Melanie J. Bryant v. Stephen R. Sandberg, et ux ( 2019 )

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STEPHEN R. SANDBERG and ANNE D. ) UNPUBLISHED OPINION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
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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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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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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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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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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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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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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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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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