Curtis v. Zuck is a case which involves what the court identifies as a ‘shifting easement’. The situation is one in which a gravel road over time ‘shifts’ outside of it’s actual bounds.

Well, just go ahead and put it back into its bounds and stop all this nonsensical meandering.

Unfortunately, it is not quite that easy. The facts indicate that there are trees along one side of the roadway which have grown such that there really isn’t the room to squeeze it back into place.

Now, this is a case which comes before Happy Bunch LLC v. Grandview North LLC determining that trees’ growth do not alter the line of a boundary. [See HERE].

But even so, I think that if a similar case were to come up again in which there is a ‘meandering easement’, the court would likely make the same sort of determination.

Though not stated outright in the case, the reason for this doesn’t lie so much in law as it does in equity.

Basically, Zucks purchased their home 40 years earlier and were lead to believe that they owned up to the south side of east-west running Bennet Street.

However, what their title actually indicated was that they owned to the east-west centerline of  Glass Street.

Platted all the way back in 1888, Glass Street was vacated by operation of statutory law 5 years later because it remained unopened for 5 years – everyone could at least agree on that.

Now somewhere out of nowhere – which we are to later find out is due to an implied easement – a private easement was created for Bennet Street – “a gravel roadway [which] was ultimately constructed to provide access for adjacent property owners … [lying] within and somewhat north of the platted location for Glass Street.

Now it’s a tough situation when one purchases into a problem without knowledge, it can be worse when you inherit it … right next to property you already own.

At any rate, facts for Zucks beyond [a] the treeline … were [b] the fact that they maintained their yard (within the gap of legal title), and had [c] had driveways (plural – hmm?) … oh right, and [d] “the Zucks dwelling was constructed about 10 feet into the southerly portion of the vacated right of way of Glass Street.

Folks, that’s adverse possession right there … and the court got around to indicating it … fortunately.

But, sometimes it’s important for the court to also chop down the forest of paper which comes at it in a claim which just isn’t going anywhere? So, here’s the money quote from this case:

Essentially, the Superior Court divested the Curtises of their implied easement of that portion of vacated Glass Street historically occupied by the Zucks and granted the Zucks a nonexclusive prescriptive easement over those portions of Bennett Road encroaching on the Curtis property.

Feel free to read all this nonsense about the rule of Burkhard and Van Buren if you want. All that says is that the grantees don’t take anything more than was granted to them by the grantor who in turn can not grant anything more than what they have.

What follows is the simple logic of … in that the grantor had granted an implied easement, that implied easement wasn’t extinguished by the mere fact that the grantor’s property is now owned by the grantee.

Though the court didn’t mention this outright, which I think is a real shame, basically this is the inverse of tacking. 

What do I mean by ‘inverse of tacking’ – well just as claimants of adverse possession can add their possession to that of a predecessor in interest to fulfill the statutory requirement (of 10 years per RCW 4.16.020), in a situation in which the title holder doesn’t have totality of land per legal description … the mere fact that they grant it to someone else doesn’t serve to sever neighbors rights such that now they only have access to that land as described by the legal description.

Pretty simple … right? Well, that’s what both the lower court and the appellate court thought.

I suspect it must have been really difficult for Curtis’ to accept the fact that they had a loser of a case. And why do I suspect this?

Because it is not hard to infer that attorney James F Flynn in coming up with a rather creative plausible argument (no doubt after considerable research which relies on those two other cases for argument), had a dog of a case … from paying clients.

[BTW we ‘know’ they are paying clients because to the Curtis’ these were commercial properties.]

Look, if your case smells like manure, wouldn’t you want like to have an attorney who will give it to you straight up front … instead of taking your money in a game you shouldn’t pursue?

Assuming you do NOT prefer smoke up your tail, get started by take this initial assessment with Justice Smiles [HERE].