                                                                        FILED
                                                                    DECEMBER 3, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

 MELANIE J. BRYANT, a single person,
                                 )
                                 )                       No. 35592-6-III
                Respondent,      )
                                 )
      v.                         )
                                 )
 STEPHEN R. SANDBERG and ANNE D. )                       UNPUBLISHED OPINION
 SANDBERG, husband and wife,     )
                                 )
                Appellants.      )

       SIDDOWAY, J. — In 2013, Melanie Bryant purchased a home, formerly owned by

Stephen Sandberg, whose garage was designed to be served by a driveway on property

that Mr. Sandberg continues to own. When Mr. Sandberg refused to let her use the

driveway, Ms. Bryant sued and persuaded the court at a bench trial that an easement

should be implied.

       Mr. Sandberg testified at the bench trial that he abandoned use of the driveway as

access to what is now Ms. Bryant’s garage in 2003, at the time he filed a short plat that
No. 35592-6-III
Bryant v. Sandberg


severed the residential property she now owns from the residential property he continues

to own. This complicated the easement issue, but the evidence was nonetheless

sufficient. We affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       In March 2003, Stephen Sandberg, his former wife, and his aunt and uncle filed a

short plat dividing what had formerly been a single 2.12 acre parcel into two lots: a 1.02

acre Lot 1, and a 1.10 acre Lot 2. At the time, several structures existed on the combined

parcel, whose south edge bordered on a county road. The property line between Lots 1

and 2 zigzagged considerably; according to Mr. Sandberg, this was to fairly allocate the

“pros and cons” of the property between the two lots. Report of Proceedings (RP) at 60.

       The Sandbergs took title to Lot 1, on which their existing home was located.

According to Mr. Sandberg, one “con” of Lot 1 was that a driveway that had previously

served the entire property would become part of Lot 2, since the driveway would serve as

Lot 2’s only access to the county road. Lot 1 had other access, since it is bordered on the

south by the county road. A garage constructed by the Sandbergs in 2002 had been

designed to be served by the common driveway and would no longer be usable as a

garage unless Lot 1 was granted an easement or unless a new driveway was constructed

that circled behind the home and approached the garage from its west side. According to

Mr. Sandberg, he did not want Lot 2 to be burdened by an easement, so he and his former




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Bryant v. Sandberg


wife stopped using the garage as a garage. He claims his wife began using it as her craft

room, although “it got usurped with storage in a lot of places.” RP at 63.

       Following the approval of the short plat, the Sandbergs acquired Lot 2 from Mr.

Sandberg’s uncle and aunt. In 2011 the Sandbergs moved into a residence on Lot 2 after

they defaulted on a mortgage loan encumbering Lot 1 and their lender foreclosed.

       Lot 1 was purchased by Melanie Bryant in 2013. When Mr. Sandberg took the

position that she had no right to use the driveway on which her garage fronted, Ms.

Bryant brought the action below, seeking to establish an implied easement or an easement

by necessity. In 2015, the Grant County Superior Court entered summary judgment in

her favor, finding an easement by implication.

       Mr. Sandberg appealed. A panel of this court identified disputes of fact and

reversed and remanded for trial. Describing the proof required to establish an implied

easement, this court’s decision set forth the following law of the case:

               The elements for establishing an implied easement are (1) unity of
       title and subsequent separation of title in real property, (2) apparent and
       continuous use of one part of the property to benefit the other, and (3)
       reasonable necessity that the use continue after severance of the property.
       Hellberg v. Coffin Sheep Co., 66 Wn.2d 664, 668, 404 P.2d 770 (1965).
       Unity of title is an absolute requirement. [Id.] One decision proclaims that
       the presence or absence of the second or third element is not necessarily
       conclusive. Rogers v. Cation, 9 Wn.2d 369, 376, 115 P.2d 702 (1941).
       Another decision reads that the first and third factors, unity of title and
       reasonable necessity, are essential for the creation of an implied easement.
       Fossum Orchards v. Pugsley, 77 Wn. App. 447, 451, 892 P.2d 1095 (1995).
       One opinion declares that the three-element rule of an implied easement “is
       not a hard and fast one and the presence or absence of any or all of the

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Bryant v. Sandberg


      stated requirements is not necessarily conclusive.” [Rogers], 9 Wn.2d
      at 376.
              The second and third elements of an implied easement act as aids to
      determine the “presumed intention of the parties as disclosed by the extent
      and character of the user, the nature of the property, and the relation of the
      separated parts to each other.” [Hellberg], 66 Wn.2d at 668. An implied
      easement arises at the time of conveyance. Visser v. Craig, 139 Wn. App.
      [152,] 161-62[, 159 P.3d 453] (2007). Despite Washington decisional
      language questioning whether any one of the three elements are essential,
      we find no decision that concludes the easement claimant may prevail on
      summary judgment when she only establishes, as a matter of law, one of
      the elements.
              Here, the parties agree that Melanie Bryant satisfies the first element
      because Stephen Sandberg owned both lots and subsequently separated title
      in the lots. Sandberg does not argue that an intervening foreclosure
      purchaser destroyed the presence of the first element.
              The party seeking the implied easement has the burden of presenting
      evidence of prior continuous use, the second element of an implied
      easement. McPhaden v. Scott, 95 Wn. App. 431, 438, 975 P.2d 1033
      (1999). Stephen Sandberg testified that, as residents of Lot 1, he and his
      wife did not use the Lot 2 driveway, and Melanie Bryant presented no
      evidence of continuous use of the driveway for the benefit of Lot 1. We
      have no evidence of any use of Lot 2 by someone residing on Lot 1.
              Creation of an implied easement does not require absolute necessity
      to fulfill the third element of an implied easement, but reasonable necessity
      of the use of the easement by the dominant estate. Evich v. Kovacevich, 33
      Wn.2d 151, 157, 204 P.2d 839 (1949). The test of necessity is whether the
      party claiming the right can, at reasonable cost, on his own estate, and
      without trespassing on his neighbors, create a substitute. Adams v. Cullen,
      44 Wn.2d 502, 507, 268 P.2d 451 (1954). Although prior use is a
      circumstance contributing to the implication of an easement, if the land can
      be used without the easement only with disproportionate expense, an
      easement may be implied on the basis of necessity alone. [Fossum
      Orchards], 77 Wn. App. at 451 (1995). In reviewing whether an easement
      across a neighbor’s property is needed, the harm to the aesthetics of the
      dominant estate may be considered. Bushy v. Weldon, 30 Wn.2d 266, 268,
      191 P.2d 302 (1948). Necessity must exist at the date the common parcel is
      severed. [Visser], 139 Wn. App. at 159.


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              Melanie Bryant contends that she has no other reasonable access to
      her property than through the Lot 2 driveway. Nevertheless, she has
      frontage along a public street and may have other points of access. She
      provided no testimony of the cost to construct other access.
              Melanie Bryant argues that the present case most closely aligns with
      Bushy v. Weldon. In Bushy, the trial court acted as fact finder to determine
      that the construction of a substitute driveway was unreasonable. Here, the
      trial court determined the substitute garage access was unreasonable during
      summary judgment.
              In short, the use of an easement implied from prior use is a question
      of fact and depends on the parties’ intent, the nature of the properties, and
      the manner in which the parties used the easement. [Visser], 139 Wn. App.
      at 161. The location of Melanie Bryant’s front door and garage and
      building plans are strong indicators of an intent to permit the Lot 1 owner to
      use the Lot 2 driveway. Nevertheless, because we lack direct evidence of
      earlier use of the Lot 2 driveway by a Lot 1 resident, because Stephen
      Sandberg denies use of the garage for storing vehicles, and because of the
      absence of testimony of the cost of an alternative driveway, we conclude
      that disputed material issues of fact preclude summary judgment on
      Melanie Bryant’s claim for an implied easement.

Bryant v. Sandberg, No. 33206-3-III, slip op. at 7-10 (Wash. Ct. App. July 19, 2016)

(unpublished), http://www.courts.wa.gov/opinions/pdf/332063.unp.pdf.

      On remand, Ms. Bryant abandoned any claim to an easement by necessity,

contending that she could establish an implied easement. She presented evidence that

Mr. Sandberg’s 2002 building permit for the garage contemplated that it would be served

by the driveway. She also presented evidence that the cost of building a driveway around

the home and installing an overhead door to create a west entrance would exceed

$50,000. Mr. Sandberg, who formerly worked in construction, contested her cost




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Bryant v. Sandberg


estimates. He stressed the fact that he and his wife ceased using the garage to store

vehicles in 2003.

       Following a bench trial, the superior court ruled that Ms. Bryant had proved the

elements of an implied easement by a preponderance of the evidence. Mr. Sandberg

appeals.

                                        ANALYSIS

       “When findings of fact and conclusions of law are entered following a bench trial,

appellate review is limited to determining whether the findings are supported by

substantial evidence and, if so, whether the findings support the trial court’s conclusions

of law and judgment.” Sunnyside Valley Irrig. Dist. v. Dickie, 111 Wn. App. 209, 214,

43 P.3d 1277 (2002), aff’d, 149 Wn.2d 873, 73 P.3d 369 (2003) (citing Holland v. Boeing

Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978). Evidence is substantial if it is

sufficient to persuade a fair-minded person that the declared premise is true. Id. (citing

Nguyen v. Dep’t of Health, Med. Quality Assurance Comm’n, 144 Wn.2d 516, 536, 29

P.3d 689 (2001), cert. denied, 535 U.S. 904, 122 S. Ct. 1203, 152 L. Ed. 2d 141 (2002)).

As the challenging party, Mr. Sandberg bears the burden of showing that the trial court’s

findings are not supported by the record. Id.

       Appearing pro se on appeal, as he did at trial, Mr. Sandberg complains that the

trial court “resolved controverted facts.” Br. of Appellant at 6. While it is improper for a

trial court to resolve disputed facts in deciding summary judgment, the trial court’s task

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Bryant v. Sandberg


in a bench trial is to resolve disputes of fact. We defer to the trial court as the trier of fact

on issues of credibility and the weight of conflicting evidence. Burnside v. Simpson

Paper Co., 123 Wn.2d 93, 108, 864 P.2d 937 (1994).

       An appellant is required to include a separate assignment of error for each finding

of fact the party contends was improperly made, with a reference to the finding by

number. RAP 10.3(g). Unchallenged findings of fact are verities on appeal. Cowiche

Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808, 828 P.2d 549 (1992). Mr.

Sandberg has not assigned error to any of the trial court’s factual findings.1

       Because the trial court’s findings are verities, we need determine only whether

they support the trial court’s conclusions of law. Erection Co. v. Dep’t of Labor &

Indus., 160 Wn. App. 194, 202, 248 P.3d 1085 (2011). It is clear from Mr. Sandberg’s

briefing that the conclusions of law he challenges are the trial court’s conclusions that

Ms. Bryant met her burden of proof regarding the second and third elements of an

implied easement, those being reasonable necessity and apparent and continuous use, and

of proving her entitlement to an easement.

       The trial court’s findings of fact relevant to the element of reasonable necessity are

the following:



       1
        Pro se litigants are held to the same standards as attorneys and are bound by the
same rules of procedure and substantive law. In re Marriage of Olson, 69 Wn. App. 621,
626, 850 P.2d 527 (1993).

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              16.    [Ms. Bryant] could access the garage by vehicle by
       constructing a driveway from the south and west and installing a new
       garage door on the opposite side (west side) of the garage.
              17.    The cost of doing so would include removing an existing
       retaining wall and grading and leveling the pathway.
              18.     The cost to [Ms. Bryant] to install a garage door on the west
       side and to landscape the west side of the property to create a driveway to
       the garage would be excessive, overly burdensome and not a reasonable
       substitute to the use of an existing driveway to the east and to an existing
       garage door.
              19.     [Ms. Bryant’s] use of the driveway would not burden or
       interfere with [Mr. Sandberg’s] use of the driveway or with his access to
       Lot 2.

Clerk’s Papers (CP) at 63.

       The test for reasonable necessity is “whether the party claiming the right can, at

reasonable costs, on his own estate, and without trespassing on his neighbors, create a

substitute.” Bays v. Haven, 55 Wn. App. 324, 329, 777 P.2d 562 (1989). The trial

court’s finding that the cost of constructing a driveway to access the garage from the west

side “would be excessive, overly burdensome and not a reasonable substitute” is

sufficient to support the court’s conclusion.

       The findings relevant to apparent and continuous use are:

               7.     Prior to the short plat, [Mr. Sandberg] constructed an addition
       to the single-family residence on the property (Lot 1) in 1999, and a garage
       in 2002.
              8.     The residence and garage on Lot 1 face east.
               9.     When [Mr. Sandberg] short platted the properties in 2003, a
       strip of land was used to connect the public road, Grace Lane, to Lot 2.



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Bryant v. Sandberg


              10.    The strip of land is an existing asphalt driveway, east of Lot
       1, used for access from Grace Lane (to the South) to Lot 2.
              11.    The strip of land on Lot 2 is approximately five to seven feet
       from the residence and garage door on Lot 1.
              12.    When [Mr. Sandberg] constructed the residence and garage
       on Lot 1, the strip of land to the east on Lot 2 was the intended access point
       and was used for access by [Mr. Sandberg].
              13.    After short platting the lots, [Mr. Sandberg] testified he no
       longer intended to use the strip of land to access the residence and garage,
       however [Mr. Sandberg] did not alter the existing front door and garage
       door facing east towards the strip of land on Lot 2.
              14.     The nature of the properties as they currently exist and their
       relation to each other indicates the strip of land on Lot 2 is the natural
       access point to the residence and garage on Lot 1.
              15.    It is not possible to access the garage by vehicle to the
       existing garage door without going over and across the strip of land on
       Lot 2.

CP at 62-63.

       Mr. Sandberg complains that during the bench trial, the court occasionally

questioned the significance of Mr. Sandberg’s subjective intent in 2003 as compared to

other factors identified by Washington case law. Washington precedent speaks of

“apparent and continuous use[ ]” as an aid in determining “the presumed intention of the

parties as disclosed by the extent and character of the user, the nature of the property,

and the relation of the separated parts to each other.” Adams, 44 Wn.2d at 505-06

(emphasis added) (citing 3 HERBERT THORNDIKE TIFFANY, REAL PROPERTY (3d ed.

1939) § 780, at 253, 254). Longstanding Washington case law holds that the rule giving




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Bryant v. Sandberg


rise to an easement by implication is not a hard and fast one, and that the presence or

absence of either or both of the second and third elements is not necessarily conclusive.

Id. at 506 (citing Rogers, 9 Wn.2d at 376).

       At trial, Mr. Sandberg admitted that in constructing the east facing garage in 2002,

he intended that it would be served by the very nearby driveway. He claims that his

intent changed when he faced the task of fairly dividing the 2.12 acre property. He never

constructed a driveway to the west side of the garage, however. And while he claims that

he and his wife did not move vehicles in and out of the garage via the overhead door and

the driveway after 2003, he admitted at trial that he did move stored items out of the

garage via the overhead door and driveway after 2003—and storage was a principal use

of the garage after 2003.

       Evidence supports the trial court’s findings that the garage was designed and

constructed with the intent that it be served by the driveway, that the driveway was

actually used to move vehicles in and out of the garage for a time, and that the nature and

relationship of the garage and driveway to one another make the driveway the natural

access point. Given these findings, the fact that the apparent and continuous use element

is not controlling, and Washington case law holding that it is not even essential, the

findings are sufficient to support the court’s conclusions.




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Bryant v. Sandberg


       Affirmed. Mr. Sandberg requests an award of attorney fees and costs. He

identifies no legal basis for an award of reasonable attorney fees and as the nonprevailing

party, he is not entitled to an award of costs.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




Q.
Pennell, A.CJ.




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