Last year, we wrote about the Gamboa v. Clark case, in which Division III of the Washington State Court of Appeals set a high bar for proving the existence of prescriptive easements. A prescriptive easement arises when one openly and adversely uses the land of another for over ten years, usually for access, to such a degree that the use accrues into a permanent property right that cannot be terminated by the true owner of the land. Prescriptive easements are akin to adverse-possession rights except that the use of the land need not be exclusive by the one claiming a prescriptive easement.

In this case, the Gamboas continuously used a driveway located mostly on the property of their neighbors, the Clarks, for over 16 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.

In its ruling, the majority in the court of appeals case 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.” 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 the presumption is that there is no adverse use, and the true owner can retract permission. A presumption, however, is just that. The neighbor can still try to prove adverse use by demonstrating that he has been using the land as a true owner for over ten years, but this could be a difficult presumption to overcome, especially in light of the court’s finding that the true owner could give his neighbor implied permission to use his land. The court of appeals ruled that the Gamboas’ use did not ripen into a property right and that the Clarks could require the use to stop.

We predicted that given the healthy dissent in the case—in which the dissenting judge disagreed with the majority’s ruling that the presumption of permission should not apply to developed property—the Washington Supreme Court would accept review, and it did. In a decision issued on April 16, 2015, the supreme court agreed with the court of appeals’ majority opinion. Like the court of appeals, the supreme court went through a lengthy analysis of prior prescriptive-use case law, and in the end ruled:

Regarding the “adverse use” element in prescriptive easement cases, our precedent supports applying an initial presumption of permissive use to enclosed or developed land cases in which there is a reasonable inference of neighborly sufferance or acquiescence. We find that the evidence supports a reasonable inference of neighborly sufferance or acquiescence because the Gamboas and Clarks both used the road for their own purposes in conjunction with each other without incident.

Given this ruling, it is difficult to imagine when one can establish a prescriptive right across a neighboring property if the true owner also uses the area. This ruling seems to interject an element of exclusivity for a valid claim; namely, for a claim to be adverse, it must be exclusive. If exclusive use is a fact in future cases, litigants might as well pursue adverse-possession claims in addition to prescriptive-rights claims.