[WSBARP] Shot in the Dark

[Paul Neumiller]

Thanks to one and all.  Theories to think about.  Apparently, the bright line is no longer bright but is now very fuzzy, bogged down in the language of a “flexible approach.”

For the record, my client has already tried the “plate of cookies” approach and then he tried the BAR Method (“Big Ass Rock” Method).  Unfortunately, dominant easement holder owns a bulldozer, moved the BAR, and has the means to rip out the client’s hedge.

[Paul Neumiller]

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Rob Wilson-Hoss
Sent: Thursday, June 22, 2017 4:05 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Shot in the Dark

Agreed. The general proposition used to be that it is a 60-foot easement, and that is that, with limited exceptions. But the general proposition used to be that if you built a house over the line, you had to tear it down. Not so much, after Proctor v. Huntington, although that and following cases don't really give anyone a very good clue about what the result will be in a particular case.

I don't think you can narrow the easement road down to the minimum necessary for actual passage through the easement. I have that case now, and that servient owner will lose that argument. But that is why we are offering  to agree to something in between - something that works for the dominant owner just fine, but allows the servient owner a reasonable use of the easement that does not unreasonably interfere with the servient owner's use. The fact that the servient owner brings new depth and breadth to the term, "jerk," won't hurt our cause

Also, be sure to look very carefully at the language of the easement. Sometimes they have little kernels in them that can matter. Usually they are just copies of a form.

Rob

Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
236 West Birch Street
Shelton, WA 98584
360 426-2999
www.hossandwilson-hoss.com<www.hossandwilsonhoss.com>
rob at hctc.com<mailto:rob at hctc.com>

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Rick Hoss
Sent: Thursday, June 22, 2017 2:48 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Shot in the Dark

“In upholding the equitable remedy imposed by the trial court, we recognize the evolution of property law in Washington away from rigid adherence to an injunction rule and toward a more reasoned, flexible approach.” Proctor v. Huntington, 169 P.2d. 491 (2010.

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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