                                                                            , FILED
                                                                    ;COURT OF APPEALS DIV I
                                                                      STATE OF WASHI:-;GTO;-1
                                                                     , 2017 JUL 31 Ali 10:50



     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

ROBERT PERASSO and                       )       No. 75356-8-1
KATRINA PERASSO, husband                 )
and wife,                                )
                                         )
                       Appellants,       )
                                         )
            v.                           )
                                         )
DOUGLAS F. TURNER,                       )       UNPUBLISHED OPINION
                                         )
                 ,     Respondent.       )       FILED: July 31, 2017
                                         )

       VERELLEN, C.J. — In this action to establish an implied easement, the trial court's
findings support its conclusion that appellants Robert and Katrina Perasso failed to

demonstrate sufficient prior use or necessity for an implied easement by reservation.

We therefore affirm.

                                         FACTS

       The Perassos currently own the northernmost of three lots formerly owned by

Robert's father, Henry Perasso. An early deed established an easement across the

southernmost lot, but it was extinguished when, in a series of conveyances ending in

1974, Henry Perasso purchased all three lots. Until the late 1990s, the two

northernmost lots could only be accessed by crossing the southernmost lot on a dirt

driveway.
No. 75356-8-1-2

         In 1981, Henry Perasso sold the middle lot to his daughter, Nena Moreno. The

conveyance did not mention or reserve an access easement across the southernmost

lot.

         In 1997, a developer constructed a private road, 78th street, along the western

boundaries of the Moreno and Perasso lots. It is undisputed that, if permitted by its

owners, this road provides alternate access to the Perasso and Moreno properties. The

Morenos, in fact, received permission to use the street beginning in 1997.

         In 2006, Henry Perasso's widow sold the southernmost lot to respondent

Douglas Turner's predecessor in title. This conveyance also did not reserve or mention

any access easement for the benefit of the two lots to the north.

         In 2013, the owners of the southernmost lot sold their lot to Turner. He testified

at trial that there was no visible easement when he purchased the property.

         In 2014, Robert and Katrina Perasso purchased the northernmost lot from the

Perasso estate. Except for a garage, the lot was vacant and undeveloped at the time of

trial.

         In 2015,following a dispute over Robert's attempt to gravel a portion of the

overgrown easement on Mr. Turner's property, Robert and Katrina filed this action to

establish an access easement across Turner's property. The court dismissed most of

the Perassos' legal theories, leaving only an implied easement theory for trial.

         Following testimony from Robert, Douglas Turner, and a neighbor, Lloyd

Sholberg, the trial court ruled that the Perassos failed to establish an easement by

implication. The court entered the following findings of fact, which are largely

unchallenged on appeal:




                                              2
No. 75356-8-1-3

      In 1997, a private road named 78th Street, was constructed to serve a
      residential short plat development. It serves as access for the Moreno
      lot by permission of the private road owners. Prior to 78th street being
      constructed, the Moreno lot was accessed by the disputed 15 foot
      driveway. But since 1997, the Moreno lot has been mainly accessed by
      78th street. Mr. Perasso testified that his use of the 15 foot driveway
      was sporadic, but that he did use it. . .. Mr. Perasso did not indicate
      much use of his property other than that he wanted to use it for storage.
      He also indicated that he visited his sister using either 78th street, or the
      disputed driveway, or both.

             Mr. Turner testified that he purchased his property in November of
      2013. He said there was no visible easement, that the area of the
      driveway was overgrown, and that he graveled the area to his garage.
      Mr. Turner stated that he never saw anyone using the disputed
      driveway. ...

             Mr. Scholbert, owner of the property south of Mr. Turner's property,
      has lived there since 1994. He indicated that Mr. Perasso's sister
      used the driveway easement area to access the property until 78th
      street was put in. After 78th street was put in, the easement area
      became overgrown and was not in use. He indicated that he did not
      see anyone use the easement driveway after 2006, and that the Turner
      property itself was completely overgrown for about 3 years.[1]

      Even Mr. Perasso testified that his use of the disputed easement was
      sporadic, and that he also used 78th street for access. While the aerial
      photographs do show a track in the area of the disputed easement, this
      does not mean that it was visible from the ground. . . . The disputed
      easement is very narrow, and runs very close to Mr. Turner's garage. Mr.
      Perasso's property is undeveloped at this point other than having a garage
      on it. The owners of 78th Street have given Mr. Perasso limited
      permission to access his property via 78th Street, but made it clear that it
      depends on how he is using his property and that they reserve the right to
      deny him use of the road.

            . . . Mr. Perasso has not shown continuous use of the disputed
      easement area. Mr. Turner was clearly not aware of the existence of the
      disputed easement area as a conduit to Mr. Perasso's property, and it
      appears that Mr. Perasso has been able to utilize 78th street for the use
      he has historically made of his property which was very limited. Mr.
      Perasso may also have other remedies for use via 78th Street by a private
      condemnation action. The proximity of the proposed easement to Mr.



      1 Clerk's Papers(CP)at 10(emphasis added).


                                            3
No. 75356-8-1-4

       Turner's property would be very burdensome to Mr. Turner's enjoyment of
       his property.[2]

The trial court entered the following conclusion of law:

      Therefore, while there is evidence of necessity in favor of Mr. Perasso, the
      lack of continuous and obvious prior use in this case dictate that the Court
      cannot find that the intentions of the parties regarding this easement was
      for permanent ingress and egress to the Plaintiffs property. Thus, the
      Court finds that the Plaintiffs have not satisfied their burden of proof
      establishing the existence of an implied easement by reservation.[3]

The Perassos appeal.

                                        ANALYSIS

       The sole issue on appeal is whether the Perassos carried their burden of proving

that the parties to the 2006 conveyance intended to reserve an access easement over

the southernmost lot and that the Perassos are therefore entitled to an easement by

implication. Our review is limited to determining whether any challenged findings are

supported by substantial evidence and whether the findings in turn support any

challenged conclusions of law.4 We treat unchallenged findings of fact as verities,5 and

we defer to the trial court on matters of conflicting testimony and the persuasiveness,

weight, and credibility of the evidence.6

       To establish an implied easement, three factual predicates must be proved:



      2 CP   at 12-13(emphasis added). The facts quoted in the last two paragraphs
were labelled "Conclusions of Law" in the court's decision, but we treat mislabeled
findings as findings of fact. Willener v. Sweetino, 107 Wn.2d 388, 394, 730 P.2d 45
(1986).
       3 CP   at 13(emphasis added).
       4 City of Tacoma v. State, 117 Wn.2d 348, 361, 816 P.2d 7(1991); Sunnvside
Valley Irrio. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369(2003).
       5 In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004); RAP 10.3(g).

       6 State   v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970(2004).


                                            4
No. 75356-8-1-5

(1) unity of title and subsequent severance of title by grant of the dominant estate,(2) a

prior apparent and continuous quasi-easement prior to severance,7 and (3) a

reasonable necessity for an easement.8 "The first predicate is an absolute requirement,

whereas the second and third predicates serve as aids in determining the cardinal

consideration—the presumed intention of the parties."8 "Because the intention of the

parties is the root issue, the presence or absence of either or both of the second and

third predicates is not necessarily conclusive."10

       Here, the parties stipulated below "that there was unity of title until 2006" when

Henry Perasso's widow, who then held title to the northernmost and southernmost lots,

sold the southernmost lot to the Turners.11 It is undisputed that the 2006 transfer failed

to expressly reserve an easement across the Turner property in favor of the Perassos.

       The Perassos contend the second predicate, i.e., a prior apparent and

continuous quasi-easement, strongly supports an implied easement in this case. They

claim "[t]he driveway across the TURNER property was the only access for years and

was used in an open and notorious manner."12 They also claim the "[u]se of the

driveway has been consistent with the nature of the property" and that the easement



       7"A 'quasi-easement' refers to the situation where one portion of property is
burdened for the benefit of another portion, which would be a legal easement if different
persons owned the two portions of property." Woodward v. Lopez, 174 Wn. App. 460,
469, 300 P.3d 417(2013)(quoting McPhaden v. Scott, 95 Wn. App. 431, 437 n.3, 975
P.2d 1033(1999)).
       8   Boyd v. Sunflower Props. LLC, 197 Wn. App. 137, 144-49, 389 P.3d 626
(2016).
       9 Id. at   144.
       1° Id. at 144-45.
       11 CP at 9.
       12 Appellant's    Br. at 4.


                                             5
No. 75356-8-1-6

itself "has been and remains very visible."13 These claims ignore contrary evidence and

the requirement of continuous use.

       While the driveway was the only access across the property at one time, the trial

court found that access via 78th street became available in 1997 and that the easement

was not thereafter in continuous use. Notably absent from the Perassos' brief in this

court is any clear assertion that use of the easement prior to severance in 2006 was

continuous. Nor do the Perassos assign error to, or otherwise address, the court's

conclusion that "Mr. Perasso has not shown continuous use of the disputed easement

area."14 Significantly, they also do not challenge the court's finding that the Morenos

"used the driveway easement area to access the property until 78th street was Put

in [in 1997]. After 78th street was put in, the easement area became overgrown and

was not in use."15 In any event, the latter finding is supported by the testimony of

Lloyd Scholbert, who observed the property from his nearby residence beginning in

1994. He testified in part that continuous use of the easement ceased in 1997. Robert

Perasso also testified that his father used the northernmost lot until he died in 1990.

       Similarly, while the Perassos claim the prior use of the easement was "apparent,"

the court's unchallenged findings, particularly those relating to use after 1997, support

its conclusion that the use was not "obvious."16 To the extent there was a conflict in the

evidence on this point, we defer to the court's resolution of that conflict.17



       13 Appellant's   Br. at 2.
       14   CP at 13.
       15   CP at 10(emphasis added).
       16   CP at 13.
       17 Thomas, 150 Wn.2d         at 874-75.


                                                 6
No. 75356-8-1-7

      The third and final predicate is whether there is "reasonable necessity" for an

easement. The trial court ruled, and Turner does not dispute, that "the easement at

issue in this case is clearly an easement by implied reservation" and that "a higher

degree of necessity [is] needed for an implied easement by reservation" than for an

easement by grant.18 The court further ruled:

      If land cannot be used without a disproportionate effort and expense, an
      easement may be implied on the basis of necessity. However, in the case
      of an easement by reservation, as necessity decreases, a point is reached
      where necessity will not be sufficiently great to justify the implication of an
      easement in the favor of the conveyor estate, without reference to a prior
      use of the land. The nature of the prior use of the land and the amount of
      use are then used to clarify whether or not the inference of an easement is
      warranted.[18]

      While the court found the Perassos showed some necessity for the easement, it

also found they had alternatives that, together with the sporadic use of the easement,

weighed against implying an easement. The court stated in part:

             The following facts are most important. . . regarding necessity and
      prior use. The unity of title was severed in 2006. 78th Street was
      constructed in 1997. When Mr. Turner purchased his property in 2013, it
      was overgrown and no throughway was apparent. It appears that the
      property to the north of Mr. Turner was accessed by 78th street. Even Mr.
      Perasso testified that his use of the disputed easement was sporadic, and
      that he also used 78th street for access....The neighbor to the south of
      Mr. Turner testified that he never saw anyone use the disputed easement
      after 2006. . . . Mr. Perasso's property is undeveloped at this point other
      than having a garage on it. The owners of 78th Street have given Mr.
      Perasso limited permission to access his property via 78th Street, but
      made it clear that it depends on how he is using his property and that they
      reserve the right to deny him use of the road.

             .. . Mr. Perasso has not shown continuous use of the disputed
      easement area. . . . Alt appears that Mr. Perasso has been able to utilize
      78th street for the use he has historically made of his property which was
      very limited. Mr. Perasso may also have other remedies for use via 78th

       19 CP   at 11-12.
      19 CP    at 12 (citing Adams v. Cullen, 44 Wn.2d 502, 509, 268 P.2d 451 (1954)).


                                            7
No. 75356-8-1-8

       Street by a private condemnation action. The proximity of the proposed
       easement to Mr. Turner's property would be very burdensome to Mr.
       Turner's enjoyment of his property.1231

       Again, the Perassos fail to directly challenge, or assign error to, the court's

findings regarding necessity. Instead, they simply make conclusory statements that

"[a]lternate access [to the property] is not available," that their "requests for access to

78th Street have been rejected," and that their "lot is landlocked."21 To the extent the

record contains evidence supporting these claims, it conflicts with evidence that the
                                                     ,
Merenos have used 78th street to access their property since 1997, that Robert

Perasso uses 78th street for access to his and the Morenos properties, and Turner's

testimony that he attended a meeting at which the Perassos obtained conditional

permission to use 78th street.22 As mentioned above, we defer to the trial court on

matters involving conflicting testimony and the weight, credibility, and persuasiveness of

the evidence.23

       The trial court also noted that, in addition to permissive use of 78th street, the

Perassos "may also have other remedies for use via 78th [s]treet by a private

condemnation action."24 At the end of trial, the court and counsel discussed the

possibility that the Perassos had the option of bringing either a private condemnation


       20 CP   at 12-13(emphasis added).
       21 Appellant's Br. at 5. We note that the Perassos nowhere address whether they
have offered compensation in exchange for easement rights on 78th street.
       22 According to Turner, the residents of 78th street were concerned that the
Perassos might put a rental on their property and devalue the properties on 78th street.
Turner said "the meeting concluded with everybody in agreement that Mr. Perasso
could use the road for now until he could tell them what his intentions would be for the
property." Report of Proceedings (Mar. 16, 2016) at 39.
       23 Thomas, 150 Wn.2d     at 874-75.
       24   CP at 13.


                                              8
No. 75356-849

action or an action for easement by necessity.25 The Perassos nowhere address these

potential alternatives. The court did not err in concluding that the Perassos failed to

demonstrate sufficient necessity to warrant an implied easement by reservation.

       In conclusion, the court's findings support its conclusion that, on balance, the

second and third predicates do not support a finding that the parties to the 2006

conveyance intended to reserve an implied access easement across Turner's property.

       Affirmed.




WE CONCUR:




       25 An easement by necessity is based on public policy against landlocked
property. Boyd, 197 VVn. App. at 144. The elements of an easement by necessity are:
(1) a landowner conveys part of his land and (2) retains part, usually an adjoining
parcel, and (3) after the severance of the parcels, it is necessary to pass over one of
them to reach a public street or road from the other. Hellberq v. Coffin Sheep Co.,66
Wn.2d 664, 666-67, 404 P.2d 770 (1965); 17 WILLIAM B. STOEBUCK & JOHN W.WEAVER,
WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW § 2.5, at 93(2d ed. 2004).
Although an easement by necessity does not require a showing of prior use, it does
require a showing of strict necessity. Id. Easement by necessity and private
condemnation are different and distinct actions. See, e.q., Hellberq, 66 Wn.2d at 666-
67.
