Opinion
No. 25472-1-III.
September 11, 2008.
Appeal from a judgment of the Superior Court for Stevens County, No. 02-2-00344-1, Rebecca M. Baker, J., entered August 9, 2006.
This case involves a dispute between property owners over the obstruction of easement roads that provide access to 24 parcels of land within a subdivision created by Nor Pac Land Timber Company. The easement roads loop through the subdivision. Dale and Vondell Savage placed a gate and other obstructions on a portion of the easement that burdened their property, resulting in a lawsuit against them by property owners in the subdivision. The trial court reformed the easement roads and ordered the Savages to remove the gate and other obstructions. On appeal, the Savages contend (1) the trial court erred in enjoining them from placing reasonable obstructions on the easement, (2) the trial court's map of the easement roads is incorrect, and (3) opposing trial counsel violated the Rules of Professional Conduct (RPC). We reject their contentions and affirm.
FACTS
In October 1993, Nor Pac prepared a road dedication that provided:
NOR PAC LAND TIMBER COMPANY, an Oregon corporation, hereby grants an easement thirty (30) feet in width, for ingress, egress and utilities, to all purchasers of the aforementioned real property, their heirs, successors and assigns, over, under and across the existing roads as generally depicted on the survey map of Guy D. Fisher Associates dated December 9, 1991 which is attached hereto and incorporated herein by this reference as if though fully set forth as Exhibit A.
Clerk's Papers (CP) at 20. The easement roads, as depicted in the Guy D. Fisher Associates survey map, provide access to approximately 24 properties within a subdivision created by Nor Pac.
In 2002, Brent Shamrock, a landowner in the subdivision, filed a complaint against Patricia Girouard and Terry Coble alleging they had placed a barbed wire gate, trenches, and vehicles on part of the easement, blocking Mr. Shamrock's access to his properties. Around the same time, the Savages, who were not yet parties to the lawsuit, placed a gate across a lower portion of the easement in section 22 of the subdivision. Other homeowners in the subdivision also complained about the obstacles on the easement roads, which forced them to travel extra distances to reach their properties. At one point, Carol and Dwight Mostrom, homeowners in the subdivision, asked the Savages to remove the gate, but the Savages stated "they could do anything they wanted on their property." CP at 51.
In November 2003, Ms. Girouard and Mr. Coble filed a counterclaim based in part on Mr. Shamrock's alleged use of the easement to trespass on the Girouard property for hunting. They asked for permission to construct gates or other restrictions on the easement due to "people engaging in illegal activity including trespass, drug cultivation, vandalism, theft, and burglary." CP at 110.
In January 2004, other landowners in the subdivision, the Mostroms, Alan and Phyllis Hull, Lydia Hilburg, and James Brimmage, joined as plaintiffs in Mr. Shamrock's suit. After Ms. Girouard sold her property to the Savages, the Savages were added as defendants. The plaintiffs' amended complaint asked for an injunction enjoining the Savages from installing gates, fences, or trenches, or otherwise blocking the easement.
In March 2005 additional landowners were joined as plaintiffs: Kevin and Susan Needles, Norman and Kathijo Klossner, Anthony and Jane Doe Nawrocki, Anthony and Jane Doe Grover, Gary and Jane Doe Johnson, Wayne and Jane Doe Anderson, Nathan and Jane Doe Hopper, Francis and Jane Doe Baumann, Luke and Jane Doe Baumann, Wanda and John Doe Danford, Billy and Jane Doe Danford, and Jimmy and Jane Doe Danford.
In 2005 orders of dismissal were entered as to Mr. Coble and Ms. Girouard.
The Savages filed a counterclaim for injunctive relief, requesting permission to place a gate and other reasonable restraints over the easement to deter trespassers and the abusive use of the easement by easement owners. They also asked that the court determine the exact location of the easement roads and the parties' respective duties in maintaining the roads.
In May, the plaintiffs sought an immediate temporary restraining order against the Savages, requesting removal of the speed bumps, sensor lights, surveillance cameras, gates, and signs that the Savages had placed on the easement. The trial court issued a preliminary injunction enjoining the Savages from closing the existing gates or installing any more gates on the easement.
At trial, Robert Hosking, a former land and timber buyer for Nor Pac, who helped acquire the subdivision for Nor Pac, testified that the road dedication was prepared at his request. He explained that Nor Pac had always intended "to provide unfettered access to anybody that buys any of [Nor Pac's] properties." I-B Report of Proceedings (RP) at 187. In his affidavit, he wrote:
It was my intent and that of Nor Pac Land Timber Company . . . to provide the necessary road and utility easements to the twenty-four (24) separate lots depicted on the Survey Map of Guy D[.] Fisher Associates, dated December 9, 1991[.] . . . No gates or fences across any of the existing roadways were ever contemplated[.] In fact, such references were intentionally omitted because it was never anticipated that gates or fences would be erected or placed across any of the existing roadways[.] Those roadways were there for everyone who purchased a lot to use[.]
CP at 348 (emphasis added).
Property owners within the subdivision described the uses and routes of the easement roads. Alan Hull, who purchased one of the lots in 1992, testified that he used the loop easement roads to access his property and nearby state land. He stated that due to his age he had difficulty getting in and out of his car and therefore stopping to open a gate was burdensome. He stated that when he purchased the property "[his] whole intent was to make sure that we had free and unfettered access to the property in our normal route." II-A RP at 277.
Eric Olson, a property owner of 46 years in the subdivision, testified that he was familiar with the location of the easement roads in the subdivision and that there had never previously been a gate across them.
The Mostroms, who purchased property in the subdivision in 1992, testified that at the time of the purchase none of the roads were gated or blocked. In their affidavit, they complained that in April 2004 they found speed bumps placed on the easement that runs through the Savages' property. The Savages had also placed surveillance equipment and motion sensor lights, which blinded the Mostroms at night. Mr. Mostrom testified that the gate interfered with their use of the road and access to their property.
Frances Baumann, another property owner in the subdivision, testified that when his real estate agent showed him the property in 1998 he used three different roads to access various portions of the tract, including the road over the Savages' property. He testified that the only route to his property was through the easement on the Savages' property and that gates over the easement were unacceptable.
Wanda Danford, who lived in the area for 35 years and was familiar with the easement roads in dispute, testified that in all the years she lived in the area she had never encountered an obstruction or gate until the Savages installed one, except for a gate to let buffalo into a pasture, which was rarely used. She stated, "I think it's a detriment to the people that travel up and down the road. Because for one thing it's too close for the snow plow to plow the snow. . . . And it's slippery when you get out to open and shut a gate in the winter." I-A RP at 24.
Mr. Shamrock testified that he purchased his first lot in the subdivision in 1995 or 1996 and currently owns four lots. He had never seen gates over the easement roads until the Savages installed one. He stated that the easement roads were necessary to access his various properties and "[i]f there'd been no roads I would not have bought the property. If there'd have been gates I wouldn't have bought the property." III-A RP at 495. He concluded, "I just . . . don't want the roads blocked." Id. at 498.
The Savages explained their position. They testified that after purchasing their property in 2001, they watched traffic and speeding increase on the easement road that ran through their property. They also suspected that people were using the road to engage in illegal drug activities in the area. They installed the gate and speed bumps to mitigate these problems. Ms. Savage also testified extensively about her proposed routes for each of the 24 individual lots. Although she is not a licensed surveyor, she testified that her global positioning system (GPS) map provided a significantly more accurate representation of the location of the various roads in the area than the original Fisher survey map.
In its oral decision, the court found the language in the original dedication ambiguous. Therefore, it evaluated the parties' intent at the time of the dedication. It found Mr. Hosking provided the best source of this information and that his testimony indicated that "the intent was to have a very broad easement and to err on the side of the inclusion of existing roads as opposed to limitation on the access." CP at 994. Further, based on the testimony of longtime area residents, the court found that landowners and the public had extensively used the roads for 30 years for many purposes.
The court reformed the easement roads as follows:
There are easements over, under and across all roads that existed on October 23, 1993, as generally depicted on the drawing of the Nor Pac Subdivision roads as reflected on attached Amended "Exhibit A" map that the Court concludes existed at the time the Road Dedication was executed on October 23, 1993. This Amended "Exhibit A" map attached hereto shall take the place of the Existing "Exhibit A" to the Road Dedication and it is hereby so reformed.
CP at 1201.
The reformation order also provided that all parties were entitled to unobstructed use of the easement roads as they existed at the time of the 1993 road dedication, stating, "There shall be no gates, gate posts, speed bumps or other obstructions placed across or within any of the thirty (30) foot easement road right-of-ways" and ordered the Savages to remove speed bumps and the gate they installed at the east end of their property in section 22. CP at 1203. However, in response to the Savages' concerns about speeding on the easement roads, the court imposed a speed limit. It also ruled that the Savages were entitled to an injunction prohibiting recreational use inconsistent with its findings of fact and conclusions of law. The Savages appeal.
ANALYSIS
The Savages first contend that the trial court erred in reforming the easement roads and ordering them to remove their gate and other obstructions from the easement. They also contend that the trial court's map of the easement roads is incorrect. They claim that the court's decision is premised on numerous erroneous findings of fact, assigning error to findings of fact VI, VII, VIII, X, XI, XIII, XIV, XV, XVI, XVII, XXI, and XXIV.
Findings of fact are reviewed under a substantial evidence standard. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). The interpretation of an easement is a mixed question of law and fact. Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979). The parties' original intent is a question of fact, but the legal consequence of that intent is a question of law we review de novo. Id. Additionally, we review a court's imposition of an injunction for abuse of discretion. Brown v. Voss, 105 Wn.2d 366, 372, 715 P.2d 514 (1986). Trial courts have broad discretionary power to fashion injunctive relief to fit the particular circumstances of the case before it. Rupert v. Gunter, 31 Wn. App. 27, 30, 640 P.2d 36 (1982).
We first address the Savages' claim that the trial court's map of the easement roads is incorrect. For the first time on appeal, the Savages argue that the trial court lacked expertise in map making and that it failed to explain its methodology when it changed the original Fisher survey map to include new roads. Because this issue was not raised below, we have the discretion to decline review of it. RAP 2.5(a); Boeing Co. v. State, 89 Wn.2d 443, 450, 572 P.2d 8 (1978).
But even if we review the issue, such review is hindered by the Savages' failure to develop their argument. Their briefing contains no specific argument pertaining to their assignments of error regarding the court's findings. As the challengers of the court's findings of fact, the Savages bear the burden of showing that the challenged findings are not supported by the record. Standing Rock Homeowners Ass'n v. Misich, 106 Wn. App. 231, 243, 23 P.3d 520 (2001). An assignment of error unsupported by argument or legal authorities is deemed waived. Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 630, 733 P.2d 182 (1987); RAP 10.3(a)(4). We are not obligated to search the record to see if we can find any error; accordingly, we may treat the findings as verities. Erdmann v. Henderson, 50 Wn.2d 296, 298, 311 P.2d 423 (1957); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Here, the Savages fail to identify what parts of the map they believe are incorrect or provide any authority for their argument. Without more, we can only speculate as to any possible errors.
In any event, the court's uncontested findings of fact undermine the Savages' argument. These findings state in part:
XI.
Based upon the aerial photography evidence admitted, and the testimony of witnesses, from the time frame of the Road Dedication, the Court has made a diagram of what the Court finds were existing roads at the time of the Road Dedication by NOR PAC and this diagram clarifies which roads the parties are entitled to use. . . . [T]he Court provided counsel a copy of its drawing as to roads actually in existence at the time of the Road Dedication. The proposed Loop Addition and Route Elimination to the Exhibit "A" Map that the parties agreed to will be granted by the Court. A copy of that Amended drawing is attached hereto as Exhibit "A."
CP at 1254.
XXIV.
SHAMROCK, MOSTROMS and HULLS and all parties Plaintiff are entitled to have free and unobstructed use of all of the easement roads as they existed at the time of the Road Dedication . . . These roads are shown best by Amended Exhibit "A" attached hereto.
CP at 1260.
Thus, contrary to the Savages' contention, the court did explain its methodology "it relied on aerial photographs and witness testimony in creating its map. William Berrigan, a professional forester employed by the Department of Natural Resources, submitted a declaration in which he described his extensive experience in interpreting aerial photography. He stated that the photographs relied on by the court "all show the locations of the thirty (30) foot Easement Roads as referenced in the Road Dedication." CP at 306. Furthermore, finding of fact XXIV, which we treat as a verity, states that the easement roads in question are best illustrated by the court's map. In view of the court's findings and the evidence at trial, the Savages' claim that the trial court's map is incorrect must fail.
We next address the Savages' contention that the trial court erred in ordering them to remove the gate and other obstructions from the easement. Citing Gunter, 31 Wn. App. 27, the Savages argue that as servient owners they have the right to impose reasonable restraints on the easement. They contend that the injunction subjects them to a greater burden than originally contemplated by the easement, which was limited to use for ingress, egress, and utilities. They complain of increased traffic on the easement roads, speeders, drug activity, illegal hunters, and trespassers. They maintain that gates and speed bumps will ameliorate these problems and not unreasonably interfere with dominant owners' use. Again, although the Savages assign error to the court's numerous findings of fact pertaining to this issue, they fail to specify their disagreement with the court's findings. We therefore treat the findings as verities on appeal.
We first note that Gunter is distinguishable. In Gunter, the trial court allowed the defendants to construct a gate at the entrance to the plaintiff's easement. Gunter, 31 Wn. App. at 28. On appeal, the issue was whether the owner of a servient estate is precluded from imposing any physical restraints along an easement road where the original grant was silent as to permitted restraints. Id. at 28-29. Division Two of this court held that "the servient owner is entitled to impose reasonable restraints on the right-of-way to avoid a greater burden on the servient owner's estate than that originally contemplated in the easement grant, so long as such restraints do not unreasonably interfere with the dominant owner's use." Id. at 29. But here, the court found that the extensive use of the easement roads was contemplated by the original dedication. Furthermore, in Gunter, only one person was affected by the restraint on the easement; here, many people were burdened by the restraints.
"Whether or not the owner of land, over which an easement exists, may erect and maintain fences, bars, or gates across or along an easement way, depends upon the intention of the parties connected with the original creation of the easement, as shown by the circumstances of the case, the nature and situation of the property subject to the easement, and the manner in which the way has been used and occupied." Evich v. Kovacevich, 33 Wn.2d 151, 162, 204 P.2d 839 (1949); see also Brown, 105 Wn.2d at 371 (scope of an easement is controlled by the intent of the parties at the creation of the easement).
When considering the reasonable scope of an easement, courts must ask whether the extent of use should have been contemplated by the original parties. Logan v. Brodrick, 29 Wn. App. 796, 800, 631 P.2d 429 (1981). In Logan, we stated,
The law assumes parties to an easement contemplated a normal development under conditions which may be different from those existing at the time of the grant. Normal changes in the manner of use and resulting needs will not, without adequate showing, constitute an unreasonable deviation from the original grant of the easement.
Id. (citations and footnote omitted).
Here, the trial court found that the increased activity on the easement roads did not justify the installation of gates or other obstructions because such obstructions would be severely burdensome to the 24 lot owners. The court's relevant findings state:
VI.
NOR PAC, in preparing the Road Dedication, intended for all property owners within its subdivision to have very broad access, and to err on the side of including all existing roads, not just those generally depicted and marked on the Survey Map of Guy D. Fisher Associates dated December 9, 1991. The map was . . . intended to be . . . only a general depiction of the location of most of the existing roads. . . .
VII.
. . . .
. . . None of the easement roads described in the Easement Dedication or Easements provide for . . . recreational use, but they do provide for ingress and egress, which includes the use of the roads between neighbors to visit one another, and the use of roads by owners (such as Shamrock and Mostroms and Savages) for checking on their property and timber and operations such as construction, logging, etc., on lots they own in another part of the subdivision. It has traditionally been the case that these persons will often use their all-terrain vehicles (ATVs) for these purposes. There was substantial evidence at trial . . . to the effect that there has been much use of the roadways within the NorPac subdivision for recreational purposes. None of the easement roads described in the Easement Dedication or Easements provide for or explicitly prohibit the installation of any gates, fences, ditches, speed dips, or barriers of any kind across any of the easement roadways . . ., which includes access across all of the property owned by the SAVAGES and their children. . . .
. . . .
VIII.
The old timer testimony of Hull, Hosking, Baumann and Danford was consistent about the wholesale usage of the road system for recreational purposes to get to Forest Capital (formerly Boise Cascade) property . . . This history is important to the "Big Picture" because it appears that there has been a lot of use for decades by members of the public for recreation purposes of the NOR PAC property in Section 15 and the Forest Capital property in Section 16, and without permission from NOR PAC and Forest Capital.
X.
There has been a recreational use expansion beyond the Road Dedication by owners within the NOR PAC subdivision and various landowners in Section 15 have also for years used the property for recreational purposes . . . The Road Dedication itself is limited to ingress, egress and utilities and does not specifically grant recreational use, or limit usage to one (1) route in or one (1) route out, instead there are multiple accesses that are provided. Mr. Hosking's testimony established that it was NOR PAC's intent that all NOR PAC subdivision owners would be allowed to use all roads within the subdivision, and to be able to access Forest Capital property in Section 16 to the West for recreational purposes[.] The roads generally depicted and marked on the Survey Map of Guy D. Fisher Associates dated December 9, 1991 does not provide access to every parcel within the NOR PAC subdivision. There are some natural land barriers and some parcels require more than one (1) access due to these natural land barriers. . . . The roads shown in certain places on the map do not exist on the ground or are substantially misplaced. . . .
. . . .
XIV.
The SAVAGES have a gate on their own personal driveway off the easement road, and their not closing their own personal gate establishes their acknowledgment that gates are quite burdensome.
. . . .
XXI.
After the SAVAGES purchased their real property on August 28, 2001, the SAVAGES, over the objection of some of the other landowners, caused a 13'7" metal hinged gate to be erected on September 20, 2003 upon the Easement Road right-of-way as it passes through Section 22 . . . and thence continues into Section 15 . . . to the real property of all of the Plaintiffs. Having a gate at the entrance to the Easement Road right-of-ways within the Nor Pac Sub-Division, would require the Plaintiffs . . . and all other real property owners to open and close a gate when entering and exiting their real property, and denies access to their family members, friends and potential real property purchasers. There is no need or requirement for a gate to be placed upon the Easement Road right-of-ways.
CP at 1250-58.
These uncontested findings and the evidence at trial support the trial court's order enjoining the Savages from placing any obstructions on the easement. The evidence established that the easement was intended for all property owners to have broad access for many purposes, including recreational, and that gates and other obstructions interfered with these uses. Accordingly, the trial court properly exercised its discretion in fashioning the injunctive relief.
Next, the Savages contend that the trial court erred by denying their request to limit the easement roads to those roads depicted on the Fisher survey map. They argue that the court should use a GPS map to establish the actual location of the roads and "use the shortest, easiest route for easement roads to access individual lots in the subdivision." Br. of Appellant at 25. However, in their briefing they fail to explain why a GPS map would be more accurate than the court's map, how the court's map is incorrect, or where the "shortest, easiest" routes for easement roads are located. They also fail to cite any authority to support their position on this issue. Such "[p]assing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration." Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996), remanded on other grounds, 132 Wn.2d 193, 937 P.2d 597 (1997). In view of the inadequate briefing, we need not address the issue. Valley View, 107 Wn.2d at 630; RAP 10.3(a)(6); Erdmann, 50 Wn.2d at 298.
But even if we address the issue, the Savages' argument fails. In rejecting the Savages' proposed easement routes, the court found that: (1) Nor Pac intended all property owners within its subdivision to have access to all existing roads, not just those depicted on the Fisher survey map; (2) the Fisher survey map was not intended to be a survey of all existing roads, but only a general depiction of the location of most of the existing roads; (3) the original road dedication was not limited to one ingress/egress route, instead it provided multiple accesses; and (4) Mr. Hosking's testimony established that it was Nor Pac's intent that subdivision owners would be allowed to use all roads within the subdivision. The trial court also found that some of the routes depicted on the Fisher survey map were inaccurate or did not exist and that some did not provide access to every parcel within the subdivision.
Based on these findings, the court properly reformed the road dedication, concluding that it "was intended to provide an easement over, under and across all existing roads on October 23, 1993, whether depicted or not." CP at 1261. The trial court did not err in rejecting the Savages' proposal that the court strictly follow the Fisher survey map or the Savages' GPS map to establish easement routes.
Finally, for the first time on appeal, the Savages contend that Chris Montgomery violated former RPC 1.9 (1985) by representing Mr. Shamrock at trial when he had previously represented the Savages during the closing on their ranch property. As evidence of the conflict, the Savages point to pretrial documents and Ms. Savage's testimony at trial, in which she alleged that Mr. Montgomery, as closing agent, failed to inform the Savages of the existence of easement roads. She also alleged that Mr. Montgomery told them the road dedication did not preclude placing a gate on the easement.
Former RPC 1.9 provides:
"A lawyer who has formerly represented a client in a matter shall not thereafter:
"(a) Represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation and a full disclosure of the material facts."
At trial, Mr. Montgomery denied having this conversation and pointed out that he had simply been an impartial closing agent. The court ruled that the alleged conversation regarding the existence of easement roads was irrelevant "it was the purpose of the trial to determine their existence and scope. The court did not rule on whether Mr. Montgomery's participation in the trial was a conflict of interest under former RPC 1.9 because the Savages never requested that Mr. Montgomery be removed on this basis. Because the issue was not raised below, we need not address it. RAP 2.5(a); Kramarevcky v. Dep't of Soc. Health Sers., 122 Wn.2d 738, 750, 863 P.2d 535 (1993).
In any event, the record refutes the Savages' allegation that Mr. Montgomery failed to inform them of the easement roads on their property. Mr. Montgomery's responsive affidavit stated that on August 28, 2001, his law firm conducted the real estate closing between Glenn and Amy Houser and the Savages. The signed copies of the title report and closing disclosures set forth the easements on the Savages' property. And the signed "Receipt of Title Report and Closing Disclosures" states that the Savages
acknowledge that we have read the Preliminary Commitment for Title Insurance . . . and further acknowledge receiving a copy of the same, together with copies of those items shown as Special Exception Nos 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of Schedule B to said Preliminary Commitment[.] . . .
We further acknowledge that Montgomery Law Firm, as closing agent, is required to exercise strict impartiality between the parties hereto, while at the same time providing each party with the opportunity to evaluate their need for representation free from any potential conflict[.]
. . . We further acknowledge that we have been advised of our right to seek independent legal counsel to represent our interests in connection with the closing of this transaction, and have either sought such counsel or hereby waive our right to do so prior to closing[.]
CP at 600.
The foregoing establishes that the Savages were fully informed of the easement on their property. Nevertheless, they obstructed the easement. Furthermore, they never asked the trial court to remove Mr. Montgomery for a conflict of interest under former RPC 1.9. This last claim is entirely without merit.
CONCLUSION
We conclude the trial court did not err in any of the ways alleged by the Savages.
Mr. Shamrock, the Mostroms, and the Hulls have asked for attorney fees on appeal under RAP 18.1. Their request, made without argument or citation to the record or authority, fails to comply with RAP 18.1 and we decline to award fees. "RAP 18.1(b) requires more than a bald request for attorney fees on appeal. Where there is any issue whatsoever as to a party's entitlement to attorney fees, the failure to argue the issue requires us to deny the request." Thweatt v. Hommel, 67 Wn. App. 135, 148, 834 P.2d 1058 (1992). However, we award costs to them under RAP 14.2 and 14.3.
Affirmed.
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.
SWEENEY, J. and BROWN, J., concur