Opinion
No. 63099-7-I.
January 24, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Skagit County, No. 03-2-00836-5, John O. Linde, J. Pro Tem., entered January 12, 2009.
Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Becker and Cox, JJ.
Darrin and Erin Hanson appeal from the trial court's decision not to grant to them a private way of necessity across the property of Peter and Viola Beverstock. The Hansons contend that the trial court erred by concluding that there is no reasonable necessity for an easement to be granted over the Beverstocks' property. Finding no error, we affirm.
I
In 1980, Peter and Viola Beverstock acquired a waterfront parcel of property on the east side of Big Lake in Skagit County. The southwesterly border of the property is Big Lake, and the northeasterly border is Westview Road.
In 1991, Gary and Linda Hanson (Sr. Hansons) — parents of Darrin Hanson, who is an appellant herein — acquired a parcel of property on the east side of Big Lake in Skagit County. The property includes eight lots, with the four northeasterly lots forming the entire northern border of the four southwesterly lots. When the Sr. Hansons acquired this property, a 100-foot railroad right-of-way ran along the southwesterly border of the Sr. Hansons' four southwesterly lots. Beyond the right-of-way lies Westview Road. On the opposite side of Westview Road is the property the Beverstocks purchased in 1980.
In 1992, the Beverstocks and Sr. Hansons — along with over 180 other owners of property abutting the right-of-way — settled a quiet title action against Burlington Northern Railway Company in Skagit County Superior Court. Pursuant to the settlement of that action, owners of property abutting the 100-foot-wide railroad right-of-way acquired title to the portion of the right-of-way abutting their properties. The Beverstocks acquired the eastern 25 feet of the western 50 feet of the portion of the right-of-way abutting their property. The Sr. Hansons acquired the eastern 50 feet of the section of the right-of-way that abutted their property.
Westview Road runs between the Beverstocks waterfront property and their parcel of the railroad right-of-way. Because the county has a 25-foot easement for Westview Road, the Beverstocks acquired only 25 feet of the railroad right-of-way, rather than the 50 feet acquired by property owners on the eastern side of the right-of-way.
In 2001, the Sr. Hansons gave to their children, Darrin Hanson and Leah Atchley, two lots each of the Sr. Hansons' eight lots. Because Darrin and Leah were gifted the four southwesterly lots, they also acquired the portion of the former railroad right-of-way that previously adjoined those lots. The Sr. Hansons retained the land abutting Darrin and Leah's parcels to the northeast; thus, the entire northeastern boundary of Darrin's and Leah's parcels consists of their parents' property.
In May 2003, Darrin and Leah (and their spouses) brought suit against the Beverstocks, seeking to establish a private way of necessity pursuant to Washington's private condemnation statute, RCW 8.24, across the Beverstocks' property (formerly the railroad right-of-way) to Westview Road. The only cause of action set forth in the complaint was to establish a private way of necessity.
Darrin Hanson testified at trial that he had used Fire Mountain Lane, which provides northern access to the property from Highway 9, to access his property. This route, he testified, required him to cross over the Sr. Hansons' property to reach his own property. Darrin further testified that he "assumed that was the way" that he would access the property until he was informed by the State that an "access route to a state highway is a last resort." RP (July 2-3, 2008) at 62-63. Ronald Storme, the development service manager at the Washington State Department of Transportation, testified at trial that if the Hansons had no other access available to their property, then the State would consider an access permit from Fire Mountain Lane to Highway 9.
In closing argument, plaintiffs' counsel stated:
This case began as a private way of necessity case and the way we have tried the case it converted itself into a quiet title action and I think the pleadings should be amended to reflect that and to confirm [ sic] to the evidence put on here given [the] testimony today.
RP (July 2-3, 2008) at 203. However, his closing argument thereafter focused only on the issue of a private way of necessity pursuant to the condemnation statute. The record on appeal contains no evidence that counsel moved to amend the pleadings.
The trial court, noting that "[i]n this case the plaintiff seeks a private way of necessity over a twenty-five by fifty foot strip of land owned by defendants," issued an oral decision based on arguments regarding the condemnation statute. RP (July 2-3, 2008) at 224. The trial court did not address in its oral decision arguments regarding a preexisting easement.
The trial court concluded that "[t]here is no reasonable necessity for plaintiffs to be granted an easement over the land of the defendants." RP (July 2-3, 2008) at 73.
Darrin and Erin Hanson appeal.
Subsequent to filing a notice of appeal, Leah and Justin Atchley filed a motion for voluntary dismissal, seeking withdrawal from the appeal. The motion was granted; thus, Darrin and Erin Hanson are the sole appellants herein.
II
The Hansons first contend that the trial court erred by not granting to them a private way of necessity across the Beverstocks' property pursuant to Washington's private condemnation statute, RCW 8.24.010. We disagree.
Washington's private condemnation statute provides:
An owner, or one entitled to the beneficial use, of land which is so situate with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a private way of necessity . . . may condemn and take lands of such other sufficient in area for the construction and maintenance of such private way of necessity.
RCW 8.24.010. "An easement of necessity is an expression of a public policy that will not permit property to be landlocked and rendered useless." Hellberg v. Coffin Sheep Co., 66 Wn.2d 664, 666, 404 P.2d 770 (1965). It gives the owner of landlocked property "the right to condemn a private way of necessity for ingress and egress." Hellberg, 66 Wn.2d 667. In such a condemnation action, "[t]he condemnor has the burden of proving the reasonable necessity for a private way of necessity." Sorenson v. Czinger, 70 Wn. App. 270, 276, 852 P.2d 1124 (1993).
As part of the condemnor's burden of proving such reasonable necessity, the condemnor has "the burden of disproving the existence of an implied easement of necessity when there is some credible evidence that such an easement exists." Roberts v. Smith, 41 Wn. App. 861, 862, 707 P.2d 143 (1985); see also Dreger v. Sullivan, 46 Wn.2d 36, 278 P.2d 647 (1955). The intent of the parties determines whether an implied easement exists. Roberts, 41 Wn. App. at 864. Where the grantor sells landlocked property, "the intent to create an access easement over [the] grantor's land is implied." Roberts, 41 Wn. App. at 865. Evidence of an implied easement over the grantor's land need not conclusively establish the existence of such an easement in order to preclude the grant of a private way of necessity. See Roberts, 41 Wn. App. at 865-66. Rather, it is sufficient that the evidence "cast considerable doubt on the reasonable necessity" of the condemnors to cross over the condemnees' land. Roberts, 41 Wn. App. at 866.
Here, the Hansons did not meet their burden of proving a reasonable necessity to cross the property of the Beverstocks in order to access their property. Evidence was presented at trial suggesting that the factors establishing an easement by implication were extant in this case. For example, John Milnor, a title officer with knowledge of the relevant properties, testified that the Hansons' property became landlocked by virtue of its conveyance. This evidence suggests an implied intent by the Sr. Hansons to create an access easement over the part of the property that they retained. Because credible evidence was presented that an implied easement may exist, the Hansons had the burden of disproving the existence of the implied easement in order to establish a reasonable necessity to cross the Beverstocks' property. See Roberts, 41 Wn. App. at 862. This they did not do.
"The factors establishing an easement by implication are (1) former unity of title and subsequent separation; (2) prior apparent and continuous quasi easement for the benefit of one part of the estate and burden to the other part; and (3) necessity that the quasi easement exists after the separation." Roberts, 41 Wn. App. at 864.
Other evidence further suggested that the Hansons do not have a reasonable necessity to cross the Beverstocks' property, including testimony by both Darrin Hanson and Gary Hanson that the northern access route to Fire Mountain Lane — over the Sr. Hansons' property — has been used to access the Hansons' property.
The Hansons did not meet their burden of proving a reasonable necessity to cross the Beverstocks' property, as is required to establish a private way of necessity pursuant to Washington's private condemnation statute. Accordingly, we affirm the trial court's decision not to grant to the Hansons a private way of necessity.
III
The Hansons further contend that the trial court erred by not recognizing a preexisting easement benefitting their property across the Beverstocks' property. Because they did not adequately present this issue below, it is not properly before this court.
This court will not review an issue, theory, argument, or claim of error not properly presented to the trial court. RAP 2.5(a); Lindblad v. Boeing Co., 108 Wn. App. 198, 207, 31 P.3d 1 (2001). One purpose of this rule is to give the trial court "an opportunity to consider and rule on the relevant authority." Bennett v. Hardy, 113 Wn.2d 912, 917, 784 P.2d 1258 (1990). Another purpose "is to afford the trial court an opportunity to correct errors, thereby avoiding unnecessary appeals and retrials." Demelash v. Ross Stores, Inc., 105 Wn. App. 508, 527, 20 P.3d 447 (2001).
Although the Hansons' brief on appeal extensively argues the theory of the existence of a preexisting easement across the Beverstocks' property, this theory was not adequately advanced to the trial court. The sole claim in the complaint was to establish an easement by necessity pursuant to Washington's condemnation statute. In closing argument, plaintiffs' counsel stated that he thought that the pleadings should be amended to encompass the additional preexisting easement theory. However, there is no indication in the record on appeal that a motion for leave to so amend was ever advanced. More importantly, there is no indication that the trial court ever ruled on such a motion.
In addition, the trial court's oral opinion and findings further indicate that it did not have the requisite "opportunity to consider and rule on the relevant authority" with respect to the Hansons' preexisting easement theory. Bennett, 113 Wn.2d at 917. In its oral decision, the trial court stated that the issue in dispute was the establishment of a private way of necessity; no mention was made of the preexisting easement theory.
That the trial court did not even mention this legal theory suggests that it did not consider the issue to be extant in the case. Furthermore, the only factual finding made by the trial court that in any way arguably related to this theory was its finding that the Beverstocks own their property in fee. However, this finding was necessarily made in connection with the private way of necessity claim. The existence of this finding in no way indicates that the trial court believed that it was called upon to rule on any other legal claim. The lack of findings directly addressing the issue of a preexisting easement further indicates that this theory was not adequately presented below.
Because the Hansons' preexisting easement theory was not adequately advanced to the trial court — and, thus, the trial judge was not afforded a proper opportunity to rule on the issue — we will not further address it on appeal.
IV
The Hansons adequately presented to the trial court only the legal claim that they are entitled to a private way of necessity across the Beverstocks' property. Because they did not meet their burden of proving a reasonable necessity as required by Washington's private condemnation statute, the trial court did not err by entering judgment denying them the relief sought.
The Beverstocks request attorney fees on appeal. Pursuant to RCW 8.24.030, we grant this request and award attorney fees to the Beverstocks against Darrin and Erin Hanson, the appellants who remain as parties in this appeal. Upon proper application, a commissioner of this court will enter an appropriate order.