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

MARK F. and LINDA H. BRESSLER,                    No. 72027-9-
husband and wife,

                     Appellants,

         v.



KEVIN F. and LINDA SULLIVAN,
husband and wife,                                 UNPUBLISHED OPINION


                     Respondents.                 FILED: June 29, 2015


       Verellen, A.C.J. — The Bresslers brought a quiet title action against their

neighbors, the Sullivans, to declare both lots free of a shared boat launch easement.

After a bench trial, the trial court found that the Sullivans abandoned the easement. But

the trial court also concluded that it would not be an undue hardship on the Bresslers to

allow the Sullivans to reinstate the easement if the Sullivans met certain conditions.

The Bresslers appeal the trial court's order permitting the Sullivans to reinstate the

abandoned easement.       Because there is no authority to order reinstatement of an

easement that has been abandoned if reinstatement would not be an undue hardship,

the trial court's ruling was in error. Accordingly, we reverse in part.

                                           FACTS


       On July 24, 2006, the Bresslers and the Sullivans each bought adjoining low-

bank waterfront homes on Whidbey Island in Island County, Washington. Both lots
No. 72027-9-1/2


were encumbered with a mutual easement over a five-foot strip on either side of most of

their common boundary. Additionally, the Bresslers' lot was encumbered with an

easement for the benefit of the Sullivans' lot, allowing access and use of a boat ramp

located on the Bresslers' lot. Stone pavers were installed along the corridor between

the two houses following the intended easement path between the two lots and across

the Bresslers' lot down to the boat launch. Both easements were recorded in a


"Declaration for Joint Use of a Boat Launch" on July 24, 2006.

         The Bresslers used their property for weekends and vacations. The Sullivans did

not live on the property until 2009. For a variety of reasons, the neighbors did not get

along.

         In January 2009, after the Sullivans moved on to the property, Ms. Sullivan

installed a mailbox in the middle of the easement. At Mr. Bressler's request, she agreed

to move it, but did not do so until after this lawsuit was filed. At the end of August 2009,

Ms. Sullivan decided to put up a fence. When reminded by Mr. Bressler about the

easement, she had a chain link fence installed five feet from the midpoint of the

easement.


         In September 2011, the Sullivans purchased a boat and asked their attorney

about how to begin using the easement for the boat launch. The Sullivans also made

arrangements to install a sliding gate in their fence so they could move their boat from

their property to the boat launch. When their attorney mistakenly informed them that

there was no easement, Ms. Sullivan decided to move the fence. She had workers

begin erecting a fence with six-foot high wooden posts along the property line in the

middle of the easement.
No. 72027-9-1/3


       When the Bresslers objected to the fence, the Sullivans referred them to their

attorney. The Bresslers then hired their own attorney, who contacted the Sullivans'

attorney and demanded that the fence and mailbox be removed from the easement by

November 4, 2011, or alternatively, that the Bresslers would agree to extinguish the

easement. When the Sullivans' attorney confirmed to the Sullivans that the easement in

fact existed, the Sullivans advised their attorney not to respond to the Bresslers'

attorney. Ms. Sullivan then authorized the fence contractors to continue with installation

of the fence within the easement.

       Eventually, the Sullivans' attorney told the Bresslers that the Sullivans wished to

extinguish the easement. The Bresslers' attorney prepared an extinguishment

agreement. The Sullivans told their attorney that they agreed to sign the papers to

extinguish the easement.

       Meanwhile, the Sullivans were considering constructing a boat launch on their

own property if the property seller or the title company would pay for it. But once the

existence of the easement was confirmed, the Sullivans' attorney advised them that

they could not recoup costs of installing a boat launch from the property owner, leaving

only the title company as a possible source. The Sullivans' attorney later e-mailed them

that they were unable to recoup such costs from the title company and it was unlikely

the title company would reimburse them for their attorney fees. The Sullivans did not

respond. Their attorney e-mailed them again to ask when they could sign the easement

extinguishment agreement. On November 30, 2011, the Sullivans responded they were

unavailable until mid-December.
No. 72027-9-1/4


       The Sullivans' attorney then sought attorney fees from the title company for

failing to include the easement in the title policy. On December 19, the Sullivans'

attorney notified them that the title company was only willing to pay $3,951 in attorney

fees to settle their claim. The next day, the Sullivans informed their attorney and the

Bresslers that they would not sign the easement extinguishment agreement.

       The parties proceeded to mediation. Following mediation, the Sullivans moved

most of the fence back to its original configuration, five feet from the middle of the

easement. But they left a twelve-foot portion of the fence inside the easement where

the swinging gate was installed. The Bresslers' attorney advised the Sullivans' attorney

that this configuration blocked the easement, but the Sullivans did not take any action.

       After the unsuccessful mediation, the Bresslers filed this lawsuit, seeking to quiet

title to both lots free of the easement declaration. The Bresslers claimed that the

Sullivans abandoned the easement, and that, in the alternative, the Sullivans were

equitably estopped from denying the abandonment.

       After the lawsuit was filed, the Sullivans began using the boat ramp, but did not

comply with the terms of the easement. The easement only permitted egress and

ingress for the purpose of launching boats, but the Sullivans often tied their boat up on

the Bresslers' tidelands or stored it on the boat ramp. The Sullivans also allowed third

parties to use the easement to remove driftwood from the beach below the launch

without the Bresslers' consent. Additionally, the Sullivans expanded their landscaping

further into the easement area.

       After a bench trial, the trial court found that the Sullivans abandoned the

easement. But the court also concluded that the Bresslers would not suffer undue
No. 72027-9-1/5


hardship by reinstatement of the easement if the Sullivans were required to move the

encumbrances that encroached on the easement and if they paid the Bresslers' legal

expenses. The court then entered a "Final Judgment and Conditional Decree Quieting

Title" allowing the Sullivans 20 days to comply with the conditions for reinstating the

easement.


       The Bresslers appeal that portion of the trial court's judgment allowing

reinstatement of the easement.

                                      DISCUSSION


       The Bresslers contend that the trial court's order allowing reinstatement of an

abandoned easement is without legal basis. We agree.

       "When a trial court has weighed the evidence in a bench trial, appellate review is

limited to determining whether substantial evidence supports its findings of fact and, if

so, whether the findings support the trial court's conclusions of law."1 Unchallenged

findings are verities on appeal.2 Conclusions of law are reviewed de novo.3

      An easement may be extinguished by operation of the legal doctrines of

abandonment and equitable estoppel.4 Once extinguished, an easement ceases to



       1 Heqwine v. Longview Fibre Co., Inc., 132 Wn. App. 546, 555, 132 P.3d 789
(2006).
      2 Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 808, 828 P.2d 549
(1992).
      3 Sunnvside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369
(2003).
      4 Heg v. Alldredqe, 157Wn.2d154, 161, 166, 137 P.3d 9 (2006): Humphrey v.
Jenks, 61 Wn.2d 565, 567-68, 379 P.2d 366 (1963). An easement may also be
extinguished under the legal doctrines of merger, Radovich v. Nuzhat, 104 Wn. App.
800, 805, 16 P.3d 687 (2001), and adverse possession, Edmonds v. Williams. 54 Wn.
App. 632, 634, 774 P.2d 1241 (1989).
No. 72027-9-1/6


exist and may only be recreated by creation of a new easement.5

       Extinguishing an easement through abandonment requires a showing of an intent

to abandon.6 "Acts evidencing abandonment of an easement must be unequivocal and

decisive and inconsistent with the continued existence of the easement."7 Extinguishing

an easement based on equitable estoppel requires a showing that the easement holder

(1) engaged in conduct that was inconsistent with his or her later claim, (2) the other

party relied on the conduct, and (3) the other party would suffer injury if the easement

holder were allowed to contradict or repudiate the earlier inconsistent conduct.8

       Here, the trial court concluded that the easement was abandoned:

      The court has found that the Sullivans' installation of a fence along the
      property line was unequivocal, decisive, and inconsistent with the
      continued existence of the easement and that, at that point, the Sullivans
      abandoned the easement. The Sullivans' actions in finishing the fence
      installation after receiving verification that the easement had been
       recorded were intentional. Their continued encroachments into the
      easement thereafter were also unequivocal and decisive and inconsistent
      with the continued existence of the easement.'91

But the court also went on to consider whether the Sullivans could reinstate the

easement after abandoning it:




      5 Radovich, 104 Wn. App. at 806. To create an easement, it must be in writing
or an oral agreement to convey an interest in property if a party can establish part
performance and the terms to which the parties agreed. Berg v. Ting, 125 Wn.2d 544,
556, 886 P.2d 564 (1995); RCW 64.04.010 ("every contract creating or evidencing any
encumbrance upon real estate, shall be by deed.").
      6Heg, 157Wn.2dat161.
      71pL
      8 jd at 165 (quoting Pub. Util. Dist. No. 1 of Klickitat County v. Walbrook Ins. Co.,
115 Wn.2d 339, 347, 797 P.2d 504 (1990)).
      9 CP at 33 (citing Heg, 157 Wash.2d at 161).
No. 72027-9-1/7



             But the question that has concerned the court is that, after
      abandoning the easement as the Sullivans did, whether the Sullivans can
      now repudiate that abandonment and reinstate the easement. Courts
      have long held that blocking the way of an easement does not constitute
      evidence of abandonment until the other individual benefiting from the
      easement seeks to access it and any barrier is not removed.1101

      The court next addressed equitable estoppel and concluded that the first two

prongs of equitable estoppel were met. The court then discussed the third prong of

estoppel:

             The third prong of equitable estoppel focuses on the injury the other
      party would suffer ifthe owner of the easement, in this case the Sullivans,
      were allowed to contradict or repudiate their earlier admissions,
      statements or acts:


                "An easement may be extinguished by conduct of the owner of it
                even though he had no intention to give up the easement. This is
                due to the general principle that the owner of an easement will not
                be permitted to change a position once taken by him if the change
                would cause undue hardship to the owner of the servient
                tenement."W

The court then concluded that the Sullivans were permitted to reinstate the easement

upon certain conditions:

             As things stood at trial, the Bresslers would suffer undue hardship if
      the Sullivans were allowed to repudiate their abandonment and reinstate
      the easement. But the court concludes that they will not suffer undue
      hardship if the Sullivans are required to move the encumbrances found by
      the court to encroach on the easement and to pay the Bresslers' legal
      expenses. When the Bresslers bought their property, they knew it was
      encumbered by the boat launch declaration and that they would have to
      allow their neighbors to use it. The fact that the neighbors are contentious
      is unfortunate.1121




      10 CP at 34 (citing Edmonds, 54 Wn. App. at 636-637).
      11 CP at 35 (quoting Humphrey, 61 Wn.2d at 567-68) (emphasis added).
      12
            CP at 35.
No. 72027-9-1/8


      The trial court's ruling permitting the Sullivans to reinstate the easement after

they abandoned it is without legal basis. Once an easement is extinguished by

abandonment, or any other means, it no longer exists. Thus, it may only be "reinstated"

by creation of a new easement.13

       Here, the trial court concluded that the easement was abandoned. The court's

findings support this conclusion:

             The Sullivans' installation of a fence along the property line, down
      the middle of the easement, was unequivocal, decisive, and inconsistent
      with the continued existence of the easement. At that point, the Sullivans
       abandoned the easement. The Sullivans' decision to relocate the fence to
      the middle of the easement after they were mistakenly told that there was
      no recorded easement appears to have been done in the mistaken belief
      that the easement had not been executed or recorded, as acknowledged
      by the Bresslers. However, the Sullivans' actions after being advised that
      an easement was recorded were intentional. After receiving verification
       that the easement was recorded, Ms. Sullivan nevertheless continued with
       the installation of the fence inside the easement. Her testimony that she
       thought the wooden posts which were already installed would be
       dangerous standing alone was not credible.'141

Neither party has assigned error to these findings. Accordingly, they are verities on

appeal. Nor has either party appealed the trial court's conclusion that the easement

was abandoned.15

       Once the court concluded the easement was abandoned, this was sufficient to

extinguish the easement. The court's consideration of the equitable estoppel argument

was unnecessary and unwarranted. The court did not have authority to order



      13 Radovich v. Nuzhat, 104 Wn. App. 800, 806, 16 P.3d 687 (2001) ("the
standards for creating an easement by express conveyance and for recreating such an
easement are the same") (citing Restatement of Property, § 497 cmt. h (1944)).
       14 CP at 29-30.
      15 While the Sullivans argue in the alternative that the easement was not
abandoned, they did not file a cross appeal assigning error to this ruling.


                                            8
No. 72027-9-1/9


reinstatement of the abandoned easement based on a finding that the Bresslers would

not suffer undue hardship if the Sullivans moved the encumbrances and paid the

attorney fees as ordered by the court. The trial court appears to have erroneously

merged the requirements for abandonment and equitable estoppel and fashioned a

remedy of "reinstatement" of an abandoned easement based on the requirements of

equitable estoppel. There is no legal support for such a remedy.

      The trial court appeared to use the terms "extinguishment" and "abandonment"

interchangeably, but abandonment is a separate means of extinguishment. Equitable

estoppel or lack of hardship is not a part of the abandonment analysis. The trial court

cites Humphrey's reference to 2 American Law of Property § 8.99 for the general

estoppel principle that "the owner of an easement will not be permitted to change a

position once taken by him if the change would cause undue hardship to the owner of

the servient tenement."'*6 The court then concluded that, if this showing was not made,

the Sullivans were allowed to "repudiate their abandonment and reinstate the

easement."17 But Humphrey's reference to undue hardship related to a claim of

equitable estoppel, not abandonment.18

       There is no legal support for the proposition that abandonment can be

"repudiated" if the "undue hardship" element of equitable estoppel is not established.

Indeed, the section of the American Law of Property treatise cited in Humphrey has

since been replaced with the following to clarify that equitable estoppel is simply an



       16 CP at 35 (quoting 61 Wn.2d at 567-68).
       17 CP at 35 (emphasis added).
       18 61 Wn.2d at 567 (noting that "[a]n easement may be extinguished by conduct
of the owner of it even though he had no intention to give up the easement.").
No. 72027-9-1/10


alternative means of extinguishing an easement in the event abandonment cannot be

established:


             The extinguishment of an easement may result in part from conduct
      by the owner of it which would not of itself satisfy the requirements for
      abandonment. This is through the application of the doctrines of estoppel
      as exemplified in the general principle that the owner of an easement will
      not be permitted to change a position once taken by him if the change
      would result in undue hardship to the owner of the servient tenement.'191

      The other case cited by the trial court, Edmonds v. Williams, does not support the

court's remedy of reinstatement of an abandoned easement when no showing of undue

hardship is made.20 The trial court cited Edmonds for the proposition that "blocking the

way of an easement does not constitute evidence of abandonment until the other

individual benefiting from the easement seeks to access it and any barrier is not

removed."21 But Edmonds held that there was insufficient evidence that an easement

was terminated by adverse possession, not abandonment, where a fence was not a

sufficient inconsistent use to constitute adverse possession.22 Here, the court already

found there was sufficient evidence of abandonment to extinguish the easement, and

there was no claim of adverse possession. Thus, the reasoning in Edmonds does not

apply and does not support the reinstatement remedy ordered by the trial court.

      Nor does Heg recognize such a remedy. Heg simply held that the evidence was

insufficient to establish either abandonment or equitable estoppel.23 Thus, because




      19 2 American Law of Property, § 8.99 (Supp. 1962 & 1977).
      20 54 Wn. App. 632, 774 P.2d 1241 (1989).
      21 CP at 34.
      22 54 Wn. App. at 636-37.
      23157Wn.2dat167.



                                           10
  No. 72027-9-1/11



  there was no basis for extinguishing the easement, whether it could be reinstated was

  not at issue.


            The trial court's "Conditional Decree Quieting Title" permitting the Sullivans to

  reinstate an easement that they had abandoned is without legal basis. Accordingly, we

  reverse that part of the judgment and remand for the trial court to order extinguishment

  of the easement.

            The Bresslers also challenge the trial court's exclusion of evidence of the

  Sullivans' bad faith because it was relevant to prove their abandonment claim. Because

  the trial court found that there was sufficient evidence of abandonment and that finding

  has not been appealed, we need not reach this issue.

            We deny the Sullivans' request for attorney fees. They are not the prevailing

  party on appeal and they cite no statutory, contractual, or equitable basis for an award

  of attorney fees.24

            We reverse in part and remand.



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#ECONCUR:


                                                       l^c&eR y-
                                                                                J
         24 The trial court did not award fees other than to allow the Sullivans to pay a
  portion of them as a condition for reinstatement.


                                                  11
