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Carson v. Rockow

The Court of Appeals of Washington, Division One
Feb 14, 2011
160 Wn. App. 1006 (Wash. Ct. App. 2011)

Opinion

No. 64209-0-I.

Filed: February 14, 2011.


The terms ingress and egress as used in an easement are readily understood and need not be further defined. Here, adjacent properties are burdened by a 60-foot-wide easement which currently contains a 20-foot-wide gravel road. An extension of that 20-foot-wide gravel road for the purpose of gaining access to one of the properties does not violate the easement as the road is wholly within the 60-foot-wide easement. The fact that the initial extension of the gravel road burdens one party's portion of the easement more than the other party's is immaterial so long as the use of the easement is for the purpose intended, i.e., ingress and egress. Accordingly, we reverse the trial court's holding that the easement was ambiguous, but affirm its rulings requiring the fence to be removed and finding that no trespass occurred.

FACTS

David and Bernadette Carson (collectively, Carson) own five acres of undeveloped land in the Snoqualmie Heights subdivision in Snoqualmie, Washington, in east King County. Stephen and Karen Rockow (collectively, Rockow) own the adjacent parcel. The southern 30 feet of the Carson property and the northern 30 feet of the Rockow property form a 60-foot-wide easement, 316.20 feet in length. The easement's center line forms the boundary between the properties.

The easement, recorded under King County Auditor's File No. 7608300729, contains the following language:

NOW, THEREFORE, in consideration of Grantee's purchasing any or all of the above described property from Schrader, and for other valuable consideration, Schrader herby grants and conveys to present and future owners of the above described property, and their successors in interest, and other Schrader assignees, a private permanent, non-exclusive easement and right of way for ingress and egress and utilities, over, across and on the following described areas:

[Legal description of the properties, including those of Carson and Rockow.]

Together with the right to enter upon the above described right of way and maintain and repair any said roads together with a right of way for the use, installation above or below ground, erection, maintenance, repair and operation of electric power transmission lines, telephone lines, and water lines, including the right to erect poles and other transmission line structures, wires, cables, gas and water lines and all other utilities and any necessary appurtenances thereto.

. . . .

The easements granted hereinabove, shall be subject to the condition that no present or future owner of land . . . as above described, shall have the right to erect any fences over or across the above described easement. Properly constructed cattle guards may be installed across such easements.

A gravel road is constructed on the easement (Easement Road). It is approximately 20 feet wide, and is the only road access to the Carson property. There is only one public road into the subdivision. The Easement Road has not changed since its initial construction sometime in 1976 to 1977. At the end of the Easement Road, there was a cul-de-sac that extended approximately 50 feet onto the Carson and Rockow properties. The cul-de-sac is wholly within the easement but resides mostly on the portion of the easement that burdens the Rockow property.

In 2007, Carson extended the Easement Road an additional 60 feet across the portion of the easement that burdens the Rockow property. That extension was wholly within the boundaries of the easement. Carson then turned the road onto their property. Carson extended the easement to provide ingress and egress for construction equipment during the construction of a house on their property. In extending the Easement Road, Carson cleared scrub brush, blackberry vines, slide alder, vine maple and other indigenous vegetation from the Rockow side of the easement. Although there were alternative feasible routes, the cost would have been 10 to 20 thousand dollars more because of the topography that would have required additional fill and compaction, and removal of plants and trees on the Carson property.

Rockow objected to the construction of a driveway and informed Carson through counsel that driveways were not permitted within the easement, and were subject to the prior consent of other property owners. He also indicated that Carson had no authority to enter the portion of the easement that burdened the Rockow property. Rockow blocked the Easement Road with an old truck and built a fence on his portion of the easement sometime after 2007.

Carson sought a declaratory judgment regarding the scope of the easement, damages for costs incurred because of the inability to reach their property, and an injunction for Rockow's trespass on the Carson property that was not within the easement. Rockow counterclaimed, seeking damages for injury to trees and shrubs on the Rockow property without permission and for trespass.

Both parties moved for partial summary judgment. In denying partial summary judgment, the trial court found that there were genuine issues of material fact under the doctrine of equitable limitations as articulated in Green v. Lupo. In its denial, the court also found as a matter of law that the Road Maintenance Agreement and Protective Covenants did not require prior approval of the other landowners in the subdivision.

32 Wn. App 318, 647 P.2d 51 (1982) (admitting parol evidence to determine whether easement granted was personal or appurtenant).

The denial of summary judgment motions was made by Judge Jeffrey Ramsdell.

The matter proceeded to a bench trial. The trial court concluded that the easement was ambiguous regarding ingress and egress because neither of the terms were defined or explained. The court relied on the Road Maintenance Agreement and Protective Covenants, executed subsequent to the easement, which specifically references the easement. The Easement Road built at the time of the execution of the road maintenance agreement is 20 feet wide and not co-extensive with the 60-foot-wide easement. The roadway maintenance agreement obligated the subdivision landowners to share in the expense of maintaining the roadway situated on the easement. Further, the trial court found it persuasive that none of the other owners had extended the Easement Road or enlarged the cul-de-sac in the 30-year history of the plat from 1977 to 2007.

Rockow appeals, contending the trial court erred in requiring him to remove the fence on the easement and in finding that Carson did not commit trespass when he removed shrubs, vegetation, and trees from the easement. Carson cross-appeals, contending that the trial court erred in finding the easement ambiguous, and in admitting extrinsic evidence to vary its express terms. Carson also appeals the court's application of the doctrine of equitable limitations.

ANALYSIS

An easement is an irrevocable interest in land. In determining the scope of an easement that is created by express grant, this court looks to the language of the original grant to determine the permitted uses. Here, the easement provided "for ingress and egress and utilit[y]" purposes without any words of limitation. A contract is ambiguous only when "fairly susceptible to two different interpretations, both of which are reasonable." Only if an easement is ambiguous can the court look beyond the wording of the document.

Bakke v. Columbia Valley Lumber Co., 49 Wn.2d 165, 170, 298 P.2d 849 (1956).

Brown v. Voss, 105 Wn.2d 366, 371, 715 P.2d 514 (1986).

Quadrant Corp. v. American States Ins. Co., 154 Wn.2d 165, 171-72, 110 P.3d 733 (2005).

Sunnyside Valley Irr. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).

The language at issue provides for an easement "for ingress and egress" to the properties. There is nothing imprecise about this language. Because the easement language is not ambiguous, the trial court improperly considered outside evidence in evaluating its scope.

Carson needed to extend the 20-foot-wide roadway on the easement in order to gain access to his property. He had legal authority to do it within the confines of the 60-foot-wide easement. At trial, he presented expert testimony which indicated that his extension of the road followed the topography of the land. Further, undisputed evidence indicated that it would be far more costly to undertake construction of the gravel extension wholly within the Carson portion of the easement. Rockow is subjected to no greater burden than that originally contemplated by the easement. And, as noted in Lowe v. Double L Properties, Inc., a "dominant estate holder may increase an existing intended or imposed use, but may not compel a change in use on the servient estate holder. The inverse follows; the servient estate holder may not interfere with a mere increase in use, but may properly resist any attempted change in use by the dominant estate holder." The fact that Carson increased the usage on the easement likewise may not be restricted. As this court noted in 810 Properties v. Jump, "the dimensions of an easement do not contract merely because the holder fails to use the entire easement area."

The Carson property had been undeveloped and there was no prior need to extend the road. Carson's need to extend the road coincided with his decision to build on his property. The access provided by the extension was within the easement. There is no equitable limitation on this easement under the circumstances presented here. Carson did not violate the easement and is not required to remove the extension.

The Fence

The easement clearly states that "no present or future owner of land . . . shall have the right to erect any fences over or across the above described easement." Rockow installed a fence right in the middle of the easement that runs the length of the easement between the Carson and Rockow properties. The fact that the fence runs along the length of the easement rather than across the width does not permit a fence to be installed over the easement. Neither does the fact that the fence marks the boundary line between the Carson and Rockow properties. The fence is constructed over the easement and is clearly prohibited.

Because we find that Carson had the authority to extend the 20-foot-wide gravel road to gain access there is no trespass, and Rockow's appeal is denied in its entirety. We affirm the trial court's ruling that no trespass occurred and that Rockow is required to remove the fence from the easement. We reverse the trial court's holding that the terms of the easement were ambiguous and remand to the trial court to enter an order in accord with this decision.

WE CONCUR:


Summaries of

Carson v. Rockow

The Court of Appeals of Washington, Division One
Feb 14, 2011
160 Wn. App. 1006 (Wash. Ct. App. 2011)
Case details for

Carson v. Rockow

Case Details

Full title:DAVID CARSON and BERNADETTE CARSON, husband and wife…

Court:The Court of Appeals of Washington, Division One

Date published: Feb 14, 2011

Citations

160 Wn. App. 1006 (Wash. Ct. App. 2011)
160 Wash. App. 1006