Opinion
No. 60349-3-I.
July 7, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-34293-5, James D. Cayce, J., entered June 28, 2007.
Reversed and remanded by unpublished opinion per Schindler, C.J., concurred in by Grosse and Leach, JJ.
This case involves a dispute over a portion of a 40-foot right-of-way in Federal Way. Edward and Toni Tinnerman (the Tinnermans) claim they own the right-of-way and when Quadrant Corporation built a road to serve an adjacent subdivision, Quadrant cut down two of their trees and encroached on their property. The Tinnermans sued Quadrant and the City of Federal Way (the City) for damages, alleging inverse condemnation, trespass, waste, and nuisance. The Tinnermans filed two motions for partial summary judgment claiming that, as a matter of law, they owned the right-ofway. In a cross motion for summary judgment, the City and Quadrant asserted that the City had acquired ownership of the right-of-way by prescription. In the alternative, the City and Quadrant argued that the Tinnermans could not prove damages. The trial court granted the City's and Quadrant's motion for summary judgment and dismissed the Tinnermans' lawsuit with prejudice. Because there are genuine issues of material fact about the exact location of the right- of-way, its relationship to the Tinnermans' property, and whether the Tinnermans or the City owns the disputed portion of the right-of-way, we conclude the trial court erred in granting summary judgment and dismissing the lawsuit.
Edward and Toni Tinnerman own a house at 33246-38th Avenue South, located on Lot 95 and a portion of Lot 94 in Federal Way. A fence runs along the western boundary of the Tinnermans' property and their house. The Tinnermans and their neighbors use the paved 18-foot portion of a 40-foot right-of-way to access the main road that is located on 38th Avenue South. Although the record contains conflicting dates regarding exactly when a portion of the right-of-way was paved, there is no dispute that King County had paved 18 feet of the 40-foot right-of-way by 1988. The record is also unclear about the exact location of the 40-foot right-of-way. In addition, there is no map or description in the record showing where the paved portion of the right-of-way is located. But according to the parties, part of the 40-foot right-of-way crosses Lots 94 and 95, and dead-ends at Lot 93.
Quadrant owns the land adjacent to Lot 94 of the Tinnermans' property. In 2005, Quadrant Corporation (Quadrant) sought to develop a 95-lot subdivision. Quadrant approached the Tinnermans about a proposed boundary line agreement. Quadrant obtained a map reflecting the proposed boundary line adjustment and recorded the survey map. However, because Quadrant and the Tinnermans could not reach an agreement, the parties did not enter into the boundary line agreement.
To facilitate access to its new subdivision, Quadrant expanded the right-of-way and constructed a roundabout. Quadrant admits that during the construction it cut down two trees. Quadrant's surveyor, Michael Bowen, testified that the expansion of the right-of-way did not intrude on the Tinnermans' property and that any trees that were removed were not located on the Tinnermans' property.
In 2005, the Tinnermans sued Quadrant for damages. The Tinnermans alleged that Quadrant trespassed by constructing a roundabout on a portion of the Tinnermans' property, and cut down two trees on their property. In addition to damages, the Tinnermans sought an order preventing Quadrant from encroaching on their property. In 2006, the Tinnermans amended their complaint to add the City of Federal Way (the City) as a defendant. In the amended complaint, the Tinnermans alleged that the City was liable for inverse condemnation and improper approval of Quadrant's subdivision. The Tinnermans also sought reformation of two deeds that quitclaimed the 40-foot right-of- way to the City's predecessor, King County.
During discovery, Quadrant asked the Tinnermans in interrogatories to "[i]dentify all damages you claim as a result of the alleged removal of trees from your property, and specify the method used to calculate damages, and identify all documents and persons that support or relate to your claim of damages for the removal of trees." The Tinnermans answered the interrogatory by stating, "[n]o estimates as to damages at this time. To be supplemented." Despite Quadrant's request to supplement the response to the interrogatories, the Tinnermans did not do so.
The Tinnermans filed motions for partial summary judgment, arguing that the two quitclaim deeds conveying title to the 40-foot right-ofway to King County were invalid.
In 1926, Eugenia and George Purdy (collectively Purdy) purchased property from the Weyerhaeuser Corporation. Purdy called the property "North Lake Shore Lands" and created a plat map dividing the property into lots, but never recorded the plat in the auditor's office. In September 1926, Purdy sold a portion of the property to Anna and C.A. Grobey (Grobey). The real estate contract described the property in metes and bounds and stated that, "[a] strip 40 feet wide along the west side to be kept open for road purposes, being Tracts 94-95-96 and 97 North Lake Shore Lands. . . ."
In 1928, Grobey and 24 other landowners petitioned King County to create a public road. In February 1930, the county established the Roy B. Misener Road in an Order of Establishment. The east-west segment of the Roy B. Misener Road is South 334th Street, the north-south segment is 38th Avenue South. In 1930, Purdy executed a quitclaim deed granting King County the right to use a 60 foot wide strip of land as a public road and highway. Grobey also executed a quitclaim deed granting King County the right to use "any part or parcel of Lots 35, 36, 37, 38, 88, 89, 90, 96, and 97 of North Lake Shorelands. . . ." In 1932, Purdy and Grobey signed a warranty deed for the sale of the property to Grobey. The warranty deed included the same language reserving a 40 foot strip for road purposes along "[t]racts 94-95-96 and 97 North Lake Shore Lands. . . ."
The Tinnermans asserted that could not convey title to a right-of-way over Lot 94 in 1930 because they were not fee owners of the property. The Tinnermans also argued that the 1926 real estate installment contract between Purdy and Grobey, terminated Purdy's right to alienate any right or title to the right-of-way.
As to the Grobey quitclaim deed to King County, the Tinnermans argued that, as a matter of law, the deed was invalid under the statute of frauds because it does not adequately describe the location of the deeded property. The Tinnermans also argued that if the deed was valid, it could not be enforced against the Tinnermans' property because the deed did not mention lots 94 or 95.
Quadrant and the City filed a cross motion for summary judgment, asserting that because the City's predecessor, King County, began maintaining the right-of-way in 1966, King County acquired ownership to the 40-foot right-of-way by prescription. In the alternative, Quadrant and the City argued that because the Tinnermans did not present damages evidence, they could not establish their claims for inverse condemnation, trespass, waste, or nuisance. The Tinnermans filed a motion to strike the argument that the City owned the right-of-way because the City did not plead prescription as an affirmative defense. The Tinnermans also argued that there were material issues of fact as to damages.
The trial court denied the Tinnermans' motions for partial summary judgment, granted the City's and Quadrant's motion for summary judgment, and dismissed the lawsuit.
The Tinnermans contend that the trial court erred in denying their motions for partial summary judgment on the Purdy and Grobey quitclaim deeds. The Tinnermans assert that because Purdy had no right to alienate title, the quitclaim deed to King County was invalid and the Tinnermans own the right-of- way. The Tinnermans also assert the Grobey quitclaim deed is invalid as a matter of law because the deed did not comply with the statute of frauds.
We review summary judgment de novo and engage in the same inquiry as the trial court. Heath v. Uraga, 106 Wn. App. 506, 512, 24 P.3d 413 (2001). We view the evidence in the light most favorable to the non-moving party. Olympic Pipe Line, Co. v. Theony, 124 Wn. App. 381, 392, 101 P.3d 430 (2004). Summary judgment is appropriate only if, in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992). Where different competing inferences may be drawn from the evidence, the issue must be resolved by the trier of fact. Kuyper v. Department of Wildlife, 79 Wn. App. 732, 739, 904 P.2d 793 (1995).
As a matter of law, Purdy had the right to quitclaim title in 1930. Under Ashford v. Reese, 132 Wash. 649, 650, 233 P. 29 (1925), when Purdy granted the quitclaim deed to King County in 1930, "an executory contract of sale in this state convey[ed] no title or interest, either legal or equitable to the vendee. . . ." Based on Ashford, Purdy had legal title to the property until Grobey completed payments in 1932.
In a strained legal analysis, the Tinnermans rely on Culmback v. Stevens, 158 Wash. 675, 291 P. 705 (1930), to argue that by 1930, the Washington Supreme Court had reversed Ashford. The Tinnermans assert that under Culmback, after Purdy entered into the executory contract with Grobey, Purdy no longer held title to the property. But the Washington Supreme Court did not overrule Ashford until 1977, in Cascade Sec. Bank v. Butler, 88 Wn.2d 777, 567 P.2d 631 (1977). And the court held that the decision in Cascade applied only prospectively. Cascade, 88 Wn.2d at 780. We conclude the trial court did not err in denying the Tinnermans' motion for partial summary judgment on the Purdy quitclaim deed.
We also conclude the court did not err in denying the Tinnermans' motion for partial summary judgment on the Grobey quitclaim deed. There is conflicting expert testimony and material issues of fact about whether the Grobey quitclaim deed complies with the statute of frauds by adequately describing the property Grobey conveyed to King County.
The Tinnermans' expert, Jerry Broadus, testified that because the Grobey quitclaim deed "does not include any metes and bounds description", it does not "alert the reader that this subdivision is an unrecorded plat," and there is no reference to a document of record. By contrast, Quadrant's surveyor, Michael Bowen, testified that the type of description included in the Grobey quitclaim deed is "not considered invalid," and is sufficient to "visualize and survey the right-of-way that is the subject" of the deed. Bowen also testified, "Grobey's intent was clear. Grobey intended to convey a portion of his land to the County for use as a public right-of-way."
The Tinnermans also contend the trial court erred in granting Quadrant's and the City's motion for summary judgment on the grounds that the City acquired the 40-foot right-of-way by prescription under RCW 36.75.070 and that the Tinnermans did not establish damages.
A county can acquire roads by prescription. RCW 36.75.070; Todd v. Kitsap County, 101 Wn.2d 245, 249, 676 P.2d 484 (1984). A cause of action for just compensation for inverse condemnation must be brought within the seven-year statute of limitations. Todd, 101 Wn.2d at 249. RCW 36.75.070 provides, "[a]ll public highways in this state, outside incorporated cities and towns and not designated as state highways, which have been used as public highways for a period of not less than seven years, where they have been worked and kept up at the expense of the public, are county roads." Under 36.75.070, after expiration of the seven year statute of limitations, the county owns the roadway by prescription. Highline School Dist. No. 401 v. Port of Seattle, 87 Wn.2d 6, 548 P.2d 1085 (1976).
To establish a claim of prescription, the claimant must prove: (1) the use of the road was adverse to the title owner; (2) the use was open, notorious, continuous, and uninterrupted use for the prescriptive period; and (3) the owner knew of the adverse use when he was able to enforce his rights. Lee v. Lozier, 88 Wn. App. 176, 181, 945 P.2d 214 (1997). A cul-de-sac may be a highway for purposes of prescription. Foster v. Bullock, 184 Wn. 254, 50 P.2d 892 (1935).
The Tinnermans did not file suit against the City until 2005 and admit that King County paved 18 feet of the right-of-way in the late 1980s. But they claim that use of the right-of-way was not uninterrupted or continuous. While the City may have acquired ownership to the paved 18-foot portion of the right-of-way by prescription, the record is not clear about exactly where the paved portion of the right-of-way is located, or where the 40-foot right-of-way is located, or the relationship of the right-of-way to the Tinnerman's property and the expansion and roundabout constructed by Quadrant. Because there are material issues of fact about who owns the right-of-way and exactly where the right-of-way is located, we conclude the trial court erred by granting the City's and Quadrant's motion for summary judgment. And without establishing the location of the right-of-way and whether the City or the Tinnermans own the disputed portion of the right-of-way, it is also impossible to determine or establish damages.
We reverse the trial court's decision to grant summary judgment, vacate the final judgment, and remand for further proceedings consistent with this opinion.
Because we reverse and remand, we need not address the Tinnermans' other assignments of error.