Opinion
No. 58676-9-I.
May 29, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-2-39809-6, John P. Erlick, J., entered May 25, 2006.
This dispute concerns encroachment by owners of two separate parcels into the unopened portion of an alleged easement. The parties dispute the validity of the easement, the date the improvements were installed, and whether they were sufficiently permanent to extinguish the easement by adverse possession. Because we conclude that the disputed portion of the easement no longer exists, we affirm.
I
Appellants Bruce White and Teresa Chilelli-White own a house and lot in Kirkland. Respondents Anthony and Gillian Bozanic and Ajitesh Kishore and Sonia Carlson are owners of homes that are located south of the Whites' property and adjacent to the easement in dispute. These properties were originally part of a single, undeveloped 10-acre parcel that has a complex ownership history.
The easement arose in 1943 when Odell, the owner of the 10-acre parcel, sold the south five acres to Raine and reserved an L-shaped easement (recorded as Easement #3322220) over the west 30 and the north 15 for roadway purposes. The west 30 portion of the easement was developed as a private road, but the north 15 portion was not. In 1945, the original owner sold the north five acres to Uhlig with a deed providing that a 15 wide strip on the south side of the property "shall be reserved for road purposes if a road shall hereinafter be constructed" (recorded as Easement #3509580). Together, these adjacent 15 easements reserved the right to construct a 30 east-west right of way.
In 1948, Uhlig constructed a house in the northwest corner of the five-acre parcel. Uhlig later subdivided his land so that the home was now located on a one-acre parcel not adjacent to the easement in dispute, and it was purchased by Hayden in 1959. The deed included an easement for the west 30 of Uhlig's remaining property south of the parcel, which preserved access to the parcel via 80th Avenue. However, the deed did not mention Easement #3322220. The next three transfers of the Hayden parcel made no mention of Easement #3322220; however, it reappeared in a deed following a fourth transfer in 1989. The Whites purchased this parcel in 1998. In 2003, they purchased an additional one-acre parcel from Uhlig immediately south of their existing parcel and adjacent to the disputed easement, and consolidated the lots.
Meanwhile, in 1990, David Rice purchased the eastern two-thirds of what used to be the five-acre Raine parcel. In 1991, Rice built his home in the northeast corner of the parcel. Some of Rice's improvements, including a portico, gate, entry monuments, and landscaping, lie within the disputed easement, although the precise timing of their installation is in dispute. That year, Rice also sought to eliminate the portion of Easement #3322220 that crossed his property by obtaining a release or partial release from each dominant estate except the predecessor in title to the Whites, for whom a quit claim title was prepared but never executed.
In 1994, Rice completed a short subdivision of his property into four lots. In conjunction with the permitting process, King County required that Rice make several changes to the access road for the short plat parcels known as "Tract X." This included relocating the gate posts of his home "a little ways." In 2001, Rice sold his home (now located on one lot of his short plat) to Kishore/Carlson. Lot 2 of the Rice short plat was further subdivided into two lots, and in 2004 the Bozanics purchased the parcel next door to Kishore/Carlson. The Bozanics' home, which was built in 2004, overlaps the disputed 15 easement by several feet. In 2004, the remainder of the Uhlig property was sold to a developer.
In December 2004, the Whites filed a complaint for ejectment against Bozanic and Kishore/Carlson, alleging that they or their predecessors in title had impermissibly erected fences, landscaping, a covered driveway, and other structures within the disputed easement. Bozanic and Kishore/Carlson moved for summary judgment, arguing that the easement was invalid, too narrow to meet King County road requirements, and that it was effectively extinguished by adverse possession. The Whites submitted materials in objection to summary judgment and moved to continue the hearing date and trial. The court granted a limited continuance to allow the Whites to depose Rice. The Whites then submitted supplemental pleadings, including a declaration suggesting that a 20 wide road might be fashioned in the easement that would avoid the Kishore/Carlson improvements. The trial court entered summary judgment for the defendants, finding that there were no genuine issues of material fact as to whether the Kishore/Carlson improvements met the requirements of adverse possession in the disputed easement. The Whites appeal.
II.
We review an order granting summary judgment de novo, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Summary judgment is appropriate only 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); Lloyd v. Montecucco, 83 Wn. App. 846, 852, 924 P.2d 927 (1996).
Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
The Whites argue that the trial court erred in ruling that the elements of adverse possession were met, because there are material questions of fact regarding the location and timing of the encroachments, and because they are not sufficiently inconsistent with a future use of the easement as a roadway. Bozanic and Kishore/Carlson assert that the elements of adverse possession were clearly met. As an alternative basis for upholding summary judgment, Bozanic and Kishore/Carlson also argue that the Whites' one-acre parcel purchased in 1998 is a remote subdivided parcel that is no longer a dominant estate with respect to the east-west portion of Easement #3322220. We "may affirm summary judgment on any theory supported by the record."
Syrett v. Reisner McEwin Assocs., 107 Wn. App. 524, 527, 24 P.3d 1070 (2001).
The touchstone for determining whether an easement has been created or extinguished is the intent of the parties, ascertained from the deed. In Queen City Savings Loan Association v. Mechem, Mechem obstructed access to an existing road from property owned by Queen City. Conflicting claims to the disputed strip of land arose as a result of conveyances by the common grantor of Mechem and Queen City's predecessor. The court held that the phrase "and EXCEPT a strip of land 60 feet in width along the westerly margin for road" showed that the intent of the parties to the original conveyance was to create an access easement appurtenant to the lands acquired by Queen City's predecessor, even though a dominant and servient estate were not identifiable at the time of conveyance. In Beebe v. Swerda, the parties' predecessors in interest conveyed a parcel of property "SUBJECT to an easement for road purposes." The court, citingQueen City, held that this language was consistent with the intent to create an easement. Although the necessity for the easement was unclear at the time of conveyance, a dominant and servient estate with separate ownerships arose over time, and the parcel owned by Beebe would now be landlocked without the easement. And in Clippinger v. Birge, a developer purchased a large undivided parcel with easement rights to a lake and subdivided it into lakefront lots and interior lots. The owner of an interior lot asserted easement rights based on the rights of the original dominant estate. The court stated the general rule that each subdivided parcel within a dominant estate continues to enjoy the benefit of the servient estate, but noted that "the possessor of the whole of the dominant estate may so deal with it that easement benefits are extinguished or diminished prior to its being transferred." Therefore, the court held that the developer, as possessor of the entire dominant estate, intended to extinguish or diminish the easement benefits of remote parcels when it subdivided by plat.
14 Wn. App. 470, 543 P.2d 355 (1975).
Queen City, 14 Wn. App. at 472, 475.
58 Wn. App. 375, 793 P.2d 442 (1990).
Beebe, 58 Wn. App. at 377.
Beebe, 58 Wn. App. at 381-82.
14 Wn. App. 976, 547 P.2d 871 (1976).
Clippinger, 14 Wn. App. at 986.
In this case, Bozanic and Kishore/Carlson argue that the Whites' predecessor Hayden did not acquire any purported east-west right of way from Uhlig because (1) the Hayden deed did not refer to Easement #3322220, (2) it did provide north-south access to 80th Avenue over Uhlig's property, and (3) it did not mention Easement #3509580 over the Uhlig parcel, which would be necessary to utilize the purported 30 right of way. Therefore, Uhlig had effectively provided that the east-west portion of the easement was extinguished. Because the Whites could not have acquired any rights that Hayden lacked, they have no rights to the disputed strip of land. The Whites contend that Easement #3322220 must still exist in its entirety because (1) it is necessary to utilize the 30 north-south portion of Easement #3322220 across the former Raine parcel to access their parcel from 80th Avenue and (2) an express reference to Easement #3322220 reappeared on the deed after a fourth conveyance in 1989. But the validity of the north-south portion of the easement is not at issue. Unlike Beebe, the Whites' parcel will not be landlocked without the disputed easement; there is no dispute that they may continue to access their parcel via 80th Avenue. Similar to the situation inClippinger, the totality of Uhlig's actions evince an intent to preserve access to the Hayden parcel from 80th Avenue via the 30 wide north-south portion of Easement #3322220 while extinguishing the 15 wide east-west portion. Accordingly, we hold that the Whites' parcel is not a dominant estate with respect to the disputed east-west portion of the easement because it was extinguished by the intent of Uhlig to limit access to the granted north-south easement, connecting to the then existing road located on the north-south portion of eastment #3322220. Because this issue is dispositive, we need not reach the adverse possession claim.
AFFIRMED.