Ralph A. Heine v. Tim S. Russell

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
RALPH A. HEINE,
No. 79754-9-I
Appellant,
v, DIVISION ONE
TIM S. RUSSELL and ROBERTA A. UNPUBLISHED OPINION
RUSSELL, STEVEN RUSSELL and
STEPHANIE COLEMAN, JOHN PURDY,
NORMAN and SARINA STOW, and
WILL KENDALL,
Respondents.
LEACH, J. — Ralph A. Heine appeals the trial court’s summary judgment
dismissal of his claims for adverse possession and prescriptive easement. Heine
claims he acquired a prescriptive easement over part of his neighbors’ property and that
he adversely possessed a portion of an existing nonexclusive access and utilities
easement.
Because Heine fails to establish a disputed issue of fact about the requisite
elements for adverse possession or prescriptive easement, we disagree and affirm.
FACTS
Ralph Heine purchased his home in June 2009. Heine and his neighbors, Stows
and Kendall, all use a gravel roadway to access their homes from the main road. The
gravel roadway is located within the western portion of a 30-foot nonexclusive easement
that the neighbors share. The easement is for “ingress, egress, and utilities over,
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79754-9-I/ 2
under, along and across” the property. Within the easement area, water and electric
utilities serve all of the parties in this action. John Purdy owns the 30-foot wide strip of
property on which the easement is located. The annotated aerial photograph below
shows the location of the Heine property, the easement, and the recent changes made
by the Russells.
2
No. 79754-9-I/ 3
In 2005, Robert and Pamela Styles sold their property to Michael Nesbit. Heine
purchased the property from a lender in June 2009 after Nesbit vacated the home in the
summer of 2008. The Styles owned the property for approximately 30 years. The
Styles, Nesbit, and Heine used the eastern portion of the easement as their front yard.
After Heine purchased the property, he created an additional driveway at the northwest
corner of his property for additional parking.
In October 2016, the Russells extended their front yard about five-and-a-half feet
by installing 16 steel bollards in the gravel roadway located in the vicinity of the east
boundary line of the easement. This reduced access to the gravel roadway by about
half.
Heine sued the Russells in October 2016 to “eject” them from the westerly
portion of the gravel roadway, where they had installed the bollards, and to quiet title the
disputed property. The Russells counterclaimed to quiet title the full 30-foot
nonexclusive easement where Heine’s front yard is located.
Heine then amended his complaint to assert a claim for adverse possession of
the eastern portion of the easement, which Heine and his predecessors used as their
front yard. He claimed a prescriptive easement over the westerly portion of the gravel
roadway located on the Russells’ land where they had installed the bollards. Finally,
Heine alleged claims of trespass, nuisance, and negligent or intentional infliction of
emotional distress against the Russells.
Heine and the Russells filed cross-motions for partial summary judgment. The
trial court granted the Russells’ motion and declared they are entitled to develop and
3
No. 79754-9-I/ 4
improve to the full extent of the easement for normal means of access and egress. The
court also dismissed Heine’s claims for prescriptive easement and title by adverse
possession with prejudice. Heine later voluntarily dismissed his tort claims.
Heine appeals.
STANDARD OF REVIEW
Heine claims the trial court should not have dismissed his adverse possession
and prescriptive easement claims on summary judgment because the easement’s legal
location shifted to the existing road after a long period of use.
We review an order granting summary judgment de novo. 1 Summary judgment
is appropriate when “there is no genuine issue as to any material fact” and “the moving
party is entitled to a judgment as a matter of law.” 2 We view the evidence in the light
most favorable to the nonmoving party.3
ANALYSIS
Adverse Possession of Easement
Heine first claims his predecessors acquired title by adverse possession to the
unopened portion of the nonexclusive easement over the Purdy’s land used and
maintained as their front yard. At oral argument, Heine clarified he seeks to establish
adverse ownership of the fee title to this part of the easement only if he can also
extinguish his neighbors’ easement rights over the same property. Because his claim to
1
Loeffelholz v. University of Washington, 175 Wash. 2d 264, 271, 285 P.3d 854
(2012).
2
CR 56(c); Ranger Ins. Co. v. Pierce County, 164 Wash. 2d 545, 552, 192 P.3d 886
(2008).
3
Loeffelholz, 175 Wash. 2d at 271.
4
No. 79754-9-I/ 5
extinguish these easement rights fail, we do not address his separate adverse
possession claim to the underlying fee interest.
Courts generally use the principles that govern acquisition by adverse
possession to determine whether adverse use has extinguished an easement. 4 To
acquire property by adverse possession, a party must prove that for a period of at least
10 years their possession of the property was (1) open and notorious, (2) actual and
uninterrupted, (3) exclusive, and (4) hostile.5 And, “the party claiming to have adversely
possessed the property has the burden of establishing the existence of each element.” 6
Washington disfavors terminating easements. 7 Mere nonuse, for no matter how
long a period, does not extinguish an easement. 8 But, a servient estate owner can
extinguish an easement through hostile or adverse use.9
“The ‘hostility/claim of right’ element of adverse possession requires only that the
claimant treat the land as his own as against the world throughout the statutory period.
The nature of his possession will be determined solely on the basis of the manner in
which he treats the property.”10 Hostile use in this context is difficult to prove.11 Most
uses are not hostile. 12 The owner of the burdened property has the right to use that
land for purposes not inconsistent with its ultimate use as an easement during the
period of nonuse. Where a right of way is established by easement, the land remains
4
City of Edmonds v. Williams, 54 Wash. App. 632, 634, 774 P.2d 1241 (1989).
5
ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 757, 774 P.2d 6 (1989).
6
ITT Rayonier, 112 Wash. 2d at 757.
7
City of Edmonds, 54 Wash. App. at 636.
8
Thompson v. Smith, 59 Wash. 2d 397, 407, 367 P.2d 798 (1962).
9
City of Edmonds, 54 Wash. App. at 634.
10
Chaplin v. Sanders, 100 Wash. 2d 853, 860-61, 676 P.2d 431, 436 (1984).
11
Cole v. Laverty, 112 Wash. App. 180, 184, 49 P.3d 924 (2002).
12
Cole, 112 Wash. App. at 184.
5
No. 79754-9-I/ 6
the property of the owner of the servient estate, and he is entitled to use it for any
purpose that does not interfere with the proper enjoyment of the easement. 13
Heine claims the Styles’ use of some of the unopened portion of the easement as
part of their front yard area both unreasonably deviated from their rights to use it for
ingress, egress, utilities, and it was adverse to anyone else’s use of the land for those
purposes and to Purdy’s ownership. He claims he can establish hostile use because
Styles “fenced, mowed, gardened, planted, and parked on the land, cemented a
flagpole, and more.” But, those actions were not inconsistent with the ultimate use of
the easement for its dedicated purposes. They did not interfere with current use of the
easement for underground or overhead utilities, nor did they unreasonably interfere with
future use of the property for ingress or egress.
Thompson v. Smith supports this conclusion.14 There, the servient owner poured
a concrete slab over a reserved roadway easement. Because that part of the easement
was not in use at the time, our Supreme Court held the concrete slab, which the
servient owner used to store vehicles and lumber, did not interfere with future use of the
easement. The court noted the respective rights of the dominant and servient owners
“‘are not absolute, but must be construed to permit a due and reasonable enjoyment of
both interests so long as that is possible.’”15
Because Heine fails to show an issue of fact about the hostility in the element of
adverse possession, the trial court appropriately dismissed his adverse possession
claim. As a result, we do not address the respondents’ assertion that a dominant estate
13
Thompson, 59 Wash. 2d at 407-08.
14
59 Wash. 2d 397, 367 P.2d 798 (1962).
15
Thompson, 59 Wash. 2d at 409.
6
No. 79754-9-I/ 7
owner cannot extinguish an existing nonexclusive easement and claim title through
adverse possession.
Prescriptive Easement
Heine next claims the trial court should not have dismissed his claim for a
prescriptive easement over part of the Russell’s property occupied by the gravel road
before they installed the bollards. To establish a prescriptive easement, the claimant
must prove their use of another’s land has been for at least 10 years (1) open,
notorious, continuous, and uninterrupted, (2) over a uniform route, (3) adverse to the
owner of the land sought to be subjected, and (4) with knowledge of such owner at a
time when he was able in law to assert and enforce his rights.16 For purposes of
establishing the adversity element of a prescriptive easement, the parties’ intent is not
relevant.17 Rather, it is the objectively observable acts of the user and the rightful
owner’s control.18
Heine claims a trier of fact could conclude the evidence demonstrated Styles’ use
of the gravel road north of their main driveway was of the same character as that of a
true owner might make under similar circumstances. So, this evidence created a fact
question about Styles’ continuous use of the portion of the road north of the main
driveway and prevented summary judgment dismissing his claim.
Heine asserts the Styles would “drive their RV on the portion of the gravel road
north of their driveway at least twice per year…and usually four to six times per year.”
He also claimed “the propane trucks that visited the Styles’ property twice per year
16
The Mountaineers v. Wymer, 56 Wash. 2d 721, 722, 355 P.2d 341 (1960).
17
Dunbar v. Heinrich, 95 Wash. 2d 20, 27, 622 P.2d 812 (1980).
18
Dunbar, 95 Wash. 2d at 27.
7
No. 79754-9-I/ 8
would drive to the end of the gravel road.” But, these are not actions made adversely to
the owner of the land. Here, the Russells do not demonstrate use of the same character
a true owner might make under the circumstances.
For the first time on appeal, Heine asserts a theory of “collective use tacking.”
With this theory he seeks to rely on his neighbors’ use of the gravel road to establish his
predecessors’ acquisition of a prescriptive easement. Because Heine did not raise this
novel theory in the trial court, we decline to consider it. 19 So, the trial court did not err in
dismissing this claim.
Shifting Easement
Heine also claims the “easement’s location shifted to the existing road after a
long period of use,” relying on Curtis v. Zuck 20 and Barnhart v. Gold Run, Inc.21 We
disagree.
First, Curtis and Barnhart do not support Heine’s position. In Curtis, the
landowner, claiming a private easement shifted, established elements for adverse
possession since they “occupied the land . . . as it now stands, for at least 13 years.” 22
The facts in Barnhart also supported a finding for a shifting easement since the
landowner’s “claim continued for the statutory period.”23 For the same reason Heine’s
prescriptive easement claim fails, his shifting easement claim also fails. He fails to
show any evidence his predecessors occupied the land for the requisite period for
adverse possession or prescriptive easement as it was proved in Curtis and Barnhart.
19
RAP 2.5(a).
20
65 Wash. App. 377, 829 P.2d 187 (1992).
21
68 Wash. App. 417, 843 P.2d 545 (1993).
22
65 Wash. App. at 383.
23
68 Wash. App. at 423.
8
No. 79754-9-I/ 9
Second, even if Heine and/or his neighbors used the westerly portion of the
gravel road for traveling, Heine’s shifting easement claim is inconsistent because
“[u]tility uses existed over the [gravel road].” The easement area, specifically in the
western portion, included “water and electric utilities…serving all of the parties in this
action and the neighborhood.” Since the parties benefiting from the easement
continuously used the easement area for utilities, the easement did not “shift.”
Tort Claim
Heine next claims this court should authorize him to reassert his tort claim.
Heine voluntarily dismissed it with prejudice before trial. He provides no persuasive
argument or authority supporting his request. So, we deny it.
Attorney Fees
Heine’s Request for Attorney Fees
Heine claims the trial court should not have awarded attorney fees to Russell and
Purdy. Because Heine does not support this claim with any argument, we will not
address it.24 Heine also requests attorney fees on appeal. Because he is not the
prevailing party, we reject his request for attorney fees.
Russells’ Request for Attorney Fees
Russell and Purdy request attorney fees under RCW 7.28.083(3). “A party is
entitled to attorney fees on appeal if a contract, statute, or recognized ground of equity
permits recovery of attorney fees at trial and the party is the substantially prevailing
party.”25 RCW 7.28.083(3) provides a statutory basis for the award of attorney fees to
24
RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801,
809, 828 P.2d 549 (1992).
25
Hwang v. McMahill, 103 Wash. App. 945, 954, 15 P.3d 172 (2000).
9
No. 79754-9-I/ 10
the prevailing party of an adverse possession claim on appeal.26 Because Russell and
Purdy prevail on appeal, we grant their request for reasonable attorney fees and costs
subject to their compliance with RAP 18.1(d).
CONCLUSION
We affirm. Heine fails to establish issues of fact about the requisite elements for
his prescriptive easement and adverse possession claims.
WE CONCUR:
26
Workman v. Klinkenber, 6 Wash. App. 2d 291, 308-09, 430 P.3d 716 (2018).
10