      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                              CID

                                                                                       r       rri
                                          )                                            r")

                                          )      DIVISION ONE                         VC)
ROBERT BOYD and MARGARET                  )                                           :taw
WEIDNER, husband and wife,                )      No. 74631-6-1
                                          )      (consol. with No. 75095-0-1)                      r—do


                     Appellants,          )                                                  C.)
                                                                                                   <
                                          )
              v.                          )      PUBLISHED OPINION
                                          )
SUNFLOWER PROPERTIES LLC, a               )
Washington limited liability company,     )
                                          )
                     Respondent.          )      FILED: December 19, 2016
                                          )

       DWYER, J. — Robert Boyd and Margaret Weidner (Boyd/VVeidner) filed a

complaint against Sunflower Properties, LLC (Sunflower), seeking an implied

easement over a gravel road on Sunflower's property. The trial court granted

Sunflower's motion for summary judgment and denied Sunflower's motion for an

award of attorney fees. On appeal, Boyd/Weidner contend that the trial court

failed to properly consider the reasonable necessity of the desired easement and

erred by granting Sunflower's motion for summary judgment. Sunflower cross

appeals, asserting that the trial court erred by denying its motion for an award of

attorney fees after concluding that this was not an action on a contract and, thus,

that the attorney fee provision of the parties' purchase and sale agreement
No. 74631-6-1/2


(Agreement) did not afford an entitlement to such an award. The trial court ruled

correctly. We affirm.



       In 2001, Sunflower purchased lots 4 through 8 and one-half of lot 3 of

block 5 of Gailey's First Addition to Eastsound, Orcas Island. At that time, and

from the same owner, Sunflower also purchased an unplatted, triangular parcel

of land directly to the north of the aforementioned lots. An access and utility

easement, Geer Lane, extends across the southern and northern borders of

block 5, following the border of the unplatted parcel.

       In 2002, Sunflower modified the boundary line for lot 3, merging it with the

unplatted parcel to the north. Thereafter, Sunflower submitted a listing

agreement to advertise lots 4 and 5 for sale. Lots 4 and 5 are physically

accessible either by way of the southern Geer Lane or by way of a gravel road

that extends off of the northern Geer Lane and runs through the portion of lot 3'

that was formerly the unplatted parcel. Only the northern portions of lots 4 and 5

are level, with the remainder of the property being a slope that leads down to the

southern Geer Lane. The listing service agreement that was submitted by

Sunflower described lots 4 and 5 as "on right towards the end of [Geer] Lane."

However, the posted advertisement described the properties' access as

"Driveway to property on right hand side" and listed the road information as

"Gravel, Privately Maintained, Recorded Maint. Agrm."

       In 2008, BoydNVeidner offered to purchase lots 4 and 5 from Sunflower,

contingent upon Sunflower obtaining a boundary line modification "encompassing



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No. 74631-6-1/3

the level area between the north boundary line of properties being conveyed

herein and Geer Lane." Sunflower rejected the condition. The parties instead

agreed to a much smaller boundary line adjustment that did not extend to Geer

Lane and did not include the gravel road. At no time during the negotiation or

sale of the properties did either party expressly state whether access to lots 4

and 5 was permitted via the gravel road extending off of the northern Geer Lane.1

       Boyd/Weidner did not attempt to use or develop their property until late

2011, when they obtained a professional topographic survey of the property. The

topographic report stated, in reference to the gravel road, "driveway use over this

area appears to be without benefit of easement rights." Boyd/Weidner and

Sunflower's representative subsequently exchanged telephone calls and e-mails

regarding the use of the gravel road. Sunflower offered to sell the entirety of lot 3

to BoydNVeidner after learning of their interest in the use of the gravel road, but

Boyd/Weidner rejected the offer. In e-mail correspondence, Boyd/Weidner

stated their belief that an easement over the gravel road should have been

included in the original sale of the property. Sunflower's position in these

exchanges was that no easement was ever granted or implied with respect to the

gravel road.

        Nevertheless, in 2014, Boyd/Weidner sent letters to Sunflower and

another neighbor informing them that construction would begin on lots 4 and 5 in

2015, with Boyd/Weidner using the gravel road to access the properties.



        1 The seller disclosure statements asked, "[a]re there any rights-of-way, easements, or
access limitations that may affect Buyer's use of the property?" Next to this, Sunflower wrote in
the words "Geer Lane Access."

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No. 74631-6-1/4


Sunflower sent a reply letter restating its position that Boyd/Weidner did not have

a legal right to use the gravel road. This reply letter stated that no easement

over the gravel road was granted at the time of sale and that the only legal

access to lots 4 and 5 is via the southern Geer Lane—a position corroborated by

the topographic survey Boyd/Weidner had commissioned in 2011. Boyd/Weidner

then brought this action in San Juan County Superior Court seeking a judgment

confirming the existence of an implied easement over the gravel road.

      Sunflower moved for summary judgment. The trial court granted

Sunflower's motion, concluding that Boyd/Weidner had failed to provide

competent evidence of apparent and continued use of the gravel road to access

lots 4 and 5 either before or after Sunflower acquired the property. Sunflower

then moved for an award of attorney fees pursuant to the fee shifting provision in

the Agreement, but the trial court denied this motion, concluding that

Boyd/VVeidner's claim was an equitable one, not a claim brought on a contract.

BoydANeidner timely appealed the trial court's grant of summary judgment.

Sunflower cross appealed the denial of its request for an award of attorney fees.

                                         11

      Boyd/Weidner contend that the trial court erred by granting Sunflower's

motion for summary judgment. We disagree.

      We review de novo a trial court's order granting summary judgment,

performing the same inquiry as the trial court. MacMeekin v. Low Income Nous.

Inst., Inc., 111 Wn. App. 188, 195,45 P.3d 570 (2002). A motion for summary

judgment may be granted if there is no genuine issue of material fact and the



                                        -4-
No. 74631-6-1/5


moving party is entitled to judgment as a matter of law. CR 56(c). In reviewing a

summary judgment order, we view the facts and all reasonable inferences

therefrom in the light most favorable to the nonmoving party. Holmquist v. King

County, 182 Wn. App. 200, 207, 328 P.3d 1000, review denied, 181 Wn.2d 1029

(2014). 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. Rucker v. Novastar

Mortq., Inc., 177 Wn. App. 1, 10, 311 P.3d 31 (2013).

                                         A

       Because of the complex nature and wide variety of easements, it is

prudent to first discuss the defining characteristics of easements that arise by

means other than through an express grant. Easements may arise in several

contexts and are often called by various names. Those easements that arise by

operation of law can be characterized in four ways: (1) prescriptive easements,

(2) easements by estoppel, (3) easements of necessity, and (4) easements by

implication (sometimes referred to as quasi-easements, easements implied by

grant, or easements implied by prior use).

      The requirements to establish a prescriptive easement are the same as

those to establish adverse possession: open and notorious use of the servient

land; over a uniform route, continuous and uninterrupted for 10 years, adverse to

the owner of the land sought to be subjected, and with the knowledge of such




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No. 74631-6-1/6


owner at a time when he was able in law to assert and enforce his rights. See,

e.g., Kunkel v. Fisher, 106 Wn. App. 599, 602, 23 P.3d 1128 (2001).

        Whereas prescriptive easements focus on the actions of the party claiming

the easement, easements by estoppel center on the actions of the owner of the

servient estate. Easement by estoppel can be established through a showing of

"`(1) misrepresentation or fraudulent failure to speak and (2) reasonable

detrimental reliance' on the misrepresentation or failure to speak." Kimberly H.

Bryant & R. Clay Larkin, Understanding Unconventional Easements and Rights

of Entry, 33 ENERGY & MIN. L. INST. § 15.03[2], at 524-25 (2012) (quoting JON W.

BRUCE & JAMES W. ELY, JR., THE LAW OF EASEMENTS AND LICENSES IN LAND §        6.1

(2012)); see, e.g., Canterbury Shores Assocs. v. Lakeshore Props., Inc., 18 Wn.

App. 825, 827, 572 P.2d 742 (1977).

        Implied easements and easements by necessity are more closely linked.

Indeed, both of these interests in land are concerned primarily with the parties'

intentions and both can be evidenced by demonstrating common ownership,

severance, and necessity. However, the doctrine of easement by necessity was

borne out of the public policy disfavoring leaving property landlocked and

rendered useless. See, e.g., Hellberg v. Coffin Sheep Co., 66 Wn.2d 664, 666,

404 P.2d 770 (1965). As a result, easements by necessity do not require a

showing of prior use but do require a showing of strict necessity. 17 WILLIAM B.

STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE: PROPERTY

LAW §   2.5, at 93 (2d ed. 2004). However, even when the use of an easement

may be strictly necessary and all other elements of the claim are satisfied, an
No. 74631-6-1/7


easement by necessity will not be imposed contrary to the parties' intent. Visser

v. Craig, 139 Wn. App. 152, 164-65, 159 P.3d 453 (2007).

       This matter concerns an implied easement. The principle underlying

implied easements is that a grant of land is impliedly accompanied by all things

necessary to its reasonable use and enjoyment. MacMeekin, 111 Wn. App. at

195. Generally, to establish the existence of an implied easement, three

essential predicates must be proved: (1) unity of title and subsequent separation

by grant of the dominant estate, (2) prior apparent and continuous quasi

easement for the benefit of one part of the estate to the detriment of another, and

(3) the easement must be reasonably necessary for the proper enjoyment of the

dominant estate. Adams v. Cullen, 44 Wn.2d 502, 505, 268 P.2d 451 (1954);

Silvery. Strohm, 39 Wn.2d 1, 5, 234 P.2d 481 (1951).

       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. Hellberq, 66 Wn.2d at 668 (quoting Adams, 44

Wn.2d at 505-06). 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. Hellberq, 66 Wn.2d at 668 (quoting Rogers v. Cation, 9

Wn.2d 369, 376, 115 P.2d 702 (1941)).



                                          1

       Here, there was unity of title and a subsequent separation. Sunflower

purchased one-half of lot 3, the unplatted parcel, and the entirety of lots 4



                                         -7-
No. 74631-6-1/8

through 8 of block 5 from a common owner and subsequently sold lots 4 and 5 to

Boyd/Weidner. Hence, the first factor is satisfied.

                                          2

       With regard to the second factor, Boyd/Weidner contend that Sunflower

and the property's prior owners accessed lots 4 and 5 using the gravel road

when they owned those lots. However, Boyd/Weidner have provided no

evidence supporting this assertion. Instead, Boyd/Weidner rely on (1) the

property listing advertisements that identify a "[d]riveway . . on right hand side"

of lots 4 and 5, (2) Sunflower's continued use of the gravel road to access lot 3

after the sale of lots 4 and 5, (3) Sunflower's use of the gravel road to lay gravel

on lots 4 and 5, and (4) the implication of prior use based on the existence of the

gravel road. These assertions, however, do not establish that Sunflower, or any

prior owner, apparently and continuously used the gravel road "for the benefit of

one part of the estate to the detriment of the other." Adams, 44 Wn.2d at 505.

       The advertisements plainly do not establish prior apparent and continuous

use of the gravel road to access lots 4 and 5. Although the advertisements

identify the gravel road as the access to lots 4 and 5, the listing agreement

Sunflower submitted to the advertising agency made no mention of the gravel

road. In any event, the contents of the advertisements say nothing regarding the

history of the use of the gravel road. Similarly, Sunflower's current use of the

gravel road to access its own property likewise does not establish that Sunflower,

or any prior owner, continuously accessed lots 4 and 5 by using the gravel road.




                                         -8-
No. 74631-6-1/9


       Although Sunflower submitted deposition testimony stating that the gravel

road was used to access lots 4 and 5 for the limited purpose of laying gravel and

bolstering an existing retaining wall, such a use does not establish a continuous

use of the gravel road but, rather, indicates merely sporadic, incidental uses.

Boyd/Weidner point to nothing in the record establishing that Sunflower used the

gravel road to access lots 4 and 5 on more than a few, rare occasions.

       Finally, prior apparent and continuous use cannot be demonstrated

through implication. The mere fact that the gravel road terminates within

BoydNVeidner's property does not establish that any prior owner continuously

used the gravel road to access those lots. As the trial court noted, "[it is not for

the Court to speculate on how the gravel area has been used. Rather, it is for

[Boyd/Weidner] to provide some reasonable quantum of evidence that it has

actually been continuously used as access to their property." Thus,

Boyd/Weidner failed to establish prior apparent and continuous use of the gravel

road to access lots 4 and 5.

                                          3

       Boyd/Weidner next contend that the trial court erred by declining to

address the reasonable necessity of the desired easement. We disagree.

Boyd/Weidner presented the trial court with no evidence that prior owners

continuously used the gravel road to access lots 4 and 5 and no evidence that

Sunflower intended—by conveying the lots to Boyd/Weidner—to allow

unprecedented access to lots 4 and 5 over its own property—property which

Sunflower specifically refused to include in the boundary line modification made



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No. 74631-6-1/10


as part of the sale to Boyd/Weidner. As reasonable necessity is merely an aid in

determining the intent of the parties, the trial court did not err.

        In any event, on de novo review, we conclude that Boyd/Weidner did not

establish that an easement over the gravel road is reasonably necessary for the

use and enjoyment of their property and, accordingly, was impliedly conveyed to

them in the sale. Boyd/Weidner can access lots 4 and 5 from the southern Geer

Lane. Although the topography of the lots makes it most convenient for

Boyd/Weidner to build on the northern portions of lots 4 and 5, Sunflower's

managing member testified that it would not be prohibitively expensive to

construct a driveway to those portions of lots 4 and 5 from the southern Geer

Lane—estimating a cost of no more than $10,000-$15,000.2 Boyd/Weidner

dispute this estimate but offered no admissible evidence setting forth a higher

cost. Thus, the sole evidence regarding the feasibility of constructing a driveway

from the southern Geer Lane to the northern part of lots 4 and 5 weighs against

Boyd/Weidner's claim.3

        Boyd/Weidner do not contend that use of the gravel road is strictly

necessary to reach their property. Rather, they rely on the comparative

convenience of using the gravel road to establish reasonable necessity.

Although Boyd/Weidner are correct that proving strict necessity is not required in



        2 For context, the total purchase price of both lots was $305,000.
        3 On appeal, in an argument not presented to the trial court, Boyd/Weidner cite to various
provisions of the San Juan County Code to buttress their contention that constructing a driveway
from the southern Geer Lane would be unreasonably difficult. However, they do not contend that
the code actually prevents them from constructing such a driveway. Rather, they merely contend
that it would be difficult to do so in compliance with the code. Even were this argument properly
raised, which it is not, RAP 9.12, we would conclude that such bare assertions do not establish
reasonable necessity.

                                              -10-
No. 74631-6-1/11


order to establish the existence of an implied easement, they mischaracterize the

relevant case authority and ignore the fundamental purpose underlying the

analysis of necessity—namely, to determine the intent of the parties.

       Boyd/Weidner first contend that reasonable necessity can be established

through a showing that their property is more valuable with the easement than

without. In support of this contention, they rely on Bushy v. Weldon, 30 Wn.2d

266, 191 P.2d 302 (1948). Bushy involved a driveway, built on the border of two

lots, which had been continuously used by the owners of the separate lots since

its creation. Although the court in Bushy placed importance on the excessive

cost that construction of a new driveway would entail, this was but one of many

factors that contributed to the court's ruling. The court in Bushy concluded that

the intention to construct the existing driveway for the mutual use of the parties

was clear, 30 Wn.2d at 271, a result that does not support Boyd/VVeidner's

assertion that increased value alone can be dispositive.

       Next, Boyd/Weidner contend that reasonable necessity need only be

considered with regard to the portions of lots 4 and 5 on which they wish to build,

rather than their entire estate. To support this contention, Boyd/Weidner rely on

Hellberp v. Coffin Sheep Co., 66 Wn.2d 664. Yet, the "portion" of property that

the court in Hellberg referred to was that of the entire dominant estate—not, as

Boyd/Weidner contend, only a subsection of the dominant estate.

              "Easements by implication arise where property has been
       held in a unified title, and during such time an open and notorious
       servitude has apparently been impressed upon one part of the
       estate in favor of another part, and such servitude, at the time that
       the unity of title has been dissolved by a division of the property or
       a severance of the title, has been in use and is reasonably

                                        -11-
No. 74631-6-1/12


        necessary for the fair enjoyment of the portion benefited by such
        use."

Hellberq, 66 Wn.2d at 667 (emphasis added) (quoting Bailey v. Hennessey, 112

Wash. 45, 48, 191 P. 863 (1920)).4 Hellberq does not support Boyd/Weidner's

assertion that reasonable necessity should only be considered with regard to the

northern part of their property.

        As long-established, reasonable necessity serves as an aid in determining

the intent of the parties. Hellberq, 66 Wn.2d at 668 (quoting Adams, 44 Wn.2d at

505-06). Boyd/Weidner have not shown that any reasonable necessity supports

a determination that Sunflower intended to convey to them an easement over the

gravel road.



        Equitable remedies, such as the implied easement that Boyd/Weidner

seek, do not exist to circumvent written agreements. See Chandler v. Wash. Toll

Bridge Auth., 17 Wn.2d 591, 604, 137 P.2d 97 (1943) ("A party to a valid express

contract is bound by the provisions of that contract, and may not disregard the

same and bring an action on an implied contract relating to the same matter, in

contravention of the express contract."). Moreover, where parties have reduced

an agreement to a writing, which in light of its completeness and specificity

reasonably appears to be a complete agreement, it is presumed that such writing

is the final expression of the parties. RESTATEMENT (SECOND) OF CONTRACTS,




        " Boyd/Weidner also assert that the court in Hellberg granted an implied easement even
though the property was potentially accessible from a different location. This is incorrect. The
court specifically stated that the plaintiffs property was "landlocked by the property of others,"
except for the road over which they claimed an implied easement. Hellberq, 66 Wn.2d at 665.

                                               -12-
No. 74631-6-1/13


§ 209(3) (1979). Accordingly, implied easements are not favored by the courts

as they are "in derogation of the rule that written instruments speak for

themselves." 1 WASH. STATE BAR ASS'N WASHINGTON REAL PROPERTY DESKBOOK

§ 10.3(3)(a) Easements and Licenses 10-14 (1997).

       Here, the Agreement lists numerous easements that were expressly

granted to Boyd/Weidner upon the sale of lots 4 and 5—yet, there is no mention

of the gravel road. The Agreement specifically provided Boyd/Weidner with an

opportunity to review the access available to lots 4 and 5 and confirm the

suitability of the property for their purposes. Boyd/Weidner declined to do so.

       BoydNVeidner have presented no evidence that Sunflower intended to

convey to them an easement over the gravel road and cannot establish that such

an easement was implied through prior use and reasonable necessity. To defeat

a motion for summary judgment, Boyd/Weidner cannot rely on speculation and

argumentative assertions that unresolved factual issues remain but, rather, must

set forth specific facts that sufficiently rebut Sunflower's contentions. Summit-

Waller Citizens Ass'n v. Pierce County, 77 Wn. App. 384, 396, 895 P.2d 405

(1995). They have not done so. Accordingly, the trial court properly granted

Sunflower's motion for summary judgment.

                                         111,

       Sunflower contends that the trial court erred by denying its motion for an

award of attorney fees pursuant to the Agreement. We disagree.

       We review the denial of a motion for an award of attorney fees de novo.

Little v. King, 147 Wn. App. 883, 890, 198 P.3d 525 (2008). A prevailing party



                                        -13-
No. 74631-6-1/14


may recover attorney fees pursuant to a contractual fee-shifting provision if the

action involves claims "on the contract." Hemenwav v. Miller, 116 Wn.2d 725,

742-43, 807 P.2d 863 (1991). "If a party alleges breach of a duty imposed by an

external source, such as a statute or the common law, the party does not bring

an action on the contract, even if the duty would not exist in the absence of a

contractual relationship." Boguch v. Landover Corp., 153 Wn. App. 595, 615,

224 P.3d 795 (2009). For example, a doctor who commits medical malpractice

while performing a medical procedure pursuant to a contract is not liable on the

contract for the malpractice. Boquch, 153 Wn. App. at 617.

        The Agreement signed by the parties states, "If Buyer or Seller institutes'

suit against the other concerning this Agreement, the prevailing party is entitled

to reasonable attorneys' fees and expenses."5 Sunflower contends that

Boyd/VVeidner's claim for an implied easement necessarily concerns the

Agreement because litigation of the implied easement is impossible without

reference to the Agreement. Sunflower's analysis is unavailing.

        Implied easements are a product of the common law, existing to ensure

that the silent intent of the parties to transfer the easement survives the sale of

the property. Malsch v. Waggoner, 62 Wash. 470, 476, 114 P. 446 (1911).

Although it is true that litigation over an implied easement may require the trial

court to look to the written contract between the parties, the contract itself is not

"central to the dispute" but, rather, merely evidence of the sale. Tradewell Grp.,



        5 Although "Agreement" is not defined in the purchase and sale agreement, in every
instance where the word is used therein it is clear that it refers to the document itself, not to the
transaction between the parties.

                                                 -14-
No. 74631-6-1/15


Inc. v. Mavis, 71 Wn. App. 120, 130, 857 P.2d 1053 (1993) (citing Seattle-First

Nat'l Bank v. Wash. Ins. Guar. Ass'n, 116 Wn.2d 398, 413, 804 P.2d 1263

(1991)). For instance, if the owner of a dominant estate sold that estate to a third

party, the third party could bring an action for the establishment of an easement

even though that party was not a party to the contract of sale. This would not be

an action "on the contract" even though it is the same claim that the original

owner would have had and may require reference to the contract as an

evidentiary matter. The same is true here.

       The trial court correctly concluded:

       Here the facts offered in support of Plaintiffs' implied easement
       claim stem from the events leading up to the parties' formation of
       the agreement and from the fact that the agreement was performed
       (i.e. title was transferred). But it is those facts, not the existence of
       or the provisions in the agreement, that support the claim. Without
       those facts, this particular claim would not exist. But the legal basis
       for the claim was not created by the fact of or the provisions in the
       agreement.

       There was no error.

       Affirmed.




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