[WSBARP] Shot in the Dark

Thu Jun 22 15:18:49 PDT 2017

Well the neighbor probably doesn't want a lawsuit and his expansion of the road onto the grass may not meet reasonable use limitations.  What need is there to expand the road?

See cases below

The PC has to take away the adverse possession argument of Littlefair - Record a notice that he is not claiming any portion of the easement adversely?  Letter to easement members that his use is not adverse?

Offer mediation to the neighbor on his abuse of easement by driving off the road.  Use a mediation service that contacts him independently to schedule and get him to pay his share of the mediation fee.  Make him start paying money to be a keep on being a jerk.

I would focus on his expansion of the road as violative of reasonable use.  Hammer him on that point.  As a minor issue make it clear that your guy's current use is not adverse to take away any potential claim he has about the hedge. Force him into a lawyer's office who will (9 times out of 10) tell him to be reasonable.

Andrew Hay
Hay & Swann PLLC
201 South 34th Street
Tacoma, WA  98418
Phone: (253) 272-2400
Fax:     (253) 267-8947
www.washingtonlaw.net<http://www.washingtonlaw.net/>

Cohoon v. Cuny, 37987-2-II Court of Appeals of Washington, Division 2 April 13, 2010

Next, Cuny appears to argue that the trial court erred by limiting him to a "reasonable" use of his easement over Cohoon's and the Williamses' properties. We disagree.

         In Thompson v. Smith, 59 Wn.2d 397, 367 P.2d 798 (1962), our Supreme Court recognized that, in the context of an easement dispute, the respective rights of the owners of the servient estate and the dominant estate are not absolute and that their respective rights "must be construed to permit a due and reasonable enjoyment of both interests so long as that is possible." 59 Wn.2d at 408-09. The Thompson court stated:

Mere nonuse, for no matter how long a period, would not extinguish the easement. However, it is also the law that the owner of the property has the right to use his land for purposes not inconsistent with its ultimate use for the reserved purpose during the period of nonuse. The rule is that where a right of way is established by reservation, the land remains the property of the owner of the servient estate and he is entitled to use it for any purpose that does not interfere with the proper enjoyment of the easement.
Ordinarily, what may be considered a proper use by the owner of the fee is a question of fact and depends largely on the extent and mode of use of the particular easement.
59 Wn.2d at 407-08 (citations omitted).

         Although the Thompson court did not expressly hold that an easement owner's rights are limited to reasonable use of his easement, inherent in our Supreme Court's recognition that courts must construe an easement holder's and servient property owner's respective rights to permit due and reasonable enjoyment of both interests is a limitation on the easement holder's right to use his easement in a reasonable manner. Without this limitation, a servient property owner could not enforce her right to use her property "for any purpose that does not interfere with the proper enjoyment of the easement." Thompson, 59 Wn.2d at 407-08. Accordingly, it follows that an easement holder is limited to reasonable use of his easement.

         Substantial evidence supports the trial court's finding that Cuny's proposed use of the easement was unnecessary and unreasonable. Here, several property owners in the Aleinikoff and Rindler short plats testified that the existing 20-foot-wide roadway provided adequate access to serve the easement's purpose. Although Cuny testified that he needed to extend the roadway to provide for emergency vehicle access, Moeder, a Clallam County Assistant Fire Chief/Fire Marshal, refuted his testimony when he testified that the roadway was adequate for use by emergency vehicles. Credibility determinations such as these are for the finder of fact and are not subject to our review. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). Cuny's Easement Rights Over the Williamses' Property

Naccarato v. Finney, 26520-0-IIICourt of Appeals of Washington, Division 3January 27, 2009

Scope of Easement

         Next, Finney/Hustead argue that the trial court erred in limiting the scope of the easement because the easement's granting language "allows for whatever use is 'necessary to constitute full enjoyment of the premises.'" Br. of Appellant at 24-25. The Naccaratos respond that even a broad easement grant is limited by the requirement of reasonable use and that "the owner of a dominant estate cannot expand the scope of an easement to unreasonably burden the servient estate." Br. of Respondent at 21.

         We review findings of fact under a substantial evidence standard, defined as a quantum of evidence sufficient to persuade a rational trier of fact that the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). We review only those findings of fact to which error has been assigned. Findings to which error has not been assigned are verities on appeal. Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002). We note that Finney/Hustead do not assign error to findings of fact 9.2-9.5. Therefore, we treat them as verities. Finally, we review questions of law and conclusions of law de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 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). A court construing an instrument creating an easement must ascertain and give effect to the intention of the parties. Green v. Lupo, 32 Wn.App. 318, 321, 647 P.2d 51 (1982). "What the original parties intended is a question of fact and the legal consequence of that intent is a question of law." Sunnyside, 149 Wn.2d at 880. The scope of an easement is determined by looking at the intention of the parties to the original grant, the nature and situation of the properties subject to the easement, and the manner in which the easement has been used and occupied. Logan v. Brodrick, 29 Wn.App. 796, 799, 631 P.2d 429 (1981).

         While an easement will be construed to accommodate the reasonable use of the dominant estate, "the owner of the dominant estate can make no larger use of his easement or change its character in any way so as to increase the burden on the servient estate." Little-Wetsel Co. v. Lincoln, 101 Wash. 435, 445, 172 P. 746 (1918). The servient owner has the burden of proving misuse of the easement. Logan, 29 Wn.App. at 800.

Naccarato v. Finney, 26520-0-III

THIS IS A CONFIDENTIAL COMMUNICATION AND IS INTENDED FOR THE DESIGNATED RECIPIENT ONLY.  IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE SENDER IMMEDIATELY AND DESTROY ALL COPIES

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Craig Gourley
Sent: Thursday, June 22, 2017 2:35 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Shot in the Dark

Several suggestions, none of which are legal.

Gourley Law Group
Snohomish Escrow
The Exchange Connection

1002 10th Street / PO Box 1091
Snohomish, WA 98291

360.568.5065
360.568.8092  fax
Craig at glgmail.com<mailto:Craig at glgmail.com>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Thursday, June 22, 2017 2:33 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Shot in the Dark

As is typical in a rural county, written easement calls for 60 foot access easement but the actual crushed aggregate road is about thirty feet wide.  Client has a plant hedge about 25 feet from actual road with a mowed lawn abutting the actual road (that is, the lawn is in between the hedge and the actual road.  Now, dominant easement holder is driving on client's lawn by about three feet (but still part of the easement) and is threatening to "tear out" the hedge "because I have a right to and you can't stop me."  In fact, there are about 10 servient tenements he is doing this to.  He is a retired Department of Transportation employee so he says he knows his rights and the law.  Unfortunately,  Littlefair vs. Schulze, 169 WnApp. 659 (Div. 2, 2012), says, basically, he (dominant tenement) can do this.

Are there any cases or anything out there that says enough is enough, the road is already a flat, unobstructed, straight 30 feet wide road.  You don't need any more so stop bullying your neighbors just because you may have the right?  All parcels are at least 2.5 acres.  Any ideas other than going to the guy, hat in hand, and asking for mercy?

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