Opinion
No. 26791-1-III.
March 10, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-2-01871-3, Jerome J. Leveque, J., entered December 21, 2007.
Reversed and remanded by unpublished opinion per Sweeney, J., concurred in by Kulik, A.C.J., and Brown, J.
This case comes before the court to consider claims, counterclaims and cross claims all related to whether the respondents acquired an easement across the appellants' land. The case was resolved by summary judgment. The trial court concluded that a form of express easement had been established and purported to reform that easement to conform to the agreement of the parties. The respondents urge that if an easement was not established by express agreement then the trial court nonetheless ruled correctly because an easement was created by implication. We conclude that there is no express conveyance of an easement for the court to reform. And we further conclude that genuine issues of material fact remain as to whether an easement by implication was created. We therefore reverse the summary dismissal of the appellants' complaint.
FACTS
George Belcher previously owned five undeveloped parcels in the rural Deep Creek area west of Spokane, Washington. Mark and Josephine Duncan signed a Real Estate Purchase and Sale Agreement (Earnest Money Agreement) on April 26, 2003, for a 20-acre parcel. An addendum attached to the Earnest Money Agreement provided that the agreement was "[c]ontingent upon purchaser's approval of maintenance and details of easement across property." Clerk's Papers (CP) at 78. The Earnest Money Agreement further proposed future uses and maintenance responsibilities, including the following related to a road easement:
• "Road maintenance agreement to be agreed upon and purchasers to be responsible for maintaining portion of the road they use only." CP at 78.
• "Should the easement be required to be improved beyond a private driveway, purchaser will not be required to pay for any of the costs." CP at 78.
Mr. Belcher recorded something called a "Private Road Utility Easement" with the Spokane County Auditor on June 20, 2003. The form describes the easement as a 30-foot wide road across the 20-acre parcel "created as a medium of ingress and egress for the benefit" of a 32-acre parcel. CP at 81-82. The form names Mr. Belcher as both grantor and grantee.
Mr. Belcher conveyed a 20-acre parcel to the Duncans by deed in July 2003. But the deed does not reserve an easement. On January 23, 2004, Mr. Belcher sold an adjoining 32-acre parcel to married couple John Holman and Elise Hollinger. Before the sale, Mr. Belcher told Mr. Holman and Ms. Hollinger that the 20-acre parcel to the east had been sold in July to the Duncans and was subject to a 30-foot easement.
This lawsuit followed the Duncans' discovery that Mr. Holman and Ms. Hollinger believed they were entitled to a 30-foot-wide easement across the Duncan property and Mr. Holman and Ms. Hollinger's discovery that the Duncans constructed a fence blocking access to the claimed easement. In April 2007, the Duncans sued to quiet title and for a judicial declaration that Mr. Belcher's June 20 Private Road Utility Easement was null and void.
Mr. Holman, Ms. Hollinger, and Mr. Belcher counterclaimed against the Duncans for affirmation or reformation of an easement and for an order to remove the fence across the access road. Mr. Holman and Ms. Hollinger also cross-claimed against Mr. Belcher for either of two remedies if the court voided the easement: damages for diminution in property value or rescission and restitution of the purchase price paid with interest.
Mr. Belcher, Mr. Holman, and Ms. Hollinger all moved for summary judgment. The trial court granted summary judgment for Mr. Belcher, Mr. Holman, and Ms. Hollinger. It entered an order to "reform" the Private Road Utility Easement to establish a permanent 30-foot-wide easement subject to the maintenance duties and future uses set out in the Earnest Money Agreement. The court also ordered the Duncans to remove the fence or gate blocking the claimed easement and to pay $8,081.40 in attorney fees to Mr. Belcher and an amount to be determined in reasonable attorney fees to Mr. Holman and Ms. Hollinger.
DISCUSSION
We review a trial court's summary judgment order de novo; we engage in the same review as the trial court and view the evidence in the light most favorable to the nonmoving party. Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990). Moreover, the question of reformation here is essentially a question of law and so for that reason also our review is de novo. Niemann v. Vaughn Cmty. Church, 154 Wn.2d 365, 374, 113 P.3d 463 (2005). Reformation
An easement is a generally assignable, nonpossessory right to cross over or use the land of another. The dominant tenement is the benefited parcel (Holman and Hollinger). The servient tenement is the burdened parcel (the Duncans). Mr. Belcher did not create an express easement, and there is nothing in this record to suggest otherwise. Specifically, there was no reservation of an easement in the deed conveying the 20-acre parcel from Mr. Belcher to the Duncans. CP at 84; see Berg v. Ting, 125 Wn.2d 544, 551, 886 P.2d 564 (1995). Mr. Belcher's attempt to create an easement was ineffective. He cannot designate himself as both grantor and grantee on the Private Road Utility Easement. This does not demonstrate an intent to convey an easement. Zunino v. Rajewski, 140 Wn. App. 215, 222, 165 P.3d 57 (2007). There was, then, nothing for the court to "reform." The courts can only add a term to an otherwise valid contract that the parties clearly intended to include. Halbert v. Forney, 88 Wn. App. 669, 674, 945 P.2d 1137 (1997); Denaxas v. Sandstone Court of Bellevue, LLC, 148 Wn.2d 654, 669, 63 P.3d 125 (2003). Implied Easement Elements of Easements by Implication
Mr. Belcher asserts nonetheless that the court properly found an implied easement. It is unclear from the pleadings and briefs here whether the claim was for an easement implied from necessity or an easement by implied reservation. So we address both.
Hellberg v. Coffin Sheep Co. sets out the requirements for both easements implied from necessity and easements by implied reservation. 66 Wn.2d 664, 404 P.2d 770 (1965). An easement implied from necessity requires a factual showing that: (1) the dominant and servient parcels previously shared unity of title in a common grantor; (2) the common estate was severed; and (3) it is necessary to pass over one of the parcels to reach a public street or road from the other. Granite Beach Holdings, LLC v. Dep't of Natural Res., 103 Wn. App. 186, 196, 11 P.3d 847 (2000). An easement by implied reservation requires: (1) unity of title and subsequent separation; (2) "`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) necessity. Hellberg, 66 Wn.2d at 668 (quoting Adams v. Cullen, 44 Wn.2d 502, 505, 268 P.2d 451 (1954)). Unity of title and subsequent severance are the only absolute requirements. The prior use and necessity determinations are primarily tools to interpret the parties' intent. Id.
An essential question here under either equitable theory is necessity. And, again, since this dispute was resolved by summary judgment, we view the facts in a light most favorable to the nonmoving party, the Duncans. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 698, 952 P.2d 590 (1998).
Mr. Belcher originally owned both the claimed dominant and servient estates. The parcels were severed when he conveyed the 20-acre parcel to the Duncans in July 2003. The parties disagree on whether the addendum to the April 2003 Earnest Money Agreement referred to the same road or right-of-way. And, indeed, were we to treat the claim as one for an easement by implied reservation, we would reverse because there is not an adequate showing on this record of "`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.'" Hellberg, 66 Wn.2d at 668 (quoting Adams, 44 Wn.2d at 505). There may be some showing of an easement across the Duncan property. But it is not sufficient to meet the requirements of an easement by implied reservation because both the location and configuration of the road, if any, is disputed. See CP at 159-61, 277-79; see Hellberg, 66 Wn.2d at 665 (describing a road's location with specificity and finding that it had been used for at least 10 years). Necessity
Both easements implied from necessity and easements by implied reservation require a showing of necessity. And the conclusion, necessity, is fact intensive. Visser v. Craig, 139 Wn. App. 152, 160-61, 159 P.3d 453 (2007). Access to a public road from the property need not be impossible; impracticality is enough. Adams, 44 Wn.2d at 510. Here, the dominant estate owned by Mr. Holman and Ms. Hollinger is bordered by a county road. Whether that road provides sufficient access to undermine the required element of necessity is a question of fact that is unresolved on this record. See CP at 118, 278-79.
Attorney Fees
The parties rely on the Earnest Money Agreement for their claims for attorney fees. However, the essential dispute, and the dispute dispositive of this appeal, is equitable. And none of the parties claim an equitable right to attorney fees. We therefore deny fees and reverse the trial court's award of fees.
We reverse and remand for trial.
A majority of the panel has determined that 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.
KULIK, A.C.J. and BROWN, J., concur.