Drake v. Smersh

89 P.3d 726 (2004)

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Nature of the Case

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Facts

Massey bought a vacant lot where he intended to build a cabin. The Wallens family owned the adjacent lot on which an existing driveway ran to the Wallens' cabin. When Massey began to construct his cabin, he extended the existing driveway with a bulldozer to gain access to his property. The Wallens raised no objection, and Massey did not ask their permission to extend the drive. The driveway served as the sole access to Massey's dwelling, and both property owners used the driveway without incident. In 1975, Wallens sold their property to the Wright Fish Company. From 1975 until 1984, Massey used the driveway and maintained it when necessary, again without objection or incident. In 1984, Massey sold P who surveyed the property before the sale and discovered that the driveway was located largely on Wright's lot. P used the driveway without objection or incident. Wright then sold to D. P continued to use the driveway, but in 1998 D told P he wanted him to stop using it. P filed an action to quiet title to a prescriptive easement. The trial court eventually awarded P a prescriptive easement over the driveway. It concluded that any presumption of neighborly accommodation terminated with the original owners and P's driveway use after the Masseys sold the property was adverse. D appealed.