Opinion
No. 25988-9-III.
April 8, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-2-00740-3, Salvatore F. Cozza, J., entered February 26, 2007.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Schultheis, A.C.J., and Kulik, J.
Alex Draeger appeals the superior court's order granting summary judgment dismissal of his action to quiet title against Richard and Amanda Parrish. He contends an easement burdening his property and benefiting Mr. and Mrs. Parrish's property was created in contravention of chapter 58.17 RCW and chapter 12.100 Spokane County Code (SCC), governing subdivision of land. We affirm.
On October 13, 1998, an easement grant between Dana L. Pyle and Shirley A. Pyle and Christopher N. Holeman and Teresa L. Holeman was recorded by the Spokane County Auditor. In this easement grant, Mr. and Mrs. Pyle granted Mr. and Mrs. Holeman an exclusive easement over, under, and across a portion of the property they owned, referred to as "Tract 8," located in the Antler Estates Subdivision. At the time of execution of the easement grant, Mr. and Mrs. Holeman owned the lot adjoining Tract 8, referred to as "Tract 7." The easement grant includes the acknowledged signatures of both Mr. and Mrs. Pyle and Mr. and Mrs. Holeman. The easement includes the following uses:
(1) [I]ngress and egress over and across the existing road on the easement area . . . by personal and vehicular traffic; and (2) residential purposes specifically including, location, construction, maintenance, and use of a residential home, incidental improvements and landscaping, and septic system/drainfield as shown on [the attached record of survey].
Clerk's Papers (CP) at 7-8.
The easement grant further provides, "[t]his easement shall be permanent and shall run with the respective estates. . . . The burdens and benefits of the easement shall be binding on the successors in interest to the servient and dominant estates, respectively." CP at 7.
Subsequent to the execution of the easement grant, Mr. Draeger purchased Tract 8, and Mr. and Mrs. Parrish purchased Tract 7. Mr. Draeger purchased Tract 8 in July 2005 for residential or investment purposes. Mr. Draeger obtained title insurance for the property, and reviewed the commitment for title insurance listing the existence of the easement, its recording date, and its record number.
On February 15, 2006, Mr. Draeger filed a quiet title complaint against Mr. and Mrs. Parrish, alleging the easement grant recorded on October 13, 1998 is "illegal, null and void." CP at 4. He claimed the easement grant, specifically the provision authorizing use for "residential purposes specifically including, location, construction, maintenance, and use of a residential home, incidental improvements and landscaping and septic system/drain field," attempts to create a residential lot within an existing subdivision, without complying with state statutes governing plats, surveys, and subdivisions, set forth in chapter 58.17 RCW, and Spokane County zoning regulations. CP at 4.
Mr. and Mrs. Parrish requested summary judgment, arguing the easement grant was valid, Mr. Draeger purchased Tract 8 subject to the valid easement, and the easement grant did not divide a tract of land, pursuant to chapter 58.17 RCW, governing subdivisions. Mr. Draeger responded the purpose of the easement grant is to create a residential lot, without complying with the statutory procedures for alteration of a subdivision, set forth in RCW 58.17.215 or SCC procedures governing subdivisions, set forth in chapter 12.100 SCC. Mr. Draeger also filed a cross-motion for summary judgment on the same grounds.
The trial court granted Mr. and Mrs. Parrish's request, denied Mr. Draeger's request, and dismissed the case. In its oral ruling, the trial court addressed the necessity of joining Spokane County as a party:
I think that I am not so sure that, necessarily, the zoning ordinances create a private cause of action on the part of the plaintiff. Maybe I may be in error on that. But it would seem to me that in order to advance that proposition, that we are talking about the necessity of involvement on the part of Spokane County in order to advance that. I think they would have to be a necessary party to the matter.
Report of Proceedings (RP) at 7-8. Mr. Draeger appealed.
The issue is whether the trial court erred in granting summary dismissal of Mr. Draeger's action to quiet title. Mr. Draeger contends the easement grant is illegal, null, and void, because the provision authorizing use for "residential purposes specifically including, location, construction, maintenance, and use of a residential home, incidental improvements and landscaping, and septic system/drainfield," attempts to create a residential lot within an existing subdivision, without complying with chapter 58.17 RCW, governing plats, surveys, and subdivisions, and chapter 12.100 SCC, governing subdivision of land. CP at 7-8.
This court reviews a trial court's grant of summary judgment de novo, engaging in the same inquiry as the trial court. Hubbard v. Spokane County, 146 Wn.2d 699, 706-07, 50 P.3d 602 (2002). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). All facts and reasonable inferences are construed in the light most favorable to the nonmoving party. Hubbard, 146 Wn.2d at 707. Summary judgment should be granted if reasonable persons could reach but one conclusion based on all of the evidence. Id.
An action to quiet title is an equitable action. A person claiming the right to possession of real property can require another asserting a claim to such property to assert his or her claim and submit the issue for judicial determination. Kobza v. Tripp, 105 Wn. App. 90, 95, 18 P.3d 621 (2001). The proponent of the claim is entitled to a decree addressing the validity of the claim. Id. (citing McGuinness v. Hargiss, 56 Wash. 162, 164, 105 P. 233 (1909), overruled on other grounds by Rorvig v. Douglas, 123 Wn.2d 854, 873 P.2d 492 (1994)).
An easement is a property right, discrete from ownership, authorizing the use of land of another without compensation. M.K.K.I., Inc. v. Krueger, 135 Wn. App. 647, 654, 145 P.3d 411 (2006) (citing City of Olympia v. Palzer, 107 Wn.2d 225, 229, 728 P.2d 135 (1986)), review denied, 161 Wn.2d 1012 (2007). An easement is an interest in land and its express creation must comply with the statute of frauds requiring conveyances to be by deed. RCW 64.04.010, .020; Berg v. Ting, 125 Wn.2d 544, 551, 886 P.2d 564 (1995); Wilhelm v. Beyersdorf, 100 Wn. App. 836, 842, 999 P.2d 54 (2000). A valid deed must be in writing with the acknowledged signature of the grantor. RCW 64.04.020. While no particular words are necessary to create an easement, the language must show an intent to grant with terms that are certain and definite. Beebe v. Swerda, 58 Wn. App. 375, 379, 793 P.2d 442, review denied, 115 Wn.2d 1025 (1990).
An easement is either "in gross" or "appurtenant." Olson v. Trippel, 77 Wn. App. 545, 554, 893 P.2d 634, review denied, 127 Wn.2d 1013 (1995). An "in gross" easement benefits a person or entity, while an "appurtenant" easement benefits property, referred to the dominant estate. Id. Additionally, with an easement appurtenant, the burdened property is referred to as the servient estate. M.K.K.I., Inc., 135 Wn. App. at 655 (citing Roggow v. Hagerty, 27 Wn. App. 908, 911, 621 P.2d 195 (1980)). When the dominate estate is transferred to another owner, the appurtenant easement also transfers, unless limited by the Page 7 creation or transfer of the easement. Green v. Lupo, 32 Wn. App. 318, 323, 647 P.2d 51 (1982). When the servient estate is transferred, the appurtenant easement transfers only if the successor in interest had notice of the easement, either actual, constructive, or implied. 810 Props. v. Jump, 141 Wn. App. 688, 699, 170 P.3d 1209 (2007) (citing Mahon v. Haas, 2 Wn. App. 560, 563, 468 P.2d 713 (1970); Wilhelm, 100 Wn. App. at 846).
Chapter 58.17 RCW controls subdivision of land in Washington. City of Seattle v. Crispin, 149 Wn.2d 896, 902, 71 P.3d 208 (2003). A "subdivision" is defined therein as "the division or redivision of land into five or more lots, tracts, parcels, sites, or divisions for the purpose of sale, lease, or transfer of ownership." RCW 58.17.020(1). Furthermore, the chapter defines a "short subdivision" as "the division or redivision of land into four or fewer lots, tracts, parcels, sites, or divisions for the purpose of sale, lease, or transfer of ownership." RCW 58.17.020(6).
Title 12 of the SCC governs division of land, including subdivisions, short subdivisions, binding site plans, and large lot divisions, in the unincorporated areas of Spokane County. SCC 12.100.104. A "subdivision" is defined as the "division or redivision of land into five or more . . . divisions outside of the Urban Growth Area boundary, or ten or more . . . divisions inside the Urban Growth Area boundary, for the purpose of sale, lease, or transfer of ownership." SCC 12.200.104. A "short subdivision" is defined as "the division or redivision of land into four or fewer . . . divisions outside of the Urban Growth Area boundary, or nine or fewer lots . . . inside of the Urban Growth Area boundary, for the purpose of sale, lease or transfer of ownership." Id.
Additionally, a "binding site plan" is defined as a drawing to scale, mapping roadways, improvements, and all other specifications and conditions of the development area. Id. A "large lot subdivision" is defined as "the division or re-division of land into five or more . . . divisions for the purpose of sale, lease, or ownership transfer, the smallest of which is at least one one-hundred-twenty-eighth of a section, or five acres." Id. Here, the easement in question was created by the parties' predecessors in interest, Mr. and Mrs. Pyle and Mr. and Mrs. Holeman. The easement transferred with the dominate estate, Tract 7, when it was purchased by Mr. and Mrs. Parrish. The easement grant specifically indicates "[t]he burdens and benefits of the easement shall be binding on the successors in interest to the servient and dominant estates, respectively." CP at 7. Furthermore, the easement also transferred with the servient estate, Tract 8, when it was purchased by Mr. Draeger. At a minimum, Mr. Draeger had constructive knowledge of the easement, in that the easement grant was recorded by the Spokane County Auditor. See Wilhelm, 100 Wn. App. at 846 (stating "[r]ecording the easement with the county auditor gives constructive notice to any successors in title.") (citing Ellingsen v. Franklin County, 117 Wn.2d 24, 30, 810 P.2d 910 (1991)).
Mr. Draeger does not argue that he was unaware of the easement when he purchased Tract 8, nor does he argue the easement did not transfer to him from his predecessor in interest under the common law of easements. Instead, Mr. Draeger argues the easement itself is illegal because it is noncompliant with chapter 58.17 RCW and Title 12 SCC. This argument fails. Chapter 58.17 RCW, governing subdivision of land — "the division or redivision of land into . . . lots, tracts, parcels, sites, or divisions for the purpose of sale, lease, or transfer of ownership," — does not apply here. RCW 58.17.020. An easement does not divide a parcel of land for sale, lease, or transfer of ownership. An easement authorizes use of land by a person other than the owner. "Use" of property by another person does not constitute "the division or redivision of land . . . for the purpose of sale, lease, or transfer of ownership." RCW 58.17.020. The easement does not divide the land; rather, the easement authorizes its holder to use Tract 8 for two specified purposes — use of an existing road for ingress and egress, and use of a portion of the property for residential purposes, including construction of a residential home.
Likewise, Title 12 of the SCC does not apply here. The easement is not a subdivision, short subdivision, binding site plan, or a large lot subdivision, as defined by SCC 12.200.104.
An easement that may be used for residential purposes, including construction of a residential home, as authorized here, may be novel, but it does not divide the land at issue in a manner that would subject it to chapter 58.17 RCW or Title 12 of the SCC. The trial court properly dismissed Mr. Draeger's claim that the easement is illegal, null, and void.
Mr. Draeger also argues the trial court erred in finding he did not have a private cause of action to enforce the zoning ordinances, and that Spokane County was a necessary party to the action. Because the trial court properly dismissed based on the inapplicability of the zoning ordinances, this court need not reach Mr. Draeger's additional argument. See Mulcahy v. Farmers Ins. Co., 152 Wn.2d 92, 105, 95 P.3d 313 (2004) (declining to consider subsequent issue Page 11 when the initial issue was dispositive). Nevertheless, it is noted that Mr. Draeger is not challenging a land-use decision made by Spokane County. Rather, Mr. Draeger is challenging the authority of private individuals to create an easement allowing use for residential purposes, including construction of a residential home. Mr. Draeger is entitled to bring this equitable action to quiet title, seeking a judicial determination of his right to possession of real property. See Kobza, 105 Wn. App. at 95 (providing a definition of an action to quiet title). Accordingly, Spokane County is not a necessary party.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Schultheis, A.C.J., Kulik, J.