[WSBARP] Shot in the Dark

Fri Jun 23 15:52:44 PDT 2017

Good luck, Paul.

I’ve likewise more often than not failed with “plate of cookies” diplomacy,
but I always recite that Nice Neighbor approach in my affidavit in support
of a declaratory judgment.

Judges like to know you at least initially attempted to resolve the dispute
amicably.

But, more importantly, thank you for the brilliant listserve Practice Tip: 

“When posting a query to a listserve, do NOT caption the subject “seeking
advice re rights of servient estate” or offer some similarly mundanely
moribund invitation for collegial assistance.

Rather, to ensure timely and enthusiastic responses, say something like
“Shot in the Dark” or set another comparably enticing hook.”

Best regards,

clg

CARL LLOYD GAY  

what counts in life is what we do for others

GREENAWAY, GAY & TULLOCH

Attorneys and Counselors at Law                     

829 East Eighth Street       Suite A

Port Angeles, Washington   98362

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From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Friday, June 23, 2017 1:01 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Shot in the Dark

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
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From:  <mailto:wsbarp-bounces at lists.wsbarppt.com>
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:  <mailto:wsbarp-bounces at lists.wsbarppt.com>
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:  <mailto:wsbarp at lists.wsbarppt.com> 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?

cid:image004.jpg at 01D2EC1F.E9FA4500

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