Opinion
No. 26985-0-III.
January 29, 2009.
Appeal from a judgment of the Superior Court for Chelan County, No. 06-2-00318-1, John E. Bridges, J., entered February 26, 2008.
Reversed by unpublished opinion per Kulik, A.C.J., concurred in by Brown and Korsmo, JJ.
UNPUBLISHED OPINION
Thomas C. Allen filed a lawsuit to establish an easement across the adjoining landowner's, James and Myrna Canterbury's, driveway under theories of implied easement, prescriptive easement, private condemnation, or, alternatively, to reform the deeds in his chain of title. The trial court ruled that Mr. Allen had not established any of his claims but the court concluded on reconsideration that the Allen property was landlocked.
We conclude that Mr. Allen established all three elements of an implied easement — former unity of title and separation of the entire parcel, prior apparent and continuous quasi easement for the benefit of one parcel and detriment to the other, and necessity. Accordingly, we reverse and grant the easement to Mr. Allen.
FACTS
Thomas Allen owns approximately 23 acres of property located to the south of Lower Sunnyslope Road in Chelan County, Washington. James and Myrna Canterbury own the property adjacent to the Allen property at 617 Lower Sunnyslope Road. Directly to the west of the Canterbury property is a parcel of land owned by Jacinto and Maria Valdez.
Together, the Canterbury and Valdez properties form a rectangle. Mr. Allen's property surrounds the two adjoining parcels of land, essentially wrapping them in a "U" shape. Accordingly, the Allen property adjoins the Valdez property on the Valdezes' west and south boundary lines, and the Canterbury property on the Canterburys' south and east boundary lines. The land adjoining the Allen, the Valdez, and the Canterbury property to the north is owned by Ron Trefry.
The Canterburys access their property from Lower Sunnyslope Road, located to their north, by way of a single 13 1/2foot wide gravel driveway. The driveway is situated on the Canterbury property and the Canterburys use it to access their residence, out buildings, and orchard. The driveway, also referred to as the "joint use road" or "roadway," continues south into the Allen property and is the route through which that property is accessed from the county roadway. The Canterbury orchard has been, and is now, planted on both sides of the driveway.
Clerk's Papers (CP) at 156.
Report of Proceedings (RP) at 70.
Mr. Allen filed the present action against the Canterburys seeking an easement utilizing the Canterbury driveway. Specifically, Mr. Allen asserted a right to an easement by implication, an easement by necessity (also known as private condemnation), and/or an easement by prescription. In addition, Mr. Allen requested deed reformation.
Trial and Letter Ruling. At trial, Mr. Allen and Norm Nelson, a land surveyor, testified for the plaintiff, Mr. Allen. Jim Canterbury, Steven Moore, president and manager of Central Washington Title Services, Inc., and Scott Holman testified on behalf of the defendants, the Canterburys. The following facts concerning the chains of title to, and use of, the Allen and Canterbury properties are based in large part on the trial court's substantially unchallenged findings of fact.
Common Grantor to the Allen Property. The record shows that as of 1945, W. K. Short and his wife, Ufreskia, owned the entire parcel of land which now comprises the Allen property, the Canterbury property, and the Valdez property.
The chains of title referenced in trial exhibits 4 and 5 show the series of transactions by which the Shorts acquired the property. The chains of title indicate that Mr. and Ms. Butler may have been the original common grantors: the property that is now owned by Mr. Allen was conveyed to the Shorts by the Butlers in 1943 and, later in 1945, the Butlers conveyed to the Shorts the property now owned by the Canterburys.
In 1948, the Shorts deeded a portion of their land to the Mares. It is this portion or parcel that is now owned by Mr. Allen. Subsequently, the parcel purchased by the Mares was sold to various individuals and corporations until, in 1970, Alvin Donald Holman and his wife, Constance, became the owners of the original Mares parcel. In November 1987, the Holmans deeded the property to themselves as co-partners of HH Orchards. When they executed this deed, they excepted a parcel designated as the Scott Holman "home parcel." CP at 153. Simultaneous with this transaction, Mr. and Ms. Holman quitclaimed the home parcel to their son, Scott Holman.
This quitclaim deed, admitted as Exhibit 12 at trial, provided that the transfer of the home parcel to Scott Holman was subject to an easement in favor of Mr. and Ms. Holman, their heirs, successors and assigns, for ingress and egress and installation and maintenance of irrigation lines and utilities. Prior to the execution of the quitclaim deed, the evidence established that access to the home place and the orchard property purchased by the Holmans in 1970 was over a road which ran in a southerly direction from Lower Sunnyslope Road to the residence on the home place and then into the orchard. With the reservation of the easement for ingress and egress by the Holmans in the quitclaim deed to their son of the home place, the Holmans preserved their access to their orchard (now the Allen property).
The quitclaim deed also provided that an easement for ingress and egress came with the home place. A specific metes and bounds description was recited in the deed. This particular easement, referred to as a strip, is located on what is now the Canterbury property, beginning at the northwestern corner of their property and running "East 101 feet to a public roadway." Ex. 12. Accordingly, the strip is bounded on the west by the home place now owned by the Valdezes, on the north by a neighboring orchardist, Mr. Trefry, and on the south by the Canterburys.
Importantly, however, the strip does not connect to Lower Sunnyslope Road. In fact, no road is now or has apparently ever been situated within the metes and bounds description in the deed. The strip is actually situated in an orchard operated by the Canterburys and planted with cherry trees. Apparently the Holmans and their predecessors as well as Scott Holman and his successor, the Valdezes, utilized a driveway that was not within the easement described in the deed, but rather a driveway located on property belonging to Mr. Trefry. At trial, Scott Holman acknowledged that his former property, the home place, is landlocked in light of these facts. Presumably, the Valdezes continue to use this driveway to access their residence on the former home place.
The trial court found that the strip, as described in the quitclaim deed and as shown on Exhibit 1, does not afford legal access to the property owned by Mr. Allen because the strip terminates at the east boundary of the home place property, which is now owned by the Valdezes. As discussed below, there is no written easement as to the home place/Valdez property which affords Mr. Allen ingress and egress to his property.
In January 2000, Don and Constance Holman lost their property to bankruptcy and, ultimately, the bankruptcy trustee executed a trustees deed to Mr. Allen and two other individuals. The trustees deed references that the conveyance was subject to rights, restrictions, reservations, covenants and easements, apparent or of record but the deed neither grants nor reserves any easement for ingress and egress to the property purchased by Mr. Allen except for the strip of land referenced above. The trustees deed makes no reference to the easement for ingress and egress that the Holmans had previously reserved in the quitclaim deed to their son, Scott, over and across the home place now owned by the Valdezes.
Included as a part of the trustees deed to Mr. Allen was land described at trial as the "finger." CP at 154. The finger is a narrow strip of land which runs to the east of the Canterbury property, making up the eastern prong of the U shape of the surrounding Allen property. Immediately to the west of the narrow finger is the Dorsey property. Mr. Nelson, a land surveyor, testified at trial that the finger of land is 29.4 feet wide and 342 feet long. Although the finger is a part of, and attaches to, the larger Allen property, the finger does not provide access to Lower Sunnyslope Road because of intervening ownership.
In addition, the finger does not afford practical access to Mr. Allen's property because the Gunn Ditch intersects access to Lower Sunnyslope Road and the elevation is too steep to afford access to the county road. Further, there is not sufficient area at the intersection of Lower Sunnyslope Road and the finger to provide a landing whereby a vehicle could safely access the county road from the finger. Consequently, the finger of land does not provide any access to, nor has it ever provided any access from, the county road to the Dorsey, Canterbury, Holman, or Allen properties. Rather, Mr. Dorsey has used the finger as a dumping ground, as shown in some of the photographic exhibits admitted at trial. Finally, a substantial fill would be required to improve the finger to allow access to Lower Sunnyslope Road, which would result in the sides of the fill almost touching Mr. Dorsey's front door.
Scott Holman ultimately sold the home place property in 2003 to Mr. and Ms. Valdez, subject to "`easements, restrictions, reservations, covenants and assessments of record.'" CP at 155. However, the Holman/Valdez deed contained no specific reference, exception or reservation memorializing the easement for ingress and egress that had been reserved by Mr. and Ms. Holman when they quitclaimed the home place property to their son.
Chain of Title to the Canterbury Property. On October 27, 1948, the common grantor, Mr. and Ms. Short, sold a portion of their remaining parcel (after sale to Mares) to Mr. and Ms. Noltensmeyer. At approximately the same time, they sold the other portion of their remaining property (after sale to Mares) to Mr. and Ms. Peart. The Peart parcel measured 100 feet by 310 feet, was smaller than the Noltensmeyer parcel and was situated immediately east of the Noltensmeyer parcel and west of the finger described above.
The 1948 warranty deed from the Shorts to the Noltensmeyers referenced that the conveyance was subject to an easement for a private roadway 25 feet wide and 50 feet long, extending north and south along the east line of the parcel transferred to Mr. and Ms. Noltensmeyer. This easement was referred to at trial as the joint use road. It is this road which Mr. Allen seeks to use and which is the subject of this action. Mr. and Ms. Canterbury, as did their predecessors, the Noltensmeyers, use the joint use road to access their residence, out buildings, and orchard. The joint use road is situated on the Canterbury property. The parties acknowledged and the evidence is consistent that the joint use road does not technically afford legal access to Mr. Allen's property in as much as the road is 50 feet in length from Lower Sunnyslope Road and, consequently, does not extend far enough south to access Mr. Allen's property.
The Pearts ultimately sold their property in 1961 to the Noltensmeyers. The deed from the Pearts to the Noltensmeyers conveyed the joint use road easement noted above. The trial court found that there is no evidence in the record that the joint use road was ever intended to benefit the property owned by the Shorts, the Mares, the Holmans or now, Mr. Allen. The trial court heard testimony that Mr. Dorsey, the neighbor to the east, uses the joint use road easement as a driveway to access his property, which is landlocked.
In 1968, the Noltensmeyers sold the former Peart property to their son. The conveyance also referenced the joint use road easement and recited that the easement was 25 feet in width and 50 feet in length. Then, in 1971, the Noltensmeyers' son sold his property (formerly the Peart property) to his mother and her new husband, Glenn Smith. This transaction also contained the same express easement. As a result of this conveyance, the parcel divided by the Shorts in 1948 when they sold to the Noltensmeyers and the Pearts were reunited in one ownership with Mr. and Ms. Smith.
As of 1971, Mr. and Ms. Smith accessed their property over the joint use road. At this time, the joint use road bisected the two parcels owned by Mr. and Ms. Smith. On the other hand, Mr. and Ms. Mares and their various successors in interest, accessed their property through the home place property.
In 1975, Ms. Smith (formerly Noltensmeyer), for herself and on behalf of her deceased husband, sold the entire property, parcel A and B, to Mr. and Ms. Canterbury. The deed referenced that it came with a joint use easement 50 feet long and 25 feet wide, providing ingress and egress across the bridge. This bridge afforded access from Lower Sunnyslope Road over the Gunn Ditch. The Canterburys now own the burdened as well as the benefited parcels of property as relates to the joint use road.
Use of the Holman/Allen Property. The chain of title reflects that Mr. and Ms. Holman took possession of the property now owned by Mr. Allen on May 4, 1970. During 1980-1981, Scott Holman built a shop on what is now the Allen property near the southern end of the joint use road. Also in 1980 or 1981, Scott Holman moved a mobile home onto the orchard near the barn and shop. Thereafter, the Holmans moved another mobile home onto the orchard property near the barn in 1981-1983. One mobile home was used as housing for orchard employees and Scott Holman lived in the other mobile home. Chelan County public utility records reflect that power meters were installed for the two mobile homes in 1981. The mobile homes are still situated on this property and are now owned by Mr. Allen.
The Holmans farmed their property from approximately 1970 to 2000. The Holmans utilized the home place (now Valdez) property as a staging area for their orchard operations and to access the orchard. Access over the joint use road from Lower Sunnyslope Road was problematic because of the narrow bridge over the Gunn Ditch.
Commencing in 1975 when they purchased their property from Ms. Smith, the Canterburys allowed the Holmans to use the joint use road to access the barn, shop, and mobile homes. In approximately 1995, Mr. Canterbury purchased material to replace the bridge over the Gunn Ditch with a culvert. Mr. Canterbury, Scott Holman, and Mr. Dorsey constructed a new crossing over the ditch to the joint use road. Thereafter, the Holmans used the joint use road more frequently. The replacement culvert over the ditch is 15.16 feet wide. The joint use road is 13.5 feet wide, edge to edge. The Holmans' earlier access from Lower Sunnyslope Road, going from east to west and continuing onto a driveway which provided access to the former home place, is on land now discovered to be owned by Mr. Trefry.
As noted above, Mr. Allen, and the Holmans before him, owned the strip which was believed to provide access from Lower Sunnyslope Road to the home place but which after being surveyed is actually situated on land farmed by the Canterburys and apparently the Canterburys' predecessors in interest.
When Mr. Allen purchased the former Holman property through bankruptcy in 2000, the mobile home tenants were using the joint use road and the barn and shop were being accessed over the joint use road. Although the Canterburys alleged that the mobile home tenants accessed their residence through the orchard to the home place, the trial court found that the photographic exhibits did not support this contention, particularly Exhibit 2. Specifically, the trial court found that: "Driving through an orchard during four seasons of the year and during orchard irrigation, without the road being graveled or improved, would result in more evidence of a road than is apparent in the series of exhibits marked as E-2." CP at 159.
After purchasing the Holman property in 2000, Mr. Allen accessed his property over the joint use road and was not aware that an issue existed until he received a letter from the Canterburys' attorney in September 2004. Prior to the letter, the Canterburys complained to Mr. Allen about the mobile home tenants speeding on the joint use road. After purchasing the property, Mr. Allen removed the fruit trees, the barn, and miscellaneous junk in preparation to subdivide the property into three to four lots for residential home construction. The Chelan County Code requires that roads servicing a subdivision, as proposed by Mr. Allen, have a 20-foot road surface and a 30-foot total road width.
Mr. Allen timely filed a notice of appeal, seeking review of the findings of fact and conclusions of law, entered on July 10, 2007, and the order on the motion for reconsideration, entered on February 26, 2008. The Canterburys cross-appealed, arguing that the trial court erred only in its order on reconsideration by concluding that the Allen property is landlocked.
ANALYSIS
Landlocked Property. We first address whether the trial court erred by concluding that the Allen property is landlocked. The Canterburys, in their cross-appeal, contend that it was premature for the trial court to make this conclusion based on the evidence presented. The Canterburys focus on Scott Holman's testimony that the historical access to Mr. Allen's property was through the Valdez driveway (previously the Scott Holman home place).
Although the Canterburys assign error to the trial court's conclusion that Mr. Allen's property is landlocked, they do not assign error to any of the trial court's findings of fact supporting this conclusion. Unchallenged findings of fact are treated as verities on appeal. In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004). Challenged findings of fact are reviewed for substantial evidence. Willener v. Sweeting, 107 Wn.2d 388, 393, 730 P.2d 45 (1986). Substantial evidence exists if there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the stated premise. Helman v. Sacred Heart Hosp., 62 Wn.2d 136, 147, 381 P.2d 605 (1963). We review de novo the legal conclusions of the trial court. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).
The trial court correctly determined that Mr. Allen's property is landlocked. Neither the east nor the west prongs of the Allen property afford Mr. Allen ingress or egress into his property from Lower Sunnyslope Road.
First, Mr. Allen has no viable access to his property through the Valdez property. The evidence at trial established that access to the home place (now owned by the Valdezes) and larger Holman property (now the Allen property) was over a road which ran in a southerly direction from Lower Sunnyslope Road to the residence on the home place and then into the orchard. When Mr. and Ms. Holman quitclaimed the home place to their son, Scott Holman, they preserved their access to their orchard by including an easement for ingress and egress in the deed. However, the trustees deed by which Mr. Allen acquired the Holmans' property in 2000 makes no reference to the easement that the Holmans had previously reserved in the quitclaim deed over and across the home place. Accordingly, the trial court found that "there is no written easement as to the `home place' property which affords [Mr. Allen] ingress and egress to his property." CP at 154.
Moreover, even if Mr. Allen had an easement across the home place/Valdez property, he would still not have access to Lower Sunnyslope Road. The quitclaim deed to Scott Holman also provided that the home place included an easement for ingress and egress, previously referred to as the strip. The trial court found that the strip does not connect to the county roadway as previously believed and was recently discovered to be situated in an area of the orchard operated by the Canterburys. Mr. Canterbury testified that he has been farming the fruit trees on that land for over 30 years. The trial court found that there is not now, nor apparently has there ever been, a road situated within the metes and bounds description in the deed. Rather, the driveway utilized by the Valdezes, and the Holmans before them, is actually located on property belonging to Mr. Trefry and not within the easement described in the deed.
Second, Mr. Allen cannot access his property through the eastern finger of land. The trial court found that the finger does not fully connect to Lower Sunnyslope Road and, therefore, does not provide access to the road because of intervening ownership. According to the trial court's findings, there is no evidence that anyone has ever used the finger to access the Allen property and the terrain precludes this. A large irrigation ditch intersects access to Lower Sunnyslope Road and the elevation, which involved a 15 to 20 foot drop, is too steep to afford access to the county road. Further, there is not sufficient area at the intersection of Lower Sunnyslope Road and the finger to provide a landing whereby a vehicle could safely access the county road from the finger.
Based on the trial court's unchallenged findings that Mr. Allen does not have access to his property from Lower Sunnyslope Road either from the west through the Valdez property or from the east via the finger of land, the trial court correctly concluded that the Allen property is landlocked.
Implied Easement. Mr. Allen challenges the trial court's ruling denying an implied easement, arguing that substantial evidence supports each of the three elements of his implied easement claim — unity of title and separation, prior apparent and continuous quasi easement, and necessity.
Unity of title and subsequent separation are absolute requirements for implied easement; the elements of apparent and continuous quasi easement and necessity are merely aids in determining intent to create an implied easement and the presence or absence of either or both of these elements is not necessarily conclusive. Roberts v. Smith, 41 Wn. App. 861, 865, 707 P.2d 143 (1985). The intent to create an access easement over a grantor's land is implied when a grantor sells landlocked property. Id. Such intent arises out of contract and is based on estoppel. Id.
Unity of Title. The parties do not dispute that the first element has been established by the evidence. The trial court concluded there was unity of title in a common grantor, Mr. and Ms. Short. The court further concluded the unified parcel owned by Mr. and Ms. Short was later separated into two parcels, one to Mr. and Ms. Mares and their successor (Mr. Allen) and the other parcel to the Noltensmeyers and the Pearts, and their respective successors (the Canterburys).
Prior Apparent and Continuous Quasi Easement. It is undisputed that in 1945 the Allen property and the Canterbury property were owned by a common grantor, W. K. and Ufreskia Short.
At trial, aerial photographs from 1947, 1955, 1966, 1972, 1973, 1984, 1990, 1995, and 1999, were admitted into evidence. These exhibits establish the existence of the driveway in each of these years. Specifically, the aerial photograph from North Central Washington Museum in 1947, Exhibit 2A, clearly shows the existence of the driveway running through the Canterbury property and extending south into the Allen property. At trial, Mr. Canterbury acknowledged what the photographs showed: the driveway served the Allen property as early as 1947. Mr. Canterbury testified as follows:
Q If you would please, let's look at a few of these exhibits that we've had here. Let's look at Exhibit No. 2A which is the 1947 aerial and we can see the irrigation ditches — spillway, I guess we call it.
. . . .
Q . . . And what I'm pointing to here in Exhibit 2A, this goes here. This roadway that goes down through here, how did that property get bare so it shows up in the aerial photo from several thousand feet in the air?
A I'm not — I wasn't there in 47 but I assume from use.
Q And if we look at 2C which is a 1955 photo, again we've got the spillway here and we've got this roadway down to here.
. . . .
Q And this bare ground that is shown here in the 1955 Exhibit 2D, what caused that ground to get bare, do you know?
A I assume the same thing that caused this to get bare; use.
Q And 2D . . . the 1966 photo. And again, we've got this same roadway, it looks like here, coming down from the county road through the middle of the property. Again use, is that what caused that to look bare?
A Assuming we're saying that — that would be saying that would cause that to show up over there, yes, use.
Q And then we've got 2E which is the 1972 Chelan County photo and again we've got the spillway or the overflow and we've got the roadway here and then I guess we've got this little thing to the Holman place. Again, that bare area, that's again use that's caused that to show up in the photograph?
A Yes.
Q Okay. And the same thing with — yeah, 2F, the 1973 photo of WSDOT, we've got that same roadway showing up here and then the old Holman home place and again use causing that which is visible from however many thousand feet this picture was taken?
A Correct.
RP at 81-83.
The evidence presented at trial shows that access to the Allen property was over the driveway, beginning at least in 1947, and that apparent and continuous use of the driveway was made when the Allen and Canterbury properties were owned by the common grantor, Mr. and Ms. Short. The Shorts did not sell their property until 1948, when they sold their entire parcel through a series of three transactions. On this record, the trial court erred by concluding that no evidence had been submitted that the Shorts used the joint use road on the Canterbury land to access the land now owned by Mr. Allen at the time they owned the unified parcels.
3. The Easement is Reasonably Necessary. Finally, the trial court determined that the Allen property was landlocked. As stated above, this conclusion is supported by the evidence. Accordingly, the degree of necessity in this case more than satisfies the third element — that the easement be "reasonably necessary to the quiet enjoyment of the dominant estate." Bushy v. Weldon, 30 Wn.2d 266, 269, 191 P.2d 302 (1948).
In sum, the evidence before the trial court established all three elements of an implied easement: the former unity of title in the Shorts, the separation of the entire Short parcel through sales to the Mares, the Noltensmeyers, and the Pearts, and the quasi easement of the driveway over the Canterbury property which furnishes the only practical ingress and egress to the Allen property. Accordingly, we reverse the trial court and grant Mr. Allen an implied easement.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KORSMO, J. and BROWN, J., concur.