                                                                        FILED 

                                                                   SEPTEMBER 30, 2014 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


LEONARD BROWNING, a single            )
person, BARBARA DRAKE, a single       )                 No. 31412-0-111
person,                               )                 (consolidated with 31508-8-111)
                                      )
                     Appellants,      )
                                      )
       v.                             )                 UNPUBLISHED OPINION
                                      )
DOTY FAMIL Y TRUST; FOREST C.         )
DOTY and LI1 DOTY, husband and wife, )
and the marital community composed    )
thereof; CHARLES C. AMBURGEY, SR. )
and SANDRA R. AMBURGEY, husband )
and wife, and the marital community   )
composed thereof; TRACY D. MONK       )
and PATRICIA 1. MONK, husband and     )
wife, and the marital community       )
composed thereof; STEVE GREENE, a     )
single person; SUSAN BEAMER, a single )
person; CHERITH TRUST; JAMES          )
GmSON and SYLVIA GmSON, husband )
and wife, and the marital community   )
composed thereof,                     )
                                      )
                     Respondents.     )

       FEARING, J. -   Plaintiffs Leonard Browning and Barbara Drake appeal factual

fmdings of the trial court claiming they, not the defendants, told the truth at trial. They
No. 31412-0-II1 cons. w/31S08-8-II1
Browning v. Doty Family Trust


fail to recognize that the purpose of an appeal is not to retry the credibility of parties and

witnesses. Since the trial court's factual findings are supported by the trial transcript, we

affirm the rulings of the trial court.

       Leonard Browning and Barbara Drake sought declaratory judgment proclaiming

they have a right to drive through a tract of land, designated as the Skookum Creek

segregation, to reach an adjacent farm owned by Drake and leased by Browning. The

two base their rights of passage upon numerous theories: an express easement under the

Skookum Creek Declaration of Protective Covenants and Easements, a prescriptive

easement, an easement by implication, an easement by necessity, and a public road. The

two also asked for damages for the defendants' interference with that right. Professor

Philip A. Trautman, University of Washington Civil Procedure Professor, taught that, if

one throws a party, invite all the neighbors. Browning and Drake followed this advice.

The defendants include the Doty Family Trust, Forest and Lil Doty, Charles and Sandra

Amburgey, Tracy and Patricia Monk, Steve Greene and Susan Beamer Greene, Cherith

Trust, and James and Sylvia Gibson, all of whom own land in the Skookum Creek

segregation, a pristine setting in Pend Oreille County.

       The Doty Family Trust and Forest and Lil Doty counterclaimed against Leonard

Browning alleging he removed a fence and trees from their property without their

consent, warranting treble damages under Washington's timber trespass statute. They

also counterclaimed against Leonard Browning and Barbara Drake for a declaration

                                              2

No. 31412-0-111 cons. w/31508-8-1I1
Browning v. Doly Family Trust


establishing the lot line between their land and Drake's land. The trial court concluded

that Drake and Browning had no right of access through Skookum Creek segregation to

the farm and denied plaintiffs any relief. The trial court also held that Leonard Browning

intentionally removed trees from Forest and Lil Doty's property, warranting treble

damages of$49,350 under RCW 64.12.030. Finally, the trial court declared the boundary

between the Doty land and Barbara Drake's land to be in accordance with a survey

prepared on behalf of the Dotys.

       This appeal raises two general issues: (1) whether there exists some form of

easement or right of access through the Skookum Creek large lot segregation to the Drake

farmland, and (2) whether substantial evidence supports the trial court's findings that

Leonard Browning intentionally removed trees from Forest and Lil Doty's property.

                                          FACTS

       A diagram and satellite photo below depict the tracts of land owned by the parties.

Barbara Drake owns lot 21 of the Skookum Creek large lot segregation. Drake also owns

the larger parcel ofland that abuts the western edge oflots 21, 22, 25, and 26 and touches

the southern edge of lots 26 and 27. The parties refer to this larger parcel as "the farm."

In 2008, Drake entered a "Lease Purchase Agreement" with Leonard Browning for the

farm. Clerk's Papers (CP) at 219-20. The Doty Family Trust owns lots 22, 23, and 24;

Charles and Sandra Amburgey own lots 17 and 18; Tracy and Patricia Monk own lots 19,




                                             3

No. 31412-0-III cons. w/31508-8-III
Browning v. Doty Family Trust


20 and the southern half of 16; James and Sylvia Gibson through the Cherith Family

Trust own lot 25; and Steve Greene and Susan Beamer Greene own lot 26.


                                                  Amburgeys


                                                  Monks




                                                  Dotys ---+!....


                                                  Gibsons - - t -



                                                  Greenes




The numbered lots derive from the Skookum Creek large lot segregation. These lots are

subject to the August 8, 1972 Skookum Creek Declaration of Protective Covenants and

Easements. The farm is not subject to this declaration.

      In relevant portion, the declaration provides: 


      ARTICLE C-EASEMENTS AND RESERVATIONS 


              1. Seller does hereby declare and reserve sixty (60) foot wide non­
      exclusive, private easement for ingress, egress, and utilities over and across
      the Real Property, said easements to be located as shown on the attached
      Schedule B. Centerline of each of said easements shall follow the
      centerline of each existing or proposed road as located on the attached
      Schedule B.

             5. All of the easements declared herein shall be divisible, perpetual,
      and assignable, and shall be appurtenant to and run with the Real Property.

                                             4

No. 31412-0-III cons. w/31508-8-III
Browning v. Doty Family Trust


       Seller hereby reserves for itself, its personal representatives, agents and
       assigns, the right to the use and benefit of all of said easements and further
       hereby reserves the right to grant the use of said easements to all parties
       who now are or shall hereafter become Owners and to parties supplying
       utilities to any portion of the Real Property.
                6. The Owners of sixty-six (66) per cent or more in area of the Real
       Property shall have the right, power, and authority, by written declaration,
       to dedicate all or any part of any of the above-described easements to public
       use at any time.

CP at 70-71. The declaration defines "seller" as "THE TRANS- WEST COMPANY";

"Real Property" as "all of the real property described on the attached Schedule B", that is,

the numbered lots; and "Owner" as "the holder of a fee simple interest in any parcel of

the Real Property" CP at 69. The easement and proposed road can be seen on the

diagram above as beginning north oflot 16, running south to lot 23, and turning

southwest at the southern end of lot 23. The used portion of this easement was later

designated Skookum Meadow Drive.

       The Dotys purchased lot 24 in 1991. In 1991 or 1992, Forest Doty installed a

single gate across Skookum Meadow Drive near his home on lot 24. He had lot 24

surveyed in 1996. The Dotys purchased lots 22 and 23 in 1998, after which Forest Doty

installed other gates across Skookum Meadow Drive. Skookum Meadow Drive can be

seen on both the satellite photo and the diagram above. The Drive runs along lot 24's

north line and dips into lot 24 in the extreme northwest of the lot.

       On the diagram, Skookum Meadow Drive continues past the Doty gates southwest

to lots 25 and 26, belonging to the Gibsons and Greenes respectively. The access leading

                                              5

No. 31412-0-111 cons. w/31508-8-111
Browning v. Doty Family Trust


to the Gibson and Greene properties remains seasonal access, because of watery soil

conditions. At one time, Forest Doty and Charles Amburgey laid gravel to make the road

passable for the Gibsons.

       Testimony at trial varied about whether Skookum Meadow Drive continues

through lots 25 and 26 to the farm. The photograph above suggests the drive ends in the

northeast comer oflot 25; whereas, the diagram above suggests the road continues into

lot 26 and beyond. Veteran Pend Oreille County resident Lawrence Ashdown testified

that Skookum Meadow Drive continues through the lots, but is not passable in winter.

Ashdown last used that road in the 1960s. Charles Amburgey testified that the road ends

at the Greenes' home on lot 26. There is a path that continues further, Amburgey noted,

but he could not get a snowmobile through the path in 1993. Barbara Price, who lived on

the farm in the late 1990s, testified that the road connected to the farm. According to

Price, however, it was not suitable for cars.

       Susan Greene, owner of lot 26, testified that the road ends at a turnaround on her

property. After the turnaround, a small deer path or logging road continues toward the

farm. Specifically, Greene testified:

               So at that point, to answer your original question, I've been back to
       where you're talking about. And-it doesn't look like there could be-I
       mean,-really thought about this, it doesn't look like there could have been
       a road through there at all, because on the other side of where that deer trail
       is, there's no road bed. There's stubble, there's stumps. It just doesn't look
       possible that there could have ever been a road.


                                                6

No. 31412-0-111 cons. w/31508-8-1I1
Browning v. Doty Family Trust


Report of Proceedings (RP) at 265.

       Forest Doty testified that the road does not continue to the farm. Barbara Drake

testified that Skookum Meadow Drive goes through lots 25 and 26 to her farm. Leonard

Browning testified that he drove a car on the Skookum Meadow Drive to the farm.

Browning further testified that he would like to improve the road, to enable access to the

farm year-round.

       Visitors have accessed the farm via two routes other than Skookum Meadow

Drive. Through the late 1990s, Barbara Price lived on the farm with her six children, her

boyfriend, and his two children. Price testified that they usually accessed the farm from

the west, until a bridge washed away in 1997 or 1998. Sandra and Charles Amburgey

similarly testified that there formerly was a bridge. Since the bridge washed away,

however, Big Dog Drive has been the primary route. Barbara Drake testified that she

always takes Big Dog Drive. Big Dog Drive runs along the north boundary of lot 21,

owned by Drake, and is labeled on the satellite photo above.

       On June 19,2006, Leonard Browning wrote Forest and Lil Doty, "Since you have

tied this property up in the excess of ten years with brute force, 1 feel 1 am being very

equitable in allowing you forty-eight hours to remove you [sic] gate, your fence, or any

other object that obstructs a sixty foot easement through your property." CP at 20.




                                              7

                                                                                             I
                                                                                             •
No. 31412-0-111 cons. w/31508-8-1I1
Browning v. Doty Family Trust


                                        PROCEDURE

       On August 7,2006, Leonard Browning filed suit against the Dotys, the

Amburgeys, and the Monks. On August 16,2007, the court joined Barbara Drake as a

plaintiff. On August 23, Leonard Browning and Drake amended the complaint. The

amended complaint alleged:

              3.33 Plaintiff Leonard N. Browning has an easement by necessity
       along the portion of Skookum Meadows Drive traversing Lots 23 and 24­
       DT, 25-CT, and 26-G/B owned by the Doty Family Trust, the Cherith
       Trust, and Defendants Greene and Beamer.
              3.34 There is a necessity for the easement over Lots 23 and 24-DT,
       25-CT, and 26-G/B to secure and maintain the quiet enjoyment of The
       Farm.

              3.43 Plaintiff is purchasing Lot 21-B, and must access Lot 21-B via
       an existing road set out on Skookum Creek development Schedule B,
       commonly known as Watertower Lane; and by a deeded access road
       commonly known as Big Dog Road, located on Defendants Monk's
       property at Lot 20-M.

              3.50 Lot 21-B is landlocked, and cannot be accessed by any means
       other than across Defendants Monk's property: whether by use of the
       deeded easement commonly referred to as Big Dog Road; and/or by the
       "proposed 60 foot easement" set out in Schedule B of Skookum Creek
       development to the west ofWatertower Lane on the common border of Lot
       20-M and Lot 23-DT to the easternmost comer junction of Lots 22-DT and
       21-B.
              3.51 Plaintiff Leonard N. Browning has an easement by necessity
       over Lot 20-M owned by Defendants Monk.

CP at 59,61-62. Under "relief requested," Browning and Drake sought damages,

injunctive relief, and declaratory relief:




                                             8

No. 31412-0-111 cons. w/31S08-8-1I1
Browning v. Doty Family Trust


              4.1 Plaintiff requests damages in the amount of $40,000 to be
      charged to each of the defendants separately and individually for acting in
      unison, in concert, and in conspiracy to deny Plaintiffs use of his
      properties as provided for in the Declaration of Covenants and Easements,
      said damages to be proven at time of triaL
              4.2 For an order restraining all defendants from continuing to close,
      obstruct, stop up or interfere with plaintiff s rights of way; and from in any
      manner interfering with or attempting to prevent plaintiff from passing
      over, maintaining, improving and using the existing public rights of way
      and easements historically reserved for the public and as set out in the
      Declaration of Covenants and Easements, as plaintiff has no other adequate
      remedy at law.
              4.3 For an order of specific performance requiring all defendants
      comply with the terms of the Declaration of Covenants and Easements by
      allowing plaintiff to use, maintain, and improve the existing roads and
      easements across defendants' various lots, and by allowing plaintiff to use,
      ditch, and maintain the 10-foot right-of-way servitude easements located on
      the borders of each of plaintiff and defendants' lots.
              4.4 For declaratory judgment declaring plaintiff Leonard N.
      Browning has an easement by prescription over Lots 23 and 24-DT. 2S-CT,
      and 26-G/B, as well as over Lot 20-M.
              4.6 For declaratory judgment declaring plaintiff Leonard N.
      Browning has an easement by implication over Lots 23 and 24-DT, 2S-CT,
      and 26-GIB, as well as over Lot 20-M.
              4.7 For attorney fees and costs pursuant to the terms of the 

      Declaration of Covenants and Easements. 

              4.8 For such other and further relief as the Court deems just and
      equitable.

CP at 63-64. Browning and Drake neither prayed for an easement by necessity, nor pled

private condemnation under chapter 8.24 RCW.

      On August 31,2009, Forest and Lil Doty and their Family Trust counterclaimed

that Leonard Browning removed an existing fence line between their property and the

farm, and that Browning removed a substantial number of trees from their property. The


                                            9

No. 31412-0-II1 cons. w/31508-8-III
Browning v. Doty Family Trust


Dotys prayed for treble damages for the removed trees under chapter 64.12 RCW. The

Dotys also asked the court to authorize them "to reinstall the fence as per the survey

obtained by these defendants and that judgment be entered against the plaintiff for the

amount necessary to replace the fence removed by the plaintiff." CP at 106.

       On August 24,2012, and before trial, the court dismissed all claims against the

Monks with prejudice and without costs. Leonard Browning and Barbara Drake settled

with the Monks outside of court. As part of the settlement, the Monks recognized two

existing easements through lot 20 in favor of Drake's lot 21, for drainage, utilities, and

access. Browning and Drake may thus access lot 21 via Big Dog Lane, along the border

of the Monk's lots 19 and 20. These easements are for lot 21, but not the farm.

Browning testified that Tracy Monk gave him and Drake "a 40-foot easement, here, to

Lot 21, and he will allow us to access the farm, as long as we own it. And once we sell

the farm that permission to go through 20 expires. Or if we sell Lot 21, you [sic] can no

longer go through 20 to the farm." RP at 449.

       Trial spanned four days in August 2009. During testimony, Leonard Browning

admitted that he removed trees along the border of the farm and the Doty Family Trust's

lot 22 in 2005 or 2006. Specifically, Browning testified:

       Q      My question to you is, did you cut these trees down and fall on the 

       farm side ofthe property? 

       A      Yes, I did. I cleared that out so I could fix the fence that was in bad 

       state of repair. 



                                              10 

No. 31412-0-II1 cons. w/31508-8-II1
Browning v. Doty Family Trust


      Q      Why would you cut trees down and not use the existing tress [sic] to
      put the fence on, why did you feel that-
      A      Because-Well, these trees, if you'll notice the size of them, they
      had grown up over 40 or 50 years. And these particular trees here are
      probably,oh, 12, 14 years old. And they were right on where the fence is;
      they were growing up between the fence. And I couldn't repair-put a new
      fence up with all these trees there. I had to clear them out in order to get a
      straight line-the same line that the old fence was on-and put in fence
      posts. You can't put fence posts in where there's a bunch of brush and
      second growth trees like that.
             And there's-You know, you can see from the size of them they're
      not merchantable. I was merely trying to rebuild my existing boundary
      fence. That's all I was trying to do.

RP at 420-21.

      The Dotys called arborist Tim Kastning to testify about the trees Leonard

Browning removed. Pro se Browning examined Kastning as follows:

      Q      On these stumps that you-numbered here, can you tell me where
      each one of those stumps was at, physically at? How far from the barbed
      wire they were?
      A      If we were to go back there today and provided that the stumps were
      there-were still there and I have the pictures, yes, I can identify those
      stumps.
      Q      So in other words as we stand here today you cannot tell me where
      these stumps are at, whether they were on the east side or west side of the
      old fence line. Is that correct?
      A      No. All of the stumps were located between the old barbed wire
      fence line and the new fence that was-that was tied up against the trees.
      No stumps were inventoried that were on the west side of the old barbed
      wire fence.

RP at 644-45.

      Tim Kastning relied on Forest Doty to define the boundary line between the farm

and the Dotys' lot 22. According to Forest Doty, relying on the 1996 survey, all trees

                                            11 

No. 31412-0-111 cons. w/31508-8-111
Browning v. Doty Family Trust


east of the old barbed wire fence were on his property. Kastning found 75 trees had been

cut down east of the barbed wire fence. The trial court sought to clarify what trees

Kastning surveyed:

              [Kastning]: The trees that 1 surveyed were located between the old
       barbed wire fence-
              THE COURT: Uh-huh.
              [Kastning] :-and the new fence that was zigzagged and tied up
       against tress, against the trees. I did not survey any stump that was on­
       between the old-barbed wire fence and where the new property line was
       being-was surveyed.
              THE COURT: And the new property line being further west than the
       old fence?
              [Kastning]: That's correct. So you have the new-new survey line,
       then you have the old barbed wire fence, and then we had the new fence
       that was being tied up to the trees. In between the old barbed wire fence, in
       order to move that new fence over, it appeared that trees had been cut in
       order there to get that fence put over there or what-have-you.

RP at 640-41.

       According to Tim Kastning, "[t]o do a cost replacement on the trees, that is, like

tree for like tree, would be a very exorbitant cost, and a difficult process." RP at 641.

So, Kastning instead calculated the replacement cost as "the best way to come up with a

valuation to make the owner of the property whole." RP at 641. Replacement, Kastning

testified, would require the planting of 47 trees at a cost of$16,450, and watering for 10

weeks costing $3,000.

       The court admitted the Dotys' 1996 survey of their property into evidence.

Leonard Browning did not object, and relied on the survey when he cross-examined Tim


                                             12 

No. 31412-0-III cons. w/31508-8-III
Browning v. Doty Family Trust


Kastning.

       Susan Greene, owner of lot 26, testified to an easement in her chain of title, which

reads, "Reservation by Grantors, their heirs, and/or assigns, of a 60-foot easement for

unimpeded access over prior and existing roads for ingress and egress to adjoining

property." CP at 399. Susan Greene testified that "adjoining property" does not refer to

the farm. RP at 275.

       Pend Oreille County Engineer Don Ramsey, who works in the county road

department, testified that the roads shown on Skookum Creek Schedule B, including

Watertower Lane and Skookum Meadow Drive, are private and have not been dedicated

to the public.

       Charles Amburgey testified that he and Leonard Browning previously discussed

whether an easement exists, testifying:

               And we were talking about the road, and the 60-foot easement and
       all that, and he says he was going to do a lot of work on the road. And I
       told him that I would really appreciate the help, because, you know, I didn't
       have much help, other than Mr.-Doty and Mr. Monk. And I thought
       everything was-you know, he sounded good.
               And then I says, "Well, that 60-foot easement, some of those
       places-it's 60 foot, but it's not on-they don't have an easement on their
       property."-he said, "I don't care. I'll take 60 foot, 30 foot from the center
       of the road, and besides, I'm the best litigator and I never lost a case; I'm
       the best litigator in Idaho or Pend Oreille County.

RP at 169-70.

       On January 3, 2013, the trial court entered findings of fact and conclusions oflaw.


                                            13 

No. 31412-0-II1 cons. w/3IS08-8-II1
Browning v. Doty Family Trust


      As findings of fact, the court wrote:

               1.8    Article C, Section 1 of the Declaration reserves a 60 foot
      wide, nonexclusive private easement for ingress, egress and utilities to each
      property subject to the Declaration. At Article C(4), the seller reserves
      easements for drainage and utility purposes along a ten (10) foot strip of
      land abutting any or all of the exterior boundaries of each parcel in the large
      lot segregation. The use of the word "abutting" is intended to provide for
      the easement being placed within the exterior ten (10) feet of any lot subject
      to the Declaration.
               1.9   Article C(S) declared that the easements would be divisible,
      perpetual and assignable, and be apportioned to and run with the real
      property subject to the Declaration.
               1.10 All rights under Article C of the Declaration were reserved to
      the sellers; there is no stated mechanism for the reserved rights to devolve
      to the purchasers of property subject to the Declaration.
               1.11 All easements shown on Schedule B were intended to benefit
      only the owners subject to the Declaration. Thus, while Schedule B shows
      one of the easement roads as travelling outside the boundaries of the
      property subject to the Declaration on the southwest, there is no intent that
      the easements and/or roads benefit anyone other than the owners of the
      property subject to the Declaration.
               1.13 As any access from the Doty property to the Gibson and
      Green properties is described as private and divisible, the Court finds that
      the benefit of the access provided by the easement/pathway to the Gibson
      and Green properties is exclusive to them, and not to any other owner of
      property subject to the Declaration. Because the road easements shown on
      Schedule B of the Declaration run with the land, no owner has the right to
      deny Gibson or Green access to their properties. Gibson and Green have
      permitted Doty to maintain a gate precluding access to their properties by
      any other persons, including other owners subject to the Declaration.
              1.14 At no time has any pathway or roadway connected the Green
      or Gibson properties to the property of the plaintiff. There is no implied
      easement in favor of plaintiff which would allow access through Skookum
      Meadows to any county road.
              1.15 Plaintiff Drake's predecessor in interest was also an owner of
      Lot 21 and provided easement access for the farm property to Lot 21. Such
      access has since been extended along the north thirty (30) feet of Lot 21 to
      its intersection with Water Tower Lane. The extension of the road to Water

                                              14 

No. 31412-0-III cons. w/31508-8-III
Browning v. Doly Family Trust


      Tower Lane was not allowed for nor did it grant use to plaintiff Drake for
      the use of Water Tower Lane, nor any other roadway within the Skookum
      Creek Declaration.
              1.18 There is no express easement allowing the farm property
      access to any easement roadway shown within the Skookum Creek
      Declaration, other than the modified Big Dog Drive. For that matter, there
      is no evidence that any lot subject to the Skookum Creek Declaration has
      an express easement to travel along Skookum Meadow Drive to its
      intersection with Conklin Meadows Road. The farm property is
      landlocked, and no claim has been made for a private way of necessity
      pursuant to RCW 8.24.
              1.19 On or between 2005 and 2006, plaintiff Browning removed
      forty-seven (47) trees from the Doty property. The removal of the trees
      was done intentionally, without lawful authority, without probable cause to
      believe the property belonged to him, and without the permission of the
      Dotys. The reasonable value of the trees is $16,450.

CP at 222-25.

      Based upon the findings of fact, the trial court concluded Leonard Browning and

Barbara Drake "do not have a right of access for the farm property which extends any

further than the west edge of Lot 21, whether by adverse possession, necessity, or

implication." CP at 225 (strikethrough initialed by Judge Monasmith). And the court

entered judgment in favor of the Dotys against Browning for timber trespass in the

amount of $49,350 as treble damages. In the order, the trial court wrote:

             It is further ordered, adjudged and decreed that the plaintiffs do not
      have a right of access for the farm property which extends any further than
      the west edge of Lot 21, whether by adverse possession or implication.
             That it is further ordered, adjudged and decreed that the property line
      between the farm and westerly boundary of the defendants' property shall
      be as set forth in the survey identified as Doty Exhibit No. 121 and as
      recorded under Auditor's No. 2006-0288768 on September 5, 2006, at
      Book 7, Page 9 of Surveys.

                                            15
No. 31412-0-II1 cons. w/31508-8-III
Browning v. Doty Family Trust



CP at 231.

         At the presentment hearing for these findings and conclusions, Barbara Drake

asked the trial court to strike a reference to "necessity." RP at 875-76. Drake's counsel,

the Dotys' attorney, and the trial court discussed whether an easement by necessity was at

Issue:

                  MR. SHUMAKER: All right. And then on the-on the last page of
         the judgment, on the signature page, page 5,-And this one's going to be a
         little bit more problematic-it's-On line 3 it says, "whether by adverse
         possession, necessity or implication." And what I'd ask the court to do is to
         strike the word, "necessity." And the reason why is that in the court's
         findings of fact the court found that-that "no claim has been made for a
         private way of necessity pursuant to RCW 8.24."
                  THE COURT: Right. There was some confusion, I think, about
         the-an easement by necessity versus a private way, which is a private
         condemnation action.
                  MR. SHUMAKER: Sure. And since we didn't make a claim for
         that, or the court found that we didn't make a claim, I don't want to
         preclude my client or future purchasers of this property from-from
         bringing some kind of a claim of access by necessity.
         Now, do I think that it would be successful? I have no idea, under our
         (inaudible), every property or more, and somewhere-
                  THE COURT: Well, let me-let me stop you right there, Mr. 

         Shumaker. 

                  Mr. Humphries, what about that? Striking the word "necessity?" I
         guess, in the-with the idea of leaving that door open for a suit for a private
         way of necessity?
                  MR. HUMPHRIES: I think in Mr. Browning's original pleadings
         that they filed, they did talk about a way of necessity-
                 THE COURT: Talked about an easement of necessity. They never
         pled 8.24[, referring to chapter 8.24 RCW, the private condemnation
         statutes].
                  MR. HUMPHRIES: Okay. Okay. I guess if you strike it, he'd also
         previously asked for-wording that-said he could bring another lawsuit,

                                              16 

No. 31412-0-III cons. w/31508-8-III
Browning v. Doty Family Trust


      but he's apparently not asking for that now.
             THE COURT: Well, again, his was for an easement and declaratory
      judgment. And-said no to that. But I made a specific finding that there
      had not been a claim made for a private way of necessity, a private
      condemnation action.
             MR. SHUMAKER: That's right. Okay. So, that's it for the
      judgment, your Honor.

RP at 875-76.

       Later in the presentment hearing, James Gibson mentioned an easement by

necessity:

               MR. GIBSON: At the trial it was brought out that-the property,
       the farm, was not-accessed by Mr. Proctor when he owned the farm
       property he never used Skookum Meadow Drive to get over there. This
       was something brought out by the witnesses of the defendant. Also the
       party that owned that property before selling it to the defendants never-
               THE COURT: The plaintiffs?
               MR. GIBSON: The plaintiffs. Excuse me. The plaintiffs-before
       selling it to the plaintiffs used Lenore Road for the ingress and egress until
       DNR [the Department of Natural Resources] took the bridge out. And
       that's the whole issue right now over this.
               THE COURT: So, your point, sir? 

               MR. GIBSON: My point is, he has no need of necessity through the 

       Skookum Meadow Road.
               THE COURT: That's not for today.
               MR. GIBSON: I see. That's for-But-but you're striking the word
       "necessity" as though-in your decision-
               THE COURT: Well, because I think there's a conflation of the term
       of "easement by necessity" with a private way of necessity, which is a
       totally different concept. So, I'm saying no, there's no express easement,
       there's no implied easement. I leave it at that.

RP at 891-92.




                                            17 

No. 31412-0-111 cons. w/31508-8-111
Browning v. Doty Family Trust


       On January 14,2013, Leonard Browning moved for reconsideration. Browning

claimed that "[o]n the first day of trial, the Hon. Court had ex parte communication with

Drake's attorney, Doty's attorney, and Amburgey's attorney. All pro se defendants and

plaintiff were excluded." CP at 234. The trial court denied the motion.

                                     LA W AND ANALYSIS

       Barbara Drake contends (1) the trial court failed to rule on the request for an

easement by necessity and (2) the trial court erred when it failed to recognize a reserved

public rights of way to the farm. Leonard Browning challenges many of the trial court's

findings of facts-namely, 1.1, 1.2, 1.8, 1.11, 1.12,1.13,1.14,1.15,1.18, and 1.19. In

doing so, Browning echoes Drake's argument that the trial court failed to recognize

reserved public rights of way to the farm. Browning challenges the trial court's

conclusion that he intentionally removed trees from the Dotys' property, arguing the trial

court erred when it: concluded that the removed trees were from the Dotys' property;

established the boundary between the Dotys' lot 22 and the farm when that issue was not

before the court; concluded that Browning intentionally removed trees from the Dotys'

property when he had probable cause to believe Drake owned the land; and concluded

that Browning intentionally removed trees from the Dotys' property despite his right to

repair the fence, which includes the removal of trees. Last, Leonard Browning alleges

the trial court communicated ex parte with defendants' respective counsel.




                                             18 

No. 31412-0-III cons. w/31508-8-III
Browning v. Doty Family Trust


                                    Standards ofReview

       "Where the trial court has weighed the evidence, appellate review is limited to

determining whether the trial court's findings of fact are supported by substantial

evidence, and if so, whether the findings support the conclusions of law and the

judgment." Sac Downtown Ltd. P'ship v. Kahn, 123 Wn.2d 197,202,867 P.2d 605

(1994). "Evidence is substantial if it is sufficient to persuade a fair-minded, rational

person of the declared premise." Merriman v. Coke ley, 168 Wn.2d 627, 631, 230 P.3d

162 (2010).

       We defer to the trier of fact in matters of witness credibility and conflicting
       testimony. We give the party who prevails in the trial court the benefit of
       all reasonable inferences from the evidence that favor the court's findings.
       Unchallenged findings are verities. We construe the absence of a finding
       against the party with the burden of proof.

Barker v. Advanced Silicon Materials, LLC, 131 Wn. App. 616, 626-27,128 P.3d 633

(2006) (internal citations omitted). "If no finding is entered as to a material issue, it is

deemed to have been found against the party having the burden of proof." Pacesetter

Real Estate, Inc. v. Fasules, 53 Wn. App. 463, 475, 767 P.2d 961 (1989).

                                   Easement by Necessity

       Barbara Drake contends that the trial court erred by not ruling on her request for

an easement by necessity. She cites to chapter 8.24 RCW, Washington's private

condemnation statutes.

       Barbara Drake never requested an easement by necessity. Instead Drake joined

                                              19 

No. 31412-0-III cons. w/31508-8-III
Browning v. Doty Family Trust


Leonard Browning's amended complaint. Under the heading "facts and allegations," the

amended complaint alleged, "Plaintiff Leonard N. Browning has an easement by

necessity along the portion ofSkookum Meadows Drive" and "Plaintiff Leonard N.

Browning has an easement by necessity over Lot 20-M owned by Defendants Monk."

CP at 59, 62. But Browning and Drake did not request an easement by necessity in the

prayer for relief. Nor was this their theory of the case. Throughout trial, and again on

appeal, Browning and Drake insisted on the right to use Skookum Meadow Drive as one

of the "existing public rights of way and easements historically reserved for the public

and as set out in the Declaration of Covenants and Easements." CP at 63.

       Barbara Drake continues to conflate an easement by necessity with a private

condemnation. When Drake asked the court to strike the word "necessity" from its

findings and conclusion to indicate that the court had not ruled on such a claim, the court

aptly commented, "I think there's a conflation of the term of 'easement by necessity'

with a private way of necessity, which is a totally different concept." RP at 891.

      As our Supreme Court explained in Hellberg v. Coffin Sheep Company, 66 Wn.2d

664,666-67,404 P.2d 770 (1965):

              An easement of necessity is an expression of a public policy that will
      not permit property to be landlocked and rendered useless. In furtherance
      of that public policy, we give the owner, or one entitled to the beneficial
      use of landlocked property, the right to condemn a private way of necessity
      for ingress and egress. RCW 8.24.010.




                                            20 

No. 31412-0-II1 cons. w/31508-8-III
Browning v. Doty Family Trust.


              Condemnation, however, is not necessary where the private way of
       necessity is over the land of the grantor or lessor of the landlocked
       property.
              The theory of the common law is that where land is sold (or leased)
       that has no outlet, the vendor (or lessor) by implication oflaw grants
       ingress and egress over the parcel to which he retains ownership, enabling
       the purchaser (or lessee) to have access to his property.

See also, Visser v. Craig, l39 Wn. App. 152, 163-65, 159 P.3d 453 (2007); Ruvalcaba v.

Kwang Ho Baek, 175 Wn.2d 1,6-9,282 P.3d 1083 (2012). Easement by necessity and

private condemnation are different and distinct actions. See, e.g., Woodward v. Lopez,

174 Wn. App. 460, 300 P.3d 417 (20l3). Neither Leonard Browning nor Barbara Drake

ever cited chapter 8.24 RCW or requested private condemnation at trial. Barbara Drake

cannot raise this new claim for the first time on appeaL An appellate court will not

review an issue, theory, argument, or claim of error not presented at the trial court level.

Lindbladv. Boeing Co., 108 Wn. App. 198,207,31 P.3d 1 (2001).

       The trial court did not err when refusing a ruling on Barbara Drake's easement by

necessity claim, since no such claim was before it.

                               Reserved Public Right of Way

       Barbara Drake contends that the roadways leading to the farm are reserved public

rights of way. To this end, Drake challenges the trial court's finding that, "At no time has

any pathway or roadway connected the Green[e] or Gibson properties to the [farm]." CP

at 223. Leonard Browning also challenges this finding.




                                             21 

No. 31412-0-III cons. w/31S08-8-III
Browning v. Doty Family Trust


         Substantial evidence supports this finding. Charles Amburgey testified that the

road ends at the Greenes' home on lot 26. Amburgey noted that a path continued, but the

path was impassible. Susan Greene, who owns lot 26, testified that the road ends at a

turnaround on her property. Forest Doty testified that the road does not continue into the

farm. This testimony amply supports the trial court's finding.

         Others testified that Skookum Meadow Drive continues through to the farm, either

as a road or deer path, but this court defers to the trial court's determinations of

credibility. In light of that deference, Barbara Drake's challenge of the court's finding

fails.

         To support her argument that the roads within the Skookum Creek segregation are

reserved public rights of way, Barbara Drake points to the Greenes' chain of title-

specifically, "Reservation by Grantors, their heirs, and/or assigns, of a 60 foot easement

for unimpeded access over prior and existing roads for ingress and egress to adjoining

property." CP at 399. Drake argues that "existing roads" within the meaning of the title,

includes Skookum Meadow Drive and "adjoining property" refers to the farm. But

nothing in this easement indicates Skookum Meadow Drive is or ever was a public road.

Given the trial court's finding that Skookum Meadow Drive stops on the Greenes'

property, "adjoining property" logically refers to the Gibsons' and Dotys' lots.

         Barbara Drake also points to the 1972 Skookum Creek Declaration of Protective

Covenants and Easements. That declaration provides:

                                             22
No. 31412-0-II1 cons. w/31S08-8-III
Browning v. Doty Family Trust


              Seller does hereby declare and reserve sixty (60) foot wide non­
       exclusive, private easement for ingress, egress, and utilities over and across
       the Real Property, said easements to be located as shown on the attached
       Schedule B. Centerline of each of said easements shall follow the
       centerline of each existing or proposed road as located on the attached
       Schedule B.

CP at 70. Drake argues the declaration's reference to "existing roads" refers to

preexisting county roads and thus the declaration reserves the public's right to use them.

But by its very terms, the declaration reserves a "private" easement. CP at 70. A county

engineer testified that Skookum Meadow Drive is a private road. The declaration

provides those living in the Skookum Creek segregation the authority "to dedicate all or

any part of any of the above-described easement to public use at any time." CP at 71.

Browning and Drake presented no evidence of a dedication.

       The trial court did not fail to recognize a reserved public right of way because

Skookum Meadow Drive is a private road.

              Leonard Browning's Challenge to the Trial Court's Findings

       Leonard Browning assigns error to ten of the trial court's findings of fact.

Leonard Browning first contends that the trial court erred by not finding that he is

leasing-to-own lot 21, in addition to the farm. Browning similarly challenges the trial

court's finding 1.12, that Forest Doty installed a gate in 1991 or 1992, without the court

adding that Doty installed a second gate in 1998. There is evidence of these additional

facts. But Browning does not explain how the lack of such findings impacts this case.


                                             23 

No. 31412-0-111 cons. w/31508-8-III
Browning v. Doty Family Trust


Factual issues not necessary to resolve the case need not be decided by the trial court.

Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 707, 592 P.2d 631 (1979); Ferguson v.

Jeanes, 27 Wn. App. 558, 564 n.2, 619 P .2d 369 (1980).

       Leonard Browning challenges findings 1.8, 1.11, 1.13, and 1.18, which address

Article C, section 1 of the Skookum Creek Declaration of Protective Covenants and

Easements. These challenges echo Barbara Drake's contention that the declaration

preserves roads leading to the farm as public rights of way. As discussed above, the

declaration does not create a public right of way.

       Leonard Browning challenges finding 1.15 on the ground that it inaccurately

describes lot 21 as intersecting with Water Tower Lane .. Finding 1.15 does not describe

lot 21 and Water Tower Lane as intersecting. Finding 1.15 reads:

      Plaintiff Drake's predecessor in interest was also an owner of Lot 21 and
      provided easement access for the farm property to Lot 21. Such access has
      since been extended along the north thirty (30) feet of Lot 21 to its
      intersection with Water Tower Lane. The extension of the road to Water
      Tower Lane was not allowed for nor did it grant use to plaintiff Drake for
      the use of Water Tower Lane, nor any other roadway within the Skookum
      Creek Declaration.

CP at 224. The finding correctly notes that "access" has been extended from the starting

point of lot 21 's northern border to the ending point of Water Tower Lane.

                  Leonard Browning's Challenges for Timber Trespass

       Leonard Browning contends the trial court erred when it concluded that the

removed trees were from the Dotys' property; established the boundary between the

                                            24 

No. 31412-0-III cons. w/31508-8-III
Browning v. Doty Family Trust


Dotys' lot 22 and the fann when that issue was not before the court; concluded that

Browning intentionally removed trees from the Dotys' property when he had probable

cause to believe Drake owned the land; and concluded that Browning intentionally

removed trees from the Dotys' property despite his right to repair the fence, which

includes the removal of trees.

       Chapter 64.12 RCW governs timber trespass. Under RCW 64.12.030,

               Whenever any person shall cut down, girdle, or otherwise injure, or
       carry off any tree, including a Christmas tree as defined in RCW 76.48.020,
       timber, or shrub on the land of another person, or on the street or highway
       in front of any person's house, city or town lot, or cultivated grounds, or on
       the commons or public grounds of any city or town, or on the street or
       highway in front thereof, without lawful authority, in an action by the
       person, city, or town against the person committing the trespasses or any of
       them, any judgment for the plaintiff shall be for treble the amount of
       damages claimed or assessed.

(amended in 2009 to include Christmas trees; LAW OF 2009, ch. 349). RCW 64.12.040,

in turn, reads:

              If upon trial of such action it shall appear that the trespass was casual
       or involuntary, or that the defendant had probable cause to believe that the
       land on which such trespass was committed was his or her own, or that of
       the person in whose service or by whose direction the act was done, or that
       such tree or timber was taken from uninclosed woodlands, for the purpose
       of repairing any public highway or bridge upon the land or adjoining it,
       judgment shall only be given for single damages.

       RCW 64.12.030's "treble damage remedy is available when the trespass is

'willful,' because if the trespass is 'casual or involuntary' or based on a mistaken belief

of ownership of the land, treble damages are not available. As befits a penal statute, our

                                             25 

No. 31412-0-III cons. w/31508-8-III
Browning v. Doty Family Trust


decisions have interpreted this punitive damages provision narrowly." Birchler v.

Castello Land Co., Inc., 133 Wn.2d 106, 110,942 P.2d 968 (1997) (internal citations

omitted). "At the same time, our cases have been cognizant of the purpose of RCW

64.12.030: to punish trespassers, to prevent careless or intentional removal of trees and

vegetation from property, and to roughly compensate landowners for their losses."

Birchler, 133 Wn.2d at 111. To these ends, property owners even have an interest in the

trees that lie on the border, which is "proportionate to the percentage of [the trees'] trunks

growing on [the owner's] property." Happy Bunch, LLC v. Grandview N., LLC, 142 Wn.

App. 81,93, 173 P.3d 959 (2007). The burden is on the trespasser to "allege and prove

mitigation under RCW 64.12.040." Happy Bunch, 142 Wn. App. at 95; see, e.g., Seattle-

First Nat 'I Bank v. Brommers, 89 Wn.2d 190, 197-98,570 P.2d 1035 (1977).

       Leonard Browning claims that substantial evidence does not support the court's

finding that the trees he removed were from the Dotys' property. To this end, Leonard

Browning challenges the trial court's finding 1.19, which reads:

              On or between 2005 and 2006, plaintiff Browning removed forty­
       seven (47) trees from the Doty property. The removal of the trees was done
       intentionally, without lawful authority, without probable cause to believe
       the property belonged to him, and without the permission of the Dotys.
       The reasonable value of the trees is $16,450.

CP at 225.

       Arborist Tim Kastning testified to the location of various possible dividing lines.

According to Kastning, from west to east, there is the "new survey line," then the "old

                                             26 

No. 31412-0-II1 cons. w/31508-8-II1
Browning v. Doty Family Trust


barbed wire fence," and then the "new fence." RP at 640. Kastning further testified that

he inventoried only those trees that had been removed from the Dotys' side of the old

barbed wire fence.

       Otherwise, Kastning found 75 trees had been removed from the Dotys' property.

Replacing those trees, Kastning testified, would require the planting of 47 trees at a cost

of$16,450. Substantial evidence supports this finding.

       Leonard Browning next contends the trial court unilaterally amended the pleadings

without providing proper notice when it decided where the boundary is between the farm

and the Dotys' lot 22. This argument ignores the Dotys counterclaim, in which they

expressly asked the court to authorize them "to reinstall the fence as per the survey

obtained by these defendants and that judgment be entered against the plaintiff for the

amount necessary to replace the fence removed by the plaintiff." CP at 106. Further, the

court could not properly decide the issue of timber trespass without determining the

border between the farm and the Dotys lot 22. The trial court did not err by addressing

the Dotys' counterclaim.

       Leonard Browning also claims he "had probable cause to believe that the land on

which such trespass was committed" belonged to Barbara Drake or, in the alternative,

that his trespass was "casual or involuntary." RCW 64.12.040. To this end, Browning

writes, "Not only Browning, but all parties, as well as all of the witnesses who testified in

relation to the old fence line, believed that the old fence line was the boundary line

                                             27 

No. 31412·0·111 cons. w/31508·8-111
Browning v. Doty Family Trust


between the properties." Br. of Appellant Browning at 47-48. But again, even accepting

this as true, Tim Kastning only surveyed trees east of that boundary and found 75 trees

had been removed. The evidence shows that Browning removed trees even from what he

considered to be the Dotys' property. This argument necessarily fails.

       Finally, Leonard Browning asks whether he has "the right to repair and maintain

the old fence line without being accused of trespassing?" Br. of Appellant Browning at

38. Browning argues that his repairing the fence shows that he acted in good faith,

without intentionally trespassing. Browning asserts a right to repair the fence, which

includes removing trees, without citations to any legal authority. This argument thus fails

to satisfy RAP 10.3(a)(6), which requires parties provide "argument in support of the

issues presented for review, together with citations to legal authority and references to

relevant parts of the record." "Unsubstantiated assignments of error are deemed

abandoned." Kittitas County v. Kittitas County Conservation, 176 Wn. App. 38, 54, 308

P.3d 745 (2013).

       Substantial evidence supports the court's finding that Leonard Browning

intentionally removed trees from the Dotys' property, and those findings support the

court's conclusion that Browning did so in violation ofRCW 64.12.030.

                   Leonard Browning Alleges Ex Parte Communications

      Last, Leonard Browning contends the trial court denied him a fair trial by

communicating ex parte with attorneys for other parties. Browning's one paragraph

                                             28 

No. 31412-0-III cons. w/31S08-8-III
Browning v. Doly Family Trust


accusation does not cite legal authority and otherwise cites only his own motion for

reconsideration. This argument does not satisfy RAP 1O.3(a)(6), and is thus abandoned.

                                      CONCLUSION

      We affirm the judgment and the trial court rulings.


      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.



                                             J;A I~'
                                             Feari~j
WE CONCUR:




                                            29 

