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

Mon May 11 13:49:32 PDT 2020

As far as private nuisances and unreasonable interference with easement,
look at Gabriel v. Mascarinas, 109 wash app 1015 (2001).

You might want to think about whether you want to facilitate insurance
coverage for them for what they did, which might need an allegation of
negligence, as opposed to sticking with only intentional claims. 

Robert D. Wilson-Hoss

Hoss & Wilson-Hoss, LLP

236 West Birch Street

Shelton, WA 98584

360 426-2999

www.hossandwilson-hoss.com

rob at hctc.com

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Eric Nelsen
Sent: Monday, May 11, 2020 12:58 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

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

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