Opinion
No. 62342-7-I.
September 8, 2009.
Appeal from the Superior Court, King County, No. 07-2-02415-8, Douglas D. McBroom, J., entered August 22, 2008.
Affirmed by unpublished opinion per Ellington, J., concurred in by Becker and Cox, JJ.
This action involves a claim to an access easement sufficient to permit emergency vehicles to navigate a residential driveway, turn around, and depart. The trial court treated the claim as legitimate, but found adequate access available via the existing easement. We doubt the validity of the claim, but we agree with the trial court that the additional easement claimed by plaintiffs is not necessary to their beneficial enjoyment of their property. We thus affirm.
BACKGROUND
Donald Ellis owned a parcel in Kirkland. In 1979, he divided it into two lots, only one of which, the east lot, lies upon a public road. An easement provides access to the west lot. The easement is 10 feet wide and 140 feet long.
The easement does not comply with Kirkland city codes. As a condition of the short plat approval, Ellis agreed to hold the City of Kirkland harmless from any damages resulting from fire or other emergency due to inadequate access. The Parkers contend that the Stevens' knowledge of this recorded agreement amounts to waiver of their claims here. Because we decide against the Stevens on other grounds, we do not address this argument.
Ellis sold the west lot to Gary and Sara Stevens in 1998. In 2000, Ellis wanted to fence the east lot. The Stevens sued Ellis seeking to enjoin the fence and obtain an easement exceeding the 10 foot width for improved access to their garage. The suit was dismissed on summary judgment.
Ellis did not build the fence. Ellis sold the property, which was eventually purchased in 2005 by David and Elisa Parker. The Parkers decided to build a fence. The Stevens again filed suit. They now base their claim for a larger easement upon a theory of easement by necessity for reasonable access by fire and other emergency vehicles. They sought an easement that would meet the Kirkland zoning code requirements for emergency vehicle access.
The City of Kirkland responds to most medical emergencies with two vehicles, each 9 feet wide and almost 22 feet long. An additional 2 feet, 6 inches is needed to offload a gurney and bring it around. An aid unit is usually the first vehicle to arrive on scene, followed by a medic unit with more sophisticated lifesaving equipment. It is apparently undisputed that space for the vehicles to turn around and depart would require a significant easement over the Parkers' property.
The Parkers moved for summary judgment. The court denied the motion and declared, sua sponte, that "as a matter of law the plaintiffs are entitled to an easement by necessity for emergency medical vehicles to turn around."
Clerk's Papers at 89. It does not appear that the Kirkland code would require a turnaround space. See Kirkland Zoning Code 105.10(a).
This left for trial the question of how much space was required for the easement. Over the Stevens' objection, the court permitted the Parkers to offer evidence as to alternative means of egress.
Deputy fire marshal Curtis Crowe confirmed that emergency vehicles could not turn around in the Stevens' driveway area. But he testified the vehicles could drive to the house and then reverse up to the road. The Stevens' expert, fire protection engineer Adam Farnham, testified that backing up would be difficult, dangerous and slow.
The parties and the court observed a simulated emergency response by the Kirkland Fire Department at the Stevens' residence. This involved timed scenarios, in one of which the emergency vehicle was backed out of the driveway and another in which a patient on a gurney was wheeled up the driveway to the emergency vehicle. After the site visit, the court, again sua sponte, amended its summary judgment order to eliminate the requirement that the easement be large enough to allow emergency vehicles to turn around at the Stevens' house.
The court eventually concluded that wheeling the patient on a gurney to the emergency vehicle was a reasonable alternative to enlarging the easement and dismissed the case.
Both parties appeal. The Stevens contend the court should not have permitted evidence of alternative means of egress and that its ruling is not supported by the evidence. The Parkers contend there is no such thing as an easement by necessity for emergency vehicle access.
ANALYSIS
The Stevens present no authority recognizing easements for emergency vehicle access, and we have found none. We are doubtful of the validity of such a claim. But we need not decide that question, because in any case, such a claim would require a showing that the easement is reasonably necessary to the beneficial enjoyment of the property. This is a showing the Stevens did not make.
See Hellberg v. Coffin Sheep Co., 66 Wn.2d 664, 667-68, 404 P.2d 770 (1965); Berlin v. Robbins, 180 Wash. 176, 188-89, 38 P.2d 1047 (1934). The elements required for the doctrine of easement implied from prior use are "`(1) a former unity of title, during which time the right of permanent user was, by obvious and manifest use, impressed upon one part of the estate in favor of another part; (2) a separation by a grant of the dominant tenement; and (3) a reasonable necessity for the easement in order to secure and maintain the quiet enjoyment of the dominant estate." Hellberg, 66 Wn.2d at 667-68 (quoting Evich v. Kovacevich, 33 Wn.2d 151, 156, 204 P.2d 839 (1949)). Unity of title and severance are absolute requirements. Id. at 668. However, the prior use (also referred to as a quasi easement) and the degree of necessity are "`aids to construction in determining the cardinal consideration — the presumed intention of the parties as disclosed by the extent and character of the user, the nature of the property, and the relation of the separated parts to each other.'" Id. (quoting Adams v. Cullen, 44 Wn.2d 502, 505, 268 P.2d 451 (1954)).
Many properties in our geographical area have no access for emergency vehicles at all. Homes are reached by tram or by boat or by stairs or, as here, by steep, narrow driveways. The trial court found "there are many properties . . . similar to the Stevens/Parker arrangement, where a `flagpole' easement runs downhill from Lake Washington Boulevard N.E. or other street toward Lake Washington to serve a house abutting Lake Washington." As the fire chief testified, the department's routine in such situations is to drive down to the home and then reverse back up the driveway easement. The evidence before the trial court was that emergency vehicles can reach the Stevens' house and can expeditiously reverse up the driveway, and that a patient on a gurney can be taken up the driveway to the emergency vehicle faster than a vehicle could turn around and drive out. The court thus found that enlarging the easement is not necessary because a reasonable alternative exists. This finding is supported by the evidence and defeats the claim of easement.
Clerk's Papers at 385.
Stevens contends, however, that the court abused its discretion when, after ruling on summary judgment that an easement by necessity exists for emergency vehicles to reach the house and turn around, it admitted evidence at trial as to alternative means of egress.
A summary judgment ruling is interlocutory and therefore subject to modification at any time. The summary judgment ruling here was overbroad, because even if a landowner is entitled to an easement for emergency vehicle access (which, as indicated above, we do not hold), the scope of such an easement is a factual question. While it would have been preferable for the court to clarify the inconsistency between its summary judgment ruling and its evidence ruling, the court was correct in entertaining the evidence, and the Stevens did not seek a continuance or argue they had inadequate opportunity to meet the evidence. Ultimately the court found the emergency vehicle turnaround would require "several hundred feet of the Parker property" and would take two minutes. The simple alternative of reversing up the driveway required 40 to 50 seconds, and the time required to take a patient up the driveway on a gurney was about 70 seconds. The need for a turnaround for emergency vehicles was disproved by the site visit and the testimony. The court did not abuse its discretion in modifying its ruling.
See Washburn v. Beatt Equipment Co., 120 Wn.2d 246, 300, 840 P.2d 860 (1992).
Clerk's Paper at 385.
The Stevens also point to the court's findings that the easement is too narrow to allow loading a gurney with a patient onboard into the emergency vehicle, or to allow medics in the second vehicle to "get into and out of the front and back of the [e]mergency [a]id [v]ehicle, nor will they be able to get into or out of the back of the vehicle with a gurney." The Stevens contend these findings are inconsistent with the court's refusal to find that the present easement is inadequate for access by emergency vehicles. But the Stevens do not assign error to any of the findings of fact, which specifically include the following:
Clerk's Papers at 388.
Unchallenged findings of fact are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 647, 870 P.2d 313 (1994).
The court's written findings expressly incorporated its oral findings.
[T]here certainly is ingress to the property by medical emergency vehicles. The question is whether there is reasonable egress from the property by the same medical emergency vehicles.
Report of Proceedings (RP) (July 9, 2008) at 198.
[T]his court finds that an ambulance or aid car answering an emergency at the Stevens' residence would have no trouble accessing the residence. I heard no evidence to the contrary on the question of access.
RP (Aug. 13, 2008) at 6.
The Stevens also overlook the court's finding of the scenario to be followed in case of a medical emergency at their residence.
If the Parkers construct the Parker fence, the medics responding to a medical emergency at the Stevens' residence would drive the aid car down the easement, park it, and treat the patient in the Stevens' residence. If it were necessary to take the patient to the hospital, at some point the unoccupied aid car would be backed up the easement and parked along Lake Washington Boulevard N.E., one of the medics would wheel the gurney down the easement, and two medics would take the patient in the gurney back up the easement and into the awaiting aid car or medic car.
Clerk's Papers at 388.
These unchallenged findings support the conclusion that access for emergency
vehicles does not reasonably require an additional easement.
Affirmed.
WE CONCUR: