                                                                                           Filed
                                                                                     Washington State
                                                                                     Court of Appeals
                                                                                      Division Two

                                                                                      January 7, 2020


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II
    THOMAS G. BOWDISH and CHARLENE                               No. 52227-6-II
    P. BOWDISH LIVING TRUST, and
    THOMAS G. BOWDISH and CHARLENE P.
    BOWDISH, husband and wife,

                       Appellants,

         v.

    KAREN K. DECARUFEL, as Trustee of the                  UNPUBLISHED OPINION
    R & J FAMILY TRUST and ROGER
    RICKER and JEANNETTE RICKER, husband
    and wife,

                       Respondents.

        SUTTON, J. — This property dispute concerns three easements involving landowners who

own adjoining lots in Seamount Estates. The landowners are Thomas and Charlene Bowdish, who

own lots 9, 10, and 11,1 and Roger and Jeannette Ricker, who own lot 12.2 The Bowdishes appeal

the superior court’s conclusions of law related to the easements, the judgment quieting title to

certain property, and the order awarding the Rickers’ attorney fees based on the Bowdishes

trespass onto the Rickers’ property.



1
 The Bowdish Living Trust is named as an appellant along with Thomas and Charlene Bowdish.
This opinion refers to the appellants collectively as the Bowdishes unless otherwise indicated.
2
  The R & J Family Trust and Karen Decarufel, as Trustee of the R & J Family Trust, are named
as respondents along with Roger and Jeannette Ricker, as husband and wife. This opinion refers
to the respondents collectively as the Rickers unless otherwise indicated.
No. 52227-6-II


          The Bowdishes argue that the superior court erred by (1) concluding that the Rickers had

acquired title to the property west of the Bowdishes’ fence erected on lot 11, (2) concluding that

the Rickers established an easement for a gravel driveway across lot 11, connecting lot 12 to the

main road in Seamount Estates, (3) concluding that an access easement existed over lots 5, 6, 7, 8,

9, 10, and 11, and terminated at lot 12,3 (4) concluding that the Bowdishes did not have a ten-foot

wide easement for utilities, five feet on either side of the common boundary line between lot 11

and lot 12, (5) awarding attorney fees to the Rickers under RCW 4.24.630(1), and (6) concluding

that the Rickers did not trespass upon Bowdishes’ property and, therefore, denying the Bowdishes’

claim for an award of treble damages and attorney fees under RCW 4.24.630(1). Both parties

request an award of attorney fees on appeal.

          We affirm the trial court’s conclusions of law related to the judgment quieting title, the

three easements at issue, the attorney fee award to the Rickers, and the denial of treble damages

and attorney fees to the Bowdishes. We also grant the Rickers an award of reasonable attorney

fees on appeal relating to their RCW 4.24.630(1) claim, and deny the Bowdishes’ request for

attorney fees on appeal relating to their RCW 4.24.630(1) claim.

                                               FACTS

                                          I. BACKGROUND

          This case involves property lots within Seamount Estates. Seamount Estates was originally

platted in 1977 and was replatted in 1979. The Bowdishes own lots 9, 10, and 11 within Seamount

Estates. The Rickers own lot 12. The Bowdishes purchased lots 9 and 10 in 1976 and then




3
    The property owners of lots 5-8 were not parties.


                                                  2
No. 52227-6-II


purchased lot 11 from Gordon Pettit in 1988. The Rickers purchased lot 12 from Leta Pettit,

Gordon Pettit’s widow, in 2003. Lot 11 and lot 12 are adjacent lots. Lot 11 lies to the east of lot

12.

       When the Rickers purchased lot 12, the sole means of access to the property was a gravel

driveway from Cirque Drive, the main road in Seamount Estates, which traverses a small portion

of lot 11. The prior owners of lot 12, the Pettits, used the gravel driveway as their sole means of

accessing lot 12 from the inception of their ownership of lots 11 and 12.

       The plat and the replat of Seamount Estates depict an access easement from Cirque Drive

that begins at the southwest corner of lot 5, traverses lots 5, 6, 7, 8, 9, 10, and 11, and terminates

in the northeast corner of lot 12. There is a road on this easement that all lot owners, except the

Bowdishes, use to access their properties.

       When Ricker purchased lot 12, there was an asphalt driveway at the northeast corner of the

lot in the precise location of the access easement depicted in the plat and the replat. This easement

is also referenced in the Protective Covenants of Seamount Estates. Paragraph 16 of the Protective

Covenants provides that “[t]he lot owners or contract purchasers of lots 5 through 12 are

responsible for the upkeep of the access road servicing their lots.” Exhibit 24.

       The Protective Covenants also reference a ten-foot utilities easement, five feet on either

side of the common boundary line of each lot in Seamount Estates. The Protective Covenants,

dated January 20, 1977, were initially recorded on September 6, 1997. The Quit Claim Deed from

the developers to Seamount Estates Community Club was dated April 8, 1977, and recorded on

May 24, 1977. The Protective Covenants were subsequently re-recorded by Seamount Estates on

March 18, 1994.



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No. 52227-6-II


       In 2001, Mr. Bowdish built a four-panel fence that started at a survey stake near the

northeast corner of the Rickers’ property and continued along the eastern side of lot 11. Mr.

Bowdish told Mr. Ricker that the fence was the boundary line between lots 11 and 12. Mr.

Bowdish showed Mr. Ricker a survey stake that Mr. Bowdish claimed marked the northeast corner

of the Rickers’ property. Mr. Ricker accepted Mr. Bowdish’s representations.

       The fence Mr. Bowdish erected blocked the asphalt driveway that could have provided

access to the northeast corner of lot 12 from the access easement. Mr. Bowdish told Mr. Ricker

that the driveway was installed by the county in error. Mr. Ricker relied on Mr. Bowdish’s

explanation.

       Based on Mr. Bowdish’s representations regarding the boundary line between lots 11 and

12, the Rickers continued to use the gravel driveway to access lot 12 and maintained their property

up to the fence. After Mr. Bowdish erected the fence on lot 11, the Bowdishes did not use, occupy,

or maintain any portion of property west of the fence.

       In 2007, the Rickers removed an existing mobile home on lot 12 and began building a new

house. The new house was completed in 2010. Mr. Ricker sited the new house on the property

based on the gravel driveway being the only access point to lot 12. During the building process,

Mr. Ricker excavated up to the fence line on lot 11 and Mr. Bowdish did not object. While Mr.

Ricker was excavating his property, he accidentally covered up a survey stake denoting the

boundary line between lot 11 and lot 12. Mr. Ricker also built a patio lined by manor blocks which

came within inches of the Bowdishes’ fence on lot 11. The Bowdishes did not object to the

location of the patio.




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No. 52227-6-II


       In 2014, the Bowdishes decided to clear cut lot 11. In preparation of the work, the

Bowdishes hired Daniel Holman to survey lot 11. Holman’s survey showed that the northeast

corner of lot 12 was actually 42 inches west of the fence Mr. Bowdish put up in 2001. After the

2014 survey, the Bowdishes repeatedly came onto the Rickers’ property and caused damage. The

Bowdishes moved or removed manor blocks; spray painted the Rickers’ patio area, fence, flower

beds, and manor block walls; killed ground cover vegetation using Roundup; damaged the Rickers’

split rail fence; and damaged the Rickers’ street number sign.

       In 2015, Holman conducted a second survey. The 2015 survey showed that a portion of

the Rickers’ patio and the manor block wall containing the patio were encroaching on lot 11. Mr.

Bowdish removed the fence on lot 11 shortly after Holman completed the 2015 survey. After Mr.

Bowdish removed the fence, he placed a large pile of rocks to continue blocking the Rickers’

access to lot 12 at the northeast corner of the property.

       In 2016, the Bowdishes filed a complaint to quiet title, for damages, and for injunctive

relief. The Bowdishes claimed that (1) the Rickers trespassed and caused a nuisance, (2) the

Rickers interfered with an easement, (3) the Rickers’ acts constituted trespass warranting treble

damages and attorney fees under RCW 4.24.630, (4) the Bowdishes were entitled to injunctive

relief, and (5) the title to the easements at issue should be quieted in the Bowdishes’ favor. The

Rickers counterclaimed and contended that (1) they had acquired an ownership interest in the strip

of land between lot 12 and the fence Mr. Bowdish constructed via adverse possession, (2) the

Bowdishes, alternatively, were estopped from denying the Rickers their ownership interest, (3) the

Rickers had acquired a prescriptive easement over and across lot 11 for their gravel driveway, and

(4) the Bowdishes trespassed onto the Rickers’ property and caused injury under RCW 4.24.630.



                                                  5
No. 52227-6-II


                                     II. TRIAL PROCEEDINGS

       After a three day bench trial, the trial court concluded that (1) the Rickers had established

and acquired title to the strip of property west of the Bowdishes’ fence at issue between lot 11 and

lot 12 and (2) the Rickers had established an easement from the gravel driveway on their lot 12

over a portion of the Bowdishes’ lot 11 to connect to Cirque Drive.

       The trial court entered the following findings of fact:

       1. Plaintiff Bowdish bought Lots 9 and 10 on real estate contracts in 1976 from the
       Seamount Estate developers. Bowdish bought Lot 11 from Pettit in 1988. He
       purchased all three lots subject to the provisions of the plats and covenants.

       2. The Plat and Replat of Seamount Estates depict an easement for access and
       utilities over and across Lots 5, 6, 7, 8, 9, 10[,] and 11 to provide access for those
       lots as well as Lot 12.

       3. The Restrictive Covenants of Seamount Estates state that a 10-foot utility
       easement is “reserved” to the original owners/developers on the five-feet of each
       lot’s boundary line. No such easement was granted or easement to Lot 11 or to any
       other lot within the development. Instead, [a] utility easement is reserved to the
       developers and subsequently to the homeowners’ association.

       4. Pettit continued to own Lot 12 after selling Lot 11 to Bowdish. Pettit had a
       mobile home on Lot 12 and just south of the mobile home he had a gravel driveway
       on his property which ran southeasterly over a portion of Lot 11 and connected with
       Cirque Drive. Pettit had used the driveway when he owned both Lot 11 and Lot 12
       and continued to use the driveway after he sold Lot 11 to Bowdish.

       5. In 2003, Pettit’s widow sold Lot 12 to [] Ricker on a real estate contract. At the
       time, Ricker purchased his property, Bowdish pointed out to Ricker the corners of
       Lots 11 and 12, pointing out the northeast corner of Lot 12 and the southeast corner
       of Lot 11 marked by a corner marker.

       6. Bowdish subsequently erected a fence where the stake was that Bowdish had
       pointed out to Ricker. The fence blocked the paved apron which ran up to Lot 12.
       Bowdish told Ricker there was no easement over that area. Bowdish told Ricker
       the fence was on the property line and it did completely block the asphalt driveway
       approaching Lot 12 from the east. Bowdish built the fence for two reasons. First,
       he wanted to block Lot 12 from being able to use the access easement which runs



                                                 6
No. 52227-6-II


       from Lot 5 to Lot 12 as shown on the Plat and Replat. Second, he wanted to mark
       what he thought was the boundary line.

       7. From 2003 until 2007, Ricker did some landscaping including putting a one-
       brick level string of bricks along the north edge of his gravel driveway which was
       later raised at Bowdish’s request to accommodate a shared flower bed. Bowdish
       never claimed or used any property west of the fence he had built; only Ricker used
       the area.

       8. In 2007, Ricker tore down the mobile home on Lot 12 and started building his
       new home. If Ricker had had access to Lot 12 at the northeast corner of the lot, he
       would have built the house further south on Lot 12 and would have put his garage
       up on the northern part of Lot 12 and used the access there into Lot 12.

       9. In addition to building his home, Ricker also constructed a manor stone patio at
       the northeast comer which came within inches of the wood fence Bowdish had
       constructed.

       10. Ricker continued to use the gravel driveway across a portion of Lot 11 to access
       his property.

       11. In 2014, Bowdish hired Daniel Holman to conduct a survey of Lot 11. The
       survey showed that the fence Bowdish had erected was approximately two feet east
       of the property line. Holman conducted a second survey in 2015 which showed
       that some portion of Ricker’s manor stone patio encroached on Lot 11. Shortly
       thereafter, Bowdish removed the wood fence, pulled up the flower beds and
       rockeries he had put in, and piled up rocks to continue to block the access from the
       easement way to Lot 12.

       12. After the second survey, Bowdish, or his children under his direction, went
       onto Ricker’s property and moved or removed manor stones, spray painted with
       white paint Ricker’s patio, fence, flower beds, and manor stone walls; killed ground
       cover vegetation; damaged the split rail fence; and deliberately damaged Ricker’s
       street number address sign.

       ....

       14. While excavating Lot 11 in preparation for building his home, Ricker
       inadvertently or carelessly covered up a survey marker along the boundary of Lots
       11 and 12.

Clerk’s Papers (CP) at 146-48.




                                                7
No. 52227-6-II


      The trial court entered the following conclusions of law:

      1. [The Rickers] have established and acquired title to the property west of the
      four-panel fence built by [Bowdish] by estoppel in pais and by adverse possession.
      The boundary line starts from the iron pipe near the northernmost fence post of the
      Bowdish fence and runs southerly in a straight line to the #4 rebar identified at 0.25
      South, 0.14 East as depicted on the detail of the 2014 Holman survey admitted into
      evidence as Exhibit 3.

      2. [The Rickers] have established an easement from the gravel driveway on their
      Lot 12 over a portion of [the Bowdishes’] Lot 11 to connect to Cirque Drive on
      several bases. First, there is an access easement over Lot 11 in accordance with the
      Plat and Replat. Second, [the Rickers] have established a prescriptive easement
      having used the easement openly and notoriously for the required 10-year period.
      Third, [the Rickers] have established an implied easement over the gravel driveway
      on Lot 11 having shown the following elements: (1) unity of title and a subsequent
      separation; (2) an apparent and continuous quasi easement existing for the benefit
      of one part of the estate to the detriment of the other during the unity of title; and
      (3) a certain degree of necessity that the quasi easement exist after severance.

      3. [The Bowdishes are] liable to [the Rickers] for attorney’s fees and costs under
      RCW 4.24.630 for trespassing and causing damage to [the Rickers’] property by
      going onto [the Rickers’] property and moving or removing manor stones, spraying
      white paint on [the Rickers’] patio, fence, flower beds and manor stone walls,
      killing ground cover vegetation, damaging the split rail fence, and deliberately
      damaging [the Rickers’] street number sign. These acts were clearly “wrongful” as
      contemplated by the statute.

      4. [The Rickers have] an access easement from Lot 5 to their Lot 12 over and across
      [the Bowdishes’] Lots 9, 10[,] and 11 as shown on the Seamount Estates Plat and
      Replat and referenced in [the Bowdishes’] Deed.

      ....

      6. [The Rickers] are liable to [the Bowdishes] for damages in the amount of $750
      for obliterating a survey stake. However, [the Rickers’] acts were not “wrongful”
      as that term is defined in RCW 4.24.630 and [Bowdish] is not entitled to treble
      damages or an award of attorney’s fees.

      7. [Bowdish] does not have a ten-foot wide utility easement, 5 feet on either side
      of the common boundary between Lots 11 and 12. The utility easement is reserved
      to the developer and subsequently to the homeowners’ association. [The
      Bowdishes’] request to quiet title to this easement is therefore denied.



                                                8
No. 52227-6-II



CP at 148-50.

                                       III. ATTORNEY FEES

       Based on its finding that Mr. Bowdish had trespassed on the Rickers’ property and caused

damage, the trial court awarded the Rickers reasonable attorney fees pursuant to RCW 4.24.630(1).

The Rickers’ attorney submitted a declaration regarding legal fees which stated that the Rickers

expended $18,969.67 defending the claims asserted by the Bowdishes and pursuing the

counterclaims against Bowdish. The trial court determined that only three of the seven issues

litigated at trial involved trespass onto the Rickers’ property and awarded the Rickers 3/7ths of the

total amount of legal fees expended, or $8,100. Judgment was entered against the Bowdishes for

that amount, less the $750 the Bowdishes were awarded for damage to their survey marker, for a

total of $7,350 awarded to the Rickers.

       The Bowdishes appeal.

                                            ANALYSIS

                                       I. LEGAL PRINCIPLES

       We review a trial court’s decision following a bench trial to determine whether the findings

are supported by substantial evidence and whether those findings support the conclusions of law.

Herring v. Pelayo, 198 Wn. App. 828, 832, 397 P.3d 125 (2017). Unchallenged findings of fact

are verities on appeal.4 Herring, 198 Wn. App. at 833. We review conclusions of law de novo to

determine if the findings of fact support the conclusions of law. Scott’s Excavating Vancouver,




4
 The Bowdishes do not assign error to any of the trial court’s findings of fact, and thus, they are
verities on appeal. Herring, 198 Wn. App. at 833.


                                                 9
No. 52227-6-II


LLC v. Winlock Prop., LLC, 176 Wn. App. 335, 342, 308 P.3d 791 (2013). We defer to the trial

court on issues of conflicting evidence, witness credibility, and persuasiveness of the evidence.

Scott’s Excavating, 176 Wn. App. at 342.

                    II. TITLE TO PROPERTY WEST OF THE BOWDISHES’ FENCE

       The Bowdishes argue that the trial court erred by concluding that the Rickers had acquired

title to the strip of property along the property line on the west side of the Bowdishes’ property

between lots 11 and 12 by equitable estoppel. We disagree and hold that the trial court did not err

when it determined that the Rickers acquired title to the strip of property along the property line

on the west side of lot 11 by equitable estoppel.5

       Here, the trial court entered the following findings:

       6. Bowdish subsequently erected a fence where the stake was that Bowdish had
       pointed out to Ricker. The fence blocked the paved apron which ran up to Lot 12.
       Bowdish told Ricker there was no easement over that area. Bowdish told Ricker
       the fence was on the property line and it did completely block the asphalt driveway
       approaching Lot 12 from the east. Bowdish built the fence for two reasons. First,
       he wanted to block Lot 12 from being able to use the access easement which runs
       from Lot 5 to Lot 12 as shown on the Plat and Replat. Second, he wanted to mark
       what he thought was the boundary line.

       7. From 2003 until 2007, Ricker did some landscaping including putting a one-
       brick level string of bricks along the north edge of his gravel driveway which was
       later raised at Bowdish’s request to accommodate a shared flower bed. Bowdish
       never claimed or used any property west of the fence he had built; only Ricker used
       the area.

       8. In 2007, Ricker tore down the mobile home on Lot 12 and started building his
       new home. If Ricker had had access to Lot 12 at the northeast corner of the lot, he
       would have built the house further south on Lot 12 and would have put his garage
       up on the northern part of Lot 12 and used the access there into Lot 12.



5
 The trial court also concluded that the Rickers acquired this property by adverse possession.
Because we affirm based on equitable estoppel, we need not address adverse possession.


                                                 10
No. 52227-6-II


       9. In addition to building his home, Ricker also constructed a manor stone patio at
       the northeast comer which came within inches of the wood fence Bowdish had
       constructed.

       ....

       11. In 2014, Bowdish hired Daniel Holman to conduct a survey of Lot 11. The
       survey showed that the fence Bowdish had erected was approximately two feet east
       of the property line. Holman conducted a second survey in 2015 which showed
       that some portion of Ricker’s manor stone patio encroached on Lot 11. . . .

CP at 147-48. Because the Bowdishes did not assign error to these findings, they are verities.

Herring, 198 Wn. App. at 833.

       The doctrine of equitable estoppel rests on the principle that a person “shall not be

permitted to deny what he has once solemnly acknowledged.” Arnold v. Melani, 75 Wn.2d 143,

147, 449 P.2d 800 (1968). Equitable estoppel requires that the party asserting it prove the

following three elements:

       (1) an admission, statement, or act inconsistent with the claim afterwards asserted;
       (2) action by the other party on the faith of such admission, statement or act; and
       (3) injury to such other party resulting from allowing the first party to contradict or
       repudiate such admission, statement, or act.

Nickell v. Southview Homeowners Ass’n, 167 Wn. App. 42, 54, 271 P.3d 973 (2012) (quoting

Thomas v. Harlan, 27 Wn.2d 512, 518, 178 P.2d 965 (1947)).

       Here, as to the first element, it is undisputed that Mr. Bowdish made a statement

inconsistent with the claim afterwards asserted because he told the Rickers that the fence

Mr. Bowdish built on lot 11 was on the boundary line between lots 11 and 12. As to the second

element, the Rickers relied on Mr. Bowdish’s statement about the boundary line because (1) they

located their new house on lot 12 based on Bowdish’s statement, (2) they installed a row of patio

bricks against the fence, and (3) they built out a patio from the row of bricks against the fence to


                                                 11
No. 52227-6-II


the house. As to the third element, the Rickers were injured because the Rickers located their

house in a spot that they would not have otherwise chosen if they had not relied on Mr. Bowdish’s

statements regarding the property line and lot access. Because their patio was placed on the

disputed property, the Rickers would have had to tear out the patio if the Bowdishes were allowed

to repudiate their position.

       Accordingly, the trial court’s findings of fact support its conclusion of law that (1) the

Rickers have established and acquired title to the property west of the four-panel fence built by the

Bowdishes by equitable estoppel and (2) the “boundary line starts from the iron pipe near the

northernmost fence post of the Bowdish fence and runs southerly in a straight line to the #4 rebar

identified at 0.25 South, 0.14 East as depicted on the detail of the 2014 Holman survey admitted

into evidence as Exhibit 3.” CP at 148-49. We hold that the trial court did not err by making this

conclusion of law.

                                          III. EASEMENTS

       There are three easements at issue: (1) whether the Rickers have an implied easement over

lot 11 that provides access from lot 12 to Cirque Drive; (2) whether an easement for access exists

over and across lots 5, 6, 7, 8, 9, 10, and 11 and terminates in lot 12; and (3) whether the Bowdishes

have a ten-foot utilities easement, five feet on either side of the common boundary line, between

lots 11 and 12.

A. IMPLIED EASEMENT FROM LOT 12 TO CIRQUE DRIVE

       The Bowdishes argue that the trial court erred when it concluded that the Rickers had

established an implied easement over the Bowdishes’ property, lot 11, to Cirque Drive for the

Rickers to access their property, lot 12, via a gravel driveway. We disagree and hold that the trial



                                                 12
No. 52227-6-II


court did not err when it concluded that the Rickers established an implied easement over lot 11

from lot 12 to Cirque Drive.6

       Here, the trial court entered the following relevant findings:

       4. Pettit continued to own Lot 12 after selling Lot 11 to Bowdish. Pettit had a
       mobile home on Lot 12 and just south of the mobile home he had a gravel driveway
       on his property which ran southeasterly over a portion of Lot 11 and connected with
       Cirque Drive. Pettit had used the driveway when he owned both Lot 11 and Lot 12
       and continued to use the driveway after he sold Lot 11 to Bowdish. . . .

       ....

       8. In 2007, Ricker tore down the mobile home on Lot 12 and started building his
       new home. If Ricker had had access to Lot 12 at the northeast corner of the lot, he
       would have built the house further south on Lot 12 and would have put his garage
       up on the northern part of Lot 12 and used the access there into Lot 12.

       9. In addition to building his home, Ricker also constructed a manor stone patio at
       the northeast comer which came within inches of the wood fence Bowdish had
       constructed.

       10. Ricker continued to use the gravel driveway across a portion of Lot 11 to access
       his property.

CP at 147-48. Because the Bowdishes did not assign error to these findings, we treat them as

verities. Herring, 198 Wn. App. at 833.

       Implied easements arise from the intent of the parties, which we find from the facts and

circumstances surrounding the conveyance of land. Roberts v. Smith, 41 Wn. App. 861, 864, 707

P.2d 143 (1985). We look to three factors when considering whether an implied easement exists:

(1) former unity of title and subsequent separation, (2) prior apparent and continuous use of a




6
  The trial court also found that an easement existed based on the access easement on the plat and
replat and based on prescriptive easement theory. Because we affirm based on an implied
easement, we need not address the prescriptive easement.


                                                13
No. 52227-6-II


quasi-easement benefiting one part of the estate to the detriment of another, and (3) some degree

of necessity that the easement exist. McPhaden v. Scott, 95 Wn. App. 431, 437, 975 P.2d 1033

(1999).     The first factor—former unity of title and subsequent separation—is an absolute

requirement for an implied easement. Hellberg v. Coffin Sheep Co., 66 Wn.2d 664, 667-68, 404

P.2d 770 (1965); Roberts, 41 Wn. App. at 865. But the presence or the absence of the second and

third factors is not conclusive. Hellberg, 66 Wn.2d at 668; Roberts, 41 Wn. App. at 865. Instead,

those factors help the court to determine the parties’ intent by demonstrating the nature of the

property, the extent and character of the use of the property, and how the parts of the property

relate to each other. McPhaden, 95 Wn. App. at 437.

          Absolute necessity is not required to establish an implied easement. 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.” Bays v. Haven, 55 Wn. App. 324, 329, 777 P.2d 562 (1989). “Although prior use is

a circumstance contributing to the implication of an easement, if the land cannot be used without

the easement without disproportionate expense, an easement may be implied on the basis of

necessity alone.” Fossum Orchards v. Pugsley, 77 Wn. App. 447, 451, 892 P.2d 1095 (1995)

(citing Adams v. Cullen, 44 Wn.2d 502, 268 P.2d 451 (1954)).

          Here, as to the first factor, there was former unity of title and subsequent separation because

the trial court found that Pettit once owned both lot 11 and 12 and used the driveway that traverses

lot 11 to access lot 12 before he sold lot 11 to the Bowdishes. As to the second factor, there was

prior apparent and continuous use of a quasi-easement because Pettit continued to use the driveway

that traverses lot 11 to access lot 12 after he sold lot 11 to the Bowdishes.



                                                    14
No. 52227-6-II


       As to the third factor, the trial court found that there is some degree of necessity that the

easement exists because there is no other access point for lot 12. There is no other access point

because Mr. Bowdish blocked the entrance at the northeast corner of lot 12 in 2001.

       Accordingly, the trial court’s findings of fact support its conclusion of law that the Rickers

established an implied easement over lot 11 from lot 12 to Cirque Drive. We hold that the trial

court did not err by making this conclusion of law.

B. ACCESS EASEMENT

       The Bowdishes argue that the trial court erred when it concluded that there is an access

easement granted in the plat and replat of Seamount Estates over and across lot 11, the Bowdishes’

property, and terminates at lot 12, the Ricker’s property. We disagree and hold that the trial court

did not err when it determined that an access easement exists across lot 11, the Bowdishes’

property, and terminates at lot 12, the Rickers’ property, in accordance with the plat and replat of

Seamount Estates.

       Here, the trial court found that the plat and replat of Seamount Estates both depict an

easement for access over and across lots 5, 6, 7, 8, 9, 10, and 11, and terminates in lot 12 to provide

access for those lots. Because the Bowdishes did not assign error to this finding, it is treated by

this court as a verity. Herring, 198 Wn. App. at 833. The trial court’s finding is sufficient to

support its conclusion that an access easement exists over lot 11 and terminates in lot 12 in

accordance with the language in the plat and replat.

C. UTILITIES EASEMENT

       The Bowdishes argue that the trial court erred by concluding that they did not have a ten-

foot wide utilities easement, which includes five feet on either side of the common boundary line,



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between lot 11 and lot 12. We disagree and hold that the trial court did not err when it concluded

that the Bowdishes do not have a ten-foot wide utilities easement, five feet on either side of the

common boundary line, between lots 11 and 12.

       The trial court found that a ten-foot utilities easement, five feet on either side of the

common boundary line of each lot in Seamount Estates, was first referenced in the Protective

Covenants, dated January 20, 1977, and initially recorded on September 6, 1977. The court also

found that a Quit Claim Deed from the developers to Seamount Estates Community Club was

dated April 8, 1977, and recorded on May 24, 1977. The court further found that Protective

Covenants were subsequently re-recorded by Seamount Estates on March 18, 1994. Because the

Bowdishes did not assign error to these findings, they are verities. Herring, 198 Wn. App. at 833.

       Both of the recorded Protective Covenants state that the utilities easement is “reserved,”

rather than “granted.” Exs. 7, 24. Based on the trial court’s findings, the language in the recorded

Protective Covenants “reserved” the utilities easement. Thus, we hold that the trial court did not

err when it concluded that the Bowdishes do not have a utilities easement over the Rickers’

property.

                                       IV. ATTORNEY FEES

A. TRIAL COURT’S AWARD OF ATTORNEY FEES AND COSTS

       The Bowdishes argue that the trial court erred by awarding the Rickers attorney fees under

RCW 4.24.630(1), awarding the Rickers 3/7ths of the fees incurred, and failing to award treble

damages and attorney fees to the Bowdishes under RCW 4.24.630(1). We disagree.

       “An appellate court will uphold an attorney fee award unless it finds the trial court

manifestly abused its discretion.” Berryman v. Metcalf, 177 Wn. App. 644, 656-57, 312 P.3d 745



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(2013). “Discretion is abused when the trial court exercises it on untenable grounds or for

untenable reasons.” Berryman, 177 Wn. App. at 657. “Courts must take an active role in assessing

the reasonableness of fee awards, rather than treating costs as a litigation afterthought.” Mahler v.

Szucs, 135 Wn.2d 398, 434, 957 P.2d 632 (1998). “[The trial court] must supply findings of fact

and conclusions of law sufficient to permit a reviewing court to determine why the trial court

awarded the amount in question.” SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 144, 331 P.3d 40

(2014).

          RCW 4.24.630(1) authorizes an award of treble damages, plus reasonable attorney fees and

costs, payable by any “person who goes onto the land of another and . . . wrongfully injures

personal property or improvements to real estate on the land.” Clipse v. Michels Pipeline Constr.,

Inc., 154 Wn. App. 573, 576-77, 225 P.3d 492 (2010) (emphasis omitted). RCW 4.24.630(1)

further states that “a person acts ‘wrongfully’ if the person intentionally and unreasonably commits

the act or acts while knowing, or having reason to know, that he or she lacks authorization to so

act.” Clipse, 154 Wn. App. at 577, 580 (emphasis omitted) (a “wrongful” act must have been

intentional).

          Because Mr. Bowdish intentionally moved or removed manor stones; spray painted with

white paint the Rickers’ patio, fence, flower beds, and manor stone walls; killed ground cover

vegetation; damaged the split rail fence; and deliberately damaged the Rickers’ street number

address sign, Mr. Bowdish did wrongfully injure the Rickers’ property.             Therefore RCW

4.24.630(1) supports the trial court’s award of attorney fees and costs to the Rickers.

          The trial court awarded the Rickers 3/7ths of their requested attorney fees because they

prevailed on three of the seven issues they raised. The three issues the trial court awarded fees on



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were (1) the title to the property west of the fence, (2) the Rickers’ driveway easement, and (3) the

Bowdishes’ trespass and damage to the Rickers’ property. The Bowdishes argue that the trial court

erred in awarding 3/7ths of the fees incurred rather than some lesser amount. We conclude that

the trial court did not abuse its discretion in segregating attorney fees.

       Regarding the Bowdishes’ RCW 4.24.630(1) claim, Mr. Ricker did not cover the survey

marker along the boundary of lots 11 and 12 intentionally. Therefore, Mr. Ricker did not

wrongfully injure the Bowdishes’ property and RCW 4.24.630(1) cannot support an award of

attorney fees or treble damages to the Bowdishes.

       Accordingly, we affirm the trial court’s award of reasonable attorney fees to the Rickers

and the trial court’s denial of treble damages and attorney fees to the Bowdishes.

B. APPELLATE ATTORNEY FEES

       Citing RCW 4.24.630(1), the Bowdishes request an award of reasonable attorney fees and

costs on appeal. Under RAP 18.1, the prevailing party is entitled to attorney fees and costs on

appeal when applicable law authorizes the award. McGuire v. Bates, 169 Wn.2d 185, 191, 234

P.3d 205 (2010). We deny this request because the Bowdishes are not the prevailing party, and

thus, they are not entitled to appellate attorney fees and costs.

       Citing RCW 4.24.630(1), the Rickers also request an award of reasonable attorney fees and

costs on appeal. We grant this request because the Rickers are the prevailing party. However, the

Rickers can recover only those reasonable attorney fees relating to their RCW 4.24.630(1) claim.




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                                         CONCLUSION

        We affirm the trial court’s conclusions of law related to the judgment quieting title, the

three easements at issue, the attorney fee award to the Rickers, and the denial of treble damages

and attorney fees to the Bowdishes. We also grant the Rickers an award of reasonable attorney

fees on appeal relating to their RCW 4.24.630(1) claim.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    SUTTON, J.
 We concur:



 MAXA, C.J.




 LEE, J.




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