Opinion
No. 35372-5-II.
March 18, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-10364-2, Thomas Felnagle, J., entered September 1, 2006.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Bridgewater and Penoyar, JJ.
Randall and Michelle Chopp appeal the trial court's decision to grant Harry Muoz and Valerie Fyalka-Muoz easement rights over a new road the Chopps completed. We affirm.
FACTS
In 1994, the Muozes purchased a 20-acre parcel of property in Pierce County. Their property benefits from two adjacent 10-foot road and utility easements that burdens the Chopps' property (known as Southview) to the south. The easements, created in 1976, run through the center of Southview. Another road and utility easement created in 1988 also burdens Southview.
From approximately 1994 until 2004, the Muozes used a dirt road along the easement to access their unimproved property.
The Muñozes spent spare time on their property, especially on weekends and during the summer months. At other times, they hiked up the hill to a place where they had placed a picnic table and lawn chairs in a clearing on the property, and they often brought their dog to run, sometimes on a daily basis.
In 1994, Pierce County approved a preliminary plat proposed by the Chopps' predecessors-in-interest. The plat subdivided Southview into 11 lots and required construction of a new 40-foot-wide road. Construction of the new road began in approximately 2001. The Chopps purchased Southview in 2004, before the road was completed.
Harry Muñoz testified that although the plat describes a 40-foot-wide road, this figure includes rights of way and everything associated with the road. According to Harry, the actual paved surface of the road is 24 feet wide.
In 2004, the Chopps finished constructing the road. Afterward, they approached the Muozes with a road maintenance agreement. The agreement offered would grant an easement over the new road at no cost to the Muozes, provided they signed it. They did not execute the agreement and the Chopps barred them from using the road.
Randall Chopp also offered a road maintenance agreement to neighbor Terry Wilson who, because he was about to close on a deal selling the property, signed an indemnification agreement with his buyers. Later, the buyers signed the road maintenance agreement with the Chopps.
In July 2005, the Muozes sued the Chopps, asking the trial court to quiet title in their easement across the newly finished road and to award damages for interference with their rights. The Chopps counterclaimed, seeking a declaration that the Muozes' road and utility easements, if any, would be limited to the areas described in the recorded easements and that the Muozes would be barred them from using any portion of the new road located outside those areas. The Chopps also asked for damages based on tortious interference with a business expectancy. In the alternative, the Chopps asked the trial court to order the Muozes to pay a proportionate share of the cost to construct the road and all related improvements.
The Muñozes moved for summary judgment on their quiet title action. The trial court granted partial summary judgment, ruling that the Muozes had a road and utility easement. The court reserved for trial questions regarding the easement's location and any damages award.
After a bench trial on the easement location and compensation issues, the trial court entered findings and conclusions. Pertinent to our review, the trial court found:
Findings of Fact
The numbering of the findings of fact skip from 12 to 15. To avoid confusion, we number the findings according to those assigned by the trial court.
12. The Chopps maintain that the Muozes can access the Property only through the area described by the 1976 road and utility easements.
15. The Muñozes could not, more than likely, now get approval to build a road on the easement as it was originally configured in 1976.
16. It would be totally impractical for the Muozes to build a new road in the location of the 1976 easements, even if they could get approval from the County in conformity with these easements.
17. Even if the Muozes could get approval from the County to develop a road in conformity with the 1976 easements, they would have to traverse over the new road.
18. Without the Chopps' involvement, the Chopps' predecessors-in-interest undertook to relocate the original road and utility easements benefiting the Property.
19. The Chopps and their predecessors-in-interest have paved over the better portion of the original road and utility easements benefiting the Property.
20. It is now totally impractical to suggest that there is any other reasonable alternative left to the Muozes other than to use the new road constructed on Southview.
21. The parties both testified that the Muozes agreed to the relocation of the easement. The Muozes didn't mind utilizing the new road that the Chopps built. They just didn't want to have to pay for the privilege or pay to have it maintained.
22. The Chopps always indicated they wanted to adopt the relocation, so there is no dispute about the agreement to relocate. It's a dispute about money and what should happen as a result of this location.
The Chopps also challenged finding 24, but do not otherwise set forth argument. Without argument or authority for support, an assignment of error is waived. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004); see also RAP 10.3(a)(6).
Clerk's Papers (CP) at 121-22. The trial court concluded:
Conclusions of Law
1. Washington law provides that an easement cannot be relocated absent the agreement of the parties. Washington law is built on the policy that you can't take somebody's property right without their agreement and you can't force someone to pay compensation if they don't want to pay compensation. Consequently, there is no basis in the law for the Chopps to be compensated in this case.
2. The Muozes' road easement has been relocated to ten (10) feet on either side of the centerline of the new road that crosses the Southview Plat.
3. The Muozes are not entitled to damages for interference with their easement rights.
The Chopps assign error to this conclusion, but it has no relevance to this appeal as it concludes that the Muñozes are not entitled to damages for interference with their easement rights.
4. The Chopps are not entitled to damages for tortious interference with a business expectancy.
5. The Chopps are not entitled to reimbursement by the Muozes of any portion of the construction costs of the new road.
CP at 123. The Chopps appeal.
ANALYSIS
Where the trial court has weighed the evidence, we limit our review to determining whether substantial evidence supports its findings of fact and, if so, whether the findings support the conclusions of law. Perry v. Costco Wholesale, Inc., 123 Wn. App. 783, 792, 98 P.3d 1264 (2004). Substantial evidence is that sufficient to persuade a fair-minded, rational person of the truth of the asserted premise. Perry, 123 Wn. App. at 792. We review questions of law and conclusions of law de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).
Although actions for quiet title are equitable in nature and subject to an abuse of discretion standard, it appears that the trial court relied on contract and basic real property principles, thus, we review under the substantial evidence standard.
Relocation of the Easement
The Chopps first contend that the substantial evidence does not support the trial court's finding that the Muozes agreed to relocate the easement. They argue that the Muozes' failure to sign the road maintenance agreement precluded the formation of a valid contract and, therefore, the parties could not have agreed to relocate the easement. Because of this, the Chopps assert the Muozes have no right to use the new road.
Owners of the dominant and servient estate may mutually consent to relocate an easement. Crisp v. VanLaecken, 130 Wn. App. 320, 324-325, 122 P.3d 926 (2005) (applying the majority view, that easements, as property rights, are not subject to relocation absent the consent of both parties, as adopted by MacMeekin v. Low Income Housing Inst., Inc., 111 Wn. App. 188, 190, 45 P.3d 570 (2002)).
Here, the trial court first found that "[w]ithout the Chopps' involvement, the Chopps' predecessors-in-interest undertook to relocate the original road and utility easements benefiting the Property." CP at 122 (finding 18). The Chopps do not assign error to this finding, and we consider it a verity on appeal. See Sorenson v. Pyeatt, 158 Wn.2d 523, 528 n. 3, 146 P.3d 1172 (2006).
The trial court further found that the "[t]he parties both testified that the Muozes agreed to the relocation of the easement. The Muozes didn't mind utilizing the new road that the Chopps built. They just didn't want to have to pay for the privilege or pay to have it maintained." CP at 122 (finding 21). As noted, we review whether substantial evidence supports this finding.
Harry Muñoz testified that no one before the Chopps asked them to pay for any costs related to the road and its construction beginning in 2001. He further testified that he and his wife believed that their 20-foot easement allowed them to use the road at no cost. He also testified that when the Chopps' predecessors-in-interest developed the road, which included constructing a meandering road and tall rock walls, he assumed that he had an easement along the course of the new road. Finally, he testified he did not need a "big, fancy road" such as the one the Chopps built. II Report of Proceedings (RP) at 115.
Randall Chopp also testified and acknowledged the Muñozes never complained about prior developers starting to construct the new road. Rather, according to Chopp, the Muñozes only complained about the road not being finished.
The Chopps' argument relies on the premise that the agreement to relocate the easement had to be between them and the Muñozes. The Chopps' argument misses the point and misapprehends the trial court's finding. The trial court did not find that the parties agreed to relocation; it found that the Muñozes had already agreed to the relocation before the Chopps purchased their property. Substantial evidence supports this finding.
As noted, the Muñozes spent time on the property and, thus, observed the initial road construction that relocated it and their easement.
The Chopps next assert that substantial evidence does not support the trial court's finding that "[t]he Muñozes have the same ability to develop a road within their easement area as they had prior to the construction of the new road and the approval of the Chopps' plat.
Unfortunately, it simply is not possible to construct a road within their easement that would comply with Pierce County codes." Appellant's Br. at 16.
The trial court heard expert testimony from William Diamond, former Pierce County development engineering supervisor. He testified that, at the time of trial, Pierce County would not permit the Muñozes to build a road, as the Chopps suggested. He indicated such a road would violate Pierce County Code restrictions on the distance between intersections and prohibitions on construction within the so-called "natural buffer area." RP at 77.
The Chopps do not challenge the trial court's finding that "[t]he Muñozes could not, more than likely, now get approval to build a road on the easement as it was originally configured in 1976" and we consider it a verity on appeal. CP at 121 (finding 15). Sorenson, 158 Wn.2d 528 n. 3. The trial court determined that it would be impractical for the Muñozes to build a new road in the location of the 1976 easements. The Chopps' argument fails because Diamond's testimony, standing alone, provides substantial evidence to support this finding.
The Chopps next argue that the trial court did not possess equitable authority to grant the Muñozes a new easement or move their existing easement. Citing Crisp, 130 Wn. App. at 324-25, and MacMeekin, 111 Wn. App. at 190, the Chopps assert that the trial court could not relocate an easement absent the parties' agreement. Because the trial court correctly decided that the easement had been relocated by agreement, we do not further address this argument.
Statute of Frauds
The Chopps next contend that the statute of frauds precludes an oral agreement to relocate an easement. The Chopps rely in part on Key Design, Inc. v. Moser, 138 Wn.2d 875, 887, 983 P.2d 653, 993 P.2d 900 (1999), and argue that any agreement affecting real property must be reduced to writing. Key Design does not apply here. It merely reaffirms the principle that an agreement to sell or convey real property must include a correct legal description and refuses to recognize a judicial admissions exception to the rule. 138 Wn.2d at 877.
Nevertheless, the Chopps' argument fails under basic real property law principles. Although a deed conveying an easement must sufficiently describe the servient estate, a deed is not required to establish the actual location of an easement. Berg v. Ting, 125 Wn.2d 544, 551, 886 P.2d 564 (1995); Smith v. King, 27 Wn. App. 869, 871, 620 P.2d 542 (1980) ("A deed is not required to establish the actual location of an easement, but is required to convey an easement, which is an interest in land within the meaning of RCW 64.04.010.").
Chapter 8.24 RCW (Private Right of Condemnation)
Finally, the Chopps argue that, if the Muñozes cannot use their prior easement location, their only remedy is to seek an easement by way of necessity. The Chopps assert that the Muñozes failed to plead this remedy, and they cannot avail themselves of it on appeal. Because the trial court properly found an easement and correctly located it, we do not address this argument further.
The Chopps also argue that "[t]he Judgment granting [the Muñozes'] a relocated easement over the Chopps' property is thus clearly erroneous and must be reversed." Appellant's Br. at 19-20. As they do not otherwise brief this argument, we do not address it. Thomas, 150 Wn.2d at 874; RAP 10.3(a)(6).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Bridgewater, J.
Penoyar, J.