersdorf, 100 Wn. App. 836, 847, 999 P.2d 54 (2000) (citing Price v. Kitsap Transit, 125 Wn.2d 456, 465-66, 886 P.2d 556 (1994)). Substantial evidence is a quantum of evidence sufficient to persuade a rational fair-minded person the premise is true. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). Conclusions of law are reviewed de novo. Bishop v. Miche, 137 Wn.2d 518, 523, 973 P.2d 465 (1999).
Staircase. Kelley asserts that there was insufficient evidence to establish a finding of adversity. First, it asserts that adversity is not established because the staircase was erected in conformity with an express easement. Second, it asserts that because the use was initially permissive, adversity cannot be established because there was no distinct, positive assertion of a right adverse to the property owner.
Prescriptive easements are disfavored. Granston v. Callahan, 52 Wn. App. 288, 292, 759 P.2d 462 (1988) (citing Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984)). However, a prescriptive easement is established `upon proof of: (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 at a time when the owner was able to assert and enforce his or her rights.' Pedersen v. Dep't of Transp., 43 Wn. App. 413, 417, 717 P.2d 773 (1986) (citing Bradley v. American Smelting Refining Co., 104 Wn.2d 677, 694, 709 P.2d 782 (1985)). The prescriptive period is 10 years. Crescent Harbor Water Co. v. Lyseng, 51 Wn. App. 337, 342, 753 P.2d 555 (1988) (quoting Washburn v. Esser, 9 Wn. App. 169, 172, 511 P.2d 1387 (1973)).
Adverse use of property is use of property such as the true owner would exercise. An adverse user entirely disregards the claims of others, asks permission from no one, and uses the property under a claim of right. Granston, 52 Wn. App. at 293 (quoting Malnati v. Ramstead, 50 Wn.2d 105, 108, 309 P.2d 754 (1957)).
The granting of permission to occupy land negates adversity. Chaplin, 100 Wn.2d at 861-62. Permission is presumed. Kunkel v. Fisher, 106 Wn. App. 599, 603, 23 P.3d 1128 (2001). Permission can be express or implied. Granston, 52 Wn. App. at 294. Permission can be inferred in "any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence." Kunkel, 106 Wn. App. at 602 (quoting Lingvall v. Bartmess, 97 Wn. App. 245, 251, 982 P.2d 690 (1999)). Permission can be inferred by `evidence of a close, friendly relationship.' Granston, 52 Wn. App. at 294. Permission can be inferred by reviewing the intent of the servient estate as provided by the language of an express grant. Green v. Lupo, 32 Wn. App. 318, 321-22, 647 P.2d 51 (1982). When the servient estate grants the dominant estate the right to use property as if it has been legally conveyed, `the resultant use' is adverse, not permissive. Crescent Harbor Water, 51 Wn. App. at 342 (citing 2 G. Thompson, Real Property sec. 345, at 239-40 (1980)). The question is whether the servient estate "permitted the use as a mere revocable license" or instead intended to grant a permanent right. Crescent Harbor Water, 51 Wn. App. at 342 (quoting Washburn, 9 Wn. App. at 172. If the intent is to grant a permanent right, the resultant use is adverse. Id. As such, if the intent is to grant a permanent right, a prescriptive easement is established after a 10-year period has elapsed. Id. A use which is permissive in its inception cannot ripen into a prescriptive right, no matter how long it may continue. Instead, in order for a prescriptive right to attach, there has to be a distinct and positive assertion of a right by the dominant estate that is hostile to the rights of the servient estate. Granston, 52 Wn. App. at 294 (quoting Northwest Cities Gas Co. v. Western Fuel Co., 13 Wn.2d 75, 84, 123 P.2d 771 (1942)). However, permission terminates when the servient estate dies or transfers the property to another. Granston, 52 Wn. App. at 295. In other words, permission cannot continue beyond a termination of ownership. Id. Thus, when there is a change in ownership, the permissive use is revoked and the "use may then become adverse and ripen into an easement." Id. (quoting 2 G. Thompson, Real Property sec. 345, at 241-42 (1980)). In this case, a prescriptive easement is established. The Williamses and the Camozzys intended to grant the Masonic Temple a permanent interest in their property, not a revocable license. For that reason, the resultant use was adverse and not permissive. After the expiration of the prescriptive period, an easement was established.
Even if we accept Kelley's argument that the initial use was permissive, the permissive use was revoked when the property was transferred in 1972. After 10 years, the prescriptive easement would have been established by the Masonic Temple's adverse use of the staircase.
Because Masons promote friendship, compassion, and brotherly love and because the involved parties were Masons, Kelley asserts the Masonic Temple's use of the staircase was permissive. The ultimate issue is whether there is sufficient evidence in this record to support the trial court's finding of an adverse use. In this regard, we note the express easement establishes an attempt to grant a permanent right, not a revocable license. There is evidence in this record sufficient to support the court's findings.
In conclusion, the trial court correctly established a prescriptive easement for the staircase.
Utility Lines. Kelley asserts that the evidence was insufficient to establish knowledge of the buried utility lines. First, it asserts that no evidence was presented that any predecessor owner of the servient estate knew about the buried utility lines. Second, it asserts that no evidence was presented that the air conditioner or the gas line were on the property for 10 years.
A prescriptive easement cannot be established for a completely buried utility line which was unknown to the servient estate. Davison v. Columbia Lodge No. 8, 90 Wash. 461, 462, 156 P. 383 (1916). Instead, knowledge of the buried utility line is required. Wreggitt v. Porterfield, 36 Wn.2d 638, 640, 219 P.2d 589 (1950).
Constructive knowledge of buried utility lines can be imputed to the servient estate if there are external indications of the buried utility lines. Pedersen, 43 Wn. App. at 420. External indications include short sections of the utility lines being visible. Id. at 421. Each foot of the utility line need not be visible. Id. (quoting Berlin v. Robbins, 180 Wash. 176, 181, 38 P.2d 1047 (1934)). A portion of the utility line connecting the system to the dominant estate's property satisfies the knowledge requirement. Fossum Orchards v. Pugsley, 77 Wn. App. 447, 452, 892 P.2d 1095 (1995); Pedersen, 43 Wn. App. at 421. Knowledge is also satisfied if there is `community knowledge' of the buried utility line. Pedersen, 43 Wn. App. at 421. This involves providing evidence that members of the community knew that there was a buried utility line in place. Id.
The scope of an easement depends upon (1) the intentions of the parties; (2) the nature and situation of the property; and (3) the manner in which the easement has been used and occupied. Logan v. Brodrick, 29 Wn. App. 796, 799, 631 P.2d 429 (1981). The natural development of the dominant estate can have an effect upon the degree of use of the easement. Id. at 800 (citing W. Burby, Real Property, sec. 32 (3d ed. 1965)). Normal changes in the manner of use do not constitute an unreasonable deviation from the original easement. Logan, 29 Wn. App. at 800.
In this case, there is sufficient evidence to establish a prescriptive easement for the buried utility lines. The evidence establishes the electrical line has been in place for over 10 years. It was repaired 10 to 15 years ago. It further shows the electrical line is not completely buried. Instead, portions of the electrical line are visible. Finally, there is community knowledge about the electrical line. The Masons knew that there was a buried electrical line in place. From this evidence, a trier of fact could find the required elements for a prescriptive easement. Additionally, there is sufficient evidence to establish a prescriptive easement for the air conditioner and the gas line. Even if the evidence does not establish that the air conditioner and the gas line have not been in place for 10 years, the two lines would constitute normal changes in the natural development of the dominant estate which would not involve an unreasonable deviation from the buried electrical line. In conclusion, there was sufficient evidence to establish a prescriptive easement for the buried utility lines.
In summary, we affirm the judgment of the trial court.
The majority of the panel has determined 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.
KATO, C.J., and SWEENEY, J., Concur.