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Drake v. Smersh

Court of Appeals of Washington
89 P.3d 726 (2004)


The Wallens family owned a cabin on Lummi Island. A driveway extended from the Wallens family lot to a public road. Floyd Kenneth Massey purchased a vacant lot adjacent to the Wallens family lot. Because Massey’s lot lacked a driveway, Massey used a bulldozer to extend the Wallens’ driveway to his lot. Massey did not ask the Wallens’ permission, but the Wallens did not object. Both Massey and the Wallens used the driveway until the Wallens sold their lot to the Wright Fish Company (Wright) in 1975. Massey continued to use the driveway without incident. In 1984, Massey sold his lot to Jess Drake (plaintiff). Drake was aware the driveway was primarily on Wright’s lot, but continued to use and maintain it without objection from Wright. In 1997, Wright sold the lot to Robert Smersh (defendant). A year later, Smersh informed Drake that he should no longer use the driveway. Drake brought an action to quiet title in a prescriptive easement. The trial court initially ruled in Smersh’s favor, but after reconsideration, granted Drake a prescriptive easement over the driveway.

Rule of Law


Holding and Reasoning (Agid, J.)

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