                                                                           FILED 

                                                                        APRIL 14,2015 

                                                                 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 


WILLIAMS PLACE, LLC,                          )
                                              )        No. 31681-5-III
                     Appellant,               )
                                              )
       v.                                     )
                                              )
THE STATE OF WASHINGTON, by and               )
through the Department of Transportation,     )        PUBLISHED OPINION
                                              )
                     Respondent.              )


       SIDDOWAY, C.J. -    Williams Place LLC was formed in 2005 by members ofthe

Sig Jorstad family to hold land in Whitman County that the family had farmed since the

mid 1950s. The limited liability company filed this inverse condemnation action in 2007,

after the Washington State Department of Transportation (WSDOT) ordered the LLC's

neighbor to the east to remove a bridge across Paradise Creek. Evidence was presented

that a bridge at that location had provided the Jorstad family and its predecessors with

access from the farm to county roads since 1882. With the removal of the bridge,

Williams Place contends that a portion of its land is landlocked. It advances a number of
No. 31681-5-111
Williams Place v. State


theories in support of a right of access that was taken by WSDOT's 2007 order to remove

the bridge.

       The loss of a right to access after such a long period of use is unusual. But review

of the history of the property reveals that in this atypical case, predecessors in interest to

the Jorstad family lost legal options for access to their southernmost ground

incrementally, either voluntarily or without objection, over decades. Williams Place

retains the options of applying for access using an easement it has obtained from

Whitman County. Because the trial court properly concluded that Williams Place had not

demonstrated a genuine issue of fact that it had a legal right that was taken or damaged

by WSDOT, we affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       Williams Place LLC owns 220 acres in Whitman County that is bisected by the

Moscow-Pullman Highway, State Route (SR) 270. Most of the property (194 acres) is

located on the north side of the highway, with approximately 26 acres located to the

south. The property has been owned and farmed by the Jorstad family since the mid

1950s. For estate planning purposes, members of the Jorstad family formed and

transferred title to Williams Place in 2005.

       Paradise Creek runs along the south side of the Moscow-Pullman Highway on the

Jorstad land. Before 2007, a bridge existed over the creek on land owned by the Jorstad

family's neighbor to the east, close to milepost 6.9 on SR 270. As of the time this lawsuit

                                               2

No. 31681-5-III
Williams Place v. State


was commenced, the owner of the land was Motley-Motley, Inc. (Motley). The Jorstad

family and its predecessors have used bridges at the location, now identified as milepost

6.9 on SR 270, for as many as 125 years, although the viability of the bridges and the

extent and continuity of their use is in dispute.

       The parties' dispute over the legal right, if any, that the Jorstad family acquired as

a result of its historical use of the bridge requires an understanding of county, railroad

and private conduct affecting the property since the 1880s.

       In 1881 the federal government conveyed to George W. Pinnell, by patent, the

land presently owned by the Jorstads through Williams Place. In 1882, the federal

government conveyed to John P. Collins, also by patent, the land presently owned by

Motley. As shown in the simplified illustration below, l all of the land conveyed to Mr.

Pinnell, the Jorstad family's predecessor, was located in the Northeast Quarter of Section

2, Township 14 North, Range 45 East, W.M. All of the land conveyed to Mr. Collin's,

Motley's predecessor, was in the Northwest Quarter of Section 1 of the same township

and range. All references hereafter to "Section 2" and "Section 1" are to sections 2 and 1

of Township 14 North, Range 45 East, W.M.




       lOur illustrations are variations on an illustration provided in WSDOT's brief.
While not to scale and not in the record, it is a simple illustration of the legally significant
features of portions of the Jorstad and Motley properties depicted in Williams Place's
images at Clerk's Papers (CP) at 786-88.

                                               3

No. 31681-5-III
Williams Place v. State




                       JORSTAOIMOTLEY PROPERTIES, CIRCA 1882:


                                    SEC. 2                    SEC. 1




                       SECTlOHlNE




       As shown by the illustration, the Jorstad and Motley properties were originally

served by Garrison Road, a former county road built in approximately 1882. Garrison

Road ran generally east and west, south of Paradise Creek. The road included a spur that

ran north across Paradise Creek. While the northern spur including the bridge across

Paradise Creek was located in Section 2, owned by Motley's predecessor, it was a county

road that the Jorstad family's predecessors were entitled to use.

       In 1886, Mr. Pinnell sold a strip of land 100 feet in width across his land to the

Columbia and Palouse Railroad Company for the company's use in building and



                                             4

No. 31681-5-III
Williams Place v. State


maintaining a railroad. He was paid $60 for the property. Motley's predecessor had

conveyed an essentially identical right-of-way to the railroad in 1885.

                        JORSTADIMOTLEY PROPERTIES, CIRCA               1890:


                                           SEC. 2                     SEC. 1




                        SECTION LINE
                        PARADISE CREEK _ _ _ __


                        GARRISON ROAD - - - - - 


                        RAIlROAD RIGHT OF WAY   ~III~III~III~~~~~ 




       The railroad right-of-way bisected Mr. Pinnell's farm ground in Section 2,

creating an impediment to unfettered movement between the north and south portions of

his property. But Mr. Pinnell was still able to use Garrison Road to cross the railroad

right-of-way and to cross Paradise Creek in traveling between the north and south

portions of his land.




                                                      5

No.3I68I-5-III
Williams Place v. State




       In 1933, in anticipation of Whitman County's construction of a new county road

north of Paradise Creek to replace Garrison Road, Lewis and Nellie Brosa-who had by

then acquired what had been Mr. Pinnell's land and would later become the Jorstad

family property--conveyed a right-of-way 80 feet in width to the county. They executed

a waiver of "all claims for damages of whatever kind which may be occasioned to said

land or premises, or to any portion thereof, or to the undersigned by the location,

establishment, opening and use of said road." CP at 96. The replacement road was

referred to as Secondary Road No. 11. It would later become Primary State Highway No.

3, which would later become SR 270.

       When construction of Secondary Road No. 11 was completed in 1935, the Board

of County Commissioners of Whitman County vacated Garrison Road, finding that it had

been "thrown into disuse by reason of the establishment and construction of Secondary

Road Project No. 11 and ... [was] not being used by vehicular traffic." CP at 102. The

order vacating the road recited the fact that notice had been given of the Board's plan to

vacate the road and that "no objection [had] been made to vacating said road." Id.




                                             6

No. 31681-5-111
Williams Place v. State


                       JORSTADIMOTLEY PROPERTIES, CIRCA 1935:


                                         SEC. 2               SEC. 1




                       :lECTKJPI LIE - - - - - ­

                       P.w.ot5E ffiEEK


                       RAIlROA!HOOIH 01 WAY




       The parties dispute the practical and legal effect of the vacation. The Jorstad

family contends that Garrison Road and the bridge were still being used and maintained

by owners of property formerly abutting the road, whom they contend continued to enjoy

a private easement. WSDOT contends that upon vacation, fee title reverted to the

abutting landowners and that the Paradise Creek bridge fell into a state of disrepair.

       In 1950, the State undertook improvements that would result in the county's

Secondary Road No. 11 becoming a state highway. By that time, the land formerly

owned by Mr. Pinnell and the Brosas and that would later become the Jorstad property


                                                  7

No. 31681-5-111
Williams Place v. State


was owned by George C. Williams and Ruby May Williams. Both the Williamses and

Motley's predecessor sold property needed by the State for the highway construction.

Among the property transferred to the State by the Williamses and by Motley's

predecessor was the strip of land located between the railroad right-of-way and the

existing highway, west and east of the Paradise Creek bridge. The result was that what

would become the Jorstad family property no longer abutted what would become SR 270

nor, for that matter, did Motley's. Following the 1950 conveyances, the bridge across

Paradise Creek that was fonnerly a part of Garrison Road fell within the state-owned

right-of-way.

                      JORSTAOIMOTLEY PROPERTIES, CIRCA                              1951:




                          5[CTONLK - - - - ­

                          PARA)I5( 'REE~   - - -_ _




                          S-AE ROUlE 210   '.   !   I ' ;   i   ;   Iii '   !   I




                                                                8

No. 31681-5-111
Williams Place v. State


       The Jorstad family purchased the subject property in Section 2 in 1954. In

connection with the cross-motions for summary judgment below, members of the Jorstad

family provided declarations attesting that at the time they acquired the property, the

roadway that served as the former Garrison Road, including the Paradise Creek bridge,

continued to provide access to their land south of SR 270. They claimed that after

acquiring the property, Jorstad family members maintained and improved the bridge as

necessary. Keith Kopf, a Jorstad family member and member of Williams Place LLC,

testified that in 1974 or 1975 a truck broke through the deck of the Paradise Creek bridge,

requiring reconstruction. According to Mr. Kopf, the bridge was thereafter completely

rebuilt by adding new stringers and decking.

       By 1997 the railroad tracks running through the Jorstad and Motley properties

were no longer in use. Pursuant to the federal Trails Act, 16 U.S.C. § 1247(d), Blue

Mountain Railroad Company, Inc., which was by then the owner of the tracks and right-

of-way, executed a donative quit claim deed in favor of Whitman County to use the

railroad right-of-way as a recreation trail. The deed conformed to provisions of the Trails

Act, under which interim trail use is not considered abandonment of a railroad right-of­

way. Following execution of deeds to the railroad's right-of-way, Whitman County

constructed what is now the Bill Chipman Trail.




                                               9

No. 31681-5-III
Williams Place v. State


                       JORSTAolMOTLEY PROPERTIES, CIRCA 1998:

                                              SEC. 2               SEC. 1




                       5ifCTIOf'j lllf - - - - - ­

                       PJ.RAJ::& CREEK
                       VACATED GARRISCJI ROAD •----------
                                                _________ _



                       STATl'   ~(lUrf:   m
                        1f60 ST AT[ HIGIfNAV RIGHT OF WAY



       The Chipman Trail, which opened in 1998, is an 8-mile recreational trail, 10 feet

in width, which runs from Pullman to Moscow. Following development of the trail,

Jorstad family members were required to cross it in order to reach the Paradise Creek

bridge at milepost 6.9 from their farm land south ofSR 270.

       Also in 1998, a flood damaged the Paradise Creek bridge. Mr. Kopf conceded by

declaration that as a result of the flood damage, "our heavier farm equipment and heavy

trucks were too big for the bridge," but "the bridge was still used for light traffic after we



                                                            10 

No. 31681 ~5~III
Williams Place v. State


installed runners to cover the bad spots in the deck." CP at 249. Jeff Motley, who

purchased the Motley property in April 2001, provided conflicting evidence, testifying by

declaration that no functioning Paradise Creek bridge existed at the time of his purchase.

According to him, "the Paradise Creek crossing consisted of the remains of two cement

abutments with a few logs spanning the width ofthe Creek," and, "It was not possible for

vehicles to use this structure to access SR 270." CP at 227.

       When Motley acquired his property in 2001, Mr. Motley was interested in

obtaining access to SR 270, which is a managed access highway. As such, it is subject to

chapter 47.50 RCW, which provides for regulation of access through a permitting

process. Since Motley's property abutted the Chipman Trail rather than the highway,

Motley obtained an easement to cross the county recreation trail. It also applied to

WSDOT for a temporary access connection permit to SR 270 to serve commercial rock

crushing activity on itsproperty.2




        2 According to a declaration provided by the project engineer assigned to the
design and construction of SR 270, Motley's predecessor, Northwest Paving, Inc., had
also applied for and obtained an access connection permit in 1970 that contemplated
replacing a f1ood~damaged Paradise Creek bridge within the State's right~of-way. But
according to the engineer, Northwest Paving was never able to obtain an easement from
the railroad to cross the railroad's right~of~way. The result was that the bridge was not
replaced at that time, the permit issued by WSDOT expired, and, according to the
engineer, Northwest Paving used Sunshine Road, which passes through the Motley
property further to the east, to access its operations.

                                            11 

No. 3l68l-5-II1
Williams Place v. State


       Mr. Motley was required to provide plans for the access Motley would construct

within WSDOT's right-of-way. It would necessarily include a bridge over Paradise

Creek, which flows through the highway right-of-way. WSDOT granted Motley an

access connection permit for temporary use near milepost 6.9 on SR 270. The permit

was conditioned upon removing the bridge after WSDOT completed its work improving

Sunshine Road, an alternative access for Motley that was located to the east. It is

undisputed that Williams Place had no financial or other involvement in Motley's

construction of the temporary bridge built in 2001. Members of the Jorstad family

testified by declaration that they continued to use the route of the former Garrison Road

to access SR 270, crossing the reconstructed bridge.

       In August 2007 WSDOT advised Motley that construction of Sunshine Road was

complete and that Motley's temporary access connection permit was being canceled. It

ordered Motley to remove the bridge over Paradise Creek within 30 days. Motley

complied, removing the Paradise Creek bridge in September 2007.

                                    Procedural history

      Members of the Jorstad family had communicated with WSDOT representatives

and were aware since at least the spring of 2007 that as soon as Sunshine Road was

operational, Motley would be removing the temporary bridge and a guardrail would be

installed along SR 270 at Motley's existing access location. Within a week of Motley's

removal of the bridge, Williams Place brought this inverse condemnation action. It

                                            12 

No.31681-5-III
Williams Place v. State


alleged that WSDOT's actions had "damaged the value of Williams Place's property,

including, but not limited to a resulting loss of use of the property, and loss of access

rights previously acquired." CP at 4. Several months later, it filed a motion for partial

summary judgment that was met by a cross motion for summary judgment by WSDOT.

       In a written memorandum decision on the cross motions, the trial court found only

two material issues to be undisputed: it found that WSDOT owned the property where the

Paradise Creek bridges at issue had been located, and that the bridge to which Williams

Place claimed a right of access had been removed "in 2001"3 through state action by

WSDOT. It concluded that factual disputes existed as to other material issues.

       The trial court also concluded that resolution of one contested issue-whether title

to the railroad right-of-way on Williams Place's land reverted to Williams Place upon

abandonment of the railroad-required joinder of Whitman County and the railroad as

necessary parties.

       In 2009 Williams Place sought to resolve that issue through a quiet title action

against Whitman County and Blue Mountain Railroad. It alleged that the railroad had

only an easement for railroad purposes that it abandoned by the late 1990s, causing title

to revert to the Jorstad family. Rather than litigate the dispute to resolution, Williams


       3 It is not clear whether "2001" was a scrivener's error, inasmuch as Williams
Place asked the court to determine that the bridge was removed in 2007 through state
action. The court might have regarded the 2001 construction of the temporary bridge,
conditioned on a promise of removal, as the effective date of removal.

                                              13 

No. 3168l-5-III
Williams Place v. State


Place, Whitman County and the railroad reached an agreement under which Whitman

County granted a 60 foot separated grade easement that allows Williams Place to

construct a crossing over or under the Chipman trail, within the Northeast Quarter of

Section 2. The location of the negotiated easement is near milepost 6.7 of SR 270,

approximately two-tenths of a mile west o( the historic bridge site. The easement

provides that the county will grant Williams Place an alternate easement at a different

location in the event the easement cannot be located as described because of local, state,

or federal laws or regulations. The parties stipulated to dismissal of the quiet title

complaints.

       Williams Place then filed a renewed motion for partial summary judgment in this

action, which was met with a renewed cross motion for summary judgment by WSDOT.

Having heard argument from the parties, the trial court issued a memorandum decision

denying Williams Place's motion and granting WSDOT's. While finding that WSDOT

directed removal of Motley's temporary bridge and that there was substantial evidence

that the Jorstad family and its predecessors used a bridge at the historic location for a

lengthy period of time, the court concluded that Williams Place had "failed to present any

evidence ... that it has a property right of record or by operation of law to use this route,

or that the historic use of this route was anything more than a permissive use." CP at

912. Williams Place appeals.




                                              14
No. 31681-5-111
Williams Place v. State


                                       ANALYSIS

       The critical issue on which the trial court found Williams Place's claim of inverse

condemnation to fail was its inability to demonstrate any genuine issue that it had a

property right that was taken or damaged by WSDOT. Williams Place asserts six

alternative bases on which it presented evidence of such a right. It contends:

       It has a right as a landowner abutting SR 270 arising from the 20+ acres in
       the Northeast Quarter of Section 2 that it owns in fee, or

       It has a right as a landowner with an easement over the Northwest Quarter
       of Section 1 that connects to SR 270, because

              Upon the vacation of Garrison Road and the termination of the
              public easement in that roadway, Williams Place-as the owner of
              land that had abutted Garrison Road-retained a private easement,
              or

              It enjoys an implied easement, or

              The evidence supports a prescriptive easement, or

              It can claim an easement by necessity; or

       It has a right as a nonabutting landowner presenting special circumstances
       of the sort recognized in Union Elevator & Warehouse Co., Inc. v.
       Department o/Transportation, 96 Wn. App. 288, 980 P.2d 779 (1999).

       Alternatively, Williams Place argues that WSDOT is estopped to deny that it has a

property right that was taken.




                                            15 

No. 31681-5-111
Williams Place v. State


       We address in tum these bases on which Williams Place asserts a property right in

fact, or by estoppel, that was taken or damaged by WSDOT. 4

                    1.     Elements ofaction and standard ofreview

      Article I, Section 16 of the Washington Constitution provides that "[n]o private

property shall be taken or damaged for public or private use without just compensation

having been first made." An "inverse" condemnation occurs when the government takes

or damages property without the formal exercise of the power of eminent domain.

Dickgieser v. State, 153 Wn.2d 530, 534-35, 105 P.3d 26 (2005). The elements required

to establish an inverse condemnation claim are: "(1) a taking or damaging (2) of private

property (3) for public use (4) without just compensation being paid (5) by a

governmental entity that has not instituted formal proceedings." Id. at 535.

      The trial court granted WSDOT's motion for summary jUdgment, which had

contended that Williams Place could not demonstrate a genuine issue of fact as to the

essential element that it held a property right that WSDOT took or damaged. "There can

be no inverse condemnation ifno property right exists." Granite Beach Holdings, L.L.c.


      4   Williams Place devotes a portion of its brief to an argument that WSDOT lacks
standing to assert claims of the county, adjacent landowners, and the railroad, none of
whom, it contends, ever disputed that Williams Place and its predecessors could continue
to use the former Garrison Road. We do not construe WSDOT's arguments about the
property rights of third parties as being an attempt to assert claims on their behalf.
Rather, understanding the property rights of third parties is a necessary part of
determining whether Williams Place has met its burden of producing evidence that it
owns the property right it claims was taken or damaged by WSDOT.

                                            16 

No. 31681-5-III
Williams Place v. State


v. Dep'tofNatural Res., 103 Wn. App. 186,205,11 P.3d 847 (2000); Galvis v. Dep'tof

Transp., 140 Wn. App. 693, 707, 167 P.3d 584 (2007). In moving for summary

judgment, the burden was on WSDOT, as the moving party, to show the absence of an

issue of material fact. Young v. Key Pharm., Inc., 112 Wn.2d 216,225,770 P.2d 182

(1989). If WSDOT met that burden, the burden shifted to Williams Place, as the

nonmoving party, to set forth specific facts to rebut the moving party's contentions and

show that a genuine issue existed. Seven Gables Corp. v. MGMlUA Entm 't Co., 106

Wn.2d 1, 13,721 P.2d 1 (1986). A nonmoving party may not defeat a motion for

summary judgment by relying on speculation or argumentative assertions that unresolved

factual issues remain. White v. State, 131 Wn.2d 1,9,929 P.2d 396 (1997).

       Summary judgment is appropriate if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. CR 56(c). We review a grant

of summary judgment de novo, viewing the facts in the light most favorable to the

nonmoving party, here Williams Place. Dickgieser, 153 Wn.2d at 535.

              II     Williams Place's right as an abutting landowner based
                             on the 20+ acres it owns in fee

       The owner of property that abuts a public street or highway has an easement of

access for ingress and egress to and from such roadways. State v. Calkins, 50 Wn.2d

716, 718, 314 P.2d 449 (1957). This right of ingress and egress to a public way attaches

to the land and is a property right "as complete as ownership of the land itself." Walker



                                            17 

No. 31681-5-III
Williams Place v. State


v. State, 48 Wn.2d 587, 590, 295 P.2d 328 (1956). An abutting property owner is

therefore entitled to compensation if its right of access is taken or damaged for a public

use. Keiffer v. King County, 89 Wn.2d 369,372, 572 P.2d 408 (1977).

       In 1991 the Washington legislature enacted the Washington Highway Access

Management Act (HAMA), chapter 47.50 RCW, which "establishes a framework to

regulate access points to state highways." Galvis v. State Dep 't ofTransp. , 140 Wn. App.

693, 704, 167 PJd 584 (2007). In Galvis our court upheld the constitutionality of the

HAMA against both facial and as-applied challenges that it violated article I, section 16

of the Washington Constitution. Prior Washington cases had held that not all

impairments of access are compensable, and that compensation is properly denied where

an impairment of access is not substantial. ld., at 703 (citing Keiffer, 89 Wn.2d at 372).

As the court explained in Galvis, "Chapter 47.50 does not permit the State to eliminate all

direct access without paying compensation, recognizing that' [e]very owner of property

which abuts a state highway has a right to reasonable access to that highway'" and that

the HAMA "recognizes the right to compensation under article I, section 16 of the

Washington Constitution." ld., at 704 (quoting RCW 47.50.010(3)(b) and citing RCW

47.50.010(5». Instead, "the legislature recognized an abutting property owner's right to

reasonable access and did not intend for the [WSDOT] to apply the statute in a manner

that infringes on those rights." ld.

       Property abuts upon a public street or highway "when there is no intervening land

                                             18 

No. 31681-5-III
Williams Place v. State


between it and the street." Davidson v. Kitsap County, 86 Wn. App. 673, 684, 937 P.2d

1309 (1997). In other words, a property abuts if"the lot line and street line are in

common." Id. at 684-85 (citing Kemp v. City ofSeattle, 149 Wash. 197,201,270 P. 431

(1928)).

       It is undisputed in this case that the Chipman Trai11ies between Williams Place's

property and the state highway and highway right-of-way. In the first round of summary

judgment cross motions, the parties disputed the significance of the existence of the trail:

WSDOT argued that by virtue of the trail, Williams Place could not establish that the

acreage to which it holds fee title abuts the state highway; Williams Place argued that

title to the railroad right-of-way reverted to the Jorstad family when the railroad ceased to

use it to operate a railroad. After the trial court ruled that Whitman County and the

railroad were necessary parties to that dispute, Williams Place pursued its claim of

reverted title in quiet title actions. It ultimately compromised the quiet title litigation by

accepting a separated grade easement over the Chipman trail from its property in Section

2-an easement located about two-tenths of a mile west of the historic Paradise Creek

bridge crossing. While Williams Place still makes passing reference on appeal to the

unresolved dispute over whether it acquired title to the railroad right-of-way by reversion

(see Br. of Appellant at 19-20), its abiding view that it holds reverted title is not material

to this appeal. In the trial court, it observed that after it acquired its easement over the




                                              19 

No. 31681-5-III
Williams Place v. State


Chipman trail, the issue became a red herring. 5

          WSDOT represents on appeal, as it did in the trial court, that "because Williams

Place now has an easement allowing it to reach SR 270 at milepost 6.7, WSDOT would

be willing to consider granting it an access permit at that location, obviously very near

the milepost 6.9 access that is at issue in this case." Br. of Resp't at 10. Williams Place

has not replied to the offer, but implicitly rejects it. Instead, it argues that it enjoys

grand fathered rights under chapter 47.50 RCW to easement rights that existed in 1991,

when the HAMA was adopted. See RCW 47.50.080(1) (addressing continuing rights to

use unpermitted connections to the state highway system in existence on July 1, 1990).

          Because Williams Place does not rely for its rights as an abutting landowner of the

land it owns in fee, we tum to its arguments that WSDOT took or damaged its easement

right on a route from its land to SR 270 across the site of the historic Paradise Creek

bridge.


          5   In its renewed motion for summary judgment, Williams Place argued:
          Because Williams Place was only interested in confirming and preserving
          its access rights, it agreed to limit its property interest across the former
          Railroad Right of Way to reducing it to an easement. ... In any event,
          whether through the reversionary interest that occurred when the use of the
          property as a railroad ceased, or by virtue of the easement subsequently
          obtained by Williams Place, WSDOT's red-herring argument is now legally
          and factually moot.

CP at 451.



                                               20 

No. 31681-5-111
Williams Place v. State


                   III.      Williams Place's asserted right to an easement

       A property owner whose property line does not abut a highway but who has a

private easement right connecting his property to the highway has a right of access

equivalent to that of an abutting owner. WAC 468-51-030( 1) ("Every owner of property

which abuts a state highway, or has a legal easement to the state highway . .. has a right

to reasonable access ... to the state highway system." (emphasis added)). His easement

right cannot be taken or damaged without just compensation. State v. Kodama, 4 Wn.

App. 676, 679, 483 P.2d 857 (1971) (for the State to block a private easement road that

connects a property owner with a public road is a taking). Williams Place asserts a

private easement right under four theories.

              A.          Retention ofa private easement after Whitman County
                                     vacated Garrison Road

       Williams Place first argues that its predecessors obtained a private easement to use

the Garrison Road route when the road was constructed in 1882, and that its private

easement was not extinguished when Whitman County vacated the road in 1935.

      The public has an easement of use in a public street or highway; the fee rests in the

owners of the abutting property. Bradley v. Spokane & I.E.R. Co., 79 Wash. 455,458,

140 P. 688 (1914). The state has plenary power over public streets and may vacate the

public easement therein. London v. City ofSeattle, 93 Wn.2d 657, 663, 611 P.2d 781

(1980). It may invest counties with the authority to vacate roads and had done so by



                                               21 

No. 31681-5-III
Williams Place v. State


statute before the Whitman County commissioners vacated Garrison Road in 1935. See

id. (addressing municipal authority to vacate); REM. REv. STAT. § 6450-51. Upon

vacation of a street or highway, title reverts to the abutting property owners. Woehler v.

George, 65 Wn.2d 519, 524,398 P.2d 167 (1965).

       The board of county commissioners' order vacating Garrison Road in 1935

describes the portion vacated as including the portion "BEGINNING at a point on the

said Garrison Road over, across and through Section 3, 2 and 1, Township 14 North,

Range 45," and from there, through other sections. CP at 103. No evidence has been

presented that the board's order did not fully and finally vacate all parts of Garrison Road

that were located in Section 2 and Section 1, as it appears to do.

       Williams Place argues, however, that when a public road is vacated, "only the

public aspect of the easement is eliminated," and "[i]fthe road is used to access property

adjacent to it, the vacation does not eliminate the private easement necessary for the use

and benefit of the adjacent property." Br. of Appellant at 21, citing Howell v. King

County, 16 Wn.2d 557, 134 P.2d 80 (1943). It cites Van Buren v. Trumbull, 92 Wash.

691, 159 P. 891 (1916) and Curtis v. Zuck, 65 Wn. App. 377, 829 P.2d 187 (1992) for the

same proposition.

       Van Buren, Howell and Curtis present a distinguishable issue arising under a

statutory provision that operated to vacate roads dedicated between 1890 and 1904 that




                                             22 

No. 31681-5-III
Williams Place v. State


were not opened within five years. Before 1890, if a county authorized a county road but

failed to open it, the common law doctrine of abandonment applied. Real Progress, Inc. v.

City ofSeattle, 91 Wn. App. 833, 836-37,963 P.2d 890 (1998). In 1890 the legislature

enacted a "nonuser" statute governing the creation of county roads that provided for

automatic vacation in the event the road was not timely opened for public use. It provided:

       [a]ny county road, or part thereof, which has heretofore been or may
       hereafter be authorized, which remains unopened for public use for the
       space of five years after the order is made or authority granted for opening
       the same, shall be and the same is hereby vacated, and the authority for
       building the same barred by lapse of time.

Id. (quoting LAWS OF 1889-90, ch. 19, § 32 at 603).

       In 1907 the Washington Supreme Court held that the nonuser provision operated to

vacate not only roads laid out by a county's board of commissioners, but even streets that

private developers had dedicated as such in plats of property, if the property fell outside

the limits of an incorporated city or town. Murphy v. King County, 45 Wash. 587, 88 P.

1115 (1907). The legislature immediately reacted to Murphy, amending the nonuser

provision in the next legislative session by adding a proviso that it would not operate to

vacate streets dedicated as such in private plats. Real Progress, 91 Wn. App. at 837. 6 The



       6 For plats as to which the five year nonuse period had not already run, the 1909
amendment provided that "any highway, street, alley or other public place dedicated as
such in any plat" was not subject to the automatic vacation provision. Gillis v. King
County, 42 Wn.2d 373, 375-76,255 P.2d 546 (1953) (citing LAWS OF 1909, ch. 90, § 1 at
189).

                                             23 

No. 31681-5-II1
Williams Place v. State


proviso continues to exist in the current nonuser statute, codified at RCW 36.87.090.

       The cases principally relied upon by Williams Place all address the impact of

statutory vacation for nonuse on property owners whose right (or predecessors' right) to

use dedicated streets was arguably affected during the 14 years before the legislature

countermanded the result required by Murphy. 7

       The first of the decisions cited by Williams Place is Van Buren v. Trumbull which

concluded that owners who had purchased with reference to a plat enjoyed a private

easement to streets dedicated as such in the plat-a right that was unaffected by

abandonment. Van Buren began its analysis with the principle that "[0]ne who plats

property upon which streets have been laid out, and who sells property with reference

thereto, cannot, by an act of his own, defeat the right of his vendee to use the platted

streets for the purposes intended. He is estopped to deny or impeach rights thus

acquired." Id. at 693.

       From there, the court reasoned:

       Now it would seem if the vendor or dedicator ofland could not, by any act
       of his own, deny to his vendee a right to at least an easement in the property
       theretofore dedicated as a street, that one claiming by, through, or under
       him could not do so. As between the grantees of a common grantor who
       had platted and sold land, rights are to be primarily determined by reference


       7 The Supreme Court later recognized that it had interpreted the nonuser statute
too broadly but declined to overrule Murphy, which had "become and remained a rule of
property." Real Progress, 91 Wn. App. at 839 (quoting Tamblin v. Crowley, 99 Wash.
133,138,168 P. 982 (1917».

                                             24 

No. 31681-5-111
Williams Place v. State


       to the right of the grantor. That is to say, if the common grantor could not
       deny the full effect of his deed and the right of ingress and egress, his
       grantee could not do so.

Id. at 694. Turning to the nonuser statute enacted in 1890, the Court stated that the

statute "makes no mention of private rights and cannot be held to, in any way, affect

them." Id. It concluded that "the logical assumption must be that the Legislature

intended no more than to waive the interest of the public in so far as it was represented by

the municipality." Id. at 694-95.

       Howell and Curtis, which Williams Place also cites, involved the same type of

private easement in a dedicated street arising from the sale of lots with reference to a plat.

Both decisions relied on Van Buren's holding that an independently-existing private right

was unaffected by the nonuser provision. E.g., Howell, 16 Wn.2d at 559 (plaintiff

retained a private easement to Hume Avenue that was dedicated in 1891, was depicted on

the plat as serving her lot, but was not opened as a public road within five years of

dedication); Curtis, 65 Wn. App. at 378-79 (plaintiffs held a private easement to Glass

Street (and thereby to Bennett Street, developed in its stead) where the street was

dedicated in 1888, was depicted as serving the plaintiffs' lot, but was not opened as a

public road within five years of dedication).

       In an effort to bring its circumstances within the principles established by the Van

Buren line of cases, Williams Place points out in its reply brief that in the CODE OF 1881,

§ 3047, the Legislature required each county auditor to maintain a "highway plat book"

                                                25 

No. 31681-5-111
Williams Place v. State


depicting aUlegaUy established roads within the county, with appropriate references to

the records establishing each road. Section 3047 was the penultimate section of chapter

236 of the CODE OF 1881, which was entitled "Legalization of County Roads." Earlier

sections of the chapter dictated how counties should re-survey, plat and record any

county road whose "location cannot be accurately defined by the papers on file in the

proper county auditor's office, or where, through some omission or defect, doubts may

exist as to [its] legal establishment." CODE OF 1881, §§ 3041-46.

       The 1881 legislature's use of the term "plat"g ("highway plat book") for maps to

be included in the county's required record ofits public roads provides no basis for

extending the principles ofthe Van Buren line of cases to this different context. The

existence of a plat in the nonuser cases was significant because when a developer lays out

and dedicates streets in a plat it amounts to a promise of a street, for which a grantee pays

consideration and from which a grantor profits. As explained in Van Buren, a grantor

selling property with reference to a plat upon which streets have been laid out could not

defeat the right of its grantee under

       [t]he doctrine [that] has for its object the suppression of fraud and the
       enforcement of honesty and fair dealing. Where, therefore, lots have been


       8   "Plat" is defined to mean
       "1. A small piece of land set apart for some special purpose; PLOT (1).2. A map or
plan of delineated or partitioned ground; esp., a map describing a piece of land and its
features, such as boundaries, lots, roads, and easements; PLAT MAP," BLACK'S LAW
DICTIONARY 1337 (lOth ed. 2014).

                                             26 

No. 31681-5-111
Williams Place v. State


       offered for sale, and have been purchased in accordance with a map or plat

       upon which streets are made to appear, it is presumed that the purchase was
       induced, and the price of the lots enhanced thereby, and the seller is
       estopped to deny the right which has thus been acquired.

92 Wash. at 693-94.

       By contrast, Washington cases dealing with roads that are vacated by legislative

action implicitly recognize that all rights of use attributable to the roadway's prior

existence as a public road are thereby terminated-with the result that compensation must

sometimes be paid. Washington case law provides that "an abutter suffering damage

peculiar to himself because of a street vacation is entitled to recover compensation" and

"substantial interference with access may constitute a 'taking or damaging' of property

requiring compensation." London v. City ofSeattle, 93 Wn.2d 657,663,611 P.2d 781

(1980) (citing Freeman v. Centralia, 67 Wash. 142, 120 P. 886 (1912) and State ex reI.

Smith v. Superior Court, 26 Wash. 278, 66 P. 385 (1901)). As to the time of payment,

Washington cases provide that "any injury that ... vacation might occasion to [an

abutting landowner is] effected when the public right to continued use of [a] street [is]

terminated," that being the date that legislative action becomes effective. Id. at 664.

       Accordingly, if the Whitman County commissioners' 1935 order vacating

Garrison Road resulted in a loss of access to Lewis and Nellie Brosa (the Jorstad family's

predecessors who owed the property at the time), then the Brosas might have been




                                             27 

No. 31681-5-111
Williams Place v. State


entitled to be compensated. 9 But as earlier observed, the Brosas signed a waiver of

claims for damages in 1933 in anticipation of the construction of a new county road north

of Paradise Creek and the order vacating Garrison Road states that the county

commissioners had been petitioned to vacate the road. Under statutes then in effect, "ten

freeholders residing in the vicinity of any county road" could petition the board of county

commissioners to vacate and abandon all or part of the road on showing "that such

county road will be useless as part of the county road system and that the public will be

benefited by its vacation and abandonment." REM. REv. STAT. § 6450-49. Notice and a

hearing was required, at which the board of county commissioners was required to

consider "any ... objection against such vacation and abandonment." REM. REv. STAT.

§ 6450-51. Only if the board unanimously found that "the county road is not useful and

the public will be benefitted by the vacation" could it vacate and abandon the road. Id.

The 1935 order vacating Garrison Road states that no objection to vacating the road was

made.



        9 As the State points out, the subsequent purchaser doctrine bars Williams Place
from prevailing in an inverse condemnation case for injuries resulting from government
takings that occurred before its ownership. See Crystal Lotus Enter. Ltd. v. City 0/
Shoreline, 167 Wn. App. 501, 505,274 P.3d 1054 (2012). In addition, both Williams
Place and its predecessor are presumed to have been compensated for all damages caused
by prior takings. Dickson v. City o/Pullman, 11 Wn. App. 813, 817-18, 525 P.2d 838
(1974). Because Williams Place insists that this action does not seek compensation for
any taking prior to Jorstad family ownership, we need not discuss the subsequent
purchaser doctrine or the presumption of prior compensation further.

                                            28 

No. 31681-5-III
Williams Place v. State


       Further authority that legislative action vacating a road ordinarily terminates all

rights of use by an abutting owner is provided by Bay Industry, Inc. v. Jefferson County,

33 Wn. App. 239, 653 P.2d 1355 (1982). Bay Industry owned 40 acres at the terminus of

a half-mile road that other abutting landowners wanted to have vacated. Ten landowners

petitioned the county to vacate the road. Bay Industry objected, complaining that

because a ravine crossed its property, the county road provided the only access to 30 of

its 40 acres. Other reasons militated in favor of vacating the road, however, and as the

appellate court observed:

       The statutory test [for vacating a road that is considered useless] is not
       whether the road is of use to anyone, but whether it is useful as part of the
       county system. The public to be benefited included all taxpayers of the
       county, who deserve to be relieved of the burden of maintaining a road of
       such limited utility.

Id. at 241-42. The appellate court affirmed the board of commissioners' decision to

vacate the road.

       Significantly, the appellate court in Bay Industry reversed one condition that the

board of commissioners had imposed in its order vacating the road. The board had

conditioned its order on a requirement that each of the petitioning landowners grant

private easements along the former road to the power company, the fire department, and

each other. Bay Industry argued, and the appellate court agreed, that as a matter of Bay

Industry's constitutional right to equal protection it, too, was entitled to the benefit of the

condition requiring grants of private easements.

                                              29
No. 31681-5-111
Williams Place v. State


       If Bay Industry had enjoyed the private easement rights in the vacated road that

Williams Place argues are held by all abutting landowners, it would never have been

required to object to the vacation proceeding at all. It would not have been required to

pursue an appeal in an effort to secure a private easement right on equal protection

grounds.

       Williams Place does not stand on the same footing as a landowner who buys real

property with reference to a plat and has thereby essentially purchased a private

easement. Van Buren, Howell and Curtis are inapposite.

       While Williams Place principally relies on the Van Buren line of cases, it cites

several other authorities that are also distinguishable. It cites an annotation, Private

Easement in the Way Vacated, Abandoned or Closed by Public, 150 A.L.R. 645 (1944),

which states the general rule that "[w]here a landowner has a private right-of-way in a

strip of land which is or subsequently becomes a public street or highway, such private

right is ordinarily held to survive the vacation or abandonment of the street or highway

by the public." The general rule and the cases relying upon it depend upon there having

been a private right-of-way that existed independent of the public highway. Williams

Place asserts a right that is dependent on, not independent of, the former existence of

Garrison Road as a public road.

       Williams Place also cites Humphrey v. Jenks, 61 Wn.2d 565, 379 P.2d 366 (1963),

which did not involve automatic vacation under the 1890 statute, but involved an

                                             30 

No. 31681-5-II1
Williams Place v. State


analogous issue of a pre-existing private easement. The parties in Humphrey owned

adjacent properties originally served by a dedicated road running north and south along

their east property line. The State later constructed a state highway further to the east,

leaving most of the original street unneeded and unused as access. Some 18 years after

the highway was constructed the Humphreys' predecessors, the Jenkses, and their

neighbor to the north successfully petitioned the town to vacate and abandon the original

street, which it did, after which the Jenkses placed a barrier across the original roadway

on their property line with the Humphreys.

       This presented a problem for the Humphreys. Given the grade of the state

highway, the Humphreys could obtain access to the highway only by traveling on a

driveway running along the east side of the Jenkses' property, which the Humphreys'

predecessors had used ever since the highway was built. The driveway was located

mostly in the highway right-of-way, but a portion (approximately 6' x 20') was located in

the original, and now vacated, roadway east of the Jenkses.

       The Humphreys succeeded in having a private easement right recognized in that 6'

x 20' strip of the Jenkses' property, based in part on the court's recognition (citing Van

Buren and Howell) that because the Humphreys' predecessors purchased with reference

to a plat that laid out and dedicated the original roadway, the Humphreys enjoyed a

private easement. Humphrey is therefore distinguishable from this case for the same

reason as the Van Buren line of cases.

                                             31 

No. 31681-5-111
Williams Place v. State


       Because Williams Place has no private easement right arising from the former

existence of Garrison Road as a public road, the trial court properly rejected that

easement theory as a basis for avoiding summary judgment.

                               B.     Implied easement right

       Williams Place next argues that evidence supports an easement implied from prior

use, arguing that it has demonstrated the required elements of (1) a unity of title and

subsequent termination of two parcels of property, (2) apparent and continuous use of a

quasi-easement for the benefit of one parcel to the detriment to the other during the unity

of title, and (3) a reasonable degree of necessity for the existence of the easement after

severance. Br. of Appellant at 23, (citing Landberg v. Carlson, 108 Wn. App. 749, 757,

33 P.3d 406 (2001)). The second and third elements aid in determining whether the

grantor intended to grant or reserve an easement, whereas the first element, unity oftitle

and subsequent separation, "is an absolute requirement." Id.

       Here, the original owners of the two properties, Messrs. Pinnell and Collins,

obtained title from the federal government. In Granite Beach, supra, the court refused to

consider common ownership by the United States as unity of title when analyzing

whether an implied easement exists. As the court explained, to view the federal

government as impliedly reserving an easement in its favor that could be asserted by all

future grantees "would make the mandatory element that a party establish common

ownership at the date of severance meaningless-because all ownership of land in the

                                             32 

No. 31681-5-III
Williams Place v. State


western states can be so traced." Granite Beach, 103 Wn. App. at 196.

       Williams Place argues that it need not rely on the federal government as the

common grantor because it can rely instead on the fact that "Garrison Road is the

common parcel that was divided when it was vacated." Br. of Appellant at 23. It cites no

Washington case holding that an easement may be implied when a legislative authority

vacates a road and title reverts to the abutting landowners.

       Both the nature of a public road and the reason a county acts to vacate it are

antithetical to the concept of an implied easement. The   ~~cardinal   consideration" in

implying the existence of an easement is the presumed intention of the parties, which is

ordinarily gleaned from whether a quasi-easement has been continuously used for the

benefit of one parcel and will be reasonably necessary to the benefitted party after

severance. Hellberg v. Coffin Sheep Co., 66 Wn.2d 664, 668, 404 P.2d 770 (1965). Does

it even make sense to apply these elements when the property severed is a road and only

a road? And when the legislative authority has ordered vacation and abandonment, do

we even need to analyze the second and third elements of an implied easement to

determine the county's intent?

       No and no. It is fair to say that the separate parts of a road have been continuously

used together, but not to benefit the road. And the fact that the road was vacated tells us

unequivocally that the party Williams Place would characterize as the "common

grantor"-Whitman County----considered the road useless and did not contemplate its

                                             33 

No. 31681-5-III
Williams Place v. State


future use as a road. The circumstances under which a legislative authority vacates a

road and its expectation in vacating it are completely at odds with the circumstances

under which easements are implied. The trial court did not err in rejecting Williams

Place's theory of an implied easement as a basis for avoiding summary judgment.

                            C.     Prescriptive easement right

       Williams Place next claims that the evidence supports an easement by

prescription, given more than 70 years of use following the 1935 vacation. "To establish

a prescriptive easement, a claimant must prove: (1) use adverse to the title owner; (2)

open, notorious, continuous and uninterrupted use for 10 years; and (3) that the owner

knew of the adverse use when he was able to enforce his rights." Lee v. Lozier, 88 Wn.

App. 176, 181,945 P.2d 214 (1997).

       In 1950, the State acquired the land owned by the Jorstad family's and Motley's

predecessors between Secondary Road No. 11 and the railroad right-of-way, in order to

widen the highway. From 1950 on, then, the State owned the parcel of property that

included the Paradise Creek bridge and the portions of the former Garrison Road that

connected the bridge with Secondary Road No. 11 and ultimately with the property

owned by the Jorstad family's predecessors. "[P]rescriptive easements do not lie against

the state." Northlake Marine Works, Inc. v. Dep't ofNatural Res., 134 Wn. App. 272,

291, 138 P.3d 626 (2006) (citing RCW 7.28.090).




                                            34 

No. 31681-5-II1
Williams Place v. State


       Williams Place provided the trial court with photographs and declarations that

demonstrated genuine factual issues as to continual use, but it did not present evidence

that the use had been adverse. "Easements by prescription are disfavored in the law

because they effect a loss or forfeiture of the rights of the owner." Kunkel v. Fisher, 106

Wn. App. 599,603,23 P.3d 1128(2001). Accordingly, "[w]hen one enters into the

possession of another's property there is a presumption that he does so with the true

owner's permission and in subordination to the latter's title." Nw. Cities Gas Co. v. W.

Fuel Co., 13 Wn.2d 75, 84, 123 P.2d 771 (1942).

       Williams Place emphasizes that the presumption shifts upon "proof that the use by

one of another's land has been open, notorious, continuous, uninterrupted, and for the

required time," creating a presumption "that the use was adverse, unless otherwise

explained." Id. at 85 (emphasis omitted). As this court recently recognized in Gamboa v.

Clark, 180 Wn. App. 256, 321 P.3d 1236 (2014), however, some circumstances prevent a

shift to a presumption of adverse use. For example, "evidence that a claimant has used a

road on another's property that the property owner continues to use for its own purposes"

overcomes this shift, and'" signifies only that the owner is permitting his neighbor to use

the road in a neighborly way.''' Id. at 272 (quoting Cui/tier v. Coffin, 57 Wn.2d 624,

627,358 P.2d 958 (1961».

       Because Williams Place failed to demonstrate a genuine issue of fact that Williams

Place's or its predecessor's use of the bridge was adverse and hostile, the trial court

                                             35 

No. 31681-5-III
Williams Place v. State


properly rejected its theory of a prescriptive easement as a basis for avoiding summary

judgment.

                               D.     Easement ofnecessity

       Williams Place next asserts an easement of necessity, citing Dawson v. Greenfield,

118 Wash. 454, 203 P. 948 (1922), but fails to offer argument beyond that citation. As

pointed out by WSDOT, Dawson holds that an implied easement by necessity can be

found where a common grantor sells a portion of the property that, without an easement,

would be landlocked. Because Williams Place failed to demonstrate any genuine issue of

fact supporting the requirement of a common grantor, the trial court properly rejected the

theory of an easement by necessity as a basis for avoiding summary judgment.

                    IV. Right as a nona butting landowner presenting
                       special circumstances qs in Union Elevator

      As an alternative to its arguments that it had rights as an abutting owner, Williams

Place argues that it has a right to reasonable, adequate, and commercially practicable

access under this court's holding in Union Elevator, supra.

       In Union Elevator, this court held that a nonabutting landowner would be entitled

to compensation ifhe were able to show that by closing an access to a public road, the

State physically impaired his access in a way that was different in kind from that suffered

by the general public and left him with no reasonable access. Id. at 295-96. The case

involved a project to upgrade a two-lane partial access control highway to a four-lane full



                                            36 

No. 31681·5·III
Williams Place v. State


access facility, which resulted in the closure of an intersection that had served as the route

from the highway to one of Union's grain elevators. With the closing of the intersection,

drivers had to reach the grain elevator on a route that included steep grades, multiple 90

degree turns and deep, narrow ditches along the shoulders-driving conditions

particularly difficult for fully·loaded grain trucks. Union Elevator filed an inverse

condemnation action, alleging the State's action "completely [took] and destroy[ed] all

practical, reasonable, and economically viable use" ofthe affected grain elevator. 96

Wn. App. at 292.

       The trial court dismissed the suit on summary judgment, finding as a matter of law

that Union Elevator still had "access" within the meaning ofRCW 47.52.041 and .080,

provisions of the limited-access highway code, with the result that statutory

compensation was not payable. It found no merit to Union Elevator's constitutional

claim to just compensation "because there is no physical impairment of its access

different in kind from that of the general public." 96 Wn. App. at 293.

       On appeal, this court began its analysis by observing that "this is a fact-driven

case." Id. at 295. It recognized that "compensation for nonabutting property owners, at

least as it relates to access issues, is usually denied," but that "nonabutting property

owners do, on occasion, have protected access rights." Id. at 295. It cited and quoted

from State v. Wineberg, 74 Wn.2d 372, 375-76,444 P.2d 787 (1968) in which the

Washington Supreme Court concluded that a property owner complaining of lost access

                                              37 

No. 31681-5-III
Williams Place v. State


was not entitled to compensation, but only because he failed to show that "reasonable

means of access" had been obstructed and that he had "suffered special damage[s]

different in kind, and not merely degree, from that sustained by the general public." Id. at

376.

       This court concluded that Union Elevator, by contrast, demonstrated that the

State's closure of the intersection on which its operations relied may have resulted in "a

total loss of safe, reasonable, and adequate access" to its facility, causing "the complete

destruction of its business and real property values"-damage that the court stated was

"certainly different in kind from that sustained by the general public." Union Elevator at

296.

       Unlike the State action of closing a public access to the highway in Union

Elevator, the State action complained of in this case was that WSDOT directed Motley to

take out its temporarily-approved bridge. We have already concluded that Williams

Place had no property interest in the former Garrison Road route. While Union Elevator

could point to State closing of an operating intersection, Williams Place cannot identifY

an existing legal right of access that WSDOT cut off in 2007.

       And here, unlike the situation faced by Union Elevator, Williams Place can apply

for access at the location of the easement it has obtained over or under the Chipman Trail.

See RCW 47.50.010, WAC 468-51-030. The record shows that WSDOT has consistently

expressed willingness to grant Williams Place an access permit at that location, provided

                                             38 

No. 31681-5-111
Williams Place v. State


the connection meets the applicable statutory and regulatory requirements. to Where a

landowner is able to build a roadway providing ingress and egress, any inconvenience in

doing so is a loss that does not give rise to an action for damages against the person

causing it. Hoskins v. City ofKirkland, 7 Wn. App. 957, 962-63, 503 P.2d 1117 (1972).

As explained in Hoskins,

       a landowner whose land becomes landlocked or whose access is
       substantially impaired as a result of a street vacation is said to sustain
       special injury. If, however, the landowner still retains an alternate mode of
       egress from or ingress to his land, even if less convenient, generally
       speaking he is not deemed specially damaged. He has no legal right to
       prevent the vacation because no legal right of his has been invaded.

ld. at 960-61 (internal citations omitted).

       Because Williams Place failed to demonstrate a genuine issue of fact either that

WSDOT's actions in 2007 deprived it of an existing right of access to SR 270 or that it is

left with no means of safe, reasonable, and adequate access, the trial court properly

rejected its reliance on Union Elevator as a basis for avoiding summary judgment.

                                  V      Equitable estoppel

       Finally, Williams Place contends that WSDOT is equitably estopped from denying

the existence and its use of an access right along former Garrison Road. The doctrine of



       to Williams Place also presently enjoys access to its property from SR 270
through the property of its neighbor to the west, the Thonneys. While that access is only
permissive, WSDOT fairly characterizes it as "not unlike the permissive access Williams
Place used prior to the removal of the temporary bridge." Br. of Resp't at 23.

                                              39
No. 3168l-5-II1
Williams Place v. State


equitable estoppel is based on the principle that "a party should be held to a

representation made or position assumed where inequitable consequences would

otherwise result to another party who has justifiably and in good faith relied thereon."

Wilson v. Westinghouse Elec. Corp., 85 Wn.2d 78, 81, 530 P.2d 298 (1975).

       Establishing equitable estoppel requires proof of "(1) an admission, act or

statement inconsistent with a later claim; (2) another party's reasonable reliance on the

admission, act or statement; and (3) injury to the other party which would result ifthe

first party is allowed to contradict or repudiate the earlier admission, act or statement."

Dep't a/Ecology v. Campbell & Gwinn, L.L.c., 146 Wn.2d 1,20,43 P.3d 4 (2002).

Because equitable estoppel against the government is not favored, application of the

doctrine when asserted against the government must also be "necessary to prevent a

manifest injustice," and must not "impair the exercise of government functions." Id. at

20; Kramarevcky v. Dep't a/Soc. & Health Servs., 122 Wn.2d 738, 744, 863 P.2d 535

(1993). "A party asserting equitable estoppel against either the government or a private

party must prove each element of estoppel with clear, cogent and convincing evidence."

Id.

       Williams Place contends that since 1970, WSDOT has "repeatedly acknowledged"

both the existence and the use by Williams Place of the former Garrison Road as access.

WSDOT persuasively argues that the four pieces of evidence relied upon by Williams

Place as WSDOT's "acknowledgment" are not inconsistent with its present position that

                                             40 

No. 31681-5-II1
Williams Place v. State


Williams Place and its predecessors enjoyed permissive use at times and that Motley's

predecessor in 1970-like Williams Place today-had a statutory right to apply for a

highway access permit.

       We need not analyze Williams Place's evidence in detail, however, because

whether Williams Place had a right of access at milepost 6.9 is an issue of law, not an

issue of fact. As this court explained in Pacific Land Partners v. Dep't ofEcology,

"[ e]quitable estoppel does not apply to statements that are issues of law, even when the

statement oflaw is incorrect. H Pac. Land Part., 150 Wn. App. 740, 751, 208 P.3d 586

(2009) (holding that the Department of Ecology (DOE) was not estopped from arguing

that the water right was relinquished before the landowner bought the property); Dep't of

Ecology v. Theodoratus, 135 Wn.2d 582,600,957 P.2d 1241 (1998) (DOE was not

estopped from using actual beneficial use of water to quantify water right, as its prior

representation that the water right could be quantified by system capacity was an

incorrect statement of law).

       The trial court properly rejected Williams Place's theory of equitable estoppel as a

basis for avoiding summary judgment.

                                     VI      Attorney fees

       Williams Place requests an award of attorney fees and costs under RAP 18.1,

RCW 8.25.070, and RCW 8.25.075. Because it is not the prevailing party on appeal, it is

not entitled to an award of fees or costs.

                                              41
No. 31681-5-111
Williams Place v. State




      WSDOT requests costs, including statutory attorney fees, under RAP 18.1 and

RCW 4.84.080. As the substantially prevailing party under RAP 14.2 and RAP 14.3,

WSDOT is entitled to costs.

      Affirmed.




WE CONCUR: 




      Kors¥O'J.




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