[WSBARP] Shot in the Dark

[Eric Nelsen]

I have several non-legal options in mind, but I will stick to my muttons. The legal argument I would make is that the benefited party is violating the scope of the easement by making its use for "access" arbitrarily and capriciously more burdensome to the burdened party. The easement is non-exclusive, it is improved with a 30 foot wide crushed aggregate road that is more than sufficient for the benefited party's use for "access," there is no conceivable need to use a larger width, use of an easement must be "reasonable" (cite? I think it's in the scope-of-easement cases). I think of a non-exclusive easement's scope as complementary to the burdened party's right to use the area for all other purposes so long as that use does not "unreasonably interfere" with the benefited party's use. The complement of "unreasonably interfere" is "reasonably use." The burdened and benefited parties' rights do not exist in isolation but complement each other. I know the case law does not read that way, but in my mind it is helpful to frame it from that perspective.

I read Littlefair with interest - hadn't seen it before. I think that the fence in that case, which was inside the easement area, was actually interfering with use of the 14 foot wide roadway inside the 40 foot wide easement - hampering an ability to drive around potholes and so forth. Also, the court heavily emphasized that the fence could be used as a basis for an adverse possession claim. I think your client could further distinguish Littlefair by delivering an express written waiver of any claim to extinguish the easement based on landscaping and maintenance of landscaping within the easement area. You could also argue that the fence in Littlefair is the sort of improvement that automatically "excludes" and implies an ouster sufficient to extinguish an easement, whereas a lawn and hedge are not so exclusionary and don't present as much of a threat to the easement rights. (Though I suppose the right kind of hedge would be effectively a fence, so that point might not be as helpful.)

In short, I don't think that an easement beneficiary has a right to be a complete a**hole about use, simply for the joy of being one. There has to be at least a plausible reason why a 30 foot gravel road is insufficient.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

Please Note that We Have Moved. We have moved our Seattle office to Mount Baker Ridge (a small commercial community just above the I-90 tunnel). Our new address is 1417 31st Avenue South, Seattle WA 98144. All other contact information remains the same.

From: 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
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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