Opinion
Nos. 61263-8-I; 61461-4-I.
February 23, 2009.
Appeals from a judgment of the Superior Court for Snohomish County, No. 06-2-11850-1, Gerald L. Knight, J., entered January 16, 2008.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Agid, J., concurred in by Becker and Leach, JJ.
This appeal arises out of a property dispute between neighboring landowners, David and Sharon Damkaer (the Damkaers), and Steve and Janine Creasey (the Creaseys). The Damkaers appeal the trial court's order granting the Creaseys' motion for summary judgment, terminating their lease of the Creaseys' property, and ejecting them from the premises. The Damkaers also appeal the trial court's declaratory judgment ordering that the Damkaers' easement on the Creaseys' property be limited to the existing roadway. Because the Damkaers admitted to breaching the lease and cannot establish a claim of adverse possession as leasehold
tenants, but the easement was not ambiguous, we affirm in part, reverse in part, and remand for a new trial on the easement claim.
FACTS
The Damkaers and the Creaseys are neighboring landowners in Monroe, Washington. The property they own is on 20 acres of developed farm land and clear pasture, which Steve Creasey's parents bought in 1959. In 1978, Creasey's parents gave him as a gift the southern half of a 10 acre parcel on the east side of the property. In 1998, Creasey purchased from his parents the northern half of this property and became the owner of the entire east 10 acres, which fronts 195th Avenue SE, a county road. In 1989, the Damkaers bought from Creasey's parents 10 acres on the west side of the property. The Damkaers' parcel does not front any county road, but they access 195th Avenue SE by a road that runs along the north portion of the Creaseys' parcel.
The Leased Property
Shortly after moving onto the property in 1989, the Damkaers asked the Creaseys about acquiring a pie-shaped strip of the Creaseys' pasture that bordered the Damkaers' eastern boundary and had a large maple tree on it (the "maple tree" property). The Creaseys agreed to lease the property to the Damkaers, and the Damkaers drafted a lease that included an initial term of 40 years. The Creaseys did not agree to a 40 year lease and had the Damkaers change the term to 20 years. The lease also prohibited the Damkaers from building any structures on the property and required them to maintain the property, including mowing the pasture and caring for the maple tree.
On April 15, 1991, the Damkaers sent the Creaseys a letter offering to buy the Creaseys' entire property. The Creaseys declined the Damkaers' offer. The Damkaers complied with the lease's maintenance provisions until approximately 2003. Up until that time, they mowed the entire premises. Then, sometime in 2003 they stopped mowing about one third of the property, including the area around the maple tree.
In May 2005, the Damkaers' attorney sent a letter to the Creaseys confirming their possession of the maple tree property under the lease and demanding to exercise a renewal of the lease for an additional 20 years. In September 2006, the Damkaers filed a complaint for a declaratory judgment. They alleged in part that they entered into a 20 year lease for the maple tree property with an option to renew for an additional 20 years, through July 2029.
The Damkaers then moved for summary judgment, asking the trial court to interpret the lease to allow them the right to extend its terms for an additional 20 years. In support of the motion, David Damkaer submitted a declaration stating that the Damkaers agreed to assume all maintenance costs of the leased property, that they have in fact maintained the leased property, and that they have always carried out their obligations under the lease. On April 18, 2007, the trial court denied the Damkaers' motion, ruling that "[b]y reason of the Statute of Frauds[,] the lease is void for its purported term of 20-years with an option for renewal," and ordered the Damkaers to vacate the property on or before July 24, 2009. The Damkaers did not appeal this ruling.
After the trial court entered this order, the Creaseys attempted to enforce the maintenance provisions of the lease. When the Damkaers refused to perform the requested maintenance, the Creaseys moved for partial summary judgment to terminate the lease, alleging that the Damkaers substantially breached the lease. In response, the Damkaers admitted that they failed to comply with the terms of the lease, but asked the trial court to quiet title to the leased property to them, asserting an adverse possession claim. The trial court granted the Creaseys' motion for partial summary judgment and terminated the lease based upon the Damkaers' substantial and continuous breach of the lease.
The Easement
The parties also had a dispute over an easement on the Creaseys' property. Before the Damkaers or the Creaseys owned the property, Creasey's father, Donald Creasey, constructed a roadway from 195th Ave SE along the north boundary of the east 10 acre parcel (now owned by the Creaseys) to the west 10 acre parcel (now owned by the Damkaers). The road ran along the north fence line, which marked the common boundary with the neighbor to the north and determined the north boundary of the road.
After the roadway was constructed, Donald Creasey erected a pasture fence that ran along the road which was about five feet south of the south shoulder of the road. This fence and the north fence line defined the roadway, which was approximately 15-20 feet wide. Donald Creasey and his family used the roadway to access their home at the west end of the property. Because Donald Creasey owned both east and west 10 acre parcels, no easement was created or conveyed at the time the access road was constructed.
After Donald Creasey constructed the access road, he went to the Federal Land Bank to borrow money to construct a log home on the west 10 acre parcel. To secure the loan, the bank required a 60 foot wide easement across the east parcel in the event the bank took possession of the property and needed to build a county road. The record contains no evidence of the original easement document or who drafted the easement. According to Donald Creasey, he understood that when the easement was created, the 60 foot requirement was only for the bank's benefit in the event it acquired the property and needed to make a county road.
When the Damkaers purchased the west 10 acre parcel from Donald Creasey in 1989, an easement was also conveyed to them, described in the deed as follows:
TOGETHER WITH an easement for roadway and utilities over the portion of the North 60 feet of the South one-half of the North one-half of said Northeast quarter of the Northeast quarter subdivision lying Easterly of said West 600 feet thereof.
The Damkaers did not dispute or otherwise challenge the scope of the easement until May 2005, when they sought to extend their fence line east along the south fence line of the access roadway and began constructing a fence on the Creaseys' property. The Creaseys objected to and stopped construction of the part of the fence that extended on their property. The Damkaers' attorney sent a letter to the Creaseys informing them that they needed to relocate the roadway to curve around a steep slope and that a portion of the Creaseys' fence would have to be removed in the process.
The Damkaers then filed a complaint seeking a declaratory judgment that they were entitled to extend and modify the easement. They contended that they believed that the easement was 60 feet wide and that they could have a roadway anywhere within those 60 feet. After a bench trial on the easement claim, the trial court entered judgment for the Creaseys. The court's order limited the easement for the roadway to the location of the existing roadway, and prevented the Damkaers from expanding or relocating the roadway or requiring the Creaseys to move their fences or fence lines bordering the existing roadway.
DISCUSSION
I. Breach of Lease
The Damkaers first appeal the trial court's summary judgment order terminating their lease of the maple tree property, enjoining them from entering the property, and quieting title to the property to the Creaseys. They contend that they were entitled to the property based on adverse possession and that the trial court erred by failing to consider this claim. We disagree.
We review summary judgment orders de novo and engage in the same inquiry as the trial court. We will affirm a summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We construe the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party.
Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006).
CR 56(c); Huff v. Budbill, 141 Wn.2d 1, 7, 1 P.3d 1138 (2000).
Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
The Creaseys first argue that we should not consider the adverse possession claim because it was not properly before the trial court and the Damkaers did not assign error to the trial court's ruling declining to hear the claim. The Damkaers respond that they properly raised the claim in their response to the Creaseys' motion for partial summary judgment because adverse possession is a defense to a claim seeking ejectment from property. They further assert that they properly assigned error to the trial court's order granting summary judgment because this order disposed of its adverse possession claim.
RAP 10.3(a)(4) provides that the appellant's brief should contain "[a] separate concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error." "A technical violation of the rules will not ordinarily bar appellate review where justice is to be served." We will review the merits of an appeal when the appellate brief sets forth the challenged ruling and the nature of the challenge is "perfectly clear."
Goehle v. Fred Hutchinson Cancer Research Ctr., 100 Wn. App. 609, 613, 1 P.3d 579, review denied, 142 Wn.2d 1010 (2000).
Id. at 614.
Here, the Damkaers' assignments of error identify the trial court's February 15, 2007 order granting partial summary judgment. While this order does not address the adverse possession claim, the Damkaers raised that claim below in response to the Creaseys' motion for partial summary judgment. The Creaseys assert that the trial court refused to consider this claim because it was not properly noted, but provide no citation to the record for this ruling. The only ruling by the trial court on that motion in the record is the order granting partial summary judgment. Thus, assigning error to that order sufficiently raises the adverse possession issue for appellate review, and we consider it.
The Creaseys refer to a hearing in which the court made this ruling, but no transcript of that hearing has been designated as part of the appellate record.
Other than the trial court's purported ruling, the Creaseys provide no authority requiring that an adverse possession claim must be noted in a separate motion when it is in response to an action for ejectment.
The Damkaers contend that there were at the very least, issues of material fact about whether they acquired title by adverse possession. Adverse possession is a mixed question of law and fact. The fact finder determines whether the essential facts exist, but the court determines as a matter of law whether the facts, as found, constitute adverse possession. Whether use is adverse or permissive is a question of fact. A party seeking to establish adverse possession must demonstrate that for over 10 years their use of the property was (1) exclusive, (2) actual and interrupted, (3) open and notorious, and (4) hostile.
Chaplin v. Sanders, 100 Wn.2d 853, 863, 676 P.2d 431 (1984).
Id.
Miller v. Jarman, 2 Wn. App. 994, 997, 471 P.2d 704, review denied, 78 Wn.2d 995 (1970).
Chaplin, 100 Wn.2d at 857.
The contested issue here is whether the Damkaers' possession was hostile. The Damkaers contend that because the lease was declared void by a court order and they failed to maintain the property as required by the lease, their possession was hostile. The Creaseys assert that because the Damkaers possessed the land by leasing it from them, their possession was permissive, not hostile.
The law is well settled that permissive use of the property, whether by express or implied permission, negates the hostility element of an adverse possession claim. The subjective belief of the party claiming adverse possession and his or her intent to dispossess or not dispossess another are irrelevant to determining whether the hostility element has been established. Hostile use of property does not contemplate ill will, but requires that the party asserting adverse possession possess or use the property as the owner, rather than as one subordinate to the title of the true owner. Thus, because a leasehold tenant holds a subordinate title to the lessor and necessarily possesses land with permission from the landowner, a lessee is not an adverse possessor of leased property.
Id. at 861-62.
Id. at 857-58; Granston v. Callahan, 52 Wn. App. 288, 293, 759 P.2d 462 (1988).
See 17 William B. Stoebuck John W. Weaver, Washington Practice: Real Estate: Property Law § 8.12, at 526 (2004).
Here, the record indicates that the Damkaers' use of the property was expressly permitted by lease and that the lease was valid until July 24, 2009. The Damkaers admitted that they leased the property, and a court order addressing the validity of the lease stated that the lease was invalid as a 40 year lease and would terminate on July 24, 2009, after a term of 20 years. The order states: "By reason of the Statute of Frauds the lease is void for its purported term of 20-years with an option for renewal." The court further ordered: "The lease is invalid as a 40 year term lease and will terminate July 24, 2009, with no option to renew."
The Damkaers argue that this order must be construed as invalidating the lease in its entirety. But by stating that it was invalid as a 40 year lease and that it would not terminate until July 24, 2009, which was the end of the first 20 year term, the order acknowledges that it was still valid for the first 20 years. Otherwise, there would be no reason to include this language. Thus, the only reasonable interpretation of the court's order is that it voided the lease only as a 40 year lease and recognized that it was valid until the first 20 year term ended on July 24, 2009.
This would be consistent with the doctrine of partial performance which removes from the statute of frauds an agreement for the lease of real property when the parties have substantially performed obligations under the purported agreement. See Kruse v. Hemp, 121 Wn.2d 715, 724-25, 853 P.2d 1373 (1993).
Additionally, the record evidences behavior consistent with a 20 year lease. In a letter sent to the Creaseys in April 1991, the Damkaers themselves acknowledged that they possessed the property under the lease given by the Creaseys, stating: "When we leased the wedge on the lower border of your property, we agreed to base the lease on the value of $8,000 per acre." A letter sent by the Damkaers' attorney to the Creaseys in 2005 also states:
In 1989 the Damkaers leased from you a pie-shaped wedge of property that borders their land and includes, as you know, a large maple tree. A one-time lease payment of $2,187.00 gave them the leasehold for twenty years. The lease will run until July 24, 2009.
While the Damkaers claim that by failing to maintain the leased premises as the lease requires they have acquired the property by adverse possession, they cite no authority for this proposition. They rely on case law recognizing that permissive use may be terminated and become hostile if the claimant makes a distinct and positive assertion of a right hostile to the owner, such as a change in the use of the property. But unlike here, these cases all dealt with implied permissive use, not express permissive use granted by a lease which terminates only when the lease terminates.
Nor did any of those cases hold that the permissive use at issue ripened into adverse possession.
Here, the lease did not terminate until 2007, when the Creaseys sought to enforce the maintenance provisions and the Damkaers refused to comply. Thus, up until it was terminated, the lease permitted the Damkaers to possess the land even though they chose not to follow some of its provisions. That the Creaseys did not immediately enforce the maintenance provisions of the lease does not somehow invalidate the lease or make the Damkaers' use of the property hostile. As leasehold tenants of the Creaseys' property, the Damkaers necessarily possessed it with the owner's permission and cannot be adverse possessors of the leased property. Thus, the Damkaers' suggestion that a lessee can acquire the leased property by adverse possession simply by breaching the lease is not only unsound policy, it is also completely at odds with the concept of adverse possession.
In fact, the Damkaers repeatedly asserted that they complied with or intended to comply with the maintenance provisions.
17 Wash. Practice. § 8.12, at 526 (2004).
The Damkaers fail to show that their use of the land during that time was not permissive. Thus, their adverse possession claim fails as a matter of law. And because the Damkaers admitted to breaching the lease, the trial court properly granted summary judgment for the Creaseys. We affirm the trial court's order terminating the lease and ejecting the Damkaers from the premises.
II. The Easement Claim
The Damkaers also challenge the trial court's judgment on the easement claim, contending that the trial court erred by finding that the easement was ambiguous and interpreting the easement in favor of the Creaseys. We review a trial court's findings of fact and conclusions of law to determine whether substantial evidence in the record supports the factual findings and whether those findings support the conclusions of law. We review the trial court's conclusions of law de novo. We determine the extent of an express easement from its terms.
810 Props. v. Jump, 141 Wn. App. 688, 695, 170 P.3d 1209 (2007).
Id. at 696.
Id. at 695.
Here, the deed granted an easement "'for roadway and utilities over the portion of the North 60 feet of the South one-half of the North one-half of said Northeast quarter of the Northeast quarter subdivision lying Easterly of said West 600 feet thereof.'" The trial court found that the term "roadway" and "over the portion of" were ambiguous in describing the location of the easement. Additionally, the trial court found that there was no evidence of the original easement or who drafted the easement. The trial court also interpreted the easement by considering evidence of the parties' intent and the facts and circumstances at the time the easement was transferred to the Damkaers. Based on these facts, the court concluded that the easement was limited to the location of the existing roadway.
The Damkaers challenge the trial court's finding that the easement was ambiguous. They assert that it unambiguously provides for a 60 foot wide roadway easement over the Creaseys' property and is not limited to the location of the existing roadway as the trial court found. We agree.
While awkwardly drafted, the easement language can only be interpreted as granting an easement located within the entire north 60 feet. The easement states that it is for roadway "over the portion of the North 60 feet . . . lying Easterly of said West 600 feet thereof." The Creaseys argue, and apparently the trial court found, that "portion of" modified "North 60 feet," indicating that the entire 60 feet were not included in the easement. But giving meaning to each term of the granting language, "portion of" actually modifies the additional language describing property "lying Easterly of said West 600 feet," which refers to the Creaseys' entire property, not just the north 60 feet. This language serves to clarify that the deed was conveying only the eastern portion of the north 60 feet because the western portion of the north 60 feet was on the Damkaers' property and did not need to be conveyed as an easement. To interpret the easement otherwise would render this language meaningless. Thus, we hold that the deed was not ambiguous in its grant of a 60 foot wide easement for roadway and utilities. But given the reason for the easement and the uncertainty about its scope of and what uses were intended within those 60 feet, we remand for a new trial to determine what rights the Damkaers have to use the easement.
III. Attorney Fees
The Creaseys request that we award them attorney fees on the appeal of the adverse possession claim. They contend that the claim was not only meritless, but not properly noted in the trial court and not properly appealed. Additionally, they point out that the claim was based on misrepresentations that conflicted with the Damkaers' own acknowledgements that they possessed the property by lease.
Under RAP 18.9(a), an appellate court may impose sanctions and attorney fees for a frivolous appeal. An action is frivolous if it "cannot be supported by any rational argument on the law or facts," and an appeal is frivolous if it "presents no debatable issues upon which reasonable minds might differ, and that it is so devoid of merit that there is no possibility of reversal." Here, while the adverse possession claim is without merit, we cannot say that it is entirely "frivolous" to justify imposition of sanctions and attorney fees under RAP 18.9, given that the trial court did not address this claim and the language of the order raised the issue of whether the court had invalidated the entire lease.
Layne v. Hyde, 54 Wn. App. 125, 135, 773 P.2d 83, review denied, 113 Wn.2d 1016 (1989).
We affirm the summary judgment order, reverse the declaratory judgment, and remand for a new trial on the easement claim.
WE CONCUR: