Two cases (both unpublished) in this week's advance sheets! Attorney fees! Split in the Divisions!

In a Division I opinion, the Court of Appeals addressed the summary judgment dismissal of a prescriptive easement claim. Several legal theories were discussed, including adverse possession of an easement (not easy), the elements that must be shown the establish a prescriptive easement (also not easy) and "shifting easement location."

The lower court tossed all the claims on a summary judgment motion. The court then awarded the prevailing party attorney fees based on the adverse possession statute (RCW 7.28.083(3)).

Some years ago the adverse possession statute was amended to include a provision that a prevailing party may be awarded their attorneys fees. This was a significant change in the law; up until that time litigants, even successful litigants, had no hope of recovering their incurred fees.

The case is Heine v. Russell. It is unpublished.

While the result is not too surpising, the case is interesting and helpful for its long discussion of prescriptive easements.

While Division I was busy affirming the attorney fee award, Division II was taking a different tack.

Milner v. Carpenter Group also involved a prescriptive easement claim. A summary judgment tossing the prescriptive easement claim was granted but, unlike Heine, the trial court denied the attorney fee request of the prevailing party.

After describing the difficulty in establishing a prescriptive easement, the Court went on and discussed the denial of the attorney fee request. The Court noted that Division I had found a right to attorney fees in prescriptive easement claims (Workman v. Klinkenberg, 6 Wn.App. 2d 291 (2018)).

Division Two had reached a contrary conclusion in McColl v. Anderson, 6 Wn.App. 2d 88 (2018)(holding that RCW 7.28.083 does not apply to prescriptive easement actions).

Milner goes into some detail regarding the split in the divisions, noting that Division One had reached its conclusion without much analysis of the language in the statute while Division Two had "looked to the plain language of the statute and concluded that it "allows an award of attorney fees only in an action asserting title to real property, not in an action asserting a property interest but no title....Because a prescriptive easement claim does not assert title to property."

Milner affirmed the lower court's denial of the attorney fee request.

For now, at least until the Supreme Court weighs in or the legislature addresses and changes the statutory language no fees in prescriptive easement cases in Division Two.