IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MAGDALENO GAMBOA and MARYJ. ) GAMBOA, husband and wife, ) No. 90291-7 ) Petitioners, ) EnBanc ) v. ) ) JOHN M. CLARK and DEBORAH C. ) CLARK, husband and wife, ) ) Respondents. ) 

### APR 1 6 2015 ) Filed OWENS, J.

- Formany years, Magdaleno and Mary Gamboahave used a gravel road adjacent to theirproperty as a driveway to access their home. Theroad is primarily on the property oftheir neighbors, John and Deborah Clark. The Gamboas and Clarks used the road for theirrespective purposes for many years without an objection from either family. After disputes arose between them, the Gamboas filed suit to obtain a legal right to use the road. This case requires us to determine whetherthe Gam boas met one ofthe requirements ofthe rule that would allow them to continue using the road.Gamboa v. Clark No. 90291-7 Specifically, the Gamboas must show that their use ofthe road was adverse to the Clarks (i.e., without the Clarks' permission). Sincethe evidence shows a reasonable inference that the Clarks let the Gam boas use the road out ofneighborly acquiescence,
we hold that the Gamboas did not showthattheir use ofthe road was adverse to the Clarks. Therefore, the Gamboas maynot continue using the road, and we affirm the Court ofAppeals. FACTS The Gamboas and Clarks own adjoining parcels ofland separated by a gravel road in a rural area in Yakima County. The Gamboas own a 1 7-acre western parcel to farm alfalfa, and the Clarks own a 25-acre easternparcel to farm grapes. The parcels
were created in 1964 when the original co-owners, the Padghams and McConnells, split up the 42-acre parentparcel into the 17- and 25-acre parcels described above. The Padghams and McConnells sold the 25-acre easternparcel (which includedthe road) to the Slouin family, the family preceding the Clarks to thatparcel. The Padghams and McConnells retained the 17-acre westernparcel. The Padghams and McConnells sold their parcel to the Gamboas in 1992, and the Slouins sold their parcel to the Clarks in 1995. Since coming to the parcel in 1992, the Gamboas used the gravel road as a driveway to access their home and some oftheir alfalfa crop. The Gamboas have occasionally bladed the road and on one occasion applied gravel to maintain its

2Gamboa v. Clark No. 90291-7 condition. When the Clarks came to their parcel in 1995, they used the road to farm grapes, including watering the grape plants and spraying for weeds. The trial court found that "[t]he Gamboas and the Clarks both used the roadway as described above without any disputes until2008. Eachparty was aware ofthe other's use ofthe roadway, but no one objectedto the other's use until a dispute arose in 2008." Clerk's Papers (CP) at 195. A dispute arose in 2008 overthe Gamboas' dogs and the Clarks' irrigation practices, and "it eventually escalated into a dispute over which ofthem owned the land on which the roadway was situated." 

### !d. Land surveys revealed that a small portion ofthe gravel road (the portion where it connects withEastAllen Road) is on the Gamboas' property, but thatthe rest ofthe gravel road is on the Clarks' property until the road reaches an area where the Gamboas have an express easement over the Clarks' property (the express easement dating back to 1964 whenthe parentparcel
was split). Attrial, the trial court listed the elements for a prescriptive easement as follows: that the claimaint's use mustbe adverse to the right ofthe owner ofthe servientparcel; that the use by the claimant be open, notorious, continuous, hostile and uninterrupted overthe prescriptive period often years, and thatthe servient owner has knowledge ofsuch use at the time whenhe or she would be able at law to assert and enforce his or her rights.

3Gamboa v. Clark No. 90291-7 

### Id. at 196. The trial court noted that "theprimary element in dispute
... is whether the use by the Plaintiffs Gamboa was 'adverse' to the rights ofthe Defendants Clark
over aperiod ofat least ten years." 

### !d. at 196-97. The court defined "adverseuse" as follows: "A claimant's use is adverse unless the property owner can showthatthe use
was permissive." 

### Id. at 197. Itfound "thatMr. Clark did not give the Gamboas[] express or implied permissionto use the road, and therefore, the use ofthe road was adverse." 

### Id. Additionally, the court concluded that the Gamboas' land use was adverse "[i]nview ofthe fact thatthe use made ofthe roadway
... bythe Plaintiffs Gamboa was 'open, notorious, continuous, uninterrupted,' and in a fashion that atrue
owner would use his own land, all for more than a ten-year period." 

### !d. at 198 (quotingNw. Cities Gas Co. v. 

### W. Fuel Co., 13 Wn.2d 75, 85, 123 P.2d 771 (1942)). The Court ofAppeals reversed, concluding thatthe trial court applied the wrong legal presumption and burden ofproofregarding adverse use. Gamboa v. Clark, 180 Wn. App. 256, 280-82, 321 P.3d 1236 (2014). The Court ofAppeals held that the trial court erred by applying apresumption that the claimant's use is adverse unless the property owner can show it was permissive. 

### Id. at 280-81. Instead, the Court ofAppeals citedNorthwest Cities for the propositionthat the initial presumption is that the claimant's use is permissive and the claimant can shift the presumption from permissive use to adverse use depending onthe facts. 

### !d. at 267. The Court ofAppeals citedthis court's decisions inRoediger v. Cullen, 26 Wn.2d

4Gamboa v. Clark No. 90291-7 690, 175 P.2d 669 (1946), and Cuillier v. Coffin, 57 Wn.2d 624,358 P.2d 958 (1961), however, to say that the presumption ofpermissive use will not shift to adverse use if the evidence supports a reasonable inference ofneighborly accommodation or ifthe evidence demonstrates noninterfering use ofa roadway constructedbythe landowners' predecessor. Gamboa, 180 Wn. App. at 282. Here, the Court ofAppeals found the evidence supported a reasonable inference ofneighborly accommodation and demonstrated noninterfering use ofa roadway constructed bythe Clarks' predecessor. 

### !d. Thus, the court held thatthose inferences preventedthe presumption ofpermissive use from shifting to apresumption ofadverse use. 

### !d. We granted discretionaryreview. Gamboa v. Clark, 181 Wn.2d 1001, 332 P.3d 984 (2014). ISSUE Is there an initial presumptionthat a claimant's use ofland is permissive in prescriptive easement cases? ANALYSIS The seminal case onprescriptive easements is Northwest Cities, 13 Wn.2d 75. Inthat case, we articulated a set ofprinciples aboutprescriptive easements by looking to both our case law and scholarly texts. See id. at 82-86. Although we did not originally intendthe principles to be a "compendium ofthe general law of easements," id. at 88, we have reaffirmed many ofthose principles, calling them
5Gamboa v. Clark No. 90291-7 "fundamentalpropositions" that are "bindingupon us." Roediger, 26 Wn.2d at 706. The propositions relevant to this case are as follows. "Prescriptive rights
... are not favored in the law, since they necessarily work corresponding losses or forfeitures ofthe rights ofother persons." Nw. Cities, 13 Wn.2d at 83. To establish a prescriptive easement, the person claiming the easement must use another person's land for aperiod of 10 years and show that (1) he or she used the land in an "open" and "notorious" manner, (2) the use was "continuous" or "uninterrupted," (3) the use occurred over "auniform route," (4) the use was "adverse" to the landowner, and (5) the use occurred "withthe knowledge ofsuch
owner at a time whenhe was able in law to assert and enforce his rights." 

### Id. at 83, 85. Whether the Gamboas' use was adverse is the sole issue in this case. The claimant bears the burden ofproving the elements ofa prescriptive easement. 

### Id. at 84. We review whether a claimanthas established those elements as
a mixed question oflaw and fact. Petersen v. Port of Seattle, 94 Wn.2d 479,485, 618 P.2d 67 (1980). A trial court's factual findings are reviewed for abuse ofdiscretion; a trial court's "conclusionthat the facts, as found, constitute a prescriptive easement" is reviewed de novo. Lee v. Lozier, 88 Wn. App. 176, 181, 945 P.2d 214 (1997). 1. Adverse Use andthe Presumption of Permissive Use We generally interpret adverse use as meaning thatthe land use was without the landowner's permission. See, e.g., Roediger, 26 Wn.2d at 707. There is no

6Gamboa v. Clark No. 90291-7 requirement that the claimant believe he or she owns the property to establish adverse
use-a claimant's subjective intent is irrelevant. Dunbar v. Heinrich, 95 Wn.2d 20, 27, 622 P.2d 812 (1980); see Chaplin v. Sanders, 100 Wn.2d 853, 860-61, 676 P.2d 431 (1984) (abandoning a subjective intentrequirement to establishhostility, i.e., adversity, in adverse possession cases). That being said, we start with the presumptionthat when someone enters onto another's land, the person "does so with the true owner's permission and in subordinationto the latter's title." Nw. Cities, 13 Wn.2d at 84. However, we have limited the presumption ofpermissive use to three factual scenarios. First, the presumption applies to cases involving unenclosed land. See Roediger, 26 Wn.2d at 710-11 (saying that "[i]fitbe true thatthe lands are un[e]nclosed, the presumption is thatthe use was permissive, and, therefore, that no easement was acquired"). Second, the presumption applies to enclosed or developed land cases in which "itis reasonable to infer thatthe use was permitted by neighborly sufferance or acquiescence." 

### !d. at 707. Third, the presumption applies whenthe evidence demonstrates that the owner ofthe property created or maintained a road and his or herneighbor used the road in a noninterfering manner. Cuillier, 57 Wn.2d at 627. The claimant may defeat the presumption ofpermissive use "whenthe facts and circumstances are such as to show that the user was adverse and hostile to the rights of the owner, or that the owner has indicated by some act his admission that the claimant has a right ofeasement." Nw. Cities, 13 Wn.2d at 87.

7Gamboa v. Clark No. 90291-7 Our decision inRoedigerused the word "impl[ying]" permissive use interchangeably with the word "presumption" ofpermissive use, and ithas caused confusion and led to a split in the Court ofAppeals. 26 Wn.2d at 707-11. Division One has strictly limited the presumption ofpermissive use to vacant and unenclosed land cases-in all enclosed and developed land cases, it has held that courts may infer permission only ifthe record "support[s] a reasonable inference ofpermissive use." Drake v. Smersh, 122 Wn. App. 147, 153-54, 89 P.3d 726 (2004). Differently, in this case, Division Three broadly held that a presumption ofpermissive use applies to all cases, regardless ofwhether the land is enclosed or developed. Gamboa, 180 Wn. App. at 268. The confusion over a use being implied orpresumed permissive is compounded by another presumption rule from Northwest Cities in which a court can find a person's land use "permissive in its inception." 13 Wn.2d at 84. When a court finds a
use "is permissive in its inception," it "cannotripen into aprescriptive right, no matter how long it may continue, unless there has been a distinct and positive assertionby the dominant owner ofa right hostile to the owner ofthe servient estate." 

### Id. A land
use is "permissive in its inception" when a landowner actually gives a claimant permission to use the land-theclaimant's license to use the land cannever ripen into
a prescriptive right unless the user distinctly asserts that he or she is using the land as ofright. Bulkley v. Dunkin, 131 Wash. 422, 425, 230 P. 429 (1924), aff'd, 236 P. 301

8Gamboa v. Clark No. 90291-7 (1925). Additionally, we have held that when "the use of[a] pathway [arises] out of mutual neighborly acquiescence," the use is deemed "permissive in its inception." Roediger, 26 Wn.2d at 713-14 (emphasis added). This presumption is more difficult for claimants to rebut because it requires them to distinctly and positively assert a claim ofright.
. 2. The CompetingPresumption of Adverse Use The Court ofAppeals did not limit the presumption ofpermissive use to the factual scenarios discussed above. Instead, it found that an initial presumption of permissive use applies in every case and that a competing presumption ofadverse use
can potentially apply in every case. Gamboa, 180 Wn. App. at 267-68. InNorthwest Cities, we said that apresumption ofadverse use can be created when a claimant meets all ofthe elements ofa prescriptive easement otherthan adverse use "unless otherwise explained." 13 Wn.2d at 85. The Court ofAppeals interpreted that language as sayingthat certain "explanations" or factual scenarios will prevent the shift from a use being presumed permissive to being presumed adverse. Gamboa, 180 Wn. App. at 267-68. The three scenarios that the Court ofAppeals stated would preventthis shift are the same three scenarios thatprescribe the presumption of permissive use, as discussed above. See id. at 270-72 (listing vacant and unenclosed land cases, cases where there is a reasonable inference ofneighborly accommodation, and cases where the property at issue is a road constructedbythe servient ownerused

9Gamboa v. Clark No. 90291-7 in common withthe claimant). However, in a later case, we questioned whetherthis competing presumption ofadverse use is actually a "presumption." See Cuillier, 57 Wn.2d at 627 (statingthat "amore accurate statement" ofthe law is that there are "circumstance[s] from which an inference may be drawn thatthe use was adverse"). That discrepancy is an academic question in this case, and we leave it for another day. Here, we must determine whether there is apresumption of permissive use under our precedent. 3. AnInitialPresumption of Permissive UseApplies to EnclosedorDeveloped LandCases in Which There Is aReasonableInference of Neighborly Sufferance orAcquiescence We find that our case law, particularly ourRoediger decision, and policy considerations support applying an initialpresumption ofpermissive use to enclosed
or developed land cases in whichthere is areasonable inference ofneighborly sufferance or acquiescence. InRoediger, a group ofclaimants sought a prescriptive easement to use a footpath overthe land ofbeachfront homeowners on Vashon Island that they had used for roughly 30 years. 26 Wn.2d at 691-92, 700. The pathwas located between the beach and the homes. 

### !d. at 692. The pathwas createdby "neighborly usage," and none ofthe persons claiming an easementhad ever asked for
orreceived permissionto cross the property ofthe homeowners. 

### !d. at 692, 697. We "suspect[ed] that all the properties involved in this case [were] un[e]nclosed," but we did "not decide the case on that theory." 

### !d. at 710-11. We rejected a presumption of

10Gamboa v. Clark No. 90291-7 adverse use in this scenario, saying it "completely disregards the well-established rule that permissive use maybe implied." 

### !d. at 707. We said that although the rule of inferring permissive use "has been chiefly applied in cases involving un[e]nclosed lands,
... it is applicable to any situation where 

### it is reasonable to inferthat the use
was permitted by neighborly sufferance or acquiescence." 

### !d. That language about "inferring" or "implying" permission notwithstanding, we also said thatthere is a presumption ofpermissive use whenever there is a reasonable inference ofneighborly accommodation. 

### !d. at 711 ("'wherepersons traveled the private road ofa neighbor in conjunction with such neighbor and otherpersons, nothing further appearing, the law presumes such use was permissive, and the burden is onthe party asserting a prescriptive right to showthat his use was under claim ofright and adverse to the
owner ofthe land."' (quoting 2 GEORGE W. THOMPSON, COMMENTARIES ON THE MODERN LAW OF REAL PROPERTY§ 521, at 106 (perm. ed. 1939))). Considering the facts ofthe case, we went onto hold that the claimants' use
was "permissive in its inception" because we found a reasonable inference that "the
use ofthe pathway arose out ofmutual neighborly acquiescence." 

### !d. at 713 (emphasis added). Because we deemed the usepermissive in its inception, we applied the strongerpresumption ofpermissive use, requiring the claimants to put forth evidence that they made a positive assertion that they claimed to use the path as of right. 

### !d. at 713-14. We determined thatthe claimants failed to provide any evidence

11Gamboa v. Clark No. 90291-7 that they "evermade a positive assertion to the [landowners]
...that [they] claimed to
use the path as ofright," and we therefore held that the claimants failed to show adverse use. !d. at 714. We discussed policy considerations that uniformly supported applying a presumption ofpermissive use. We said, "Thelaw should, and does encourage acts ofneighborly courtesy; a landowner who quietly acquiesces in the use ofa path, orroad, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought notto be held to have thereby lost his rights. Itis only whenthe use ofthe path orroad is clearly adverse to the owner of the land, and not an enjoyment ofneighborly courtesy, that the landowner is calledupon 'to go to law' to protecthis rights." !d. at 709 (quoting Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2, 3 (1926)). Applying a presumption ofpermissive use incentivizes landowners to allow neighbors to use their roads for the neighbors' convenience. We do not wantto require a landowner "to adopt a dog-in-the-manger attitude in order to protect his title to his property." State
ex rei. Shorett v. BlueRidge Club, Inc., 22 Wn.2d 487, 495-96, 156 P.2d 667 (1945). Not applying a presumption ofpermissive use in these circumstances punishes a courteous neighbor by taking awayhis or her propertyright. The Gamboas'Argument That the Presumption of Permissive Use Is Limitedto UnenclosedLandCases Under Roediger andCuillierIs Incorrect The Gamboas primarily rely onRoediger and Cuillier to supporttheir argument thatthere is no presumption ofpermissive use in enclosed or developed land cases.

12Gamboa v. Clark No. 90291-7 They contend thatpermission or adversity is a question offact for the trier offact to infer from the circumstances ofthe case. However, theymisinterpretthe holdings from Roediger and Cuillier. First, the Gamboas contend thatRoediger did not apply the presumption of permissive use that is ordinarily applicable in vacant land cases, butratherheld narrowlythat a "use that is permissive in its inception cannotbecome adverse until 'a distinct andpositive assertion ofa right hostile to the owner' is 'broughthome to [the servient owner].'" Suppl. Br. ofPet'rs at 9 (alteration in original) (quotingRoediger, 26 Wn.2d at 714). They fail to recognize, though, that inRoediger, we also statedthat there is a presumption ofpermissive use wheneverthere is a reasonable inference of neighborly accommodation. 26 Wn.2d at 711 ('"wherepersons traveledthe private road ofa neighbor in conjunctionwith suchneighbor and otherpersons, nothing further appearing, the lawpresumes suchuse was permissive, and the burden is onthe party asserting a prescriptive right to showthat his use was under claim ofright and adverse to the owner ofthe land."' (quoting THOMPSON, supra, § 521, at 106)). The "permissive in its inception" discussion occurred inthe context ofour finding that the evidence supported a reasonable inference that the landuse arose outof, orresulted from, neighborly sufferance and acquiescence. 

### !d. at 707, 713-14. That finding created a strongerpresumption ofpermissive use than would be typical inneighbor

13Gamboa v. Clark No. 90291-7 accommodation cases. See id. Thus, the petitioners misinterpretRoediger-Roediger does not limit the presumption ofpermissive use to vacant and unenclosed land cases. Second, the Gamboas' reliance on Cuillier is misguided. Cuillier does not limit the presumption ofpermissive use to unenclosed land cases-tothe contrary, it recognizes an additional factual scenario in which the presumption ofpermissive use is appropriate. 57 Wn.2d at 627. Cuillier primarily limits the competingpresumption of adverse use, and thus the main focus ofCuillier is irrelevant to this case. In Cuillier, the claimants wanted to use a landowner's orchard road. Id. at 625. The claimants argued thatbecause they used the road for the prescriptive period without permission, "there was a presumptionthat their use was adverse and that the burden
was then upon the owner to showthe use was permissive." Id. at 626. We called the rule presuming adverse use into doubt, saying, "Wethink, however, a more accurate statement, based onthe results and holdings in all ofour cases, would be that such unchallenged use for the prescriptive period is a circumstance from which an inference maybe drawn that the use was adverse." Id. at 627. However, we also recognized that there is a presumption ofpermissive use whenthe evidence demonstrates that the owner ofthe property created or maintained a road and his or

14Gamboa v. Clark No. 90291-7 her neighbor used the road in a noninterfering manner. 1 

### !d. Thus, the core portion of Cuillier that is about "inferences" applies onlyto the competingpresumption of adverse use and is irrelevant to this case. Further, Cuillier actually recognizes a scenario (in addition to unenclosed land cases) in which apresumption ofpermissive
use is appropriate. Thus, thepetitioners misinterpretRoediger and Cuillier. Wehold that an initial presumption ofpermissive use applies to enclosed or developed land cases in which there is a reasonable inference ofneighborly sufferance or acquiescence. 4. The Evidence Supporteda ReasonableInference of Neighborly Sufferance orAcquiescence What constitutes a reasonable inference ofneighborly sufferance or acquiescence is a fairly low bar. As discussed above, we have citedthe following as
an example ofa neighborly accommodation: '"persons travel[ing] the private road of
a neighbor in conjunction with such neighbor and other persons, nothing further appearing."' Roediger, 26 Wn.2d at 711 (quoting THOMPSON, supra,§ 521, at 106). Again, that case involved people using a private footpath over homeowners' beachfront property without express permission in conjunction withthe homeowners.

1Unlike the Court ofAppeals below, we do not find that this presumption from Cuillier applies to this case. Here, the record does not demonstrate that the Clarks or their predecessor (the Slouins) created or maintained the gravel road. The road preexisted both the Clarks and Gamboas coming to the property.

15Gamboa v. Clark No. 90291-7 Jd. at 691-92, 697-98. We inferred from those facts "no more thanthe usual accommodation between neighbors." Jd. at 712. Here, there is a similar reasonable inference ofthe usual accommodation betweenneighbors. The trial court found that the Gamboas used the road as a driveway to access their home and that the Clarks used 

### itto farm grapes. Boththe Gamboas and Clarks "usedthe roadway as described above without any disputes until 2008. Eachparty was aware ofthe other'suse ofthe roadway, butno one objected to the other's use until a dispute arose in 2008." CP at 195. Like the example in Roediger, here the Gamboas and Clarks are neighbors and they used the road for their
ownpurposes in conjunction with each other without incident. Thus, we find a reasonable inference ofneighborly sufferance or acquiescence. 5. The Gamboas Failed To Overcome the Presumption of Permissive Use As mentioned above, a claimant may defeat the presumption ofpermissive use when the facts demonstrate (1) "the user was adverse and hostile to the rights ofthe owner, or" (2) "the ownerhas indicated by some act his admissionthatthe claimant has a right ofeasement." Nw. Cities, 13 Wn.2d at 87 (citing THOMPSON, supra,§ 523, at 111). For a claimantto showthat land use is "adverse and hostile to the rights of the owner" in this context, the claimantmustput forth evidence that he or she interfered withthe owner's use ofthe land in some manner. See id. at 90-91 (finding that the claimant's direct predecessor's acts oflaying out a "definite road across the

16Gamboa v. Clark No. 90291-7 premises" and regularly improving and maintaining the road were sufficient to indicate a hostile intent to the owner's rights and use ofthe property). Here, the Gamboas cannot demonstrate either thatthey interfered withthe Clarks' use ofthe driveway or that the Clarks indicated thatthe Gamboas had an easement over the driveway. The Gamboas' occasional blading ofthe road did not interfere with the Clarks' use ofthe road in any manner because the Clarks usedthe road as a road (to access their grape plants). Indeed, the trial court found that both parties "usedthe roadway
... without any disputes until2008. Eachparty was aware ofthe other's use ofthe roadway, butno one objectedto the other's use until a dispute
arose in 2008." CP at 195. The fact thatthe Gamboas thought they owned the road
was irrelevant. 

### Dunbar, 95 Wn.2d at 27. Thus, the Gamboas failed to overcome the presumption ofpermissive use because they did not demonstrate a use that was adverse and hostile to the rights ofthe Clarks, and they did not demonstrate thatthe Clarks indicated thatthey had an easement. CONCLUSION Regarding the "adverse use" element inprescriptive easement cases, our precedent supports applying an initial presumption ofpermissive use to enclosed or developed land cases in which there is a reasonable inference ofneighborly 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

17Gamboa v. Clark No. 90291-7 road for their own purposes in conjunctionwith each other without incident. The Gamboas failed to overcome the presumption ofpermissive use. Accordingly, the Gamboas failed to establish a prescriptive easement, and we affirm the Court of Appeals.

18Gamboa v. Clark No. 90291-7



### WE CONCUR:

19