[WSBARP] Cause of action and measure of damages for intentional interference with pipe easement

[Eric Nelsen]

Thanks Rod! I think you are right, private nuisance might be the best available. I'm not sure about trespass on an easement though; I will have to do the research again but I vaguely remember reading cases grappling with the concept of a property owner "trespassing" on their own land because they were interfering with an easement, which is by definition a use right. I suppose if it were an exclusive easement, it could be trespass, but for any non-exclusive easement the argument gets much harder conceptually.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

Covid-19 Update - All attorneys are working remotely during regular business hours and are available via email and by phone; please call the Seattle office. Videoconferencing also is available. Signing of estate planning documents can be completed and will be handled on a case-by-case basis; please call the Seattle office.

MAIL AND DELIVERIES can be received at the Seattle office. For any other needed arrangements, please call the Seattle office.

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Rod Harmon
Sent: Monday, May 11, 2020 12:44 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Cause of action and measure of damages for intentional interference with pipe easement

Nuisance? See Gaines v. Pierce Cty., 66 Wn. App. 715, 719 (1992):

Nuisance can be committed negligently. Atherton Condo. Ass'n v. Blume Dev. Co., 115 Wash.2d 506, 527, 799 P.2d 250 (1990); Hostetler v. Ward, 41 Wash.App. 343, 357-59, 704 P.2d 1193 (1985), quoting Taylor v. Cincinnati [143 Ohio St. 426, 55 N.E.2d 724 (1944) ]. So can trespass. Zimmer v. Stephenson, 66 Wash.2d 477, 403 P.2d 343 (1965). Indeed, there is little remaining difference between trespass and nuisance. Bradley v. American Smelting & Refining Co., 104 Wash.2d 677, 684, 709 P.2d 782 (1985); 1 W. Rodgers, Environmental Law-Air and Water § 2.15 at 126-27 (1986). Both hinge on an invasion of plaintiff's interest in property. Bradley, 104 Wash.2d at 689, 690, 709 P.2d 782. The distinction between direct and indirect invasions has been abandoned, Bradley, 104 Wash.2d at 689, 709 P.2d 782, and it no longer matters whether the invading agent is tangible or intangible. Bradley, 104 Wash.2d at 690, 709 P.2d 782, quoting Borland v. Sanders Land Co., 369 So.2d 523, 529 (Ala.1979). The only remaining difference-arguably not a useful one-is that trespass "interferes with the right to exclusive possession of property," while nuisance intrudes on "the interest in use and enjoyment of property." Bradley, 104 Wash.2d at 690, 709 P.2d 782, quoting Borland v. Sanders Land Co., supra.
I wanted to say trespass, but that may require the right to exclusive possession.  Yet, wouldn't blocking an easement be a trespass?

Rod Harmon

RODNEY T. HARMON
       Attorney at Law
         P.O. Box 1066
      Bothell, WA   98041
     Tel:   (425) 402-7800
     Fax:  (425) 458-9096
    www.rodharmon.com<http://www.rodharmon.com>
   rodharmon at msn.com<mailto:rodharmon at msn.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 Eric Nelsen
Sent: Monday, May 11, 2020 12:14 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] Cause of action and measure of damages for intentional interference with pipe easement

Client has an express easement for water line over neighbor's property, and the neighbor intentionally prevents its use by destroying the pipe. Client elects to just relocate the pipe to avoid dealing with the neighbor. The cost to relocate is likely lower than cost of litigation, not to mention the bonus avoidance of future bad behavior which is highly likely given the neighbor's volatility and ongoing pattern of harassment over several years.

Can the client sue the neighbor for damages for interference with the express easement, with measure of damages being the cost to relocate the pipe? If so, what's the cause of action? Does quiet title still work for a damages-only claim in this scenario? The "damages" statutes in Ch. 7.28 RCW appear to contemplate mainly a case where plaintiff wins adverse possession but defendant has constructed improvements on the property now possessed by plaintiff. Obviously that's not the case here.

Tortious destruction of property works for damage to the existing pipe, but cost to repair would likely be different, and lower than, cost to relocate. (The client's problem is that having the work done on the neighbor's property would be an ordeal, given the neighbor's behavior.) I'd love to get treble damages under RCW 4.24.630 but I think there is case law indicating that the statute doesn't apply when the damage is done on one's own property, even when it's damage to property owned by a neighbor and lawfully present due to an easement. Am I wrong I hope?

But aside from the destruction of property, this is also interference with the legal right under the easement, basically rendering it impossible as a practical matter for client to peaceably use the easement. What damages can compensate for that? Could the cost to relocate the pipe to a different location, be argued as the measure of the value of the easement itself?

Is there a potential problem with client "voluntarily" deciding to relocate the pipe? Obviously it could be construed as abandoning the easement, but does it also potentially bar a remedy for interference with the easement?

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

Covid-19 Update - All attorneys are working remotely during regular business hours and are available via email and by phone; please call the Seattle office. Videoconferencing also is available. Signing of estate planning documents can be completed and will be handled on a case-by-case basis; please call the Seattle office.

MAIL AND DELIVERIES can be received at the Seattle office. For any other needed arrangements, please call the Seattle office.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20200511/524ed006/attachment.html>