The Wallens family owned a cabin on Lummi Island in the state of Washington. A d

Question

The Wallens family owned a cabin on Lummi Island in the state of Washington. A driveway ran from the cabin across their property to South Nugent Road. In 1952, Floyd Massey bought the adjacent lot and built a cabin. To gain access to his property, he used a bulldozer to extend the driveway without the Wallenses permission but also without their objection. In 1975, the Wallenses sold their property to Wright Fish Co. Massey continued to use and maintain the driveway without permission or objection. In 1984, Massey sold his property to Robert Drake. Drake and his employees continued to use and maintain the driveway without permission or objection, although Drake knew it was located largely on Wrights property. In 1997, Wright sold its lot to Robert Smersh. The next year, Smersh told Drake to stop using the driveway. Drake filed a suit in a Washington state court against Smersh, claiming an easement by prescription (which is created by meeting the same requirements as adverse possession).

Does Drakes use of the driveway meet all of the requirements? What should the court rule? Explain. [Drake v. Smersh, 122 Wash.App. 147, 89 P.3d 726 (Div. 1 2004)]

Explanation / Answer

Yes , Drake use of the driveway meet all the requirement of adverse possession. The court rule in favour of Drake, and smersh appealed to a state intermediate appellatecourt, which affirmed the decision in Drake favour. The court stated that to establish the prescriptive easement. a claiment must prove use of the servient land that is 1. open and notorious 2. over a uniform route 3. continious and uninterrupted for 10 years. 4. adverse to the owner of the land sought to be subjected 5. with the knowledge of such owner at a time when he was able in law to assert and enforce his right. the court added , a party can establish a prescriptive right even though owner of the servient estate and others who wanted to go on the property also used it, so long as claiment exercises and claim his right independent of others. Here Drake use was open and notorious, over a uniform route, and continious and uniterrupted for 10 years. the question was weather the use was adverse, Tracing the easement to massey extension of the driveway ,the court found no evidence that massey asked permisssion or received express consent either to use the driveway or to extend it. Massey use and later Drake was adverse because they used the driveway as the owner himself would, entirely disregarding the claims of others, asking permission from no one, and using the property under a claim of right beginning in 1952.

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