                                                                         FILED 

                                                                      March 17,2015 

                                                               In the Office of the Clerk of Court 

                                                             WA State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


MICHAEL L. BLANKENSHIP and           )                No. 32273-4-111 

YVONNE M. BLANKENSHIP, husband       )

and wife,                            )

                                     )

                    Respondents,     )

                                     )

              v.                     )                UNPUBLISHED OPINION
                                     )
JERRY L. BRAMHALL, a married man, as )
his sole and separate property,      )
                                     )

                    Appellant.       )


      BROWN, J-Jerry Bramhall appeals the trial court's summary judgment order

granting a road easement to Michael and Yvonne Blankenship. Mr. Bramhall contends

the trial court erred because genuine material facts remain in dispute regarding whether

an implied and/or a prescriptive easement exists. We agree and reverse.

                                        FACTS

      The Blankenships and Mr. Bramhall own neighboring parcels of property along

Nancy Creek in Ferry County. Both parties trace their titles to a common grantor, J.C.

and Inger K. Carson. In 1971, the Carsons platted a portion of their property in Ferry

County and dedicated the Nancy Creek Addition subject to restrictions, exceptions, and
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      No. 32273-4-111
 i    Blankenship v. Bramhall
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.,j   easements seen on the Plat of Nancy Creek Addition (the Plat). The Plat showed the

j     location of a private road, which is the subject of this dispute.



I
l
~
             In 1985, Mr. Bramhall acquired his property via a series of conveyances. His

      deed does not contain a description of an easement across his property, but the deed is

      subject to the plat dedication and restrictions related to Nancy Creek Addition. In 2007,
j     the Blankenships acquired their property from Eunice Poirier. Ms. Blankenship is Ms.
i
Ig    Poirier's sister and Mr. Carson's daughter.
iI
I            In 2013, the Blankenships contracted to sell their property. Because the Carsons

II    did not specifically reserve an easement over the road when they originally sold Mr.


I     Bramhall's property, a question as to the validity of easement access was raised. The

      Blankenships asked Mr. Bramhall to execute an easement for ingress, egress, and

      utilities over the road; Mr. Bramhall declined to do so. The Blankenships then sued Mr.

      Bramhall to quiet title in the road crossing a portion of Mr. Bramhall's property, asserting

      an implied easement by necessity and an easement by prescription.

            The Blankenships moved for summary judgment. In support of their motion, in

      addition to the above facts, the Blankenships asserted they and "their predecessors in

      interest have used said road as their own, asking permission of no one" and "use of the

      roadway has been open, notorious, continuous and uninterrupted for a period of more

      than [40] years under a claim of right based upon the dedication on March 19,1971 and

      by necessity." Clerk's Papers (CP) at 55. Mr. Bramhall's response supported by

      declarations from him and his neighbor, Gail Herbst, alleged material facts remained in



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dispute. Mr. Bramhall declared he had never "seen anyone use the road that the

Blankenships now claim a right to for ingress and egress" since living on the property.

CP at 101. Ms. Herbst declared she had "never seen the road on [Mr. Bramhall's]

property used by anyone to access or exit the Blankenships' property." CP at 103. Mr.

Bramhall disputed necessity, declaring the Blankenships have access to their property

by other means. Mr. Bramhall then moved to strike inadmissible portions of the

Blankenships' complaint and declaration filed in support of summary judgment.

       At oral argument, the trial court granted Mr. Bramhall's motion to strike in part as

to legal conclusions. The court granted the Blankenships' summary judgment motion,

quieted title in the Blankenships, and awarded statutory attorney fees against Mr.

Bramhall. Mr. Bramhall appealed.

                                        ANALYSIS

                                   A. Implied Easement

       The issue is whether the trial court erred in granting summary judgment based on

an implied easement. Mr. Bramhall contends the Blankenships did not show admissible

evidence of prior use or necessity and left genuine material fact issues disputed.

       We review summary judgment orders de novo, engaging in the same inquiry as

the trial court. Woodward v. Lopez, 174 Wn. App. 460, 467,300 P.3d 417 (2013).

"Summary judgment is appropriate 'if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to



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a judgment as a matter of law.'" Visser v. Craig, 139 Wn. App. 152, 157, 159 P.3d 453

(2007) (quoting CR 56(c». Material facts are those upon which the outcome of the

litigation depends. Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937

P.2d 1082 (1997).

       'The moving party bears the burden of demonstrating that there is no genuine

issue of material fact." Woodward, 174 Wn. App. at 468. "Once there has been an

initial showing of the absence of any genuine issue of material fact, the party opposing

summary judgment must respond with more than conclusory allegations, speculative

statements, or argumentative assertions of the existence of unresolved factual issues."

Rufferv. St. Frances Cabrini Hosp., 56 Wn. App. 625, 628, 784 P.2d 1288 (1990).

Evidence submitted and all reasonable inferences from the evidence are considered in

the light most favorable to the nonmoving party. Woodward, 174 Wn.App. at 468.

When reasonable minds could reach but one conclusion regarding claims of disputed

facts, such questions may be determined as a matter of law. Ruffer, 56 Wn. App. at

628.

                An implied easement ... may arise (1) when there has been unity
       of title and subsequent separation; (2) when there has been an apparent
       and continuous quasi easement existing for the benefit of one part of the
       estate to the detriment of the other during the unity of title; and (3) when
       there is a certain degree of necessity ... that the quasi easement exist
       after severance.

Adams v. Cullen, 44 Wn.2d 502, 205, 268 P.2d 451 (1954). Unity of title and

subsequent separation must exist for an implied easement to arise. Id. However, the

presence or absence of the other two factors is not conclusive; instead, they serve as


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aids to construction in determining the presumed intent of the parties as disclosed by

the extent and character of the use, "'the nature of the property, and the relation of the

separated parts to each other.'" Woodward, 174 Wn. App. at 469 (quoting State v.

McPhadden, 95 Wn. App. 431,437, 975 P.2d 1033 (1999)).

       Necessity means reasonable necessity, not absolute necessity. Adams, 44

Wn.2d at 507. "The test of necessity is whether the party claiming the right can, at

reasonable cost, on his own estate, and without trespassing on his neighbors, create a

substitute." Id. Although prior use is a factor in establishing an implied easement,

necessity alone can be used where '''the land cannot be used without the easement

without disproportionate expense.'" Woodward, 174 Wn. App. at 470 (quoting Fossum

Orchards v. Pugsley, 77 Wn. App. 447, 451,892 P.2d 1095 (1995)).

       Here, the parcels were formerly joined and then separated, satisfying the first

factor. But genuine issues of material fact remain regarding the second and third

factors. Viewing the evidence in the light most favorable to Mr. Bramhall, no evidence

shows whether use of the road was apparent and continuous. While the Plat does

show the road, the existence of the road does equal use of the road. The Blankenships'

contention that neither Mr. Bramhall nor Ms. Herbst could see the road is directly

contradicted by Mr. Bramhall's and Ms. Herbst's declarations indicating they have never

seen anyone use the road. Mr. Bramhall declared no one has used the road since he

acquired the property in 1985. Prior use of the road is a disputed material fact. The




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Blankenships' assertion that Mr. Bramhall and Ms. Herbst could not see the road must

be left to fact-finding.

       While lack of the second factor is not dispositive in an implied easement claim, a

material factual issue remains regarding the necessity factor. Mr. Bramhall asserts the

Blankenships own land adjacent to their property through which they could construct a

new road. The Blankenships argue use of the road is necessary because building an

alternate route would be "cost prohibitive" as it involves constructing bridges and/or

culverts. CP at 113. The Blankenships support this contention with a declaration from

their realtor, Ronald Snyder. The Blankenships' failure to estimate the actual cost of

constructing a new road does not by itself mean there is no necessity; an expert's

opinion could be helpful to establishing this factor. Yet absent some showing otherwise,

a realtor is not necessarily an expert on how much it would cost to build a road.

       Viewing the declarations, photographs, and other evidence in the light most

favorable to Mr. Bramhall, the nonmoving party, we conclude genuine issues of material

fact remain regarding prior use and reasonable necessity. Thus, the trial court erred in

granting summary judgment to the Blankenships on their implied easement claim.

                                B. Prescriptive Easement

       The issue is whether the trial court erred in granting summary judgment based

upon a prescriptive easement. Mr. Bramhall contends the Blankenships did not show

they used the road prior to 2007 nor was there evidence showing Mr. Bramhall had

knowledge of this use. He argues, assuming the Blankenships' use of the road for 10



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years was supported by the evidence, no evidence shows the use was adverse. Our

review standard remains the same.

      As prescriptive rights are not favored, we presume the use of another's property

is permissive. 810 Properties v. Jump, 141 Wn. App. 688, 700, 170 P.3d 1209 (2007).

In order to establish a prescriptive easement,

      a claimant must prove 'use of the servient land that is: (1) open and
      notorious, (2) over a uniform route, (3) continuous and uninterrupted for 10
      years, (4) adverse to the owner of the land sought to be subjected, and (5)
      with the knowledge of such owner at a time when he was able in law to
      assert and enforce his rights.'

Drake v. Smersh, 122 Wn. App. 147, 151,89 P.3d 726 (2004) (quoting Kunkel v. Fisher,

106 Wn. App. 599, 602, 23 P.3d 1128 (2001)) (quotation omitted). A claimant has the

burden of establishing the existence of each element. Id.

      A use is adverse when the claimant "'uses the property as the true owner WOUld,

under a claim of right, disregarding the claims of others, and asking no permission for

such use.'" Id. at 152 (quoting Kunkel, 106 Wn. App. at 602). "Use is not adverse if it is

permissive." Id. Adverse versus permissive use is generally a question of fact, but

where the essential facts are not disputed, a court may determine adversity as a matter

of law. Id. The inference of permissive use applies when a court can reasonably infer

the use was permitted by neighborly sufferance or acquiescence. Kunkel, 106 Wn.

App. at 602; see also Gamboa v. Clark, 180 Wn. App. 256, 321 P.3d 1236, review

granted, 181 Wn.2d 1001, 332 P.3d 984 (2014) (discussing in depth the inference of

permissive use). Initial permissive use cannot ripen into a prescriptive right, no matter



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how long it may continue, "unless there has been a distinct and positive assertion by the

dominant owner of a right hostile to the owner of the servient estate." N. W. Cities Gas

Co.,   v. W Fue/ Co.,   13 Wn.2d 75, 84, 123 P.2d 771 (1942). Whether use is adverse is

measured objectively by looking at the observable acts of the user and the rightful

owner. Dunbarv. Heinrich, 95 Wn.2d 20, 27, 622 P.2d 812 (1980); see a/so N.W Cities

Gas Co., 13 Wn.2d at 88 (in determining whether use is adverse and whether a

property owner had the requisite notice of the use, "the nature and location of the

property involved are material and important considerations").

        Mr. Bramhall focuses on (1) whether the Blankenships used the road adversely

for the requisite 1O-year period and (2) whether he had knowledge of the use at a time

when he could assert his legal right to contest it. The Blankenships assert they used

the road "as their own, asking permission of no one." CP at 55. The parties'

declarations are at odds. The Blankenships argue Mr. Bramhall had constructive

knowledge of their road use because the road was marked on the Plat. A factual

dispute exists regarding the Carsons' intent to create an easement; Mr. Bramhall is

entitled to a reasonable inference the road depicted in the Plat served as a landmark.

Viewing the evidence in the light most favorable to Mr. Bramhall, reasonable minds

could reach differing conclusions on whether the Blankenships' use was actual, open

and notorious, continuous for 10 years, adverse, and known to Mr. Bramhall. In sum,

we conclude the trial court erred in relying on adverse possession when granting

summary judgment to the Blankenships.



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                                      Conclusion

      The summary judgment grant, including statutory attorney fees, is reversed.

Given the trial court's reliance on implied easement and adverse possession as a basis

for granting summary judgment, we refrain from addressing Mr. Bramhall's additional

arguments concerning whether the road was a dedicated public or private easement.

We deny the Blankenships' request of attorney fees under RAP 14.2 and RAP 18.1

because they have not substantially prevailed here.

      Reversed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




                                                 Brown, J.

WE CONCUR: 





                                                 Lawrence-Berrey, J.




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