## Facts

- In 1952, Massey bought a vacant lot on Lummi Island to build a cabin; the neighboring lot had an existing driveway to South Nugent Road.
- Massey extended the existing driveway to reach his property using a bulldozer, without asking permission; the neighbors did not object.
- The driveway became the sole access to Massey’s dwelling, and it was used openly and without incident for decades.
- In 1975, the servient parcel was sold to Wright Fish Company; Massey continued using and maintaining the driveway without objection.
- In 1984, Drake bought Massey’s property, learned from a survey that the driveway lay largely on the neighboring parcel, and continued to use and maintain it as access without seeking or receiving permission.
- In 1997, Smersh bought the servient parcel; in 1998, Smersh told Drake to stop using the driveway.
- Drake sued to quiet title to a prescriptive easement over the driveway.
- The trial court initially found the use permissive as a neighborly convenience, but on reconsideration reversed and granted Drake a prescriptive easement.

## Issues

1. Whether Drake established a prescriptive easement, particularly whether the driveway use was adverse rather than permissive.
2. Whether a presumption of permissive use applied under the vacant-lands doctrine or a neighborly-accommodation theory.
3. Whether the trial court abused its discretion by granting reconsideration and awarding a prescriptive easement after initially ruling for Smersh.

## Decision

- The Court of Appeals affirmed the judgment granting Drake a prescriptive easement.
- The court held the presumption of permissive use did not apply on these facts.
- The court found substantial evidence that the use was adverse and satisfied the elements for a prescriptive easement.
- The court held the trial court acted within its discretion in granting reconsideration and entering judgment for Drake.

## Legal Principles

- A prescriptive easement requires use of another’s land that is (1) open and notorious, (2) over a uniform route, (3) continuous and uninterrupted for at least 10 years, (4) adverse to the owner, and (5) with the owner’s knowledge.
- Use is not adverse if it is permissive.
- The vacant-lands doctrine (presumption of permissive use by neighborly sufferance) applies only to undeveloped land.
- On developed land, a court may infer permissive use only when the specific facts support an inference that the use arose from neighborly accommodation; it is not automatic.
- Long-term use of a driveway as the sole access to a residence, initiated and continued without permission being sought or granted and maintained by the user, supports a finding of use under a claim of right.

## Conclusion

The court affirmed a prescriptive easement for long-standing driveway access and limited presumptions of permissive use, holding that permissive-use inferences must be tied to undeveloped land or concrete facts showing neighborly accommodation rather than applied categorically.


Drake v. Smersh, 89 P.3d 726 (Wash. Ct. App. 2004)