justice-smiles-green-large.pngKunkel v. Fisher, 196 Wn.App 599 (Div. I 2001) is a case which does a good job of explaining permissive use. But, it is also a case which then muddies the water when comparing adverse possession and prescriptive easement.

Kunkel starts out: “In a claim for a prescriptive easement, the use of another’s property is presumed to be permissive.”

In fact, Kunkel sstates that regardless if for adverse possession or prescriptive easement: 

The claimant must prove use of the servient [i.e. burdened estate of] 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. …

Under the doctrines of both prescriptive easements and adverse possession, a use is not adverse if it is permissive. Permission can be express or implied. A permissive use may be implied in ” ‘any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence[.]’ “

OK, so in the case we have here there were a number of previous owners of the Fisher estate who all recognized that Kunkel in the operation of his house-moving business: (1) drove along a partially paved and partially gravelled road; (2) to place his trucks in the back of his lot; (3) during off hours; (4) after confirming with previous owners and tenants that this use was not a problem; (5) Kunkel only helped to spread some of the gravel once; and (6) the Fishers left the land largely vacant – amounted to a situation in which there was permissive use.

As a result, the presumption of permissive use stood and the court did not recognize the [potential] gain of a prescriptive easement for Kunkle. Kunkle apparently was left needing to figure out another way to conduct his business.

The Div. I court of appeals made this case appear very cut and dry. I am not so certain about that. The evidence appears to be in large part (if not exclusively) verbal testimony (though I sense, without having something to point to without trying to pull the court transcript, that there may have been some sort of admission).

Interestingly the court included a whole discussion of the differences in the histories of adverse possession and prescriptive easement. A tight read of that discussion makes it sound as if carrying the burden for adverse possession may be easier. That doesn’t seem logically possible. Adverse possession doctrinally (as opposed to historically) differs from prescriptive easeements in only one respect – the level of use.

Use for adverse possession must be exclusive; for prescriptive easements it must only be sufficient.

Bottom line, the interpretation of these particular facts to the law may be as it is, but hopefully we can be clear that adverse possession is more difficult to obtain than prescriptive easement. After all, if a court quiets title to an adverse possessor, the adverse possessor can disallow any use of the property.

However, if Kunkel had won his prescriptive easement case, Fisher would still have been able to use the road. In other words, Fisher would have still retained some degree of his rights. What do you think?justice-smiles-green.png