Opinion
No. 52873-4-I
Filed: December 20, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-05420-0. Judgment or order under review. Date filed: 07/24/2003. Judge signing: Hon. Helen L Halpert.
Counsel for Appellant(s), Brenda S Molner, Ater Wynne LLP, 601 Union St Ste 5450, Seattle, WA 98101-2327.
Joel Robert Paisner, Ater Wynne LLP, 601 Union St Ste 5450, Seattle, WA 98101-2327.
Counsel for Respondent(s), Robert Douglas Stewart, Attorney at Law, Mcnaul Ebel Nawrot et al, 600 University St Ste 2700, Seattle, WA 98101-3143.
Todd and Le Ann Shaw appeal a summary judgment granted to Christopher and Debora Merritt, and Ertugrul and Kim Ulkekul. The Shaws argue that they have presented evidence sufficient to create an issue of material fact as to whether they have an easement — by grant, implication or by public use — to use 300 feet of a road which crosses defendants' property. We disagree, and affirm.
I.
The Shaws, along with their neighbors, Kevin and Sonia Wattenbarger, sought to quiet title to a roadway that crosses defendants' property. The complaint sought the removal of 'the nuisance of obstruction, debris, trees, and gate' from the roadway. The plaintiffs claimed an easement over the disputed roadway.
The Shaw property is the southernmost parcel involved in this appeal. The Ulkekuls own a single parcel north and northeast of the Shaws. The Merritts own a single parcel to the north of the Shaw property and east of the Ulkekul property. All three properties are in section 30. The Ulkekul and Merritt properties are contiguous and the northern border of both is section 19, which is the section north of section 30. The Wattenbargers own property in section 19, north of the Merrit and Ulkekul properties.
The Weyerhaeuser Company once owned all or most of the land involved in this conflict. More than 50 years ago, Weyerhaeuser built a logging road on the property. The land passed through a number of hands through a series of sales and grants. During those years, owners platted the land for residential development and created various road and utility easements over sections of the property. The road involved in this litigation is likely a descendant of the logging road created by Weyerhaeuser. The road begins on N.E. Tolt Hill Road, which runs east-west and is to the south of the properties involved in this suit. From Tolt Hill Road, the road proceeds north past the Shaw property into the Ulkekul property this portion of the road is known as 285th Place. Shy of the Ulkekul's northern border with section 19, the road turns east and crosses into the northern portion of the Merritt property. On the Merritt property, the road turns north and crosses into section 19 continuing north to East Ames Lake Drive. This portion of the road is known as 288th Place. The 300 feet where the road runs east-west and crosses the northern portions of the Ulkekul and Merritt properties is the focus of this litigation.
II.
We engage in the same inquiry as the trial court when reviewing an order granting summary judgment. Under CR 56(c), a trial court may grant a summary judgment 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' A material fact is one upon which the outcome of the litigation depends, in whole or in part. The court must consider the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party. To overcome a motion for summary judgment, the nonmoving party must set forth specific facts rather than rely on bare allegations. When reasonable minds could draw different conclusions from the facts, the court should deny a motion for summary judgment.
Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
CR 56(c); Wilson, 98 Wn.2d at 437.
Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974).
Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993).
Young v. Key Pharm., Inc., 112 Wn.2d 216, 225-226, 770 P.2d 182 (1989).
Balise v. Underwood, 62 Wn.2d 195, 199, 381 P.2d 966 (1963).
The Shaws argue that the court erred by concluding that no issue of material fact exists with regard to whether an express easement was granted. 'An express grant of easement is a conveyance within the meaning of the statute of frauds.' The statute of frauds requires that "[e]very conveyance of real estate, or any interest therein, and every contract creating or evidencing any encumbrance upon real estate, shall be by deed[.]" Although deeds must "be in writing, signed by the party to be bound thereby, and acknowledged," 'no particular words are necessary to constitute a grant of easement.' "[A]ny words which clearly show the intention to give an easement . . . are sufficient to effect that purpose, providing the language is sufficiently definite and certain in its terms." Moreover, '[t]o comply with the statute of frauds, 'a contract or deed for the conveyance of land must contain a description of the land sufficiently definite to locate it without recourse to oral testimony, or else it must contain a reference to another instrument which does contain a sufficient description.'' 'A 'deed [of easement] is not required to establish the actual location of an easement, but is required to convey an easement' which encumbrances a specific servient estate.'
Berg v. Ting, 125 Wn.2d 544, 551, 886 P.2d 564 (1995).
McPhaden v. Scott, 95 Wn. App. 431, 435, 975 P.2d 1033 (1999) (quoting RCW 64.04.010).
McPhaden, 95 Wn. App. at 435 (quoting RCW 64.04.020).
McPhaden, 95 Wn. App. at 435.
McPhaden, 95 Wn. App. at 435 (quoting Beebe v. Swerda, 58 Wn. App. 375, 379, 793 P.2d 442 (1990)).
Berg, 125 Wn.2d at 551 (quoting Bigelow v. Mood, 56 Wn.2d 340, 341, 353 P.2d 429 (1960)).
Berg, 125 Wn.2d at 551 (quoting Smith v. King, 27 Wn. App. 869, 871, 620 P.2d 542 (1980)) (emphasis omitted).
The Shaws argue that the express easement was created and recorded in King County Recording No. 4665360 dated February 20, 1956. The Shaws also argue that the short plat recorded in King County Recording No. 8012080508 in 1980 also recorded the easement.
In response, the defendants cite to the opinion of their expert, Bruce Dodd a professional surveyor as well as a professional engineer who reviewed the documents in the pertinent chains of title to determine if 'those record documents revealed rights granted to a continuous, uninterrupted easement from Tolt Hill Road' to 288th Avenue N.E. According to Dodd's declaration, he examined a number of documents, including the 1956 easement and the 1980 short plat. Dodd concluded that 'the record shows no access rights in the Shaw and/or Wattenbarger parcels to the Ulkekul and Merritt parcels lying between the terminus of the easement under Auditor's number 4716686 and the beginning of the easement under the Auditor's number 6177605.' The easement created by No. 4716686, a correction of No. 4648431, is now referred to as 285th Place. Likewise, the easement created by No. 6177605 is now referred to as 288th Place.
Although Dodd included the 1956 easement and the 1980 short plat in his list of documents which he reviewed, he did not specifically discuss those two documents in his declaration.
According to the Shaws, the plain terms of the 1956 easement created an easement burdening the defendants' property including the 300 foot section that is the subject of this suit. The 1956 easement reads:
Whereas, a certain nonexclusive easement for road and utility purposes have heretofore been created over certain portions of said parcel A and it is the desire and intention of all parties hereto dedicate said easement heretofore created and to be herein created for benefit of owner of all or any part of, the said parcel A and B Their heirs, successors and assigns now therefore.
In consideration of the mutual benefits herein granted Albert W. Hern and Ellen M. Hern, Husband and Wife, do hereby grant unto each other party hereto their heirs, successors and assigns
Easement for road and utility purpose over 60 feet of said Parcel B, and each owner of all or any part of said Parcel A does hereby grant unto each other party hereto, their heirs, successors and assigns, an easement for road purposes over all easements heretofore created by public road over Parcel A.
According to the Shaws, and undisputed by the defendants, Parcel A equates to Section 30 and Parcel B equates to Section 19.
The Shaws assert that their expert, William Hawkins, agreed that the plain language of the 1956 easement established an easement over the property at issue. In his declaration, William Hawkins, explained that he is a registered surveyor who surveyed a portion of the road easement and reviewed a number of documents related to the easement. He included two letters by reference in his declaration. But neither of the letters stated explicitly that the 1956 easement encumbered the portions of the defendants' land in question. Instead, the letters described the documents he reviewed and provided the interpretation offered by the Shaws as the 1956 easement, instead of citing to a copy of the original. Defendants do not challenge Hawkins' interpretation.
We must first decide if the language of this document, as interpreted by Hawkins, create a question of material fact that an express easement was granted to encumber 300 feet of the defendants' property. The declarations of the expert witnesses do not create a material issue of fact. The Shaw expert, Hawkins, did not offer an opinion, but merely offered interpreted text of the language of the easement. Meanwhile, the defendants' expert, Dodd, clearly stated that the documents do not add up to an easement over 300 feet of the defendants' property. Although Hawkins' interpretation of the document, indicated an intent to create an easement, the language of the easement itself does not permit the court to draw an inference that the original parties intended a through road.
The Shaws argue that the short plat recorded in 1980 indicates that the easement was intended to be a through road from Tolt Hill Road through to East Ames Lake Drive. And in fact, the short plat describes the road as 'a through road, continuing and intersecting with a other [sic] County Road on the perimeter of Ames Lake.'
Even though a short plat may create an express easement, the 1980 short plat did not. Althought the 1980 short plat refers to the private road as a through road, it also refers to it as 'recorded under Auditor Filing No. 4648431.' Dodd explained in his declaration that the easement first recorded under document number 4648431, later corrected under document 4716686, is a 60-foot wide easement that generally runs north-south and 'ultimately its centerline terminates at the north line of section 30 exactly 183.20 feet east of the north quarter corner of said section 30.' Dodd further explained that the easement based on documents 4648431/4716686 did not include the gravel road that runs easterly across the Ulkekul and Merritt parcels. The Shaws do not challenge these assertions.
McPhaden, 95 Wn. App. at 435.
The 1980 short plat did not create an easement for a through road, but simply referred to the existing easement created by the document filed under auditor filing No. 4648431. Although the 1980 short plat used the private through road that runs from Tolt Hill Road to East Ames Lake Drive to clarify its description of the existing easement's location, the language of the short plat did not indicate an intent to alter the defined limits of that easement. Despite the reference to a 'through' road, the 300 feet connecting the two easements remained outside the specified limits of each.
The Shaws argue that beyond the language of the short plat, a map included in the short plat showed the road as a through road. To the contrary, the map included in the short plat showed the easement as terminating at the border of section 30 and section 19, never turning east across the 300 feet.
Next, the Shaws argue that the trial court erred by concluding that no issue of material fact exists as to whether the public acquired the right to use the road by prescription. We do not consider this argument because there is no evidence on the record that the trial court considered it. Generally, we "will consider only evidence and issues called to the attention of the trial court." By limiting consideration to issues presented to the trial court, this court ensures that it engages in the same inquiry as the trial court.
Washington Fed'n of State Employees, Council 28, AFL-CIO v. Office of Fin. Management, 121 Wn.2d 152, 157, 849 P.2d 1201 (1993) (quoting RAP 9.12).
Washington Fed'n, 121 Wn.2d at 157.
The Shaws did not argue a public easement by prescription at the trial court level, instead arguing private easement by prescription. Any references or evidence now argued by the Shaws as pertaining to public easement by prescription were presented in terms of the private easement by prescription argument. Likewise, although the defendants at times presented evidence that the 'public' did not use the road, or offered cases that contained statements about public easement by prescription, all of this evidence and these arguments related to the defendants' assertion below that they had acquired a private easement by prescription. Next, the Shaws argue that the trial court erred by concluding that no issue of material fact existed as to whether an easement was established by implication. Our Supreme Court has held that '[a]n implied easement (either by grant or reservation) may arise (1) when there has been unity of title and subsequent separation; (2) when there has been an apparent and continuous quasi easement existing for the benefit of one part of the estate to the detriment of the other during the unity of title; and (3) when there is a certain degree of necessity . . . that the quasi easement exist after severance.'
Adams v. Cullen, 44 Wn.2d 502, 505, 268 P.2d 451 (1954).
Shaw presents no evidence to support the conclusion that there is a certain degree of necessity for the continuation of the easement; therefore, there is no easement by implication. 'The test of necessity is whether the party claiming the right can, at reasonable cost, on his own estate, and without trespassing on his neighbors, create a substitute.' In McPhaden v. Scott, the court held that a party seeking an implied easement could instead install a driveway for access. Our Supreme Court has commented that '[t]he fact that it would be more convenient to use [one] road than to use [another] is not sufficient to establish that such use was reasonably necessary to the proper enjoyment of appellant's property.'
Berlin v. Robbins, 180 Wash. 176, 189, 38 P.2d 1047 (1934).
95 Wn. App. 431, 975 P.2d 1033 (1999).
McPhaden, 95 Wn. App. at 438-39.
Silver v. Strohm, 39 Wn.2d 1, 6, 234 P.2d 481 (1951).
The only necessity offered by Shaw is the avoidance of an additional 7 to 12 miles of driving. Although driving the additional miles may be inconvenient, it does not provide the degree of necessity required to establish the easement.
AFFIRMED.
APPELWICK, J. and COX, C.J., concur.