Opinion
No. 54162-5-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Island County. Docket No: 03-2-00387-0. Judgment or order under review. Date filed: 04/09/2004. Judge signing: Hon. Vickie I Churchill.
Counsel for Appellant/Cross-Respondent, Michael Mert Waller, Zylstra Beeksma Waller Dale PLLC, 791 SE Barrington Dr, Oak Harbor, WA 98277-3278.
Counsel for Respondent/Cross-Appellant, Floyd Frost Fulle, Attorney at Law, PO Box 252, Clinton, WA 98236-0252.
Philip Tyler Mattern, Demco Law Firm PS, 5224 Wilson Ave S Ste 200, Seattle, WA 98118-2587.
In this case, a short plat conveyed an interest in a tract of land to be used for parking by owners of nearby lots. This tract was conveyed as a fee interest and not an easement. Even if the tract is treated as an easement, the short plat easement termination clause does not apply (and in any event, its conditions were not met). The trial court's decision granting summary judgment is affirmed, except as to the nature of the interest created.
BACKGROUND
In 1977, Robert Hastings executed a short plat for waterfront property in Island County. He divided the property into four adjacent tracts, A through D. Because no road served tracts C and D, Hastings designated the smallest of the lots, tract A, as a common parking area for the benefit of the owners of the farthest lots, tracts C and D. Tract A is too small for a residence, but Hastings provided that the owners of tracts C and D could build a boathouse or other permanent improvements upon it. Hastings also dedicated a limited utilities and access easement for a small roadway running northward from tract A over tracts B and C, to tract D. Hastings limited ordinary use of this easement to pedestrian access, allowing vehicular access only for emergency vehicles, moving vans, and construction equipment. The short plat contained a clause providing that the access easement would terminate at such time as equivalent or better access was otherwise available.
Hastings also recognized in the short plat a previously existing right-of-way easement to the west. This easement is situated on a very steep bank, has never been developed, and is presently unusable.
Theodore Rosengren currently owns tract C, and Robert and Dorita Anderson currently own tract D. In 1996, Rosengren, Anderson, and the owner of tract B entered into an agreement conveying to the owner of tract B a right-of-way over tract A, and expanding the authorized use of the limited access easement to allow the tract owners and their children to drive onto their property.
The owner of tract B is not involved in this litigation.
Hastings died intestate in 1980. Colin Chambers, Hastings' grand-nephew, was awarded the right to purchase tract A 'if and when' it was no longer encumbered. Clerk's Papers at 71. Believing the 1996 easement agreement between the owners of tracts B, C, and D terminated their rights to tract A under the easement termination clause, Chambers purchased tract A. Chambers later initiated this declaratory judgment action to establish that whatever rights Anderson and Rosengren had in tract A had been extinguished. The Andersons counterclaimed that a fence Chambers built trespassed upon and interfered with their rights to use and enjoy tract A, and improperly encroached upon the roadway that leads to and serves all the parties' properties. Rosengren counterclaimed that he had acquired ownership of tract A through adverse possession. On summary judgment, the court rejected Rosengren's adverse possession theory, but granted summary judgment against Chambers. In so doing, the court impliedly ruled that the defendants' interest in tract A was an easement rather than a fee. All parties appeal.
Rosengren does not challenge the rejection of his adverse possession theory.
DISCUSSION
We review a grant of summary judgment de novo, viewing all facts and reasonable inferences from those facts in the light most favorable to the non-moving party. Anderson v. State Farm Ins. Co., 101 Wn. App. 323, 329, 2 P.3d 1029 (2000).
The Short Plat Conveyed Fee Interest in Tract A. Anderson and Rosengren contend the court erred by concluding that the short plat granted only an easement rather than a fee interest. The court impliedly resolved this issue in its ruling that 'the parking easement' had not terminated. Clerk's Papers at 9. Because this issue is dispositive, we address it first. A short plat may be used to convey land. RCW 58.17.165 provides that '[a]ny dedication, donation or grant as shown on the face of the plat shall be considered to all intents and purposes, as a quitclaim deed to the said donee or donees, grantee or grantees for his, her or their use for the purpose intended by the donors or grantors as aforesaid.' In construing the language of a plat, 'the intention of the dedicator as found in the plat itself [is] the controlling consideration.' Cummins v. King County, 72 Wn.2d 624, 626, 434 P.2d 588 (1967). Plats "are to be construed as a whole in order that the intention of the party may be ascertained, and every part of the instrument be given effect; no part of the plats is to be rejected as . . . meaningless, if it can be avoided, and lines as well as words are to be considered." Id. at 627 (quoting 25 C.J.S. Dedication sec. 49 at 519-20). When a plat is ambiguous, surrounding circumstances may be considered to determine the dedicator's intention. Selby v. Knudson, 77 Wn. App. 189, 194, 890 P.2d 514 (1995). A written instrument is ambiguous if its terms are capable of being understood as having more than one meaning. Id. at 194-95.
We note that the owner of tract B has an interest in the outcome of this controversy. CR 19(a). Anderson and Rosengren purported to convey an interest in tract A to the owner of tract B as part of the 1996 easement agreement. If we were to decide Anderson and Rosengren do not own tract A, the owner of tract B would lose the rights purportedly conveyed. Because we conclude the short plat actually conveyed a fee interest in tract A, however, the failure to join that individual is of no consequence.
Intent is ordinarily a question of fact. Roeder Co. v. Burlington Northern, Inc., 105 Wn.2d 567, 572, 716 P.2d 855 (1986). A question of fact may be determined as a matter of law when reasonable minds could reach but one conclusion from the evidence presented. Central Wash. Bank v. Mendelson-Zeller, Inc., 113 Wn.2d 346, 353, 779 P.2d 697 (1989). The evidence of Hasting's intent is limited to the language of the short plat. As to tract A, the short plat reads as follows in paragraph 1: Tract A . . . is hereby established as a joint parking area for the benefit of Tract C and Tract D of this Short Plant [sic] as those tracts are described herein. A one-half interest in said Tract A shall be appurtenant to said Tract C and a one-half interest in said Tract A shall be appurtenant to Tract D. The owner of Tract C and the owner of Tract D shall share equally the costs of improvement, maintenance and repairs to said Tract A, including the bulkhead. Any further improvements to said property such as boathouse, parking garage, blacktopping, etc., shall be by mutual agreement.
Clerk's Papers at 67. This language is somewhat ambiguous. The 'appurtenant' language suggests an easement, but the 'one-half interest' language is inconsistent with that interpretation. An easement grants a party only the right 'to use in some way the land of another.' City of Olympia v. Palzer, 107 Wn.2d 225, 229, 728 P.2d 135 (1986). It makes no sense to convey half a right to use the land. Moreover, the paragraph also states that the owners of tracts C and D 'shall share equally the costs of improvement, maintenance and repairs' and that '[a]ny further improvements to said property such as boathouse, parking garage, blacktopping, etc., shall be by mutual agreement.' Clerk's Papers at 67. An invitation to build such permanent improvements is inconsistent with an easement that can be extinguished. The reasonable interpretation of this language is that Hastings intended to convey a half interest to tract A to the owners of tracts C and D.
In the next several paragraphs of the short plat, Hastings expressly created easements. Paragraph 2 begins, 'An easement is hereby established.' Clerk's Papers at 67. Paragraphs 2 through 6 speak of easements and refer to 'access,' not parking. In paragraph 5, Hastings provided for termination of the 'above-mentioned easements' if other equivalent access became available. Clerk's Papers at 67.
Chambers contends that Hastings knew how to convey fee interest by issuing and recording deeds, and because he did not do so with respect to tract A, Chambers concludes Hastings intended only to create an easement. However, it is equally likely Hastings knew that the short plat statute permitted conveyance without deed. Chambers next points to the order in Hastings' intestacy proceedings to the effect that 'Colin Chambers shall have the option to purchase . . . Lot A of said short plat if and when said Lot A may be sold free of the encumbrance of the parking easement imposed on said Lot A.' Clerk's Papers at 71. But Hastings died intestate, and Chambers presents nothing to show the court actually considered and ruled on what interest Hastings intended to convey.
Hastings clearly understood how to use the term 'easement.' His choice not to so designate tract A indicates his intent to convey fee interest in the property. The short plat, read as a whole, admits of no other interpretation.
The short plat never describes tract A as an easement, but rather as a 'common parking area.' Clerk's Papers at 59. Schedule B-2 of the plat contains 'Descriptions of Proposed and Existing Easements.' Clerk's Papers at 61. Tract A is not among the listed easements. Schedule A, the plat map, shows all of the easements described in schedule B-2. It identifies tract A as the 'common parking area,' not as an easement. Clerk's Papers at 69.
Our conclusion is in accord with the county's understanding of tract A's ownership. Since the recording of the short plat in 1978, the Island County Assessor's Office has treated tract A as owned jointly by the owners of tracts C and D, and has collected the property taxes on tract A in equal halves from the owners of tracts C and D. See Clerk's Papers at 44 (declaration of chief appraiser for Island County Assessor's Office).
Hastings conveyed a fee interest. Because reasonable minds could not reach a contrary conclusion, the issue should have been resolved this way on summary judgment.
Even were we to reach a different conclusion as to the value of the interest conveyed, the result is the same for two reasons. First, the termination clause does not apply to the parking area. Paragraph 5 of the short plat provides:
The above-mentioned easements to terminate if the existing 30-foot easement of record is developed to serve Lots C and D for similar or the same purposes and is useable. In addition, said easements created herein to terminate in the events said Tracts C or D are served by other access that is as adequate or more adequate than the access hereby created.
The reference to a 30-foot easement of record appears to be a scrivener's error, as there is no 30-foot easement. The reference is most likely to the 20-foot easement situated to the west on the side of a steep bank.
Clerk's Papers at 67.
Tract A is nowhere designated an easement, so in a literal sense, the reference to 'above-mentioned' or 'said' easements cannot include tract A. Moreover, paragraph 5 provides that 'said easements' will terminate when tracts C and D are 'served by other access . . . than the access hereby created.' Id. The access 'hereby created' is the road easement established in paragraph 2, which provides 'access' to tracts C and D. The parking area established in paragraph 1 does not provide access; it provides parking. This may facilitate access, but it is not itself 'access.' Additionally, paragraph 6, which also applies to 'the above-mentioned easement,' clearly does not refer to the parking area. Thus, the context in which it appears indicates the termination clause has nothing to do with tract A. Even if tract A were only an easement, therefore, it is not subject to the termination clause.
Paragraph 6 provides that 'the owners of Tract B and Tract C may utilize the real property over which the above-mentioned easement exists for the purposes of the installation and maintenance of septic tank drainfields, for yard, or for other purposes that do not unreasonably interfere with the easement rights herein created.' Clerk's Papers at 68.
Secondly, even if the termination clause applied, its conditions are not triggered here. The short plat provided a common parking area on tract A. This parking lot was the only place for the owners of tracts C and D and their guests to park because the limited access easement across tracts B and C allowed only pedestrian access. The owners of tracts C and D therefore parked on tract A and walked down the limited access easement to their homes. There is no other public parking within a half mile, and the only other way to reach the homes was to walk down a steep driveway.
Under the 1996 agreement, the location and size of the original access easement remains as originally dedicated. The only change is that the tract owners and their children are now permitted to drive cars along the road and park at their own homes:
For the purposes of this Agreement 'vehicular traffic' shall mean: (a) passenger automobiles, minivans, motorcycles, or pick up trucks operated by: (i) Rosengren; (ii) Carter [then owner of tract C]; (iii) a successor or assign of Rosengren or Carter; or (iv) a member of the 'immediate family' of Rosengren or Carter or their respective successor or assign; (b) emergency vehicles such as fire trucks, ambulances and police cars; and (c) moving vans and machinery needed to build or remodel the improvements situated thereon. For the purposes of this Agreement, the term 'immediate family' shall mean the legal owners of Tract C and Tract D and their respective children.
Clerk's Papers at 105. The 1996 agreement also clarifies the liability for damage to tract B's septic drainage field, over which the access road runs, providing that any damage must be repaired at the expense of the owners of tracts C and D.
Chambers contends the 1996 easement creates 'more adequate' access and triggers the termination clause. But because vehicular use of the access road is limited to the owners and their children, guests and other family members can still get to tracts C and D only by walking in. This is not 'access that is as adequate or more adequate than the access hereby created.'
Chambers does not assert otherwise. Instead, he denies that access is so limited under the 1996 agreement. 'It is elementary that guests and invitees of owners who enjoy access easements also have the implied . . . right of access.' Reply Br. at 3-4. But the plain language of the agreement is expressly to the contrary. Further, authority Chambers cites belies this proposition:
Where a way is appurtenant to an estate, it may be used by those who own or lawfully occupy any part thereof, provided no additional burden is thereby created, and by all persons lawfully going to or from such premises whether they are mentioned in the grant or not.
Reply Br. at 4 (citing 28 C.J.S. 164) (emphasis added). Additional vehicular use of the right-of-way does create an additional burden, and it subjects the owners of tracts C and D to an increased risk of liability for damage to tract B's septic drainage field.
At its heart, Chambers' position is untenable for one basic reason: a parking lot is fundamentally different from an access road, especially when authorized users of the parking lot may also build permanent improvements thereon. In light of this, there is no way to read the 1996 agreement as providing access 'as adequate or more adequate' than the parking provided by tract A.
The trial court's decision denying Chambers' motion for summary judgment and granting the summary judgment motions of Rosengren and Anderson is affirmed, except insofar as it implies that Rosengren and Anderson have only an easement interest in tract A. We remand for any further proceedings as may be necessary.
AGID and BAKER, JJ., Concur.