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JO VONNE LINGVALL, Respondent, v. ROBERT BARTMESS, ET AL., Appellants.

Summary. Landowner's action against her neighbors to quiet title to property she claimed by
adverse possession or to establish a prescriptive easement over a driveway in the same
location. The defendants brought a third-party complaint against the plaintiffs
successor-in-interest.

Superior Court: The Superior Court for Clallam County, No. 97-2-00377-9, George L. Wood, J.,
granted the plaintiff a prescriptive easement and granted the successor-in-interest title to the
disputed parcel by adverse possession on April 24, 1998. [William McDowell represented the
Plaintiffs at the trial, and Charles Marunde represented the Defendants at trial.]

Court of Appeals: Holding that the plaintiff's use of the driveway was adverse and that her use
of the disputed parcel was hostile for the 10-year statutory period, the court affirms the
judgment.

G. Michael Zeno, Jr., of Davidson, Czeiler, Kilpatric & Zeno, P.S., for appellants.

William J. McDowell, for respondent.

ARMSTRONG, A.C.J. - Robert and Shirley Bartmess appeal a judgment granting a driveway
easement by prescription to Jo Vonne Lingvall and quieting title to a triangle section of property
on which the driveway sits (the triangle) to Lingvall's successor-in-interest, Cindy Sue Price.
They argue that Lingvall's use of the driveway and triangle was permissive and that Lingvall did
not adversely possess the triangle for the 10-year period. They also argue that the trial court
erred in granting Lingvall title to the triangle by adverse possession and a prescriptive
easement on the same property. We affirm.

Jo Vonne Lingvall sued her neighbors, Robert and Shirley Bartmess, to quiet title to the
northwestern corner of the Bartmesses' property or, in the alternative, to establish a
prescriptive easement over a driveway in the same location. The Bartmesses brought a
third-party complaint for ejectment against Lingvall's daughter, Cindy Sue Price, who now owns
the parcel of land adjacent to the property in dispute(fn1). The trial court granted Lingvall a
prescriptive easement and quieted title to the triangle in Price by adverse possession.

The triangle was originally contained within one parcel of land owned by Grace Blank. When
Grace Blank died in 1977, the property went to her sons, Alvin and Bobby Blank. Because the
brothers could not agree on a division of their mother's estate, the probate court divided the lot
into two parcels. Thus, in 1980, the southern parcel was awarded to Bobby and the northern
parcel was awarded to Alvin. The West Sequim Bay Road borders both parcels to the West,
and Sequim Bay is the eastern border.

At the time that Grace Blank's property was divided, a driveway, with a fence along its southern
border, provided access from West Sequim Bay Road to the northern parcel (Alvin's property).
Although it was apparently unknown at the time, a portion of the driveway and fencing
encroached on the northwest corner of the southern parcel (Bobby's . . .

Begin Footnote. (fn1) The Bartmesses also named Cindy Price's husband, Douglas, in the
complaint. He later quitclaimed his interest in the property to Cindy Price. End Footnote.

. . . property). The triangle was defined by a cattle fence on the south and the West Sequim Bay
Road to the West.

When Alvin died in 1982, his wife, Jo Vonne Blank (now Lingvall) succeeded to his interest in
the northern parcel. Bobby and Alvin Blank were contentious regarding the division of their
mother's assets and remained antagonistic towards one another throughout the rest of Alvin's
life. Although relations with other family members were cordial, the brothers' animosity carried
over to Jo Vonne Lingvall following Alvin's death.

When the property was divided in 1980, there was a house on the northern parcel. This house
was rented out by Alvin Blank and/or his wife Jo Vonne Lingvall continuously from June 1980 to
July 1989. The tenants used the driveway as their sole access to the rental house. Lingvall, who
lived on the other side of West Sequim Bay from 1980 through 1989, built a barn on the
northern parcel in 1982 and used the driveway to get to the barn. Bobby Blank and his son
used the driveway infrequently to get to a barn on the southern parcel, for clamming and
boating, and for a meeting with Lingvall to discuss a powerline easement. A neighbor, Melvin
Baker, occasionally used the driveway when he grazed cattle and cut hay on the southern
parcel.

When the rental house and barn on Lingvall's property burned to the ground in 1989, she and
her second husband built a new house on the northern parcel. They moved in that same year
and continued to use the driveway to access their new home. Before she built the house,
Lingvall divided the northern parcel into two lots. She gave the western lot to her daughter,
Cindy Sue Price, and built her home on the lot to the East. The southwest corner of Price's lot
abuts the triangle. Lingvall's short plat of the northern parcel includes an easement, apart from
the driveway, that provides access from West Sequim Bay Road across the western lot for the
benefit of Lingvall's eastern lot.

Sometime between 1982 and 1985, Lingvall planted two flowering plums within the triangle.
During the winter of 1985-1986, Lingvall and her husband cleared brush and wild shrubbery
from the triangle; they have mowed and maintained the area ever since. Some time after 1986,
Lingvall planted pine trees in the area. She and her husband landscaped and maintained the
area continuously and exclusively from at least 1986 to December 1997.

Although he had numerous opportunities to do so, Bobby Blank never challenged Lingvall's
possession of the triangle or use of driveway until November 7, 1994. On November 7, 1994,
Lingvall, Price, and Bobby Blank's son, Jeff, met with several realtors to establish the boundary
lines of Bobby's property. When Lingvall was shown a survey of Bobby's property, she allegedly
said, "Does this mean I do not get to use the driveway any more?" There was testimony that Jeff
Blank, who had power of attorney for his father, gave Lingvall permission to use the driveway
until the southern parcel was sold. Apparently, Jeff Blank also told her she could take the plants
in the triangle. Within a day of that meeting, Jo Vonne Lingvall consulted an attorney. She
continued to use the property as her own, despite Jeff Blank's attempt to block her use with
some string along the survey boundary. Bobby Blank conveyed his property to the Bartmesses
on June 19, 1996.

ANALYSIS

A. Prescriptive Easement

The Bartmesses contend that the trial court erred in concluding that Lingvall's use of the
driveway was adverse. Because the record supports this conclusion, we affirm.(fn2)

[1] Although prescriptive rights are not favored, a prescriptive easement can be established by
showing: "(I) . . .

Begin Footnote. (fn2) The Bartmesses also challenge two factual findings: (1) that any use of
the driveway from 1980 to 1994 was "with Ms. Lingvall's tacit and/or specific permission," and
(2) that "the driveway 'served exclusively the northerly parcel.'" Because these findings are not
necessary to support the legal conclusion that Lingvall's use of the driveway was adverse and
that her possession of the triangle was hostile (discussed under the adverse possession claim),
we do not address the sufficiency of the evidence to support these findings. End Footnote.

. . . use adverse to the right of the servient owner, (2) open, notorious, continuous, and
uninterrupted use for the entire prescriptive period, and (3) knowledge of such use by the
owner at a time when he was able to assert and enforce his rights." Dunbar v. Heinrich, 95
Wn.2d 20, 22, 622 P.2d 812 (1980). The prescriptive period in Washington is 10 years.
Compare Wasmund v. Harm, 36 Wash. 170, 176, 78 P. 777 (1904), with RCW 4.16.020.

[2] If the essential factual findings are not in dispute, whether use is adverse or permissive is
purely a question of law. See Petersen v. Port of Seattle, 94 Wn.2d 479, 485, 618 P.2d 67
(1980); Lee v. Lozier, 88 Wn. App. 176, 181, 945 P.2d 214 (1997); cf. Peoples v. Port of
Bellingham, 93 Wn.2d 766, 771, 613 P.2d 1128 (1980) (outlining standard of review under
analogous doctrine of adverse possession), overruled on other grounds by Chaplin v. Sanders,
100 Wn.2d 853, 676 P.2d 431 (1984); but see, e.g.. Northwest Cities Gas Co. v. Western Fuel
Co., 13 Wn.2d 75, 84, 123 P.2d 771 (1942), modified on other grounds by Cuillier v. Coffin, 57
Wn.2d 624, 358 P.2d 958 (1961); Pedersen v. Department of Transp., 43 Wn. App. 413, 417,
717 P.2d 773 (1986); Miller v. Jarman, 2 Wn. App. 994, 997, 471 P.2d 704 (1970); cf. Miller v.
Anderson, 91 Wn. App. 822, 828, 964 P.2d 365 (1998) (adverse possession). Unchallenged
factual findings are verities on appeal. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d
801, 808, 828 P.2d 549 (1992).

[3] Adverse use does not import "ill will" but means "use of property as the owner himself would
exercise, entirely disregarding the claims of others, asking permission from no one, and using
the property under a claim of right." Malnati v. Ramstead, 50 Wn.2d 105, 108, 309 P.2d 754
(1957); Pedersen, 43 Wn. App. at 417. Adverse use is measured objectively based on the
observable acts of the user and the rightful owner. Dunbar, 95 Wn.2d at 27.

The Bartmesses contend that the evidence implies permissive use because there was (1) a
family relationship between the parties, (2) mutual use of the driveway by Lingvall and Bobby
Blank, and (3) use that occurred on neighboring parcels of land. The Bartmesses are correct
that Washington courts have inferred permissive use in each of these circumstances. See, e.g.,
Granston v. Callahan, 52 Wn. App. 288, 294-95, 759 P.2d 462 (1988) (close family relationship
between brothers living on adjacent parcels supports inference of permissive use); Jarman, 2
Wn. App. at 997 (mutual use of driveway supports determination of permissive use); Roediger
v. Cullen, 26 Wn.2d 690, 707, 175 P.2d 669 (1946) (permissive use may be implied in "any
situation where it is reasonable to infer that the use was permitted by neighborly sufferance or
acquiescence"). But, in each case, the facts supported that inference.

Here, the undisputed facts establish adverse use. First, although adverse use does not import
ill will, Malnati, 50 Wn.2d at 108, the antagonistic relationship between Bobby and Alvin Blank
negates any inference of permissive use that might typically arise between brothers. Alvin and
Bobby Blank could not agree on the division of their mother's property. The probate court had
to resolve the dispute, which included the land where the driveway is located. They remained
antagonistic throughout Alvin's life, and their mutual animosity carried over to Lingvall. The
Bartmesses point out that the animosity between the brothers did not extend to other family
members but, given the antagonism between Bobby and Alvin and Lingvall, the parties'
relationships with other family members are not relevant.

[4] Relying on Miller v. Jarman and Crites v. Koch, 49 Wn. App. 171, 741 P.2d 1005 (1987), the
Bartmesses also argue that mutual use of the driveway on neighboring parcels of land supports
an inference of permissive use. They argue that Bobby or his son used the driveway to access
the barn on Bobby's property, to access the waterfront, and to meet with Lingvall to discuss a
powerline easement. In addition, a neighbor, Mel Baker, used the driveway to run cattle and to
cut hay on Bobby's property.

In Jarman, the owners of adjacent properties used each other's driveways regularly to access
their garages for a period of 40 years. Jarman, 2 Wn. App. at 995. In Crites, the parties agreed
that farmers commonly crossed and parked equipment on their neighbors' fields. Therefore,
use of the neighbors' land was merely a neighborly accommodation and held to be permissive.
Crites, 49 Wn. App. at 177-78.

Here, Lingvall's and Bobby Blank's use of the driveway was quite different. It is undisputed that
Bobby's use was infrequent. In contrast, Lingvall and her tenants used the driveway regularly
and continuously. A prescriptive right can be established "notwithstanding the fact that the
owner of the servient estate and others who desired to go upon the road also used it."
Hendrickson v. Sund, 105 Wash. 406, 410, 177 P.808 (1919). The claimant need not be the
only person using the driveway "so long as he exercises and claims his right independent of
others." Anderson v. Secret Harbor Farms, Inc., 47 Wn.2d 490, 494, 288 P.2d 252 (1955)
(citations omitted).

Lingvall's tenants used the driveway as their sole access to the rental property from 1980
through 1989. Lingvall, who lived just across the street, regularly used the driveway. In 1982,
she built a barn on the property and used the driveway to get to that barn. In 1989, she built a
house on her property and continued to use the driveway for access to her new house.

Although Mel Baker used the driveway to run cattle and to cut hay on Bobby's land, he also
testified that he had permission from Lingvall to run cattle on her land. Thus, Baker's use of the
roadway is not inconsistent with Lingvall's prescriptive challenge. Lingvall never asked
permission to use the roadway and was never challenged by Bobby Blank or his
representatives from 1980 through November 7, 1994. "[U]nchallenged use for the prescriptive
period is a circumstance from which an inference may be drawn that the use was adverse."
Cuillier v. Coffin, 57 Wn.2d 624, 627, 358 P.2d 958 (1961); see Washburn v. Esser, 9 Wn. App.
169, 171 n.1, 511 P.2d 1387 (1973).

The Bartmesses also argue that Lingvall did not prove adverse use because she did not
improve the roadway. This is not the appropriate test. The question is whether she used the
property as if she were the owner, "entirely disregarding the claims of others, asking permission
from no one." Malnati, 50 Wn.2d at 108. The record clearly supports the conclusion that
Lingvall's use was adverse.

The Bartmesses finally contend that the easement shown on the short plat of her property "put
the world on notice that Lingvall considered her access to West Sequim [Bay] Road to be
across her own property, rather than across Bobby Blank's property." It has long been
recognized in Washington that we look to the manner in which the party claiming a prescriptive
easement has used the property;

the claimant's subjective beliefs are irrelevant. Dunbar, 95 Wn.2d at 27. Here, Lingvall's and her
tenant's regular and continuous use of the driveway for ingress and egress was notice to the
world that she used the driveway under a claim of right.

B. Adverse Possession

The Bartmesses next argue that Lingvall did not establish adverse possession of the triangle
because her possession was not hostile. They also argue that the 10-year statutory period has
not been met. We disagree.

[5-7] To establish adverse possession, the claimant must show possession that is: (1) open and
notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile for the 10-year statutory
period. ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989) (citing Chaplin v.
Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984)); RCW 4.16.020. The party claiming
adverse possession bears the burden of proving each element. ITT Rayonier, 112 Wn.2d at
757. Adverse possession is a mixed question of law and fact: whether the essential facts exist is
for the trier of fact, but whether the facts constitute adverse possession is for the court to
determine as a matter of law. Peoples, 93 Wn.2d at 771.

[8] Citing Anderson v. Hudak and Hunt v. Matthews, the Bartmesses first argue that Lingvall did
not prove hostility because she did not "do everything a true owner could have done" with the
land. Anderson v. Hudak, 80 Wn. App. 398, 907 P.2d 305 (1995); Hunt v. Matthews, 8 Wn. App.
233, 505 P.2d 819 (1973), overruled on other grounds by Chaplin, 100 Wn.2d 853. They
contend that all Lingvall did was plant a few small trees and keep the grass and weeds down.
They suggest that she could have built a fence.

The Bartmesses misconstrue the statements in Anderson and Hunt. The element of hostility
does not require that a person do everything an owner could do with the land. Instead, when a
claimant does everything a person could do with a particular property, it is simply evidence of
the open hostility of that claim. Anderson, 80 Wn. App. at 403;

Hunt, 8 Wn. App. at 237. Hostility "requires only that the claimant treat the land as his own as
against the world throughout the statutory period." Chaplin, 100 Wn.2d at 860-61. The nature
of possession is determined objectively by the manner in which the claimant treats the land.
Chaplin, 100 Wn.2d at 861.

Here, Lingvall planted two flowering plums and pine trees in the triangle. She and her husband
cleared away brush and wild shrubbery. They landscaped, mowed, and maintained the area
continuously and exclusively from at least 1986 to December 1997.

But relying on our decision in Anderson, the Bartmesses argue that planting trees without
maintaining them is not enough to establish adverse possession. See Anderson, 80 Wn. App. at
404. Anderson is distinguishable because the claimants presented no evidence, other than
planting the trees, to establish hostility. Anderson, 80 Wn. App. at 404. And we recognized in
Anderson that claiming, maintaining, and occupying the land around trees is evidence of
hostility. Anderson, 80 Wn. App. at 404 (citing Otto v. Cornell, 119 Wis.2d 4, 349 N.W.2d 703,
706 (1984)). Lingvall planted the trees, landscaped, mowed, and maintained the area around
those trees. Thus, the trial court did not err in concluding that her possession of the triangle
was hostile.

The Bartmesses also argue that Lingvall did not act like a true owner because she did not
exclude others from the triangle. They note that Bobby Blank and Mel Baker also used the
driveway. As discussed in the prescriptive easement section, Bobby's use was infrequent and
Baker had permission to run cattle on Lingvall's land, as well as Bobby's. Therefore, Baker's
use of the triangle was not hostile to Lingvall, such that she would need to exclude him from the
property.

The Bartmesses also raise the argument that a familial relationship suggests that their
possession of the triangle was not hostile. As discussed above, based on uncontroverted facts,
this argument is without merit.

The Bartmesses next argue that because Bobby Blank's property was unimproved, Lingvall's
possession of the property must be more obtrusive, so as to put the true owner on notice.
"[W]hat constitutes possession or occupancy of property for purposes of adverse possession,
necessarily depends to a great extent upon the nature, character, and locality of the property
involved and the uses to which it is ordinarily adapted or applied." Frolund v. Frankland, 71
Wn.2d 812, 817, 431 P.2d 188 (1967), overruled on other grounds by Chaplin, 100 Wn.2d 853.
The concern in vacant or unimproved land cases is that an absent owner will not have notice of
the adverse possessor's intention to claim title to his land. See Hunt, 8 Wn. App. at 236-38;
People's Sav. Bank v. Bufford, 90 Wash. 204, 208, 155 P.1068 (1916). That concern is not
present here, because it is undisputed that Bobby Blank had numerous opportunities to
challenge Lingvall's possession of the triangle but failed to do so.

C. Ten-Year Statutory Period

[9] The Bartmesses also contend that Lingvall did not adversely possess the triangle for the
10-year statutory period. They argue that Lingvall's possession of the triangle was no longer
adverse once Jeff Blank gave her permission to use the driveway at the meeting on November
7, 1994. Lingvall's possession of the triangle began, at the earliest, in 1985 when she planted
two flowering plum trees. Therefore, if Jeff Blank's statement interrupted possession, then the
Bartmesses would be correct that Lingvall did not meet the 10-year requirement. But the
evidence does not support the Bartmesses' assertion that Jeff Blank's statements interrupted
possession.

At a meeting with the realtors to discuss the boundaries of Bobby Blank's property, Jeff Blank
apparently gave Lingvall permission to use the driveway. This occurred in 1994, four years after
Lingvall's prescriptive easement over the driveway would have matured.(fn3) He also told her
that she could take the plants in the triangle. These statements are not sufficient to interrupt
Lingvall's adverse possession of the triangle. "Where the entry has been adverse and hostile,
its character as such could not be interrupted or destroyed by the property owner's unsought
consent." Cf. Huff v. Northern Pac. Ry., 38 Wn.2d 103, 113, 228 P.2d 121 (1951) (citing
Naporra v. Weckwerth, 178 Minn. 203, 226 N.W 569, 65 A.L.R. 124 (1929)) (prescriptive
easement case). To interrupt adverse possession there must be actual cessation of the
possession; a mere protest will not interrupt possession that is hostile at its inception. See Huff,
38 Wn.2d at 113.

The trial court's unchallenged finding states that Lingvall continuously and exclusively
landscaped and maintained the triangle from 1986 until 1997. Thus, even if Jeff Blank's
statement telling Lingvall to take the plants could be perceived as interrupting her possession,
there is no evidence that she removed the plants. Instead, the evidence indicates that she
continued to possess the area, by landscaping and maintaining it, as if she were the true owner.

D. Termination of Easement

[10] The Bartmesses also argue that the trial court erred . . .

Begin Footnote. (fn3) Lingvall and Alvin Blank and/or their tenants used the driveway from the
time Grace Blank's property was divided in 1980. End Footnote.

. . . in quieting title to the triangle in Price, Lingvall's successor-in-interest, by adverse
possession and in granting a prescriptive easement to Lingvall over the same land. They argue
that when title to the triangle passed to Lingvall by adverse possession, the easement that
Lingvall had established by 1990 should have been extinguished. See Coast Storage Co. v.
Schwartz, 55 Wn.2d 848, 853, 351 P.2d 520 (1960).

Because we have affirmed the trial court's award of the triangle to Price by adverse possession,
the issue, as to the Bartmesses, is moot. An issue is moot if we can no longer provide effective
relief. See Washam v. Pierce County Democratic Cent. Comm., 69 Wn. App. 453, 458, 849 P.2d
1229 (1993). Neither Lingvall nor Price challenge the trial court's ruling, and because the
Bartmesses no longer have an interest in the property, we cannot grant them effective relief.

Affirmed.

SEINFELD and HOUGHTON, JJ, concur.

Adverse Possession, Easement by
Prescription & Attorney's Fees

97 Wn. App. 245; LINGVALL v. BARTMESS; 982 P.2d 690
[No. 23302-9-II. Division Two. August 27, 1999.]

"From the Superior
Court or trial level to
the Appeals Court,
this case morphed
into something
completely different.
I know. I was the
trial attorney."

Charles E. Marunde

Facts

"From the Superior Court (trial level) to the Appeals Court, this case morphed into
something completely different. I know. I was the trial attorney. I did not handle the
appeal, but when I read the Appellate Decision, I thought they were talking about a totally
different case. I lost a lot of faith in the legal system when that happened, or maybe I was
just waking up a reality about our 'justice' system that most people never have to face. The
original TRUE facts of the case read like a text book case that would easily defeat any
claim to adverse possession. By the time you read the Appellate Decision, it sounds
reasonable, but if you understand our system, the Appeals Court has no connection or
understanding of what really happened at trial." Charles E. Marunde

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