                                                                            FILED
                                                                       SEPTEMBER 25, 2018
                                                                    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

JEFFREY V. HORN and KRISTINA I.                   )
HORN, husband and wife,                           )         No. 34908-0-III
                                                  )
                        Respondents,              )
                                                  )
          v.                                      )
                                                  )         UNPUBLISHED OPINION
STEVEN F. SCHROEDER, a married                    )
person, as his sole and separate property,        )
                                                  )
                        Appellant.                )

          FEARING, J. — Steven Schroeder appeals from the trial court’s temporary limit of

the width of his easement across his neighbors’ property. We affirm the trial court’s

ruling.

                                              FACTS

          This statement of facts arises primarily from the trial court’s findings of fact.

Appellant Steven Schroeder assigned no error to any of the findings.

          Decades ago the Braucher family owned and farmed acres in the Williams Lake

Road area of Stevens County. Eventually the family divided the land into two parcels, an

east tract and a west tract.
No. 34908-0-III
Horn v. Schroeder


       Access to the east parcel arises from an easement for ingress, egress and utilities

created in a July 1983 recorded real estate contract among Braucher siblings. The

contract defines the easement as:

              TOGETHER WITH a perpetual, non-exclusive forty (40) foot
       easement for ingress, egress and utilities, and the right to maintain same,
       commencing at Williams Lake Road, thence in an Easterly direction over
       and across the now existing road on the North forty (40) feet of
       Government Lot 2, in Section 30, Township 37 North, Range 39, East,
       W.M., to the SE ¼ NW ¼ of Section 30, Township 37 North, Range 39
       East, W.M. Said easement shall be appurtenant to the SE ¼ NW ¼ of
       Section 30, Township 37 North, Range 39 East, W.M.

Exhibit 105. The Braucher family intended the easement to provide access from

Williams Lake Road across the west parcel to the east tract, which otherwise would be

land-locked. Importantly, the Brauchers intended the easement to permit residential

development of the east track when determined by future owners of the parcel.

       At some unknown date, an unpaved road arose along the easement to permit traffic

to travel from Williams Lake Road easterly to the east parcel. Before the road enters the

east parcel, a branch of the road moves at a forty-five degree angle to the southeast and

serves as the driveway for the west parcel’s home. The division in the road occurs about

two-thirds of the distance across the west parcel. To date, and along the entire length of

the road across the west parcel, the width of the path has been limited to twelve to

fourteen feet, including the area used for maintenance. Owners of the west parcel have

employed the remaining width of the road for pasture.



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No. 34908-0-III
Horn v. Schroeder


       By 2015, Steven Schroeder, on the one hand, and Jeffrey and Kristina Horn (the

Horns), on the other hand, owned the respective parcels. In 1993, Steven Schroeder

acquired title to the east tract consisting of 41.9 acres. Schroeder plans to divide his 41.9

acres into five acre parcels in the indefinite future. The Horns bought the west parcel,

comprising 14.4 acres, in early 2015. The Horns’ 2015 deed recognized the encumbrance

of the easement in favor of Schroeder’s land.

       Steven Schroeder’s property remains undeveloped. Schroeder, though, presently

rents to two tenants. Renter Anthony Bell lives in a cabin, and tenant Gordon Foster

resides in a trailer on a seasonal basis. Bell, Foster, and their respective visitors use the

access easement across the Horn land. The presence of grass on the easterly one-third of

the access road evidences limited traffic to the Schroeder or east parcel.

       Jeffrey and Kristina Horn and the predecessor owners of the west parcel have

devoted the 14.4 acres to pasturing horses. Previous land owners constructed external

and internal fences on the property to confine the horses. One fence runs parallel to the

access road. The Horns currently own five horses. Their son competes in equine events.

       The road accessing the Schroeder parcel employs three separate gates. Jeffrey and

Kristina Horn erected gate one to prevent their horses from escaping. This gate lies

midway between Williams Lake Road to the west and the boundary with Steven

Schroeder’s land. Gate two lies immediately to the east of where the Horns’ driveway

branches to the southeast. The Horns’ predecessor in interest erected the gate years ago.

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No. 34908-0-III
Horn v. Schroeder


Gate three lies at the eastern end of the access road just inside Schroeder’s property.

Schroeder uses gate three to keep his cattle on his property.

       Steven Schroeder, on the one hand, and Jeffrey and Kristina Horn, on the other

hand, hold differing viewpoints on the purpose and scope of the access easement.

Schroeder believes that, as the dominant estate holder, he can use the entire forty foot

easement. The Horns deem the access road limited to twelve to fourteen feet and only for

the purpose of utilities. These incompatible stances piloted pugnacious deportment.

       On February 20, 2015, Steven Schroeder abruptly moved Jeffrey and Kristina

Horns’ internal fence running parallel to the access road twenty feet to the south, but still

parallel to the road. The transplanting of this fence severed a twenty foot swath of the

Horn’s horse pasture. Schroeder also removed gates two and three. Schroeder performed

the movement and removement for the purpose of expanding the width of the access road

to forty feet. Thereafter, the Horns installed an unlocked gate along the access road.

       On August 18, 2015 Jeffrey Horn and some colleagues menaced Steven Schroeder

and his tenant, Anthony Bell, by displaying a rifle scope pointed in the direction of Bell’s

cabin. On August 20, Steven Schroeder cursed and threatened Jeffrey and Kristina Horn

and the couple’s ten-year-old son. Schroeder yelled: “‘I’m going to kill you, the kid, and

horses.’” “‘I’ll run you out of this country.’” CP at 184.

       During August 2015, Jeffrey and Kristina Horn cluttered and impeded passage on

the easement. The couple dumped cat litter, chicken waste, and horse manure on the

                                              4
No. 34908-0-III
Horn v. Schroeder


access road. They laid tree limbs across the easement and installed wire gates across the

road. Steven Schroeder responded by repeatedly cutting the wire.

       In early September 2015, Steven Schroeder’s tenant, Gordon Foster, stopped his

vehicle and attempted to move tree limbs placed across the road. Foster enjoys limited

use of his legs and fell as he stooped. An ambulance transported Foster to a hospital.

Jeffrey and Kristina Horn obtained an anti-harassment order against Steven Schroeder,

which reduced the neighborhood scrum.

                                       PROCEDURE

       In August 2015, Jeffrey and Kristina Horn filed a complaint against Steven

Schroeder for damages resulting from trespass and for declaratory and injunctive relief.

The Horns sought a declaration as to the party’s rights with regard to the width and use of

the easement. They also sought an injunction prohibiting Schroeder from further

destruction to their gates and to restore existing fencing and gates. Steven Schroeder

denied any trespass and claimed that, under the easement, he had the right to remove any

impediment to the full forty feet of the easement. He sought relief from the Horns’

conduct.

       Following a bench trial, the trial court ruled:

              The historic width of the traveled easement is 12’ to 14’ in width,
       which includes room for maintenance. This shall be the width of the
       easement road running east beyond the established driveway running east
       from Williams Lake Road to the residence of Jeffrey V. Horn and Kristina
       I. Horn, husband and wife. The 12’ to 14’ traveled easement road, running

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No. 34908-0-III
Horn v. Schroeder


       from Williams Lake Road to the Schroeder property, Tax Parcel 2339200,
       can be broadened up to 40’ when the 41.9 acres presently owned by Steven
       F. Schroeder is developed—when the property is formally divided.
              . . . The gate(s) and fences shall be installed and erected by Steven F.
       Schroeder as they were located when Jeffrey V. Horn and Kristina I. Horn
       acquired their property on January 16, 2015. Steven. F. Schroeder shall
       complete installation and erection of the gate and fences within 30 days of
       the entry of this ruling. The gate and fences shall be of at least the same
       quality as those removed, or moved. Further, a gate shall be of light
       aluminum construction, which opens and closes easily, and which can be
       fastened in either direction.
              . . . The remaining damages to the property of Jeffrey V. Horn and
       Kristina I. Horn, namely the destruction of [g]ate 1 in the amount of
       $309.99 is offset by the damage to the easement road in the form of
       obstructions placed on the easement road, including the wire fences. No
       damages are awarded either party under RCW 4.24.630.

CP at 188-89.

                                 LAW AND ANALYSIS

       Steven Schroeder assigns error to the trial court’s limiting his use of the forty foot

easement for access to twelve to fourteen feet until he formally plats his acreage for

development and to ordering him to reinstall gates and fencing he removed from the

easement. We discern only one limited error.

       Steven Schroeder asks that we enforce the entire forty foot easement granted to his

west land in the 1983 real estate contract, prevent Jeffrey and Kristina Horn’s use of the

entire forty feet, and permit him to grade and guard the access as he sees fit. Schroeder’s

argument, however, ignores the legal principle that the servient landowner still holds




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No. 34908-0-III
Horn v. Schroeder


rights to use of land crossed by an easement. The dominant landowner lacks full control

over the land within the easement.

       A servient land owner may use his property in a reasonable manner that does not

interfere with the purpose of the easement. Littlefair v. Schulze, 169 Wn. App. 659, 665,

278 P.3d 218 (2012). Whether or not the owner of land, over which an easement exists,

may erect and maintain fences, bars, or gates across or along the path of an easement

depends on the intention of the parties connected with the original creation of the

easement as shown by the circumstances of the case, including the nature and situation of

the property subject to the easement and the manner in which the parties have used and

occupied the way. Evich v. Kovacevich, 33 Wn.2d 151, 162, 204 P.2d 839 (1949).

       When determining the scope of an easement we seek to effectuate the intent of the

parties who created it. Butler v. Craft Engineering Construction Co., 67 Wn. App. 684,

698, 843 P.2d 1071 (1992). When specific, unambiguous language creates an easement,

that language may determine the permitted uses and the parties’ intent as to its scope.

Wilson & Son Ranch, LLC v. Hintz, 162 Wn. App. 297, 305, 253 P.3d 470 (2011). If the

language creating the easement is ambiguous regarding permissible uses, the parties’

intent may be determined by factors outside the terms of the grant. Logan v. Brodrick, 29

Wn. App. 796, 799-800, 631 P.2d 429 (1981).

       The express easement created in the 1983 real estate contract granted a perpetual,

nonexclusive, forty foot easement for ingress, egress and utilities with the right to

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No. 34908-0-III
Horn v. Schroeder


maintain the same. The parties to the contract intended to allow access to a landlocked

parcel, which access would permit future development on the dominant estate. Steven

Schroeder’s property has remained rural and undeveloped. The construction of fences on

the Horns’ property for purposes of horse pasturing does not conflict with the original

intent of the creators of the easement because the access road still fulfills the existing

need for ingress, egress, and utilities to Steven Schroeder’s undeveloped parcel. That

need currently extends only to fourteen feet or less. The easement may expand on future

development.

       Steven Schroeder argues that the trial court failed to recognize Steven Schroeder’s

ancillary use of the easement such as grading, maintenance, and plowing snow from the

road. We disagree. The trial court found that Schroeder’s maintenance of the road only

used up to fourteen feet in width. Schroeder does not challenge the finding of fact.

Unchallenged findings of fact become verities on appeal. State v. Stenson, 132 Wn.2d

668, 697, 940 P.2d 1239 (1997).

       The trial court ordered Steven Schroeder to reinstall all three of the original gates,

known as gates one, two, and three. We note that gate three lies inside Schroeder’s land,

and he holds the prerogative to remove or destroy gates inside his property.




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No. 34908-0-III
Horn v. Schroeder


                                     CONCLUSION

       Other than the order directing Steven Schroeder to re-erect gate three, we affirm

the trial court's rulings.

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

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

2.06.040.

                                            ~                 s
                                          Fearin~           I
WE CONCUR:




Lawrence-Berrey, C.J.
                             1   C.. ~.




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