                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                            February 7, 2017



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    TED SPICE,                                                         No. 48075-1-II

                         Appellant,

         v.

    BRYAN BARTELSON and DOROTHY M.                              UNPUBLISHED OPINION
    BARTELSON, husband and wife,

                         Respondents.


        SUTTON, J. — Ted Spice and Bryan and Dorothy Bartelson,1 adjacent property owners,

were prior litigants in a lawsuit resulting in two superior court orders, including an order restricting

the Bartelsons from claiming a water easement through Spice’s property. Spice later sued the

Bartelsons for trespass over the Bartelsons’s use of a water line through Spice’s property. Spice

appeals the superior court’s summary judgment order and ruling that he did not meet the exclusive

possession element on his claim of trespass against the Bartelsons. We hold that, under the plain

language of the superior court’s prior orders, (1) Spice’s property is not subject to a claim for water

service by the Bartelsons and (2) Spice has established trespass through misuse of the easement.

We also hold that the superior court erred in granting summary judgment to the Bartelsons,

awarding statutory costs, and in denying Spice’s motion to reconsider. Thus, we reverse the



1
 The correct spelling of Respondents’ last name appears to be Bartelson, based on signatures.
Both versions—Bartelson and Bartleson—appear in the record with equal frequency.
No. 48075-1-II


superior court’s order granting summary judgment to the Bartelsons, the court’s award of statutory

costs to the Bartelsons, and the superior court’s order denying summary judgment to Spice. We

also grant summary judgment to Spice on his trespass claim against the Bartelsons and remand to

the superior court to determine the nature and extent of the damages to Spice.

                                             FACTS

                                         I. BACKGROUND

         Spice and the Bartelsons are neighboring property owners in Puyallup, Washington. Spice

owns two properties and the Bartelsons own three properties.2 The property parcel numbers,

addresses, and ownership are depicted in the following chart:


    Parcel                       Address                           Owner

    0420224094                   11403 to 11405 58th St. Ct. E.    Bartelsons (Duplex)

    0420224095                   11323 to 11325 58th St. Ct. E.    Bartelsons (Duplex)

    0420224138                   11306 58th St. Ct. E.             Bartelsons (Five Acre)

    0420224137                   11305 58th St. Ct. E.             Spice

    0420224096                   11319 58th St. CT E.              Spice


         Access disputes arose between the Bartelsons, who owned only the Five Acre parcel at the

time, and the other property owners on 58th St. Ct. E. that resulted in a right-of-way litigation in

2008. During the right-of-way litigation, Spice separately sued the Bartelsons in 2009 for using a


2
  All five properties were previously owned by James Williams as one estate. The estate was
subdivided over time, but an easement for ingress and egress along the main driveway (58th St.
Ct. E.) was not granted as each property was sold.



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No. 48075-1-II


water line that ran from the Bartelsons’s Five Acre parcel, through Spice’s 11319 parcel, and which

connected to Spice’s water meter. The superior court consolidated the cases and, after the parties

resolved their dispute, the superior court entered two orders dated April 16, 2010, the “Road

Easement” and the “Road Maintenance Order,”3 and a “Water Line Order.”4 Clerk’s Papers (CP)

at 286-317, 190-201. These orders included reciprocal easements for the purpose of maintaining

the road at 58th St. Ct. E. and provided cost sharing provisions for such maintenance. The Water

Line Order expressly addressed any claim by the Bartelsons for water service through Spice’s

properties. In this appeal, the parties dispute whether the Bartelsons have a right to install and use

a water line within the road easement.

                                   II. PRIOR LITIGATION ORDERS

A. ROAD EASEMENT

       The Road Easement (58th St. Ct. E.) connects to 114th Ave. E. then travels west through

the Bartelsons’s duplex properties, then across both of Spice’s parcels, and ends on the

Bartelsons’s Five Acre parcel. Because of the parties’ settlement, the superior court moved part

of the Bartelsons’s Five Acre boundary line west to ensure right-of-way access by Spice to his

property at 11305. The Road Easement includes the parties’ reciprocal easements.




3
 Exhibits E and G, respectively, of the Order Re Joint Easements for Road and Road Maintenance
(April 16, 2010). CP 298-301, 306-16.
4
  Amended Order Re Joint Easement for Water Lines and Release of Claim of Water Service (April
16, 2010). CP 190-201. The superior court amended the Water Line Order during the prior
litigation to address the fear of a future ambiguity surrounding the permitted use of the Road
Easement.



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No. 48075-1-II


       In the Road Easement, Spice conveyed to the Bartelsons “a permanent non-exclusive road

easement a road easement (sic) and right-of-way with the right to erect, construct, install, lay and

thereafter use, operate, inspect, repair, maintain, and replace over, across and/or under a certain

parcel of real property [describes the location of the road].” CP at 298. The Road Easement further

states that “this easement and right-of-way shall give and convey to [the Bartelsons] the right of

ingress and egress . . . for the purpose of constructing, maintaining and repairing the above

described road improvements.” CP at 300. The Road Easement “includes a construction easement

over, across, and under [58th St. Ct. E.] for installation of any gravel necessary for full use of the

property and any other terms in the Road Maintenance Order.” CP at 300 (emphasis added). The

Road Easement does not mention utilities, but it expressly refers to the terms of the Road

Maintenance Order.

B. ROAD MAINTENANCE ORDER

       Because the parties desired “to provide for the future maintenance and repair of [58th St.

Ct. E.] and to share the cost of such maintenance and repair in a fair and equitable manner,” the

superior court entered a separate Road Maintenance Order for road maintenance and cost sharing.

CP at 307. The Road Maintenance Order addresses paving improvements and maintenance,

initiating and sharing costs for common work, initiating and paying for individual work, and

maintaining the landscaped sides of the road.

       The Road Maintenance Order also includes a provision that reads: “The Road [Easement]

shall include all and any amenities within the easement areas such as paving, gravel, landscaping,

common utilities, fences, etc.” CP at 307 (emphasis added). On appeal, Spice and the Bartelsons

dispute the meaning of the phrase “common utilities.”



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No. 48075-1-II


       In addition to the Road Easement and Road Maintenance Order, the superior court

simultaneously ordered a release of claim of water service (Water Line Order) for Spice and

against the Bartelsons.

C. WATER LINE ORDER

       The Water Line Order addresses two issues relevant to this appeal: (1) the water line that

fed a spigot on the Bartelsons’s Five Acre parcel but attached to Spice’s water meter and (2)

Spice’s desire to prevent the Bartelsons from using Spice’s properties for a water easement.

       The Water Line Order states, “[Appellant is] hereby allowed to cap off any water lines

currently servicing the properties [11305 and 11319] that extend onto the Bartleson (sic) [Five

Acre parcel].” CP at 191.

       The second relevant provision of the Water Line Order states, “[Appellant’s] properties

will not be subject to any claim for easement for water, or water rights for the benefit of the

Bartleson (sic) [Five Acre parcel].” CP at 191. Spice asserts that the superior court amended the

Water Line Order to include a release of water claim by the Bartelsons to clarify the rights of the

parties with respect to water use in the Road Easement.

D. EVENTS LEADING TO LITIGATION

       After entry of the superior court’s orders, Spice immediately capped the water line

connecting the Bartelsons’s Five Acre parcel with Spice’s water meter. The Bartelsons began

using portable toilets on the Five Acre parcel since they no longer had water service. Eventually,

Spice noticed that the portable toilets were gone and began investigating the Bartelsons’s apparent

water source. The parties agree that the water line now servicing the Bartelsons’s Five Acre parcel




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No. 48075-1-II


runs from the Bartelsons duplex at 11323-25, to and along 58th St. Ct. E., through Spice’s property,

and ends at the Bartelsons’s Five Acre parcel.

E. THE CURRENT WATER LINE

       The parties disagree over who installed the Bartelsons’s current water line and when the

installation occurred.

       Spice argues that the water line was installed after the prior litigation and thus the water

line is subject to the superior court’s prior orders. Spice relies on (1) a work order installing a new

line, valve, and meter at the 11323-25 duplex in 2008, but that did not include extending the line

to the Five Acre parcel, (2) the fact that the water line’s construction is modern plastic and not

galvanized steel like the original water lines on the properties, (3) the seller’s statement that the

Five Acre parcel did not contain a water utility when sold, and (4) a tenant’s statement who used

an office on the Five Acre parcel for 15 years without water access.5 Spice concedes that there

may have been water on the Five Acre parcel prior to the Bartelsons’s purchase;6 however, Spice

argues that water access was cut off once the water line to his meter was capped shortly after the

prior litigation ended.




5
  The tenant moved out in 2004 at Williams’s death and was the last occupant of the property prior
to the Bartelsons’s ownership.
6
  A tenant from the 1980’s testified that there was running water on the property from at least two
spigots. Bryan Bartelson testified that the property had three working spigots and plumbing
fixtures in two of the buildings when they bought the property.



                                                  6
No. 48075-1-II


       The Bartelsons argue that they discovered an existing water line and began using it. After

the water access was capped, the Bartelsons state that they investigated and found a spigot on the

Five Acre parcel that produced water when they turned on a valve at their 11323-25 duplex. The

Bartelsons further state that this spigot on the Five Acre parcel did not work when the Five Acre

parcel was receiving water from the line attached to Spice’s meter. The Bartelsons contend that

the water line they are using is on a separate, pre-existing line than the one installed at the 11323-

25 duplex in 2008. The Bartelsons state that the water line installed at the duplex in 2008 ran from

the meter on 114th Ave. E. to the 11325 side of the duplex; yet the current water line at issue runs

from the 11323 side of the duplex to the Five Acre parcel. Spice refutes the Bartelsons’s account

stating that there was no valve for the Bartelsons to turn on at the duplex because the duplex’s

water control valves were always turned on in order to provide water service to the tenants.

       The Bartelsons assert that after discovering the water line, they traced the line and found

that it followed the road easement. The Bartelsons extended the water line past the road easement

to better serve the Five Acre parcel. During a road easement improvement project, Bryan

Bartelson states that he dug up and replaced the original water line because it was a grey electrical

pipe instead of a black water pipe.

       III. SPICE’S LAWSUIT, SUMMARY JUDGMENT MOTIONS, AND THE COURT’S RULING

       In 2014, Spice sued the Bartelsons, claiming that the Bartelsons’s installation and use of

the water line constitutes an intentional and continuing trespass on Spice’s property.           The

Bartelsons served interrogatories on Spice and asked Spice to itemize his damages. Three months

later, Spice responded as follows: “1. Reasonable value of use of property since the water line(s)

were installed. 2. Costs of removing water line(s). Amounts are being determined by an appraiser,



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No. 48075-1-II


and this answer will be supplemented when the report is received.” CP at 523. In response to the

Bartelsons’s interrogatory asking if the alleged trespass restricts Spice’s use of his property, Spice

responded, “Current use is not hindered, but future development of the property is potentially

restricted.” CP at 524. In response to the Bartelsons’s request for production to provide copies of

bills paid as a result of the trespass, Spice provided a water locator service invoice for $360. Spice

did not supplement his responses to the interrogatories.

       During Spice’s deposition, the Bartelsons asked Spice to explain how he has been damaged

by the alleged trespass. Spice responded, “I can’t give you specifics. . . . I’ve got a guy who is

going to do the appraisal on what the damages are, and I can’t give you specifics on all that.” CP

at 166. When the Bartelsons asked whether there were any other damages, Spice’s responses and

the follow up questions were as follows:

       [Spice]: Well, I mean, it could be - - you could factor in: What is the potential use
       of the property.
       Q: What - - - potential use of your property?
       [Spice]: Of his property, his five Acre.
       Q: How is that a damage to you?
       [Spice]: It could be - - - if he’s benefiting financially . . . there should be some
       value to me . . . using my easement. [U]sing those water lines across my property
       to supply his development.

CP at 168-69.

       Spice filed a motion for summary judgment arguing that the Bartelsons did not have an

easement for water use through Spice’s property under the Road Easement and Road Maintenance

Order, or the Water Line Order. The Bartelsons responded and filed a cross motion for summary




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No. 48075-1-II


judgment, arguing that their actions are permitted under the Road Easement and Road Maintenance

Order. Spice moved to continue the summary judgment hearing to provide additional evidence on

his damages. The Bartelsons objected and the superior court did not rule on the request for a

continuance.

          After hearing arguments on the cross summary judgment motions, the superior court agreed

with the Bartelsons and ruled that the Road Maintenance Order provides for the right to install

“common utilities” within the road easement, and also ruled that water is a “common utility.”

Verbatim Report of Proceedings (VRP) at 26. The superior court ruled that “there was no invasion

by [the Bartelsons of Spice’s] property interest in the exclusive possession of his land since the

property in question was subject to easement for roads and common utilities.” CP at 353. The

superior court granted summary judgment to the Bartelsons, dismissed Spice’s claim with

prejudice, and denied summary judgment to Spice. The superior court also awarded the Bartelsons

$320 in statutory costs.7

          Spice filed a motion for reconsideration and also filed three documents supporting his

request for damages: An invoice billing the cost of locating the water line ($360), an estimate of

the cost to remove the water line ($11,852), and an appraiser’s report estimating the value of the

water easement, if sold ($9,702). The Bartelsons objected that the damages evidence is not newly

discovered evidence under CR 59(a)(4) and should not be considered, and that the receipts did not

change the superior court’s ruling that Spice failed to show exclusive possession of the property

at issue. The superior court denied Spice’s motion to reconsider. Spice appeals.



7
    The court did not cite any authority in its order.



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No. 48075-1-II


                                             ANALYSIS

                                      I. STANDARD OF REVIEW

       We review a summary judgment order de novo and engage in the same inquiry as the

superior court. Club Envy of Spokane, LLC v. Ridpath Tower Condo. Ass’n, 184 Wn. App. 593,

599, 337 P.3d 1131 (2014). Summary judgment is proper if there is “no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c).

“‘A material fact is one that affects the outcome of the litigation.’” Elcon Const., Inc. v. E. Wash.

Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012) (quoting Owen v. Burlington N. Santa Fe R.R.,

153 Wn.2d 780, 789, 108 P.3d 1220 (2005)). We view the facts and reasonable inferences from

those facts in the light most favorable to the nonmoving party. Club Envy, 184 Wn. App. at 599.

                                        II. LEGAL PRINCIPLES

       The owner of an easement trespasses8 if he misuses or deviates from an existing easement.

Olympic Pipe Line Co. v. Thoeny, 124 Wn. App. 381, 393, 101 P.3d 430 (2004). “Damages for a

temporary . . . trespass are the cost of restoration and the loss of use. Nominal damages may also

be available.” Olympic Pipe Line, 124 Wn. App. at 393-94 (citations omitted).




8
  To establish a claim of trespass, a plaintiff must show (1) an invasion of property affecting an
interest in exclusive possession, (2) an intentional act, (3) that it is reasonably foreseeable that the
act would disturb the plaintiff’s possessory interest, and (4) actual and substantial damages.
Wallace v. Lewis County, 134 Wn. App. 1, 15, 137 P.3d 101 (2006). Because we hold that Spice
prevails on his trespass claim against the Bartelsons based on the plain language of the Road
Easement, the Road Maintenance Order, and the Water Line Order entered by the superior court,
we do not discuss each element of trespass.


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No. 48075-1-II


A. INTERPRETATION OF THE SUPERIOR COURT’S ORDERS

       Spice argues that the superior court erred in ruling that the term “utilities” includes the

Bartelsons’s installation and use of a water line that crosses through Spice’s property at the location

of the road easement. The Bartelsons argue that the superior court correctly interpreted the term

“utilities” to include their right to access water through Spice’s property. We read the Road

Easement and Road Maintenance Order together with the Water Line Order because the superior

court entered these orders on the same day. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d

873, 880 73 P.3d 369 (2003). When the orders are read together, we agree with Spice that the

plain language of the Road Maintenance Order does not define or expand the scope of the Road

Easement and further hold that the plain language of the Road Easement does not allow Bartelson

to use or install a water line across Spice’s property. Thus, we reverse the superior court’s order

granting summary judgment to the Bartelsons, reverse the court’s award of statutory costs to the

Bartelsons, and reverse the superior court’s order denying summary judgment to Spice. We also

grant summary judgment to Spice on his trespass claim against the Bartelsons, and remand to the

superior court to determine the nature and extent of the damages to Spice.

       1. The Road Easement

       The Road Easement states that the Bartelsons are granted “a permanent non-exclusive road

easement a road easement (sic) and right-of-way with the right to erect, construct, install, lay and

thereafter use, operate, inspect, repair, maintain, and replace over, across and/or under a certain

parcel of real property [describes the location of the road].” CP at 298. The Road Easement further

states that “this easement and right-of-way shall give and convey to [the Bartelsons] the right of

ingress and egress . . . for the purpose of constructing, maintaining and repairing the above



                                                  11
No. 48075-1-II


described road improvements.” CP at 300. The plain language of the Road Easement does not

include the word “utilities” and provides the parties only the right of ingress and egress to the

properties, and for road maintenance and improvements along 58th St. Ct. E.

       2. The Road Maintenance Order

       The language of the Road Maintenance Order describes the terms of maintenance of the

road and the responsibilities of the parties to address future road maintenance, nothing more. The

Road Maintenance Order expressly provides “for the future maintenance and repair of [58 St. Ct.

E.] and to share the cost of such maintenance and repair in a fair and equitable manner.” CP at

307. When read together with the Road Easement, the Road Maintenance Order does not define

or expand the scope of the Road Easement. Specifically, the Road Maintenance Order does not

expand the use of an easement designed for ingress and egress to allow for utilities.

       3. The Water Line Order

       The Water Line Order expressly provides that “[Spice’s] properties will not be subject to

any claim for easement for water, or water rights for the benefit of the Bartleson (sic) property.”

CP at 191. The plain language of the Water Line Order does not allow the Bartelsons to subject

Spice’s property to an easement for water to benefit the Bartelsons.

       As analyzed above, the Road Maintenance Order did not define or expand the scope of the

Road Easement; the Road Maintenance Order only detailed the parties’ rights and responsibilities

for maintaining and improving the road. The language of the superior court’s orders is clear and

unambiguous. Thus, we hold that the Bartelsons do not have a claim for water service over Spice’s

properties.




                                                12
No. 48075-1-II


B. SUMMARY JUDGMENT ORDERS

       The superior court found that Spice failed to prove exclusive possession9 of the road at

58th St. Ct. E., “[T]he [c]ourt finds that there was no invasion by [the Bartelsons of Spice’s]

property interest in the exclusive possession of his land since the property in question was subject

to easement for roads and common utilities.” CP at 353. Based on our analysis above, the

Bartelsons do not have a claim for water service over Spice’s properties.

       Because the parties filed cross motions for summary judgment, we must view the evidence

in a light most favorable to the non-moving party. CR 56; Club Envy, 184 Wn. App. at 599. As

to the Bartelsons’s motion for summary judgment, we view the evidence in a light most favorable

to Spice. As analyzed above, because we hold that the Bartelsons do not have a claim for water

service through Spice’s properties, we hold that the superior court erred in granting summary

judgment to the Bartelsons and erred in denying Spice’s motion to reconsider.

       As to Spice’s motion for summary judgment, we view the evidence in a light most

favorable to the Bartelsons. The Bartelsons’s use of the water line was a misuse of the road

easement and, thus, a trespass. See Olympic Pipe Line, 124 Wn. App. at 393. Therefore, we hold

that the superior court erred in denying summary judgment to Spice.




9
  The superior court did not rule on the remaining three elements of trespass—an intentional act, a
reasonable foreseeability that the act would disturb the plaintiff’s possessory interest, or actual and
substantial damages. See Wallace, 134 Wn. App. at 15.



                                                  13
No. 48075-1-II


                                ATTORNEY FEES AND COSTS

       Both parties claim attorney fees and costs on appeal under RCW 4.24.630(1)10 and under

the Road Maintenance Order.11

       Because we reverse the superior court’s order granting summary judgment to the

Bartelsons and award of statutory costs to them, we also deny the Bartelsons’s attorney fees and

costs and award attorney fees and costs to Spice.

                                         CONCLUSION

       We hold that, under the plain language of the superior court’s prior orders, Spice’s property

is not subject to a claim for water service by the Bartelsons and Spice has established trespass

through misuse of the easement. We also hold that the superior court erred in granting summary

judgment to the Bartelsons, awarding statutory costs, and in denying Spice’s motion to reconsider.

Thus, we reverse the superior court’s order granting summary judgment to the Bartelsons, the

court’s award of statutory costs to the Bartelsons, and the superior court’s order denying summary




10
  RCW 4.24.630(1) in relevant part states that the trespasser “is liable for reimbursing the injured
party for the party’s reasonable costs, including but not limited to investigative costs and
reasonable attorneys’ fees and other litigation-related costs.”
11
  The relevant part of the Road Maintenance Order allowing for attorney fees and costs states, “In
the event that any Owner incurs costs and attorney’s fees in enforcing this Order, the prevailing
party shall be awarded such costs and attorney’s fees against the other Owner, provided such costs
and fees are reasonable and necessary.” CP at 310.



                                                14
No. 48075-1-II


judgment to Spice. We also grant summary judgment to Spice on his trespass claim against the

Bartelsons and remand to the superior court to determine the nature and extent of the damages to

Spice.

         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    SUTTON, J.
 We concur:



 BJORGEN, C.J.




 WORSWICK, J.




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