The Gamboas continuously used a driveway located mostly on the property of their neighbors, the Clarks, for over sixteen years. The Gamboas’ use was open, notorious, and uninterrupted.  They sincerely believed they owned the land. The Gamboas never asked the Clarks’ permission to use the driveway, and the Clarks never gave it. The Gamboas maintained and made minor improvements to the driveway over the years. The Clarks also occasionally used the driveway.

Unruly dogs and irrigation spray and runoff led to a dispute between the neighbors, and to a question about the location of the common property line. This resulted in the parties’ sharing in the cost of a survey. The survey revealed that the driveway was largely on the Clarks’ property. The Clarks then demanded a lease for use of the driveway. The Gamboas refused, and a lawsuit followed. The Clarks lost at the trial-court level, where the court found that the Clarks had not given permission to the Gamboas to use the driveway. This meant that the Gamboas’ claim was adverse to the true owner and ripened into a right of continued use.

The case was further appealed to Division III of the Washington State Court of Appeals, where the court reversed, and ruled in favor of the Clarks. In its ruling, the appellate court focused not on any factual dispute, but primarily on presumptions and the burden of proof.  Relying on prior cases, some of which are inconsistent, the court first noted that “when one enters into the possession of another’s property there is a presumption that he does so with the true owner’s permission.” And if there is evidence that supports a reasonable inference of neighborly accommodation, or if the neighbor is not interfering with the owner’s use, then there is no shift in the presumption from permissive to adverse use. A presumption, however, is just that. The neighbor can still try to prove adverse use, and that he has been using the land as a true owner over ten years or more, but this could be a difficult presumption to overcome, especially in light of the court’s finding that an owner could give his neighbor implied permission to use his land. That is a curious finding in this case because the Clarks did not even know they owned the driveway for much of the relevant period.

Under prescriptive easement law, as opposed to adverse possession law, the neighbor does not need to prove exclusive use to gain rights to use the land of another, but this factor may be eroding with this case. There was evidence that both the Gamboas and Clarks used the driveway, and the fact of joint use likely weakened the Gamboas’ claim that their use was adverse. The result of the case is likely that it will be more difficult to prove that one has acquired an easement over the land of another through use, especially if there is joint use.

One of the interesting aspects of the case is the lengthy, detailed analysis of precedent undertaken by the majority, and the equally scholarly dissent. The dissenting judge does not believe, based on prior authority, that there is a presumption of permissive use in cases involving developed property. In those cases, once the neighbor presents evidence of adverse use, then the owner can counter with its evidence of undeveloped property or actual permission. Essentially, the case comes down to which party starts in the stronger position, which then shifts the burden and requires the other party to prove otherwise. The case also speaks to assumptions, presumptions, counter-presumptions, successive presumptions, and the burdens of proof, production, and persuasion that only a legal scholar would enjoy. Given the dissent, and the state of precedent, it would not be surprising if the Washington Supreme Court accepted review. Click here to review Gamboa v. Clark.