[WSBARP] Easement - scope of allowed use - help?

[Mark Anderson]

You may want to take a look at the following cases.  The first two are obviously unpublished Division II cases, so they are instructive at best.

Martin v. Orvold, No. 53831-8-II (Wash. App. Mar 09, 2021)

Liffgens v. Dorny, 55539-5-II (Wash. App. Jun 14, 2022)

Thompson v. Smith, 59 Wn.2d 397, 367 P.2d 798 (1962)


Mark B. Anderson
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Dominique Zervas
Sent: Thursday, July 17, 2025 10:20 AM
To: tsteen at andersonhunterlaw.com
Cc: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Easement - scope of allowed use - help?


Good morning, Timothy; and many thanks for your response.

The Maslonka case was very helpful-so much information to consider.

I haven't been able to track down the case you thought might have involved property in Kent Valley-in the event you have any additional insight I'd be delighted to receive it.

Again, thank you.

Best wishes,

Dominique Zervas




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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 Timothy Steen
Sent: Friday, July 11, 2025 3:59 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Easement - scope of allowed use - help?

Dominique,

There is mixed WA case law on whether parking is deemed to be within the scope of ingress/easements or "road purpose" easements.  It seems to be a case specific inquiry as to intent of the parties.  Historic use, especially at the time of granting, can be a key point of that analysis.  I cannot find it in my files at the moment, but I seem to recall a COA I case involving property in the Kent Valley (near the old horse track??) that addressed whether parking was within the scope of an access easement.  It may be helpful if you track down that case and explore whether the current use would be deemed to already be within the scope of the easement.  As to the prescriptive expansion of an existing easement, you may wish to review:  Maslonka v. Pub. Util. Dist. No. 1 of Pend Oreille Cty., 23 Wn. App. 2d 1, 514 P.3d 203 (2022)

Best,

Tim

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Timothy E. Steen
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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 Dominique Zervas
Sent: Friday, July 11, 2025 11:24 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] Easement - scope of allowed use - help?

Greetings list mates.

I would greatly appreciate any suggestions, ideas, case references, a phone chat... regarding the following:

Background: late 1800s easement for railroad tracks along lake; property (and easement) transferred to logging company;  property later transferred to developer who subdivided; lots sold and homes built; easement in question described as for "access" and connects about a dozen homes to the lakefront where there was a dock. For 10-15+ years, owners of benefitted properties used the easement for access to the lake, parking while using the lake, storing small boats and other personal recreational equipment, and general hanging out in the lakefront portion of the easement.

Issue: Caselaw that references changed use of an access easement seems to focus on changes to modes of transportation over time-from, e.g., trains, to motorized vehicles. But no luck so far finding anything where, e.g., actual use of the access easement includes parking, storage, and recreation; and whether/how the legal right to continue of those related uses might be acquired.

Can the benefitted properties acquire, by prescriptive easement or under another legal theory, a legal right to use the easement area for those additional uses where they have engaged in those uses for 10+ years---does it make a difference if they already have a legal right to use the easement, but for access only?

Can you think of another way or theory?

Again, I'd greatly appreciate any insight you might have, or even a shove in the right direction!

Sincerely,

Dominique Zervas
She/her






ZERVAS LAW, PS
1909 Broadway
Bellingham, WA 98225
360.733.2010
http://zervaslaw.com<http://zervaslaw.com/>

Exceptional Service - Meaningful Solutions
Real Estate * Land Use * Business Formation * Estate Planning & Probate


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