          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE
                                                                                             C)
                                                                                     r-3crlc,
                                                                                        —4=
CAMERON PELLY and AMY PELLY, )                   No. 75517-0-1                       co .
                                                                                        321V4
husband and wife,               )                                                        rn
                                                                                     7
                                                                                     ". -c›SPrt
                                                                                           ri
                                )
                   Respondents, )
                                )                                                           03Mtrq
                                                                                                c,

              v.                )                PUBLISHED OPINION                    3
                                                                                             ,—r-
                                )                                                            eic3
ANATOLIY PANASYUK and SHARON )                                                            f)
                                                                                          co ---,
C.W. TSENG, husband and wife,   )
                                )
                   Appellants.  )                FILED: March 19, 2018

       SCHINDLER, J. — In this appeal, we review the trial court decision interpreting a

1970 grant of easement and quitclaim deed executed and recorded by adjoining

property owners Russ and Jean Kelleran and George and Virginia Fey to resolve their

dispute over rights to what is referred to as the "Waterfront Strip." In 2015, Anatoliy

Panasyuk and Sharon Tseng, the successors in interest to Fey, applied for permits to

install a dock and boatlift. Amy and Cameron Pelly, the successors in interest to

Kelleran, sought a declaratory judgment and injunctive relief. Pelly alleged the dock,

boatlift, and certain landscaping and fencing violated the rights established by the 1970

documents. Panasyuk and Tseng filed a counterclaim asserting title to the Waterfront

Strip or alternatively, a declaratory judgment on the scope of the rights under the 1970

"Grant of Easement" and "Quit Claim Deed." Following trial, the court issued a 25-page
No. 75517-0-1/2

decision and extensive findings of fact and conclusions of law. The court found the

parties clearly intended the Grant of Easement and Quit Claim Deed be given effect.

The court interpreted the Grant of Easement and Quit Claim Deed together and ruled

the dock, boatlift, some fencing, and portions of the hedge and potted shrubs violated

the right to prohibit permanent structures on the Waterfront Strip and materially

interfered with the easement rights. The court issued an injunction prohibiting

Panasyuk and Tseng from interfering with the right to ingress and egress to the

Waterfront Strip for foot traffic and hand-carried boat access. On appeal, Panasyuk and

Tseng argue the court erred in admitting extrinsic evidence to determine the intent of

the original parties in executing and recording the Grant of Easement and Quit Claim

Deed. Panasyuk and Tseng contend the language of the Quit Claim Deed eliminated

all rights to ingress and egress. We hold the court did not err in considering extrinsic

evidence to determine the intent of the original parties and whether the recorded Grant

of Easement and Quit Claim Deed were part of the same transaction and interpreting

the two documents together to give effect to the right to ingress and egress, and affirm.

Grant of Easement and Quit Claim Deed

       The unchallenged findings establish the following facts. In 1953, C.R.(Russ)

and Jean Kelleran (Kelleran) purchased Lake Sammamish waterfront property in

Bellevue. George and Virginia Fey (Fey) owned the adjacent property to the east of the

Kelleran property.

       On March 20, 1969, Fey filed a lawsuit to quiet title to a 30-feet-wide by

approximately 300-feet-long strip of land that runs north to the lakeshore, the Waterfront




                                             2
No:75517-0-1/3

Strip. Kelleran filed a counterclaim asserting title to the Waterfront Strip. The following

exhibit shows the location of the Kelleran and Fey property and the Waterfront Strip:




        The parties agreed to resolve the lawsuit by executing a Grant of Easement and

a Quit Claim Deed. On November 23, 1970, Fey executed an easement granting

Kelleran the right to "ingress and egress, for foot traffic and boat access purposes only,"

and the right to prohibit placing any "permanent structure of any kind" on the Waterfront

Strip. The Grant of Easement states the 30-foot Waterfront Strip includes "the Lake

Sammamish Shore lands adjacent."

        The Grant of Easement recorded on December 29, 1970 provides, in pertinent

part:

              THE GRANTORS, GEORGE C. FEY and VIRGINIA L. FEY,
        husband and wife, for and in consideration of the sum of One Dollar
        ($1.00) and other good and valuable consideration, hereby give, grant and
        convey to C. R. KELLERAN and JEAN B. KELLERAN, husband and wife,


                                             3
No. 75517-0-1/4

      as grantees, and to their heirs, successors and assigns forever, a right of
      way for purposes of ingress and egress, for foot traffic and boat access
      purposes only, over and upon the following described real estate situate in
      King County, Washington .

              A strip of land 30 feet in width, being a portion of Government Lot 2
              in Section 13, Township 24 North, Range 5 E.W.M., King County,
              Washington . . . [.]

             . . . TOGETHER WITH the Lake Sammamish Shore lands
             adjacent .. ..

      TOGETHER with the right to prohibit the placing of any road or other
      permanent structure of any kind upon the aforedescribed property, except
      that such right shall not apply to existing structures. This right shall be
      interpreted as and is intended to be a covenant running with the land for
      the benefit of the property of the grantees which lies adjacent to and
      westerly of the property described in this instrument and as a burden upon
      that portion of the property described in this instrument which said right
      touches and concerns.

       On December 23, 1970, Kelleran executed the Quit Claim Deed that conveyed to

Fey any interest to the Waterfront Strip, "including any interest therein which grantors

may thereafter acquire," subject to "the right to prohibit the placing of any road or other

structure of any kind" on the Waterfront Strip. The Quit Claim Deed was recorded on

December 31, 1970 and provides, in pertinent part:

             THE GRANTORS, C. R. KELLERAN and JEAN B. KELLERAN,
      husband and wife; DONALD E. CHANDLER, a single man; and
      ELIZABETH A. JOHNSON, individually and as executrix of the Estate of
      Howard B. Johnson, deceased,for and in consideration of One Dollar
      ($1.00) and other valuable consideration, convey and quit claim to
      GEORGE C. FEY and VIRGINIA L. FEY, husband and wife, the following
      described real estate, situated in the County of King, State of Washington,
      including any interest therein which grantors may hereafter acquire:

              A strip of land 30 feet in width, being a portion of Government Lot 2
              in Section 13, Township 24 North, Range 5 E.W.M., King County,
              Washington . . . [.]

              . . . TOGETHER WITH the Lake Sammamish shore lands adjacent.



                                             4
No. 75517-0-1/5

      RESERVING TO THE GRANTORS, HOWEVER,And to their heirs,
      successors and assigns forever, the right to prohibit the placing of any
      road or other structure of any kind upon that portion of the aforedescribed
      property which lies northerly of a line which is the extension of the
      northern boundary of lots 21 and 8, Block 3, of the unrecorded plat of
      Strandvik, a corporation, except that such right shall not apply to existing
      structures. This right shall be interpreted as and is intended to be a
      covenant running with the land for the benefit of the property of the
      grantors which lies adjacent to and westerly of the property conveyed by
      this instrument, and as a burden upon that portion of the property
      conveyed by this instrument which said right touches and concerns.

      The undisputed evidence shows that after executing the two documents, Kelleran

used the Waterfront Strip for ingress and egress and boat access. In 1999, Bruce and

Rebecca Kelleran built an "auxiliary dwelling unit" on the property for Russ and Jean. In

2000, Bruce and Rebecca demolished the summer cabin and built a 5,000-square-foot

house.

       In 2005, Anatoliy Panasyuk and Sharon C.W. Tseng purchased the Fey property.

The "Statutory Warranty Deed" expressly conveys title to Panasyuk and Tseng

"SUBJECT TO: RIGHTS, RESERVATIONS, COVENANTS, CONDITIONS,

RESTRICTIONS, AGREEMENTS AND EASEMENTS PRESENTLY OF RECORD

AND AS SET OUT ON EXHIBIT 'A' ATTACHED." Exhibit A identifies the 1970 Grant

of Easement and Quit Claim Deed. The Statutory Warranty Deed states the Grant of

Easement gives the adjacent property owner the right to "[Ogress and egress, for foot

traffic and boat access purposes only," to the 30-foot Waterfront Strip.

       EASEMENT AND CONDITIONS CONTAINED THEREIN, AS
       GRANTED/RESERVED/DISCLOSED/CONTAINED BY INSTRUMENT:
       Recorded:      December 29, 1970
       Recording No.: 6727744
       Purpose:       Ingress and egress, for foot traffic and boat access
                      purposes only


       1 Boldface in original.


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No. 75517-0-1/6

       Affects:             The East 30 feet of said Government Lot 2, except
                            that portion lying South of a line which is the
                            extension of the Northerly line of Lots 21 and 8, Block
                            3, of the unrecorded Plat of Standvick [sic] Addition, a
                            corporation.

      The Statutory Warranty Deed states the Quit Claim Deed prohibits "the placing of

any road or other structure of any kin[d] upon" the Waterfront Strip.

      RESERVATIONS AND/OR EXCEPTIONS CONTAINED IN
      INSTRUMENT:
      From:          C.R. Kelleran and Jean B. Kelleran, his wife, Donald
                     E. Chandler, a single man, Elizabeth A. Johnson,
                     individually and as executrix of the estate of Howard
                     B. Johnson, deceased
      Recorded:      December 31, 1970
      Recording No.: 6728558
      As Follows:    Reserving to the Grantor's [sic] and to the heirs,
                     successors and assigns forever, the right to prohibit
                     the placing of any road or other structure of any king
                     [sic] upon that portion of the East 30 feet of said
                     Government Lot 2, which lies Northerly of a line which
                     is the extension of the Northern Boundary of Lots 21
                     and 8, Block 3, of the unrecorded Plat of Strandvick, a
                     corporation, except that such right shall not apply to
                     existing structures.

       On May 25, 2005, an attorney representing Panasyuk and Tseng sent a letter to

Kelleran. The letter acknowledges the easement rights to ingress and egress and that

consistent with those rights, Panasyuk and Tseng plan to landscape and install a fence

on the boundary line. The letter states, in pertinent part:

              As you know, the Panasyuk & Tseng property abuts yours to the
       east. In addition, you have an easement across a portion of the northern
       panhandle of my clients' property. Such easement was granted and
       conveyed in the Grant of Easement recorded on December 29, 1970 and
       modified in the Quit Claim Deed recorded on December 31, 1970.

             The scope of the easement benefiting your property is limited.
       Such easement only permits you to use the northern portion of my clients'
       panhandle for ingress and egress for pedestrian and boat access
       purposes.


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No. 75517-0-1/7




              Mr. Panasyuk and Ms. Tseng intend to make certain landscaping
      improvements to their property, including within the panhandle. When
      they make such improvements, they reasonably expect that you will not
      interfere with or disrupt their activities and improvements. As long as my
      clients' improvements afford you the ability to continue to use the northern
      portion of their panhandle for pedestrian and boat ingress and egress, you
      have no legal right to challenge or dictate what they do with their property.

             For your information, Mr. Panasyuk and Ms. Tseng intend to place
      an attractive light-duty steel fence along the west and east sides of their
      panhandle. To afford you the continued ability to use the easement as
      authorized, they will have two double-wide gates installed in areas to
      northeast and southeast of your residence that you will be able to swing
      open when necessary and close as you exit.

             Although they are not required to receive your input, Mr. Panasyuk
      and Ms. Tseng are hereby graciously inviting you to identify where you
      would like them to place the two double-wide gates. If they deem your
      suggestion to be unreasonable, however, they reserve the right to place
      the gates wherever they choose.

              My clients may or may not continue to have the lakeside portion of
      their panhandle covered with grass. They may also install a third gate to
      afford another access point.

      Panasyuk and Tseng planted a hedge of Emerald Green arborvitae along the

Waterfront Strip boundary with Kelleran and installed a black metal fence with a gate to

allow ingress and egress. Panasyuk and Tseng also placed potted Emerald Greens

and erected other fencing near the beach on the Waterfront Strip.

      In 2010, Bruce and Rebecca Kelleran sold the house to their daughter and son-

in-law Amy and Cameron PeIly (PeIly).




                                            7
No. 75517-0-1/8

       In 2014, Panasyuk and Tseng filed an application for a shoreline permit to

"[i]nstall a Hewitt pre-manufactured freestanding dock 56 [feet] long and covering 257

[square feet]" and "[i]nstall a freestanding boatlift."

       PeIly notified Panasyuk and Tseng that constructing the dock and boatlift violated

the Grant of Easement—"The proposed dock and boatlift are clearly structures which

are being proposed within the area encumbered by the easement." PeIly asked

Panasyuk and Tseng to withdraw the city of Bellevue application and remove

"obstructions," including the hedge, potted plants, and fences that "block access from

the Pellys['] property to enter the 30 foot strip" for ingress and egress and "to launch

watercraft."

       Panasyuk and Tseng asserted the dock was not in the easement area and "the

dock and boatlift are not in any sense 'permanent'"structures. As to the "shrubs in

pots" and "row of shrubs planted along the property boundary," Panasyuk and Tseng

stated they "were careful to leave gaps between these shrubs in a few locations to

permit foot traffic."

2015 Lawsuit

        On May 18, 2015, PeIly filed a complaint and declaratory judgment action. PeIly

alleged the dock, boatlift, plantings, and fencing violated the Grant of Easement and

Quit Claim Deed. PeIly sought a declaratory judgment and injunctive relief.

        Panasyuk and Tseng filed an answer, affirmative defenses, and counterclaims.

Panasyuk and Tseng asserted title to the Waterfront Strip. In the alternative, Panasyuk

and Tseng sought a declaratory judgment on the scope of the Grant of Easement.

Panasyuk and Tseng alleged PeIly were not entitled to the rights of ingress and egress



                                               8
No. 75517-0-1/9

provided by the Grant of Easement recorded December 29, 1970 on the theory that

those rights were eliminated by the Quit Claim Deed recorded two days later. Panasyuk

and Tseng asserted the portable dock was not a permanent structure in the easement

area, the potted plants and "small fences" were not structures, and the landscaping did

not violate the Grant of Easement. Panasyuk and Tseng also asserted vehicle access

over the Waterfront Strip is "not allowed under the 1970 Easement," the easement was

"only intended for ingress and egress by foot traffic," boat access is limited to small

hand-carried watercraft, and Kelleran and Pelly abandoned the right to launch a boat.

Cross Motions for Partial Summary Judgment

       Panasyuk and Tseng filed a motion for partial summary judgment. Panasyuk

and Tseng argued Pelly did not have the right to ingress and egress over the Waterfront

Strip because the Quit Claim Deed reserved only the right to prohibit permanent

structures. Panasyuk and Tseng argued the "portable dock is not a 'permanent

structure' "within the easement area and they had the right to plant the hedge and

install the fencing.

       Pelly filed a cross motion for partial summary judgment. Pelly argued the dock

and boatlift were located in the area described in the Grant of Easement and Quit Claim

Deed, the language of the documents prohibited the dock and boatlift, and they did not

abandon the right to ingress and egress.

       The court ruled the legal description of the Waterfront Strip as "shore lands

adjacent" includes the submerged second-class shore land adjacent to the shore. The

court ruled the 1970 Grant of Easement and the 1970 Quit Claim Deed "inextricably

relate in subject and chronology such that they are to be considered together." The



                                             9
No. 75517-0-1/10

court found the intent of the parties, the admission of "certain extrinsic" evidence,

whether the Grant of Easement and Quit Claim Deed language was ambiguous,

whether the dock was a permanent structure, and whether PeIly abandoned their

easement rights were material questions of fact for trial.

Trial

        At trial, PeIly argued the pleadings filed in the 1970 dispute and correspondence

between the parties established the intent of Kelleran and Fey to resolve the ownership

dispute over the Waterfront Strip. PeIly asserted the court should interpret and give

effect to the recorded Grant of Easement and Quit Claim Deed. PeIly argued the

proposed dock and the hedge, potted plants, and fencing violated their right to prohibit

any "structure of any kind" and the Quit Claim Deed did not eliminate the rights to

ingress and egress for foot traffic and boat access.

        Panasyuk and Tseng argued the proposed dock, plants, fences, shrubs, lighting,

sprinkler system, and other existing property are not "permanent" structures that

"interfere with any 'easement' rights or the covenant." Panasyuk and Tseng asserted

the language of the Grant of Easement and the Quit Claim Deed "expresses an

unequivocal intent to eliminate" the rights to ingress and egress. Panasyuk and Tseng

also argued PeIly abandoned the right to use the Waterfront Strip for boat access.

        Panasyuk and Tseng filed a motion in limine objecting to the admission of

extrinsic evidence related to the 1970 dispute and the Grant of Easement and Quit

Claim Deed. Panasyuk and Tseng argued the evidence was inadmissible to modify,

vary, or contradict the language of the recorded documents. The court ruled the

evidence was admissible to show context and intent.



                                             10
No. 75517-0-1/11

       Cameron PeIly, Amy PeIly, Bruce Kelleran, Rebecca Kelleran, Panasyuk, Tseng,

engineer Jeffrey Layton, surveyor Bruce Dodds, landscape architect Thomas Walker,

Hewitt Company representative Robert King, and shoreline permitting consultant

Gregory Ashley testified at trial. The court admitted into evidence more than 80

exhibits, including the 1970 Grant of Easement and Quit Claim Deed; the 2005

Statutory Warranty Deed; and a number of photographs of the property, the Waterfront

Strip, landscaping, and fences. The court issued a 25-page decision and extensive

findings of fact.

       The court rejected the argument that the Quit Claim Deed eliminated the

easement rights to ingress and egress. Because the original parties executed the Grant

of Easement and Quit Claim Deed as part of a single transaction to resolve the

ownership dispute over the Waterfront Strip, the court concluded the two documents

"must be read and interpreted in light of each other" and the parties "clearly intended

them both to be effective." The court found that in exchange for easement rights, "the

Kellerans quit-claimed to the Feys any fee interest they had in the same Waterfront

Strip with one major reservation":

       [T]he Kellerans or their successor landowners retained the right to
       "prohibit the placing of any road or other structure of any kind" on the
       Waterfront Strip, again defined as extending to the adjacent shore lands of
       Lake Sammamish.

       The court noted the reservation of rights in the Quit Claim Deed appeared

broader in scope than the reservation in the Grant of Easement because "the word

'permanent' is not used to modify the word 'structure.'" Interpreting the language of the




                                            11
No. 75517-0-1/12

two documents together, the court concluded PeIly had the right to prohibit only

permanent structures.

      [G]iven the intent of the Kellerans and the Feys that the two documents be
      read together as a part of a single transaction, the Court concludes that
      the 1970 Quit Claim Deed reserved the right of the Pellys to restrict only
      permanent structures on the Waterfront Strip and its second class shore
      lands.

       The court found the dock Panasyuk and Tseng sought to install was "a

permanent structure within the meaning of the 1970 Easement or Quit Claim Deed."

      Although Hewitt did not originally design the Roll-A-Dock to be a
      permanent structure fixed to the lake floor, the type of dock the
      Defendants would need to install to ensure it remained in place would not
      be the lightweight portable version seen on the Roll-A-Dock website. The
      dock would need to be pinned to the lakebed with 6-inch augers and
      would need additional structural support to make it safe to use....
            . . . Once erected, the dock will remain in the lake year round... .
            ... The evidence leads the Court to conclude that this dock is a
      "permanent structure" within the meaning of the 1970 Easement and 1970
      Quit Claim Deed.

       The court concluded the 1970 Grant of Easement established the right to ingress

and egress over the Waterfront Strip, including "the right to launch a trailered jet ski

using a riding lawn mower," and that this right was not abandoned.

       The 1970 Grant of Easement established an easement for ingress and
       egress for foot traffic and boat access over the Waterfront Strip and the
       adjacent second class shore lands. This easement grants to the Pellys
       and their guests the right to walk across the Waterfront Strip to reach the
       Nelson and Hughes Properties. It also grants to the Pellys and their
       guests the right to use the easement area to launch boats into Lake




                                             12
No. 75517-0-1/13

      Sammamish. . .. The easement does not permit access by third parties
      unless accompanied by or authorized to use the easement by the Pellys.[2]

      The court found certain landscaping and fencing interfered with the right to

ingress and egress and required removal.3 The court entered a final judgment and




      2 The findings  of fact and conclusions of law state, in pertinent part:
      Panasyuk and Tseng have not proven by a preponderance of the evidence that the
      Pellys or their predecessors intended to abandon all boat access rights. The Kellerans
      and Pellys have continued to use the easement to hand-carry watercraft to the lake.
      Panasyuk and Tseng have, by their own words and actions, indicated an intent to respect
      the Pellys' right to launch a hand-carried boat across the easement by installing a gate in
      the black metal fence for this purpose. Although the Pellys acquiesced in the installation
      of the black metal fence and landscaping, the Court finds that this lack of opposition to
      the fence and landscaping does not demonstrate an abandonment of all boat access
      easement rights because at the time Panasyuk and Tseng made these improvements,
      the Pellys could and did continue using the easement area to launch small watercraft.

              . .. The Kellerans apparently launched jet skis in this manner for many years
      before Panasyuk and Tseng purchased the property. . . .[T]he only reason they stopped
      was because Panasyuk and Tseng planted a hedge and placed potted plants along the
      western boundary, effectively precluding this type of boat access.

               . . . Panasyuk and Tseng have not established that the Pellys intentionally
      abandoned their right to use the Waterfront Strip to maneuver a jet ski and trailer in and
      out of their shed with a riding lawn mower.
      3 The findings    of fact and conclusions of law state, in pertinent part:
      The hedge has grown so much in the last 10 years that the hedge has become as
      impenetrable like a permanent fence. . . [.]
                . .. The Court agrees with the Pellys that Panasyuk and Tseng intended this
      hedge to remain in place continuously and has become a permanent structure within the
      meaning of the 1970 Easement and Quit Claim Deed. However, the Pellys do not seek
      removal of the entire hedge. They only seek the removal of some of the plantings that
      they contend interfere with their easement rights. The Court finds that some of these
      planted Emerald Green shrubs do materially interfere with the Pellys' easement rights
      and should be removed . .
                .. . In addition to the planted Emerald Greens, Panasyuk and Tseng placed
      additional potted Emerald Greens along the boundary near the lake. The plants have
      grown to such an extent that the roots have grown into the ground. These Emerald
      Green potted plants have, over time, become a permanent fixture on the strip. Some, but
      not all, of these potted plants are materially interfering with the Pellys' use and enjoyment
      of their easement rights.


                                                  13
No. 75517-0-1/14

injunction.. The court ordered "Panasyuk and Tseng to do the following":



                                                     rrwAst             .
                                                     14,11 Oar lenclh of5leat




                      ErieralO r
                   •how for atcgrfs
                    stlo
                       ed1440
                          04h
                            . lir mower
                                    ..  1104,
                                                                     .  .
                                                              GOOSE FENCE

                                                          •ilLACK VEIN. VENCE

                                                              WIRE FENCE

                                                             f,
                                                              ROPE         UNE

                                                        .11111UflM POLE.




Interpretation of the Grant of Easement and Quit Claim Deed

      Panasyuk and Tseng appeal the summary judgment ruling that there were

material issues of fact as to the intent of the Grant of Easement and Quit Claim Deed,

denial of the motion to exclude extrinsic evidence, the findings of fact and conclusions

of law, and the final judgment and injunction.

       We review summary judgment do novo. Hearst Commc'ns, Inc. v. Seattle Times

Co., 154 Wn.2d 493, 501, 115 P.3d 262(2005). Summary judgment is appropriate only

where there are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law. CR 56(c).

      The rules of contract interpretation apply to interpretation of an easement and a

deed. Hollis v. Garwall, Inc., 137 Wn.2d 683,695-96, 974 P.2d 836 (1999); Wilkinson v.



                                                14
No. 75517-0-1/15

Chiwawa Cmtys. Ass'n, 180 Wn.2d 241, 249, 327 P.3d 614(2014); Newport Yacht

Basin Ass'n of Condo. Owners v. Supreme Nw., Inc., 168 Wn. App. 56, 64-65, 277 P.3d

18 (2012). The interpretation of an easement and a deed is a mixed question of law

and fact.4 "What the original parties intended is a question of fact and the legal

consequence of that intent is a question of law." Sunnyside Valley Irrig. Dist. v. Dickie,

149 Wn.2d 873, 880, 73 P.3d 369(2003); Newport, 168 Wn. App. at 64. Because intent

is a question of fact, the court did not err in ruling on summary judgment that there were

material issues of fact. See Newport, 168 Wn. App. at 64.

        Panasyuk and Tseng contend the court erred in admitting extrinsic evidence and

concluding the language of the Quit Claim Deed did not eliminate the easement right to

ingress and egress. Panasyuk and Tseng do not assign error to any of the extensive

findings of fact. Therefore, we treat the unchallenged findings as verities on appeal and

review only whether the unchallenged findings of fact support the conclusions of law.

Rush v. Blackburn, 190 Wn. App. 945, 956, 361 P.3d 217(2015); Sunnvside, 149

Wn.2d at 879-80; Newport, 168 Wn. App. at 63. We review conclusions of law de novo.

Sunnyside, 149 Wn.2d at 880.

        Washington courts follow the objective manifestation theory of contracts. Hearst,

154 Wn.2d at 503. "The touchstone of contract interpretation is the parties' intent."

Tanner Elec. Coop. v. Puget Sound Power & Light, 128 Wn.2d 656, 674, 911 P.2d 1301

(1996). "Under this approach, we attempt to determine the parties' intent by focusing on



        4 An easement appurtenant"'is not a mere privilege to be enjoyed by the person to whom it is
granted or by whom it is reserved. It passes by a deed of such person to his grantee and follows the land
without any mention whatever.'" Heg v. Alldredge, 157 Wn.2d 154, 161, 137 P.3d 9(2006)(internal
quotation marks omitted)(quoting Winsten v. Prichard, 23 Wn. App. 428,431, 597 P.2d 415 (1979)).
Here, the Grant of Easement was recorded and expressly included in the Statutory Warranty Deed when
Panasyuk and Tseng purchased the property in 2005.


                                                   15
No. 75517-0-1/16

the objective manifestations of the agreement, rather than on the unexpressed

subjective intent of the parties." Hearst, 154 Wn.2d at 503. The court imputes "an

intention corresponding to the reasonable meaning of the words used" and "generally

give[s] words in a contract their ordinary, usual, and popular meaning unless the entirety

of the agreement clearly demonstrates a contrary intent." Hearst, 154 Wn.2d at 503-04.

"Interpretations giving lawful effect to all the provisions in a contract are favored over

those that render some of the language meaningless or ineffective." Grey v. Leach, 158

Wn. App. 837, 850, 244 P.3d 970 (2010).

       In Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222(1990), the

Washington Supreme Court adopted the "context rule." The context rule recognizes

that the "intent of the contracting parties cannot be interpreted without examining the

context surrounding" the making of the contract. Hearst, 154 Wn.2d at 502 (citing Berg,

115 Wn.2d at 668). The court may consider extrinsic evidence of the surrounding

circumstances to ascertain the intent of the parties in entering into an agreement.

Hearst, 154 Wn.2d at 502.

       Under the context rule, extrinsic evidence is admissible to ascertain the intent of

the parties in entering into a contract and the meaning of the words used in the

instrument. Hollis, 137 Wn.2d at 695; U.S. Life Credit Life Ins. Co. v. Williams, 129

Wn.2d 565, 569, 919 P.2d 594 (1996). The court may consider extrinsic evidence

concerning (1) the subject matter and objective of the contract,(2)the circumstances

surrounding the making of the contract,(3) the subsequent conduct of the parties to the

contract,(4)the reasonableness of the parties' respective interpretations,(5)

statements made by the parties in preliminary negotiations,(6) usages of trade, and (7)



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the course of dealing between the parties. Berg, 115 Wn.2d at 666-68. Such evidence

is admissible regardless of whether the language in the document is ambiguous. Berq,

115 Wn.2d at 669; Hearst, 154 Wn.2d at 502. Extrinsic evidence is to be used only to

"illuminate what was written, not what was intended to be written." Hollis, 137 Wn.2d at

697. Extrinsic evidence is not admissible to show "a party's unilateral or subjective

intent as to the meaning of a contract word or term"; to show an intent "independent of

the instrument"; or to "vary, contradict, or modify the written word." Hollis, 137 Wn.2d at

695.

       Panasyuk and Tseng filed a motion in limine to exclude evidence related to the

1970 dispute, including court documents and correspondence. The court denied the

motion to exclude the extrinsic evidence. The court ruled the evidence was admissible

for purposes of considering the intent of the original parties. The court ruled:

       I do not intend to use any of those documents to modify or alter the terms
       of any agreement. They are purely being offered or accepted by this
       Court to demonstrate context and perhaps to show mutual intent of the
       parties. But I agree with you that I am not allowed to consider them just to
       look at the subjective intent of one party.

       Panasyuk and Tseng rely heavily on Newport to argue the court erred by

improperly considering extrinsic evidence to interpret the Grant of Easement and Quit

Claim Deed. In Newport, Seattle Boat purchased commercial lakefront property to build

a new storage and sales facility. Newport, 168 Wn. App. at 61. The Newport Yacht

Basin Association of Condominium Owners(NYBA)opposed the project. Newport, 168

Wn. App. at 60-61. NYBA sued Seattle Boat to quiet title to three strips of the

commercial property that the prior owners conveyed in 1981 by quitclaim deed.

Newport, 168 Wn. App. at 63,61-62. A real estate tax affidavit filed with the quitclaim



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deed and signed by NYBA's then-vice-president described the deed as "a 'document in

correction of easements.'" Newport, 168 Wn. App. at 62. The trial court relied on the

real estate tax affidavit and NYBA board meeting minutes to conclude the deed did not

convey fee title. Newport, 168 Wn. App. at 71. We held the trial court improperly relied

on extrinsic evidence to contradict the unambiguous language of the quitclaim deed that

conveyed title to the three strips of land. Newport, 168 Wn. App. at 71-72.

       Here, unlike in Newport, the court did not consider extrinsic evidence to

contradict or vary the unambiguous language of the recorded Grant of Easement and

Quit Claim Deed. The record shows the trial court properly considered extrinsic

evidence for context and to ascertain the intent of the original parties in entering into the

Grant of Easement and Quit Claim Deed and to determine whether the two documents

should be interpreted together as one single transaction.

       The Court finds persuasive the Pellys' evidence that the parties executed
       these two documents at the same time and meant for them to be a part of
       a single transaction. As the two property documents were executed at the
       same time and related to the same transaction, they must be read and
       interpreted in light of each other. The Court agrees with the ruling on
       summary judgment that "the documents inextricably relate in subject and
       chronology such that they are to be considered together." Order on Cross
       Motions.for Summary Judgment at V. See also, Kruger v. Horton, 106
       Wn.2d 738, 742, 725 P.2d 417(1986)("it is [a] well[ ]settled principle that
       written instruments contemporaneously executed as part of the same
       transaction will be considered and construed as one transaction"). The
       Court rejects Defendants' contention that the 1970 Quit Claim Deed
       extinguished the 1970 Easement because the parties clearly intended
       them both to be effective.

       A contract may consist of one or more documents. Kelley v. Tonda, 198 Wn.

App. 303, 311, 393 P.3d 824(2017). Documents that are part of the same transaction

are interpreted together. Kelley, 198 Wn. App. at 311 (citing RESTATEMENT(SECOND)OF

CONTRACTS § 202(2)(Am. LAW INST. 1981)). "'Instruments which are part of the same


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transaction, relate to the same subject matter and are executed at the same time should

be read and construed together as one contract.'" Cedar River Water & Sewer Dist. v.

King County, 178 Wn.2d 763, 784-85, 315 P.3d 1065(2013)(quoting Turner v. Wexler,

14 Wn. App. 143, 146, 538 P.2d 877(1975)); see also Kruger, 106 Wn.2d at 742;

Levinson v. Linderman, 51 Wn.2d 855, 859, 322 P.2d 863(1958). This is so, even if the

instruments do not explicitly refer to each other. Boyd v. Davis, 127 Wn.2d 256, 261,

897 P.2d 1239(1995); Levinson, 51 Wn.2d at 859.

       Whether two separate agreements are part of the same transaction depends on

the intent of the parties as demonstrated by the agreements. Boyd, 127 Wn.2d at 261.

      "[The terms of agreement may be expressed in two or more separate
      documents, some of these containing promises and statements as to
      consideration, and others, such as deeds,... embodying performances
      agreed upon rather than a statement of terms to be performed. In every
      such case, these documents should be interpreted together, each one
      assisting in determining the meaning intended to be expressed by the
      others."

Kelley, 198 Wn. App. at 311-125 (quoting 5 MARGARET N. KNIFFEN, CORBIN ON

CONTRACTS § 24.21, at 216 (rev. ed. 1998)).

       The unchallenged findings establish the court did not err in concluding the Grant

of Easement and the Quit Claim Deed should be interpreted together and given effect.

In 1969, Fey and Kelleran disputed ownership to the Waterfront Strip. In 1970, they

agreed to resolve the dispute by executing an easement and quitclaim deed. The Grant

of Easement gave Kelleran the right to ingress and egress for foot traffic and boat

access purposes over the Waterfront Strip and the right to prohibit placing any

permanent structure on the Waterfront Strip. In exchange, Kelleran quitclaimed any

interest in the Waterfront Strip subject to a reservation to prohibit any structure on the

       5 Alterations   in original.


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Waterfront Strip. The Grant of Easement was recorded on Tuesday, December 29,

1970. The Quit Claim Deed was recorded on Thursday, December 31, 1970. The

parties then filed a stipulated order to dismiss the lawsuit.

       The undisputed record establishes that after recording the Grant of Easement

and Quit Claim Deed in 1970, Kelleran used the Waterfront Strip for ingress and egress

for at least 35 years. The undisputed record also establishes that when Panasyuk and

Tseng purchased the property in 2005, they had actual knowledge of the easement

rights to ingress and egress and expressly recognized the rights to ingress and egress

for foot traffic over the Waterfront Strip.

       The court interpreted the language of the Grant of Easement and Quit Claim

Deed together to determine the meaning of the restrictive covenant and whether the

right to ingress and egress was eliminated. The language of the Quit Claim Deed

prevents Panasyuk and Tseng from placing any "structure of any kind" on the

Waterfront strip. But the Grant of Easement prohibits placing "any road or other

permanent structure of any kind" on the Waterfront Strip.6 Interpreting the language of

the Grant of Easement and Quit Claim Deed as part of a single transaction and

agreement, the court concluded PeIly had the right to prohibit only "permanent"

structures on the Waterfront Strip, not to prohibit placing "any structure of any kind" on

the Waterfront Strip. Absent the rights to ingress and egress, there would be no reason

to prohibit permanent structures.

       Panasyuk and Tseng argue the plain and unambiguous language of the Quit

Claim Deed eliminates the right to ingress and egress. Panasyuk and Tseng also claim

that because the Quit Claim Deed does not refer to ingress and egress, the Grant of

       6   Emphasis added.


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Easement right to ingress and egress was terminated. These arguments ignore the

finding that the Grant of Easement and Quit Claim Deed are part of the same

transaction and should be interpreted together. Likewise, the argument that the

language "hereafter acquire" as used in the Quit Claim Deed terminated the right to

ingress and egress is unpersuasive. Interpreting the two documents together,

"hereafter acquire" clearly applies only to interests conveyed after the parties executed

and recorded the Grant of Easement and Quit Claim Deed.7

       The court did not err in interpreting the Grant of Easement and Quit Claim Deed

together, concluding the rights to ingress and egress is not eliminated, and giving effect

to the two documents. We affirm the order on summary judgment, the findings of fact

and conclusions of law, and entry of the final judgment and injunction.




WE CONCUR:




        7 We also reject the argument that interpreting the Grant of Easement and Quit Claim Deed
together undermines the recording system. The undisputed record establishes the Statutory Warranty
Deed expressly sets forth the easement right to ingress and egress and the right to prohibit placing
structures on the Waterfront Strip.


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