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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JEFFREY HALEY,
                                                  No. 70649-7-1
                     Appellant,
                                                  DIVISION ONE
              v.



JOHN F. PUGH,

                     Respondent,                  UNPUBLISHED OPINION

SUNSTREAM CORPORATION, and                        FILED: October 27, 2014
DEBORAH HEY,

                     Defendants.



       Becker, J. — At issue in this appeal is whether an easement for vehicular

and pedestrian use has been abandoned. We reject the argument that

easements created by dedication can be extinguished only by a written deed of

conveyance. The previous owner of the easement declared that she intentionally

abandoned it to facilitate the daylighting of a stream that ran through it. As no

controverting evidence was presented, the trial court properly determined

abandonment on summary judgment. The court also properly dismissed, as time

barred, a claim seeking removal of a boat lift.

      Appellant Jeffrey Haley and Respondent John Pugh are the owners of

near-adjacent parcels of land on the east side of Mercer Island. Pugh's lakefront

parcel, lot D, lies west of Lake Washington. To the west of lot D is lot C, a parcel
No. 70649-7-1/2



unrelated to this litigation. To the west of lot C is lot B, owned by Haley.

Bordering all three above-mentioned parcels on the north is a long and narrow

lot, tract A. Pugh owns tract A.

       The easement area at issue is a 10 by 140 foot strip of tract A immediately

north of Haley's lot. A recorded easement granted in 1979 gave easement rights

over this strip to Haley's lot. The 1979 easement granted easement rights "for

purposes of utilities and vehicular and pedestrian ingress, egress and right-of-

way including such commercial vehicles as are customary for residential

purposes and such vehicles as may be required in the construction of dwellings

and improvements on the Dominant Estate and for parking of vehicles of visitors

to the Dominant Estate."

       Pugh purchased his residential parcel in March 2001. He purchased tract

A in April 2001. Shortly thereafter, Pugh applied for a variance and permit

through the City of Mercer Island to "daylight" a stream that had previously been

routed through underground pipes in tract A. The application was granted on

September 17, 2001. Improvements were completed by 2004. The easement

area now has an open water course and is densely landscaped with trees,

shrubs, and boulders.

        In September 2001, Pugh received a permit to rebuild the existing dock on

his property.

        On April 26, 2005, Pugh received a permit to build a boat canopy on his

existing boat lift.

        On or around May 11, 2005, Haley bought his parcel from Kathleen Hume.
No. 70649-7-1/3


        On January 22, 2012, Haley wrote to Pugh that he wished to make

surface improvements within the easement area that would enable him to use the

easement for parking. Pugh refused on the ground that the easement had been

abandoned.

        On March 29, 2012, Haley received notice of Pugh's application to build a

second dock on his property.

        On July 19, 2012, Haley brought suit against Pugh alleging a violation of

shoreline law and fraud in obtaining a dock permit, and seeking removal of the

boat lift. Pugh counterclaimed to quiet title in the easement area, alleging that

the easement had been abandoned by Hume, Haley's predecessor in interest.

        On October 5, 2012, after a hearing, the trial court granted Pugh's motion

for summary judgment on the easement claim. The court found that the 1979

easement rights were abandoned insofar as inconsistent with the altered

watercourse. "Specifically, all easement rights are terminated and abandoned

except for easement rights to utility, sewage and drainage to the extent said

utilities serve plaintiff's property in the easement area."

        On May 8, 2013, the trial court granted Pugh's motion for summary

judgment on the claims involving his dock and boat lift, finding them barred by

the statute of limitations. Pugh was awarded attorney fees for defending the boat

lift claim.

        Haley appeals both orders of summary judgment.

        We review de novo a trial court's decision on summary judgment,

performing the same inquiry as the trial court. Roger Crane &Assocs. v. Felice.
No. 70649-7-1/4



74 Wn. App. 769, 773, 875 P.2d 705 (1994). Summary judgment is appropriate

where no genuine issue of material fact remains. CR 56. We consider the

evidence in the light most favorable to Haley, the nonmoving party. CR 56.

Abandonment of easement

       Abandonment of an easement requires more than mere nonuse—the

nonuse must be accompanied by the express or implied intent to abandon. Heg

v. Alldredqe. 157 Wn.2d 154, 161, 137 P.3d 9 (2006). Acts evidencing

abandonment of an easement must be unequivocal and decisive and

inconsistent with the continued existence of the easement. Heg, 157 Wn.2d at

161.


       To show that the easement was abandoned, Pugh submitted the

declaration of Hume, the previous owner of Haley's lot. Hume owned the lot

when Pugh obtained the variance from Mercer Island permitting the daylighting of

the stream and associated landscaping. Hume declared that she was consulted

by Pugh and fully consented to the improvements in the easement area, and that

she was aware the improvements would be inconsistent with surface use of her

easement rights. She said she received notice of Pugh's application for a permit

for the improvements and did not object.

       I was fully aware that the creation of an open stream with
       landscaping would eliminate any pedestrian or vehicle use of the
       easement area. I recognized the proposed improvement as an
       enhancement to my property's value. .. .

             . . . From and after 2001 I abandoned any claim of easement
       rights in Tract A with the exception of easement rights for any
       underground utilities serving my property. After 2001 no surface
       use of the easement area was possible.
No. 70649-7-1/5


Declaration of Kathleen Hume, Clerk's Papers at 59.

      Haley contends that Hume's declaration is insufficient to establish intent to

abandon. He claims that Hume, like the owner of the dominant estate in Heg,

merely failed to object when Pugh made improvements that were inconsistent

with the recorded easement. We disagree. Hume's declaration distinguishes

this case from Heg because it establishes that Hume affirmatively consented to

Pugh's improvements, knowing that they were inconsistent with full exercise of

her easement rights. Her declaration is uncontroverted. On this record, there is

no genuine issue of material fact as to Hume's intent to abandon the easement.

      Haley also argues that Hume did not effectively abandon the easement

because she did not comply with the statutory requirements that every

conveyance of real estate must be by written deed:

      Every conveyance of real estate, or any interest therein, and every
      contract creating or evidencing any encumbrance upon real estate,
      shall be by deed.

RCW 64.04.010.

      Every deed shall be in writing, signed by the party bound thereby,
      and acknowledged by the party before some person authorized by
      *this act to take acknowledgments of deeds.

RCW 64.04.020. Haley's argument presupposes that abandonment of an

easement is a conveyance. The statute he cites to support his premise,

however, does no more than provide that an easement established by a

dedication cannot be extinguished or altered without the approval of the

easement owner:

      Easements established by a dedication are property rights that
      cannot be extinguished or altered without the approval of the
      easement owner or owners, unless the plat or other document
No. 70649-7-1/6


       creating the dedicated easement provides for an alternative method
       or methods to extinguish or alter the easement.

RCW 64.04.175.1 Hume's declaration is sufficient to show that she approved the

alteration of the easement that limited it to utility, sewage, and drainage rights.

       To the extent Haley additionally claims that a due process violation

occurred because Hume was not given adequate notice that environmental

clearance of Pugh's plan to daylight the stream would eliminate part of her

easement, his argument is unsupported by the facts or citation to relevant

authority, and we therefore decline to consider it.

        In view of the uncontroverted evidence that Hume abandoned the

easement rights that Haley attempts to assert, we conclude the trial court

correctly limited the easement on summary judgment. It is unnecessary to

address adverse possession as an alternative ground for the order.

Boat lift claim


       Haley's complaint alleged that Pugh's boat lift was illegal. Haley received

notice in March 2012 that Pugh had applied to build a second dock. The

application included a drawing of Pugh's property showing the layout and

measurements of Pugh's existing dock and boat canopy. Haley suspected that

the boat lift might be in a location that violated a setback requirement. Using a

kayak, Haley made measurements that in his view confirmed that the boat lift

was in an illegal location. Looking through municipal records, Haley found no



      1After oral argument in this court, Haley filed "Appellant's Motion for Leave to
Change Answer Given in Oral Argument." The motion essentially reiterates the
argument Haley made in his opening brief. Because our opinion addresses that
argument, it is unnecessary to give separate consideration to the motion.
No. 70649-7-1/7


record that Pugh had obtained a permit when he installed the boat lift. He found

only that in 2005, Pugh had applied for a permit to put a cover on the boat lift.

He concluded that Pugh had made fraudulent statements about the location in

order to obtain the 2005 permit.

       Haley's complaint sought an order to have the boat lift removed. The trial

court dismissed this claim on summary judgment as barred by the statute of

limitations.


       The three-year statute of limitations begins to run in fraud cases when the

aggrieved party discovers the facts constituting the fraud. RCW4.16.080(4).

Haley contends the three-year statute of limitations was tolled until he discovered

the facts constituting the fraud. However, actual knowledge of fraud will be

inferred ifthe aggrieved party, by the exercise of due diligence, could have

discovered it. Strong v. Clark. 56 Wn.2d 230, 232, 352 P.2d 183 (1960). To

invoke the discovery rule, the plaintiff must show that he or she could not have

discovered the relevant facts earlier. G.W. Constr. Corp. v. Prof'l Serv. Indus.,

Inc.. 70 Wn. App. 360, 367, 853 P.2d 484 (1993), review denied, 123 Wn.2d

1002(1994).

       Haley could have discovered the facts constituting the alleged fraud by

due diligence beginning in 2005. All documents relating to the boat lift were in

the public record then. Haley does not attempt to show why he could not have

discovered facts indicating that the boat lift was in an illegal location earlier than

2012, when he began his investigation. We conclude the statute of limitations

was not tolled.
No. 70649-7-1/8


          Alternatively, Haley contends the allegedly illegal location of the boat lift is

a continuing zoning violation and therefore there is effectively no statute of

limitations because it is a new violation every day.

          It is incorrect to say there are no time limits on a suit challenging a

continuing zoning violation. Such a suit must be brought within a reasonable

time period after the plaintiff gains actual or constructive knowledge of the

violation. Larsen v. Town of Colton. 94 Wn. App. 383, 393, 973 P.2d 1066

(1999).

          Haley had constructive notice of the location of the boat lift when he

purchased his property in 2005. The boat lift was in plain sight. Haley's

complaint was filed in 2012. Haley has not cited any case, and we have found

none, where a successful suit was brought seven years after the plaintiff had

constructive knowledge of the illegality of the structure challenged. Cf. Larsen v.

Town of Colton, 94 Wn. App. 383 (suit to enjoin construction of illegal accessory

building commenced seven days after learning a building permit had issued);

Radach v. Gunderson. 39 Wn. App. 392, 695 P.2d 128 (neighbors continuously

asked the city to revoke a building permit for a structure in violation of mandatory

shoreline setbacks, but they refused and the neighbors filed suit after

construction was completed), review denied, 103 Wn.2d 1027 (1985). Haley's

suit was not brought within a reasonable time.

      We conclude the trial court correctly dismissed the boat lift claim as time

barred.




                                             8
No. 70649-7-1/9


Attorney fees

       Pugh requests an award of attorney fees on appeal for defending Haley's

claim that the boat lift violated shoreline regulations. The Shoreline Management

Act provides that a court has discretion to award attorney fees and costs to a

prevailing party. RCW 90.58.230.

       Haley's complaint had requested an award of costs and fees under the

Shoreline Management Act. Pugh requested such an award after prevailing on

the boat lift claim. Haley then filed a document attempting to "disclaim" his own

request for fees and arguing that the Shoreline Management Act was not part of

the case. The trial court nevertheless awarded attorney fees to Pugh as the

prevailing party on Shorelines Management Act issues.

       Haley's disclaimer is ineffective. The portion of his complaint dealing with

the boat lift refers explicitly to the shoreline act. He alleged and litigated the

issue whether Pugh fraudulently obtained a permit required by the act. Pugh is

the prevailing party on appeal. We grant his request for an award of attorney

fees under RCW 90.58.230 with respect to the boat lift claim.

       Affirmed.




                                                    B^teEi
WE CONCUR:




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