Anderson v. Secret Harbor Farms:
Supreme Court of Washington
47 Wash. 2d 490 (1955)
Issue: Was an easement created?
Application: No evidence that anyone ever gave defendants or their predecessors in interest permission to use the footpath.
-One defendant testified that when the owner took her to the island in Jan 1938, to inspect the property, the landed at the dock and traversed the path
-Defendants have since used it, had have about 40 people on their place
-No evidence that anyone ever objected to the use of the path by defendants and their predecessors in interest, prior to the erection of the "no trespassing" signs in 1946
-Trial court found that prior to 1946, the path was used permissively
-Was not explicit permission, rather it was implicit as a neighborly act
-The burden of proving the existence of a prescriptive right always rests upon the one who is to benefit by its establishment
-The burden never shifts
-If express permission is given to use the right of way, use does not ripen into a prescritive right simply by lapse of time
-The use has been continuous, uninterrupted, open, and notorious without deviation in course by defendants and their predecessors in interest for longer than the prescribed statutory period
-From the use of the footpath by defendants and their predecessors in interest was hostile and "indeed adverse and not permissive'
-Defendants have sustained the burden of proving their affirmative defense to plaintiff's action to quiet title to the property involved, insofar as defendants'' right to use the footpath is concerned
-Plaintiffs and defendants own adjoining tracts of land on Cypress Island
-Both tracts border on Secret Harbor
-Defenants' land lies generally to the north and west of the harbor
-Plaintiffs land lies along the south side
-Defendants' access to their property is determined by the tide
-At high tide, they can enter the harbor by boat and reach their property
-At low tide, they must dock at an old boat landing on plaintiffs' land at the entrance, and traverse a well-defined footpath across the land of plaintiffs to their own property
-The footpath existed prior to 1890, and has been used by defendants and their predecessors in interest since that time.
-Begins on the western boundary of the plaintiffs' property and runs in a generally northeasternly direction to the eastern side of plaintiffs' property.
-Generally parallels the southern shore line of the harbor
-1939: Defendants purchased their property in 1939 from the Wooten family
-T.J. Wooten, who left the island in 1915, testified that he had used the footpath in question for 25 years
-1946: plaintiff purchased their property from Clarence Shaw, who acquired it late in 1940
-1946: On two occasions, "No Trespassing" signs were posted at the boat landing in an attempt to close the path
-On one occasion the signs were kicked down, on the other, they were ignored by the defendants
-Plaintiffs commenced the action to enjoin defendants from using the footpath and to remove the cloud on their title, which exists in the form of defendants' alleged right to use the footpath
-Defendants claim affirmative defense of a prescriptive right to an easement over plaintiffs' property
Sorry for the loooooooooooong break from posting, have been on spring break the last week :D
Good luck with finals, those of you who have them.