Opinion
No. 29134-7-II, consolidated with 28090-6-II.
Filed: March 23, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No. 99-2-00923-5. Judgment or order under review. Date filed: 05/14/2002. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant/Cross-Respondent, Michael Wayne Johns, Davis Roberts Johns PLLC, 7525 Pioneer Way Ste 202, Gig Harbor, WA 98335-1166.
Counsel for Respondent/Cross-Appellant, Robert Lyndon Beale, McGavick Graves PS, 1102 Broadway Ste 500, Tacoma, WA 98402-3534.
Safe Harbor Family Preservation Trust, owner of property on Hood Canal in Kitsap County, Washington, sued neighbors Fred and Faith Noble, owners of property enjoying an unused record easement over Safe Harbor's property, to quiet title and extinguish any claim to the easement. The Nobles counterclaimed, to establish an implied or prescriptive easement over Safe Harbor's property. The record easement had not been used in many years, if at all, but another area of the servient estate had been used to enter and exit the Nobles' property. The trial court quieted title to the record easement in favor of the Nobles, although it dismissed the Nobles' claims for an implied or prescriptive easement. But the court announced that it was retaining jurisdiction over the case and, two months later, the Nobles moved to revise the judgment, submitting a letter showing they would be unable to obtain a permit to develop the record easement. The trial court reversed its prior ruling without reopening the case for any further evidence. Safe Harbor appeals and the Nobles cross-appeal. Because the Nobles' remedy, if any, is a private condemnation action under chapter 8.24 RCW, we reverse.
FACTS
In the mid-1940s, Ernest and Beulah Worl subdivided their property off Highway 101 on the Hood Canal into two lots. On one lot they created a 10-foot-wide ingress and egress easement for the benefit of the other lot. They recorded this easement.
In 1972, Paul and Agnes Stokes acquired the servient estate once owned by the Worls. They deeded the property to Safe Harbor in 1985. The Stokeses continued to live on the property, which is now in trust for the benefit of their children.
In 1998, the Nobles acquired the dominant estate once owned by the Worls.
The record easement has not been used since 1972, if ever. Instead, the Nobles and their predecessors have entered off Highway 101 through a gate and crossed a paved courtyard on Safe Harbor's property to access their own. The trial court specifically found that there was no evidence explaining why the access used was outside the record easement.
The Stokeses erected a barrier across the courtyard access sometime before the Nobles purchased their property. The barrier was in place when the Nobles purchased their lot and they noticed it, but they never asked the Stokeses about it or discussed using Safe Harbor's property to access their own.
In December 1999, Safe Harbor filed a quiet title action, seeking to extinguish the record easement and to quiet title in the easement land through adverse possession. The Nobles counterclaimed, seeking an implied or prescriptive easement in the area of actual use.
Summary Judgment
Both sides moved for summary judgment. The trial court denied the motions, but stated in its oral ruling that first of all, there is going to be an easement from what I can see. The question becomes one of where that easement is going to be, and that's the principal problem that the Court sees. Is it going to be across . . . the record easement area? Or, is it going to be across the area that has been being utilized now?
I Report of Proceedings (RP) at 11. It continued, "I'm not creating an easement by necessity. If I were creating an easement by necessity, there would be a fair argument for shifting to the south." I RP at 13.
Trial
At the end of the Nobles' presentation of evidence, Safe Harbor moved for directed verdict, asserting that the Nobles failed to carry their burden to prove that their use of Safe Harbor's land outside of the record easement was adverse.
At trial, Safe Harbor did not put on any evidence on its quiet title claim, choosing to rest on its summary judgment record. In support of their prescriptive easement or easement by implication claim, the Nobles called only Mr. Stokes and the Nobles as witnesses.
The trial court agreed:
Because there is no evidence as to why or how the [Nobles'] predecessors began to use an area outside of the area of the record easement to access [their] property, the presumption applies that such use was permissive. Accordingly, the [Nobles'] claims to an easement at a location other than the record easement should be dismissed with prejudice.
Supp. Clerk's Papers (CP) at 50.
The trial court dismissed the Nobles' claim to an easement "at a location other than the record easement" with prejudice. Supp. CP at 44. It ordered that the Nobles could use the easement then being used on Safe Harbor's property for six months or until a driveway could be built on the record easement site.
After the trial court announced its ruling, the parties briefly discussed the possibility that the Nobles would be unable to obtain a permit to develop the record easement, because of a nearby (possibly salmon-bearing) stream. The trial court explained that it would retain jurisdiction in case the parties ran into difficulty: "If you hit the barrier of impossibility, then I suggest that we come back and we can deal with that issue." II RP at 46.
In the judgment, the trial court explained the retention of jurisdiction:
[T]his Court shall retain jurisdiction over this matter pending completion of the above described driveway and that the parties may apply to the Court for further relief consistent with this order. The Court is aware that it may take longer than six months to procure all required permits and to complete construction, and it might even not be possible to obtain approval for the construction of a driveway on the record easement and in such events the [Nobles] are authorized to apply to the Court for additional time or for such alternative relief which the Court determines to be appropriate.
Supp. CP at 46.
The court also dismissed with prejudice Safe Harbor's claim to quiet title in the record easement. Safe Harbor's attorney then asserted that if the easement proved impossible to develop, then the Nobles would need to pursue a private condemnation action:
My comment on impossibility would be . . . because no one developed their easement over the period of time and it's now become impossible to develop, they would have to condemn an easement across our property, which would be an entirely different cause of action. . . . [T]hey need to get a different easement and they'd have to be talking about condemnation.
II RP at 46. The court did not directly comment on this argument, instead advising the parties to negotiate a solution.
Safe Harbor appealed, and the Nobles cross-appealed. See Case No. 28090-6-II.
The issues Safe Harbor raised in its initial appeal were: first, whether the trial court erred in refusing to extinguish the Nobles' record easement; second, whether the court exceeded its authority in granting the Nobles a temporary (six-month) easement over Safe Harbor's property; and third, whether the court erred in retaining jurisdiction over the case and then granting further relief to the Nobles after initially rejecting the Nobles' claims. At oral argument on the second appeal, we requested additional briefing, but the briefs submitted by the parties did not address these issues, instead focusing on different issues (the Nobles had filed a cross-appeal). But in any case, we now affirm the trial court's dismissal with prejudice of Safe Harbor's quiet title claim. Based on the record presented by Safe Harbor, we cannot assume that the encroachments on the easement are "hostile." See Kunkel v. Fisher, 106 Wn. App. 599, 602, 23 P.3d 1128, (courts will find that a use is permissive in "any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence") (quoting Lingvall v. Bartmess, 97 Wn. App. 245, 251, 982 P.2d 690 (1999)), review denied, 145 Wn.2d 1010 (2001). As for Safe Harbor's other assertions, the second issue appears to be moot at this time, and the third is addressed in Safe Harbor's second appeal.
Motion to Revise
Approximately six weeks after the initial judgment, the Nobles received a letter from the director of the Skokomish Tribe's Natural Resources Department that stated that the tribe would not issue a development permit to the Nobles due to the fish-bearing stream located in close proximity to the proposed roadway. The Nobles moved to revise the trial court's initial judgment, submitting the letter as proof of the impossibility of developing the record easement. The motion did not cite a legal justification for the revision. It simply noted the impossibility of building a roadway on the record easement, referred the court to its order retaining jurisdiction, and requested that the trial court establish the easement at the location of actual use.
Initially the trial court declined to hear the motion because of Safe Harbor's appeal to this court. The parties then moved to dismiss Safe Harbor's appeal, Case No. 28090-6-II, but a commissioner of this court denied that motion. Ultimately this court stayed the appeal in Case No. 28090-6-II, and the trial court granted the Nobles' motion to revise:
[T]he Court . . . finds that it is impossible for the [Nobles] to construct a driveway on the record easement and that there is a reasonable necessity for the [Nobles] to utilize that portion of [Safe Harbor's] property which had been used for the past forty years or more for access to [the Nobles'] property.
Supp. CP at 2-3. Safe Harbor filed its second appeal.
After oral argument on the second appeal, Case No. 29134-7-II, we lifted the stay on the first appeal, consolidated the appeals into Case No. 29134-7-II, and requested additional briefing. The Nobles, who had filed a cross-appeal in the first case, filed a brief contending that the trial court erred in failing to find an implied or prescriptive easement and in failing to reform the instrument.
We now address whether the trial court exceeded its authority in granting the Nobles an easement over Safe Harbor's property and address the Nobles' claims to an easement in an area other than the record easement.
ANALYSIS Court's Failure to Re-Open Case
Safe Harbor argues that the trial court erred when it summarily granted the Nobles' motion to revise without re-opening the case to give Safe Harbor an opportunity to present its case. Initially, Safe Harbor successfully moved for a directed verdict at the close of the Nobles' evidence.
Under CR 41(b)(3), when a defendant moves for judgment as a matter of law at the close of the plaintiff's case, the defendant does not waive its right to present its case in the event the motion is not granted. This rule also applies to the counterclaims at issue here. See CR 41(c). Although Safe Harbor's motion for a directed verdict was initially granted, the motion to revise re-opened the case and effectively reversed the granting of Safe Harbor's initial motion.
The Nobles assert that re-opening the trial would have been a useless act because Safe Harbor could not have presented evidence refuting the letter from the tribe.
But Safe Harbor could have presented legal arguments against the Nobles' motion, namely that impossibility to develop a record easement does not create an easement of necessity or implication (or reformation), but instead requires a private condemnation action. The record before us suggests that the trial court summarily reversed its initial decision without allowing Safe Harbor to argue or present its case. Thus, it erred.
It is not clear from the record what the hearing (if any) on the motion to revise entailed. There is no report of proceedings of any such hearing in the record before us.
Proper Cause of Action Implied Easement
The Nobles assert that they have an implied easement over the Safe Harbor property.
Also known as "easements implied from prior use." See 17 William B. Stoebuck, Washington Practice — Real Estate: Property Law sec. 2.4, at 89 (1995).
In some cases, an intent to create an easement may be inferred because the original estate enjoyed open and notorious access through one part of the estate to the benefit of the other:
Easements by implication arise where property has been held in a unified title, and during such time an open and notorious servitude has apparently been impressed upon one part of the estate in favor of another part, and such servitude, at the time that the unity of title has been dissolved by a division of the property or a severance of the title, has been in use and is reasonably necessary for the fair enjoyment of the portion benefited by such use. The rule then, is, that upon such severance, there arises, by implication of law, a grant of the right to continue such use.
Hellberg v. Coffin Sheep Co., 66 Wn.2d 664, 667, 404 P.2d 770 (1965) (quoting Bailey v. Hennessey, 112 Wn. 45, 48, 191 P. 863 (1920)). Thus the essentials for creating an easement by implication are as follows: (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)). "Easements by implication are not favored by the courts because they are in derogation of the rule that written instruments speak for themselves." MacMeekin v. Low Income Housing Institute, Inc., 111 Wn. App. 188, 196, 45 P.3d 570 (2002) (quoting 1 Washington Real Property Deskbook sec. 10.3(3)(b), at 10-14 (Wash. State Bar Ass'n, 3d ed. 1997)).
In this procedurally confused case, two things are certain. First, the two estates originally enjoyed unity of title and were subsequently separated. Second, the original landowner created and recorded an easement to benefit the property now owned by the Nobles. For a court to have authority to create an implied easement, no record easement must exist. Where the original owner has granted and recorded an easement, however, that document controls and there is no need or authority for the court to imply an easement or infer the original grantor's intent.
Here, the Worls granted the record easement; and it appears in the deed to the Nobles' property. Thus, the trial court cannot infer from the record that the Worls intended to create an easement for the benefit of the Noble estate at the area of actual use, when the Worls expressly created an easement elsewhere.
Reformation of Instrument
Alternatively, the Nobles assert that the trial court "reformed" the easement when it revised its earlier ruling denying the Nobles an implied easement. Br. of Respondent (29134-7-II) at 17 (citing Wilhelm v. Beyersdorf, 100 Wn. App. 836, 999 P.2d 54 (2000)). A trial court may reform an instrument under its equitable power if there is clear, cogent, and convincing evidence of a mutual mistake or a unilateral mistake coupled with inequitable conduct. Wilhelm, 100 Wn. App. at 843 (citing Kaufmann v. Woodard, 24 Wn.2d 264, 270, 163 P.2d 606 (1945)). Additionally, a court may reform a deed to correct a scrivener's error. Wilhelm, 100 Wn. App. at 843-44.
Neither of these situations apply here. The trial court specifically found that there was no evidence explaining why the access used was outside the record easement.
Additionally, the finding of current impossibility would have no bearing on a claim for reformation (or a prescriptive easement, for that matter). Current impossibility does not affect whether the initial grantors and their grantees acted under mutual or unilateral mistake, nor whether the initial scrivener made an error in recording the easement.
Prescriptive Easement
Finally, the Nobles assert that they have a prescriptive easement over the Safe Harbor property.
To prove a prescriptive easement, a claimant must show: (1) use adverse to the right of the servient owner; (2) open, notorious, continuous, and uninterrupted use for the entire 10-year prescriptive period; and (3) knowledge of such use by the owner at a time when he was able to assert and enforce his rights. Dunbar v. Heinrich, 95 Wn.2d 20, 22, 622 P.2d 812 (1980). Under the prescriptive easement doctrine, use is not adverse if it is permissive. Kunkel v. Fisher, 106 Wn. App. 599, 602, 23 P.3d 1128, review denied, 145 Wn.2d 1010 (2001). And the courts will find that a use is permissive in "any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence." Kunkel, 106 Wn. App. at 602 (quoting Lingvall v. Bartmess, 97 Wn. App. 245, 251, 982 P.2d 690 (1999)). Whether the elements of a prescriptive easement are met is a mixed question of fact and law. Lee v. Lozier, 88 Wn. App. 176, 181, 945 P.2d 214 (1997) (citing Petersen v. Port of Seattle, 94 Wn.2d 479, 485, 618 P.2d 67 (1980)).
Because the Nobles presented no evidence that the use by previous owners was anything but neighborly, we apply the presumption that such use was permissive, and we reject their contention that the trial court erred.
In sum, none of these three possibilities applies here. The Nobles have not shown that they have an implied or prescriptive easement, nor have they shown that reformation of the instrument is appropriate. Thus, the trial court lacked authority to summarily revise its judgment to impose an easement outside of the area of the record easement.
Private Condemnation Action
Safe Harbor asserts that the only cause of action available to the Nobles is a private condemnation action under chapter 8.24 RCW. We agree.
The only requirement for a private condemnation action is that the owner demonstrate a reasonable need for the easement for the use and enjoyment of his or her property. Kennedy v. Martin, 115 Wn. App. 866, 868, 63 P.3d 866 (2003). Under such an action, the condemner must pay compensation for the land taken:
The procedure for the condemnation of land for a private way of necessity . . . shall be the same as that provided for the condemnation of private property by railroad companies, but no private property shall be taken or damaged until the compensation to be made therefor shall have been ascertained and paid as provided in the case of condemnation by railroad companies.
In any action brought under the provisions of this chapter for the condemnation of land for a private way of necessity, reasonable attorneys' fees and expert witness costs may be allowed by the court to reimburse the condemnee.
RCW 8.24.030. A private condemnation action must be pleaded expressly in order to invoke the statutory authority. See Leinweber v. Gallaugher, 2 Wn.2d 388, 391, 98 P.2d 311 (1940). Moreover, the trial court must proceed under the statute to assess proper payment.
See also RCW 8.24.010 (authorizing private condemnation and defining "private way of necessity.").
Understandably, the trial court here attempted to fashion a remedy that was a cross between an implied easement and an easement of necessity. But because the record easement negates a necessary element of an implied easement, and because the Nobles failed to comply with the statutory requirements to obtain an easement of necessity through a private condemnation action, the court had no authority to do so. Therefore, we reverse.
In Washington, the doctrine of easement "implied by necessity" is based on the policy that landlocked land may not be rendered useless, and the landlocked landowner is entitled to the beneficial uses of the land. Hellberg, 66 Wn.2d at 666-67. Private condemnation is not necessary where the private way of necessity is over the land of the grantor or lessor of a landlocked property, because where land that has no outlet is sold or leased, the vendor or lessor by implication of law grants ingress and egress over the parcel to which he retains ownership, enabling the purchaser or lessee to have access to his property. Hellberg, 66 Wn.2d at 667 (citing State ex rel. Mountain Timber Co. v. Superior Court of Cowlitz County, 77 Wn. 585, 588, 137 P. 994 (1914)). But here, even if the Nobles had pleaded easement by necessity in their counterclaim, which they did not, they would not have met its requirements — easement by necessity arises at the moment the two parcels are severed (see 17 William B. Stoebuck, Washington Practice — Real Estate: Property Law sec. 2.5, at 94 (1995)), and the record shows that at that time, the Worls expressly granted the record easement. Thus there was no implied easement created at that time.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN and SEINFELD, JJ., concur.