Opinion
No. 26246-4-III.
April 3, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-2-02703-0, Maryann C. Moreno, J., entered June 1, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik and Korsmo, JJ.
Quail Ridge Annex L.L.C., John Lynch, and Dr. William Lynch (collectively, the neighbors) appeal the superior court's summary dismissal of their prescriptive easement complaint against Yong Lewis. The court concluded the neighbors could not claim a public easement over Ms. Lewis' vacant and unenclosed land for hiking and biking trails or overcome the presumed permissive use. Because the neighbors have not overcome the presumption for permissive use, and they fail to establish estoppel in Ms. Lewis' development application, we affirm.
Defendants Henry and Loretta Lackman, husband and wife, were dismissed from the action prior to the court's grant of summary judgment.
FACTS
This case involves a prescriptive easement dispute on vacant land located near the intersection of South Hatch Road and East 57th Avenue in Spokane, Washington. The land is a 25-acre undeveloped parcel, bordered on the west and the south by Hangman City Park, with two or more trails crossing the property connecting to Hangman Park trails and Hatch Road.
In 1983, a corporation purchased approximately 45 acres, including the 25-acre subject parcel, platting the northeast 20 acres into "Quail Ridge" gated residential community. In 1997, Henry Lackman purchased the remaining 25-acre parcel. Mr. Lackman's development plans failed when he was unable to gain utility access and the property remained vacant and unenclosed. Mr. Lackman declared he knew "people used footpaths on the property for recreation, but [he] never attempted to exclude people from the property and allowed the use out of neighborly accommodation[;] . . . any public use of the vacant property was recreational in nature and was harmless." Clerk's Papers (CP) at 22. Mr. Lackman declared he "was never given notice by anyone of a claim of right to the footpaths or that the use was adverse to [his] ownership." CP at 22. He was not aware of any regular use by Quail Ridge residents.
In July 2004, Mr. Lackman sold the property on contract to Ms. Lewis. In November 2005, Ms. Lewis filed a planned unit development (PUD) application with the City of Spokane to develop the property. Ms. Lewis' PUD application information showed: "[t]he project will create and preserve hiking trails and natural areas." CP at 65. Ms. Lewis did not identify the trails to be preserved or promise to preserve trails in the event her PUD application was not approved.
In December 2005, John Lynch sent a letter to the City Planner expressing his concerns about the 100-unit development, including density, view obstruction, soil stability, tree removal, storm water and drainage, traffic, and air quality. He did not mention the public's use and/or right to use the trails.
Ms. Lewis performed bore tests on the property, and put temporary fencing along Hatch Road for safety purposes. She declared: "Until I began to perform boring tests on the [p]roperty for development purposes I had no reason to exclude the public from the [p]roperty because the recreational use of the [p]roperty was harmless." CP at 47.
In April 2006, Quail Ridge sent a letter to the City Planning Department objecting to the proposed development, stating, "[t]here are at least two significant trails [on the subject property] which have been used by the public for over 20 years . . . and possibly use over those two trails have established a prescriptive easement for the benefit of the public." CP at 70. Before reviewing the 2006 letter, Ms. Lewis had no knowledge that anyone claimed any rights in the property. In June 2006, Quail Ridge submitted a petition to the City Planning Department with approximately 411 opposing signatures.
The neighbors filed a complaint seeking a prescriptive easement over the trails on Ms. Lewis' property on both their behalf and the public's behalf, an alternative order allowing use by estoppel, and an order restoring the trails. During discovery, John Lynch stated he began using the trails in approximately 1933. Declarations from seven members of the public state they have each used the trails between 14 and 40 years, maintaining the trails by repairing washouts and sliding banks, removing rocks from the trail, and removing litter.
Ms. Lewis successfully moved for summary dismissal. The court stated: "there is no support for the proposition that the unorganized public can acquire an easement by prescription, such as has been suggested in this case." CP at 223. "We've got unimproved land here. The — the presumption of permissive is there. There's nothing hostile about their use of the trails. There is no hostile use shown here." CP at 223-24. The court rejected estoppel stating: "[i]t's true that Ms. Lewis did indicate in her application that she would create and preserve hiking trails and natural areas. It's not clear to me exactly what she was promising to retain. There wasn't anything very specific about her promise." CP at 224. The neighbors appeal.
ANALYSIS
The issue is whether the trial court erred in granting summary judgment for Ms. Lewis. The neighbors contend the court erred as a matter of law in concluding they lack standing to assert a claim for prescriptive easement on behalf of the public and in determining the public's use of the trails was permissive. Alternatively, they argue Ms. Lewis should be equitably estopped from denying use of the trails based on the statement in her PUD application that she would "preserve hiking trails."
We review summary judgments de novo. Korslund v. DynCorp Tri-Cities Servs. Inc., 156 Wn.2d 168, 177, 125 P.3d 119 (2005). Summary judgment is appropriate where, viewing the facts in a light most favorable to the nonmoving party, no genuine issues of material fact exist and the issues can be resolved as a matter of law. Id.
A party may establish a prescriptive easement upon the land of another upon a showing that his or her use of the land has been "open, notorious, continuous, uninterrupted, over a uniform route, [and] adverse to the owner of the land" for a 10-year period. Nw. Cities Gas Co. v. W. Fuel Co., 13 Wn.2d 75, 85, 83, 123 P.2d 771 (1942). The party benefiting from the prescriptive easement bears the burden of proving its existence. Roediger v. Cullen, 26 Wn.2d 690, 706, 175 P.2d 669 (1946). "Prescriptive rights[] . . . are not favored in the law, since they necessarily work corresponding losses or forfeitures of the rights of other persons." Id. (quoting Nw. Cities Gas., 13 Wn.2d at 83).
Generally permissive use is presumed in cases involving "vacant, open, uninclosed and unimproved [lands]." State ex rel. Shorett v. Blue Ridge Club, Inc., 22 Wn.2d 487, 495, 494, 156 P.2d 667 (1945); Nw. Cities Gas., 13 Wn.2d at 84-86. While "[t]his rule[] . . . has been chiefly applied in cases involving uninclosed lands, . . . it is applicable to any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence." Roediger, 26 Wn.2d at 707 (recreational use of footpath through numerous residential beach properties leading to public dock presumed permissible); Shorett, 22 Wn.2d at 495 (recreational use of land for beach access presumed permissible).
Where land is used "by the public for recreational purposes [that `d[o] not in any way interfere with the owner's use'], the owner has no reason for excluding the public from the land, from which the normal inference flows that the user is permissive." Shorett, 22 Wn.2d at 495; see King County v. Hagen, 30 Wn.2d 847, 851, 853-54, 856, 194 P.2d 357 (1948). "[C]ourts . . . in such cases, . . . require evidence of facts or circumstances indicating that the user was indeed adverse and not permissive." Shorett, 22 Wn.2d at 495. Neither "mere use" nor minor improvements to the land are sufficient to show adverse use. Id. at 495, 492 (maintenance in putting down and removing wooden steps each year providing beach access); Roediger, 26 Wn.2d at 698-99, 708, 712-14 (maintenance in repairing washouts and maintaining walkway). "`A user which is permissive in its inception cannot ripen into a prescriptive right, no matter how long it may continue, unless there has been a distinct and positive assertion by the dominant owner of a right hostile to the owner of the servient estate.'" Roediger, 26 Wn.2d at 706 (quoting Nw. Cities Gas., 13 Wn.2d at 84).
In 1979, the legislature codified this common law rule that recreational use of another's land is presumed permissive. RCW 4.24.210; Laws of 1979, ch. 53, § 1. Under RCW 4.24.210, landowners may allow members of the public to use their land " for the purposes of outdoor recreation." RCW 4.24.210(1) (emphasis added). "Usage by members of the public, volunteer groups, or other users is permissive and does not support any claim of adverse possession." RCW 4.24.210(4) (emphasis added).
Here, the disputed land is "vacant, open, uninclosed and unimproved." Shorett, 22 Wn.2d at 495. The public used trails on the land for recreational purposes (biking, running, and walking), not interfering with the owner's use of the land. Former land owner Mr. Lackman knew of the use and did not object out of "neighborly accommodation." CP at 22. No evidence shows any member of the public made an assertion of an adverse right; mere use and minimal maintenance of the trails is inadequate to show a hostile and adverse use of the land. RCW 4.24.210(1), (4); Shorett, 22 Wn.2d 487; Roediger, 26 Wn.2d 690. Based on this record, Quail Ridge and the Lynches fail to show adverse use of the trails. The trial court did not err in granting summary judgment in favor of Ms. Lewis. Thus, we do not reach standing and turn to the estoppel contentions.
A party asserting an equitable estoppel claim must show the party to be estopped made statements inconsistent with later conduct, the asserting party acted in reasonable reliance upon the statement, and the asserting party would suffer injury. Sorenson v. Pyeatt, 158 Wn.2d 523, 538-39, 146 P.3d 1172 (2006).
Here, Ms. Lewis' PUD application stated, "[t]he project will create and preserve hiking trails and natural areas." CP at 65. Ms. Lewis later blocked the access to a hiking trail to perform testing on the land. This act is consistent with her PUD application statement. Ms. Lewis did not state she would preserve all hiking trails or designate the trails to be preserved. Quail Ridge and the Lynches cannot show Ms. Lewis acted inconsistent with her prior statements. In any event, the record shows Ms. Lewis is working with the Spokane Parks and Recreation Board to provide trail access from Hatch Road to Hangman Park in connection with the PUD project.
Given our reasoning, we do not analyze the remedy contentions.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, J., KORSMO, J., Concur.