Young S. & Yong S. Kim, Apps. v. Kyung-rak & Jae Sook Kim,et Al., Res. ( 2013 )

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52 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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YOUNG S. KIM and YONG S. KIM, NO. 69274-7-1
a marital community,
DIVISION ONE
Appellants,
v.
KYUNG-RAK and JAE SOOK KIM, a UNPUBLISHED OPINION
marital community,
FILED: October 28, 2013
Respondents.
Lau, J. —This case involves an implied easement dispute between two
businesses over use of a shared parking lot. After a three-day bench trial, the trial court
determined that Kyung-Rak and Jae Sook Kim (Market Kims) established an implied
and/or prescriptive easement over Young and Yong Kim's (Restaurant Kims) property to
allow for patron parking and movement ofdelivery and service trucks.1
1The parties are not related despite having the same surname. To avoid
confusion at trial and on the record, both parties' counsel and the trial court referred to
plaintiffs/appellants as "Restaurant Kims" and defendants/respondents as "Market
Kims." For clarity, we use those same references here.
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The court also awarded injunctive relief requiring Restaurant Kims to remove a "privacy
fence" that blocked the easement. Restaurant Kims challenge numerous trial court
findings of fact and conclusions of law. Because (1) the trial court demonstrated it
had ample memory of the trial evidence justifying its findings and conclusions and
(2) substantial evidence supports the findings of fact and the findings support the
conclusions of law regarding implied easement, we affirm.
FACTS2
Market Kims own and operate a small market on a parcel of land (the market
parcel) in Birch Bay, Whatcom County. The market has operated on the market parcel
in one form or another for over 50 years. Restaurant Kims own the adjacent property
(the restaurant parcel), which contains several buildings. The primary structure is used
for a teriyaki restaurant business. The two parcels share a parking lot. The parking lot
has a single access route over the market parcel.
Both parcels were originally owned by the Vogt family. In the 1920s, the market
parcel was known as the "Bay Center Resort" and had a gas station pump, a small
market, and vacation rental cottages that were located on what is now the restaurant
parcel. In approximately 1961, the old Bay Center Resort structure was torn down and
the current market structure was built. At that time, the structure that now houses the
teriyaki restaurant on the restaurant parcel did not yet exist.
In 1965 and 1966, William Vogt acquired common ownership of both parcels. In
approximately 1972, he added a rear loading dock and annexes used for garages or
2 Restaurant Kims raise 37 assignments of error, 14 of which relate to specific
findings of fact. See Appellant's Br. at 4-8. The findings of fact cited in this section
were neither assigned as error nor argued in the briefing.
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storage bays to the market. Market vendors routinely used the loading dock and
storage bays to deliver goods and services to the market. This required delivery trucks
to cross over what is now the property line into what is now a portion of the restaurant
parcel's parking lot. Numerous trial witnesses testified that vehicles accessing the
market parcel "use, and have for decades used, that portion of the parking lot located
on the Restaurant Parcel to maneuver and park."
Common ownership of the market parcel and restaurant parcel ended in 1978
when the Vogts quitclaimed the restaurant parcel to their daughter, Penny Beebe. No
formal easement was executed and the same pattern of restaurant parcel parking lot
use described above continued during Beebe's ownership. Beebe and her husband
built the structure later operated by Restaurant Kims as a teriyaki restaurant. The
Beebes lived in the building and operated a gift shop and managed nearby rental
cottages that they later sold.
In 1996, the Beebes sold the restaurant parcel to Restaurant Kims.3 No formal
easement was signed. In conjunction with the sale, the Vogts, then owners of the
market parcel, granted Restaurant Kims an express easement allowing access over the
market parcel. Even after the Beebes' sale and Market Kims' purchase ofthe market
parcel from the Vogts in 1997, market patrons, vendors, and service providers
continued to use the Restaurant Parcel's parking lot for ingress, egress, access,
parking, and delivery of services and goods.
3 Restaurant Kims assign partial error to this finding, but the only error assigned
relates to the sale date. Because we need not address the prescriptive easement issue
for reasons noted below, any error is immaterial.
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Restaurant Kims filed a lawsuit in 2005 against several entities over recorded
easements.4 Those entities joined Market Kims as named defendants. Market Kims
asserted implied and prescriptive easements over the disputed parking areas. After a
three-day bench trial, the trial court issued a letter ruling concluding Market Kims
established implied and prescriptive easements over the disputed parking areas. The
court also ordered Restaurant Kims to remove the privacy fence and bollards
Restaurant Kims installed in the easement area. Over two years later, the trial court
entered its findings of fact and conclusions of law. The court denied Restaurant Kims'
motions for new trial and reconsideration.
ANALYSIS
Standard of Review
We review the 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. Sunnvside Valley Irrigation Dist. v. Dickie, 149 Wash. 2d 873, 880,
73 P.3d 369 (2003); Morgan v. Prudential Ins. Co. of Am.. 86 Wash. 2d 432, 437, 545 P.2d
1193 (1976). The label applied to a finding or conclusion is not determinative; we "will
treat it for what it really is." Para-Medical Leasing. Inc. v. Hangen, 48 Wash. App. 389,
397, 739 P.2d 717 (1987). Substantial evidence is a quantum of evidence sufficient to
persuade a rational and fair minded person that the premise is true. Wenatchee
Sportsmen Ass'n v. Chelan County. 141 Wash. 2d 169, 176, 4 P.3d 123 (2000). In
determining the sufficiency of evidence, we need only consider evidence favorable to
the prevailing party. Bland v. Mentor. 63 Wash. 2d 150, 155, 385 P.2d 727 (1963). We
4Those entities are not involved in this appeal.
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defer to the trial court's assessment of witness credibility and evidence weight. In re
Welfare of Sego. 82 Wash. 2d 736. 739-40, 513 P.2d 831 (1973). We will not substitute
our judgment for that of the trial court, even if we might have resolved the factual
dispute differently. Dickie. 149 Wn.2d at 879-80. Unchallenged findings of fact are
verities on appeal. In re Estate of Jones. 152 Wash. 2d 1, 8, 93 P.3d 147 (2004); RAP
10.3(g).
An unchallenged conclusion of law becomes the law of the case. King Aircraft
Sales. Inc. v. Lane. 68 Wash. App. 706, 716, 846 P.2d 550 (1993). We review
conclusions of law de novo. Dickie. 149 Wn.2d at 879-80. But when an appellant
challenges conclusions of law not based on the law itself, but rather claiming that the
findings do not support the court's conclusions, appellate review is limited to
determining whether the trial court's findings are supported by substantial evidence and,
if so, whether those findings support the conclusions of law. Am. Nursery Prods. Inc. v.
Indian Wells Orchards. 115 Wash. 2d 217, 222, 797 P.2d 477 (1990); Willener v. Sweeting.
107 Wash. 2d 388, 393, 730 P.2d 45 (1986).
Findings and Conclusions
Delay
Restaurant Kims claim the trial court's delayed entry of findings and conclusions
warrants de novo review.5 Market Kims respond that the trial court's accurate memory
of the trial facts renders its findings and conclusions valid.
5The court's ruling found in favor of Market Kims on their implied and prescriptive
easement claims.
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CR 54(e) provides that the prevailing party shall prepare and present a proposed
form of order or judgment no later than 15 days after the court's decision, unless
otherwise directed by the court. Restaurant Kims cite no Washington authority holding
that, as a matter of law, substantial delay in entering findings and conclusions requires
de novo review of the entire record.6 Similar rules in the criminal context require a
showing of prejudice before delayed findings warrant a remedy, including dismissal. Cf.
State v. Roval. 122 Wash. 2d 413, 423, 858 P.2d 259 (1993) (juveniles); State v. Cannon.
130Wn.2d313, 330, 922 P.2d 1293 (1996) (trial court's failure to file). Restaurant Kims
establish no prejudice based on the court's tardy entry of the findings and conclusions.
Nor is there any indication that the findings and conclusions are unreliable. The record
here shows the trial court's vivid memory of the trial and the testimony. The trial judge
6 Restaurant Kims quote Keller v. U.S.. 38 F.3d 16, 21 (1st Cir. 1994), to argue
that "Excessive delay in the entry of findings of fact and conclusions of law require, on
appeal, 'de novo scrutiny ofthe entire record with a view to whetherthe prolonged delay
in reaching a decision rendered the trial court's findings of fact unreliable . . . .'"
Appellant's Br. at 18. But Keller involved "an unprecedented eight-yeardelay between
trial and the entry of judgment, coupled with the trial judge's failure to refresh his
recollection through recourse to a complete trial transcript prior to making findings of
fact " Keller. 38 F.3d at 20. Here, the delay was two years, not eight. And the trial
court described its review of the record and testimony and stated it had a vivid memory
of the trial.
Restaurant Kims also cite State v. Portomene. 79 Wash. App. 863, 864-65, 905
P.2d 1234 (1995) to argue that Market Kims "simply tailored the findings to meet their
burden on appeal." Appellant's Br. at 18. Restaurant Kims refer to the general rule in
criminal cases that where the State fails to prepare written findings and conclusions until
after the defendant files an opening brief on appeal, we must carefully consider whether
the proposed findings were tailored to meet issues raised in the defendant's appellate
brief. Portomene. 79 Wn. App. at 864-65. The true problem arises when findings are
entered after an appeal has been filed and it is clear that the prevailing party tailored or
altered the proposed findings and conclusions "to meet issues and arguments raised by
[the losing party] in his brief to the Court ofAppeals." Cannon. 130 Wn.2d at 330. This
rule is inapplicable. Market Kims proposed findings and conclusions before any appeal
was filed.
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refreshed his memory by reviewing the trial transcripts, his trial notes, admitted exhibits,
the parties' trial notebooks, and court files. The claim fails.
Challenged Findings of Fact 5. 7. 8. 10. 18. 23. 25. 30. 31. 34. 36. 38.
39.40
Market Kims contend that most of the challenged findings are inadequately
briefed and argued. We agree.
"RAP 10.3 requires appellant to present argument to the reviewing court as to
why specific findings of fact are in error and to support those arguments with citation to
relevant portions of the record." In re Disciplinary Proceeding Against Whitney. 155
Wash. 2d 451, 466, 120 P.3d 550 (2005); see also RAP 10.3(g) ("A separate assignment
of error for each finding of fact a party contends was improperly made must be included
with reference to the finding by number."). When challenges to findings of fact are
insufficiently briefed, we decline to address those challenges and consider the findings
verities on appeal. Whitney. 155 Wn.2d at 467; United Dev. Corp. v. City of Mill Creek.
106 Wn. App. at 688. See also Valley View Indus. Park v. City of Redmond. 107 Wash. 2d
621, 630, 733 P.2d 182 (1987) (city assigned error to 21 of the trial court's findings of
fact, but its opening brief mentioned only two of the findings to which it assigned error;
court held, "Such discussion is inadequate for all except the two mentioned findings. A
party abandons assignments of error to findings of fact if it fails to argue them in its
brief.") (emphasis added); Seattle Sen. Dist. No. 1 v. State. 90 Wash. 2d 476, 488, 585
P.2d 71 (1978) ("Appellants have assigned error to 9 of 698 findings of fact. Except for
number 172 and 446 no other finding is again referred to in appellants' brief by
identifiable number or otherwise. Three other findings are mentioned without actual
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argument in the reply brief. Since there is no further argument, discussion or reference
to these findings, we deem them abandoned."). (Emphasis added.)
Here, findings 5, 7, 10, 18, 25, 30, 36, 39, and 40 are inadequately briefed and
argued. Thus, these claimed factual errors are abandoned and constitute verities on
appeal.7 Whitney. 155 Wn.2d at 467. We address Restaurant Kims' remaining fact
challenges (findings 8, 23, 31, 34, and 38) below for substantial evidence.
Findings 8 and 34 address use of the shared parking lot and feasibility of access
to the parking spots and loading dock on the market's south side. Substantial evidence
supports these findings. See Report of Proceedings (RP) (Dec. 1, 2009) at 101-03
(testimony regarding patron use of shared parking lot); RP (Dec. 1, 2009) at 140-48,
151-72 (James Perry and Gill Brackinreed testimony); RP (Dec. 2, 2009) at 199-263
(Jeff Vanderyacht testimony); RP (Dec. 2, 2009) at 267-72 (Sung-Soo Kim testimony);
Ex. 8A, Ex. 32 Tabs 23 and 24.
Finding 38 states that "granting an easement as depicted and legally described in
Exhibits 'A' and 'B' to these findings is commensurate with the evidence presented at
trial. . . [and] represents nothing more than what was well-established at trial as the
7 Nonetheless, we note that the record here overwhelmingly supports the findings
relevant to the court's determination regarding implied easement. In addition to the
unchallenged findings and witness testimony described above and below, see exhibit
32, tabs 23 and 24; exhibits 7, 8, 8A, 26C, 26K, 260, 26P, 26DD, 26EE, 31A, 31C;
RP(Dec. 1,2009) at 94-100, 101-04,106-10, 118-19,131, 140-48,151-72, 178-87;
RP (Dec. 2, 2009) at 270-72; RP (Dec. 7, 2009) at 378-79, 381, 422-23, 426-27, 455,
501-02.
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long-term use of the Market and Restaurant Parcels." Overwhelming evidence supports
this finding.8
Finding 23 states:
In 1984, a lease was recorded (Exhibits 32-18) wherein William and Blanche
Vogt leased the market business to Wolten & Montfort, Inc. This lease
demonstrates that the use of the Restaurant Parcel parking lot to access parking,
the loading dock, and storage bays, was essential to the operations of the market
on the Market Parcel.
Restaurant Kims challenge this finding related to specific provisions in the 1984 lease
agreement between lessors Vogt and lessee Wolten & Montfort Inc. for use of the
market parcel. The lease was executed after common ownership ceased and set a
lease term of 20 years. Lease paragraph 25 provides, "All commercial vehicles should
be encouraged not to block traffic to the condos, the cabins or gift shop. They are to be
parked on leased property." Lease paragraph 30 states that market patrons may park
on the "Landlubber Gift Shop property," which trial testimony established is the
Restaurant Parcel.
The parties dispute the significance of these quoted provisions. The trial court,
acting in its fact finder role, gave proper weight to lease provisions that show the prior
continued use of the shared parking lot on the question of intent. The trial court
determined that no lease provision prohibits Market Parcel lessees' use of the
Restaurant Parcel parking lot or prohibits blocking traffic temporarily while moving
8 Restaurant Kims also challenge finding 31, which states, "Plaintiff Kim, by his
testimony and by description of his actions, demonstrated that he did not give
permission for the use as described herein, by the Market Parcel and such use was
adverse. This adversity is further established by operation of law, that any permission
granted by a predecessor such as Beebe is automatically revoked upon transfer oftitle."
This finding specifically relates to the prescriptive easement issue. Because we do not
reach that issue, we need not address finding 31.
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delivery trucks in and out. We decline to reweigh the evidence or substitute our
judgment for that of the trial court. Dickie. 149 Wn.2d at 879-80. Substantial evidence
supports finding 23.
Implied Easement
Restaurant Kims challenge the trial court's determination that an implied
easement existed over a portion of the Restaurant Parcel's parking lot. Market Kims
respond that substantial evidence supports the trial court's findings and the findings
support its conclusion on this issue.
While easements are usually created expressly in a written instrument, the law
also recognizes implied easements in some situations. See 17 William B. Stoebuck &
John W. Weaver, Washington Practice, Real Estate: Property Law § 2.4, at 89 (2d
ed. 2004). "Easements by implication arise by intent of the parties, which is shown by
facts and circumstances surrounding the conveyance." Roberts v. Smith. 41 Wash. App.
861, 864, 707P.2d 143(1985). The factors relevant to establishing an implied
easement are (1) former unity of title and subsequent separation, (2) prior apparent and
continuous quasi easement9 for the benefit of one part ofthe estate to the detriment of
another, and (3) a certain degree of necessity for the continuation of the easement.
Adams v. Cullen. 44 Wash. 2d 502, 505, 268 P.2d 451 (1954); MacMeekin v. Low Income
Hous. Inst. Inc.. 111 Wash. App. 188, 195, 45 P.3d 570 (2002). Unity of title and
subsequent separation is the only absolute requirement. Roberts. 41 Wn. App. at 865.
The other two factors are merely "aids to construction in determining the cardinal
9A "quasi easement" refers to the situation where one portion of property is
burdened for the benefit of another portion, which would be a legal easement ifdifferent
persons owned the two portions of property. Adams. 44 Wn.2d at 504.
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consideration—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. In Rogers v. Cation. 9 Wash. 2d 369, 376,
115 P.2d 702 (1941), our Supreme Court held, "[T]he presumed intention of the parties,
is the prime factor in determining whether an easement by implication has been
created." "[W]e pointed out that the rule is not a hard and fast one, and that the
presence or absence of either or both of these requirements is not necessarily
conclusive." Adams. 44 Wn.2d at 505 (citing Rogers. 9 Wn.2d at 376).
Unity of title and subsequent separation is met because Restaurant Kims
acknowledge that the two parcels were formerly joined and then separated and fail to
challenge the trial court's related conclusions of law 2 and 3. Apparent and continuous
quasi easement is also met because Restaurant Kims fail to address this factor in their
briefs despite assigning error to related conclusions of law and the judgment.10 An
issue not briefed is waived. RAP 10.3(a)(6); Kadoranian v. Bellingham Police Dep't.
119Wn.2d 178, 191, 829 P.2d 1061 (1992). At oral argument, Restaurant Kims also
10 As to this factor, Stoebuck and Weaver observed: "[B]efore the conveyance,
there was a usage existing between the parcel conveyed and the parcel retained that,
had the two parts then been separately owned, could have been an easement
appurtenant to one part." 17 Stoebuck &Weaver, supra. § 2.4, at 90. This element is
also referred to as "prior continuous use." McPhaden v. Scott. 95 Wash. App. 431, 438,
975 P.2d 1033 (1999). The purpose of the "apparent" requirement is to show the
easement was within the grantor and grantee's contemplation. 17 Stoebuck &Weaver,
supra. § 2.4 at 92. The evidence shows that when the Vogts divided the property and
quitclaimed the restaurant parcel to Penny Beebe, the Vogts and the Beebes knew that
portions of the restaurant parcel were used to facilitate deliveries and customer access
to the market parcel.
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conceded no genuine challenge to this factor.11 Indeed, overwhelming record evidence
supports the prior continuous use of the shared parking lot as discussed below. The
trial court's findings on this point are either unchallenged or insufficiently argued on
appeal. Thus, they are verities on appeal.
We next turn to the necessity element. The parties agree that any easement that
existed over Restaurant Kims' parking lot was established by reservation, not by grant.12
They dispute whether the "reasonable necessity" or "strict necessity" standard applies to
an easement implied by reservation. Citing Adams. Restaurant Kims contend that
Washington courts require claimants to show strict necessity when asserting an implied
easement by reservation. Market Kims agree that an implied easement by reservation
requires a greater degree of necessity than an implied easement by grant, but they
argue Adams establishes no strict necessity requirement.
Adams involved facts similar to those in the present case. In Adams. Cullen
asserted an implied easement over Adams's property. Adams. 44 Wn.2d at 503. The
Adams and Cullen properties were originally one parcel, with the "Strahorn" residence
located on what later became the Adams property and the carriage house to the
Strahorn residence located on what later became the Cullen property. Adams. 44
Wn.2d at 503. At the time of trial, the two buildings had become the "Strahorn
Apartments" and the "Cullen Apartments," respectively. Adams. 44 Wn.2d at 503.
11 The panel asked at oral argument, "It appears that your only true challenge is
to the third factor, necessity. Is that right?" Counsel responded, "That's correct."
12 An implied easement by reservation arises when the servient estate is severed
and conveyed first (and, thus, the original common owner retains an easement for the
benefit of the dominant estate retained by him). Adams. 44 Wn.2d at 505.
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Access to the Cullen Apartments consisted of a driveway located on the Adams
property. Adams. 44 Wn.2d at 504. The evidence showed that the driveway over the
Adams property had been used for access to the Cullen property since the driveway
was built, and no evidence showed that any other driveway had ever existed. Adams.
44 Wn.2d at 504, 510. Although it was possible for the Cullen property to gain its own
access by building another driveway, the evidence showed that the cost to do so was
significant and itwould not be a satisfactory substitute for the existing driveway.
Adams, 44 Wn.2d at 510.
Adams specifically addressed, "What degree of necessity must be established by
proof?" for an implied easement by reservation. Adams. 44 Wn.2d at 506. The court
explained:
While there is some conflict in the cases as to the degree of necessity
required to create an easement by implied grant, the prevailing rule, and the one
adopted by this court, is that the creation of such an easement does not require
absolute necessity, but only reasonable necessity. Evich v. Kovacevich. 1949,
33Wash.2d 151, 157,204 P.2d 839, and cases cited. This court said, in Berlin v.
Robbins. [180 Wash. 176, 38 P.2d 1047(1934)], dealing with an easement by
implied grant,
"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." [Berlin,] 180 Wash, at 189].
Since the purpose of the rule is to aid in determining the presumed
intention of the parties, it may be argued that the presumption in favor of an
implied reservation to the grantor should require no greater degree of necessity
than in the case of an implied grant. The authorities, however, are not in
accord. . . .
For an easement by implied reservation, the weight of authority requires a
higher degree of necessity than for an implied grant. The usual term is "strict"
necessity
In Schumacher v. Brand. 1913, 72 Wash. 543, 547, 130 P. 1145, 1147 (a
case involving an easement by implied grant), this court said:
"The courts generally hold that there is a difference between an implied
reservation of an easement and the grant of an easement by implication. The
distinction is put upon the ground that the former is in derogation of the deed and
its covenants, and stands upon narrower ground than a grant."
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It is not difficult to state that there must be "reasonable" necessity for the
existence of an easement by implied grant and "strict" necessity for the existence
of an easement by implied reservation. The difficulty arises when the trier of the
facts must determine whether the facts satisfy the corresponding degree of
necessity required by the rule.
The authors of the Restatement have avoided use of the term "strict
necessity," but [the Restatement] indicates that, in the absence of other
considerations, a higher degree of necessity is needed for an easement by
implied reservation than is needed for an easement by implied grant.
Adams. 44 Wn.2d at 507-08 (some citations omitted) (emphasis in original). Adams
concluded that in light of the history of use and the cost and inconvenience of the
alternative, the claimant established sufficient "necessity" justifying an implied easement
by reservation. Adams, 44 Wn.2d at 510.
In their authoritative real property treatise, Professors Stoebuck and Weaver
discuss Adams:
Earlier in this section it was suggested that there is a special problem with
easements implied by "reservation," those in which it is claimed the easement
exists in favor of the grantor rather than the grantee. Particularly in older
American decisions, it was doubted that such implied easements were allowed,
or at least they were looked upon less favorably than were easements by implied
grant. The underlying problem is that, when the grantor seeks to establish by
implication an easement in his favor that was not expressly reserved in his deed,
he seeks to derogate from his own grant. Washington's position, based upon the
decision in Adams v. Cullen. seems to be that an easement by implied
reservation may exist, and did exist in Adams, but a higher degree of necessity
for it is required than with an easement by implied grant. The court mused over
whether "strict" necessity should be reguired but ultimately did not appear to
adopt that word or any precise definition of the higher degree. An implied
reserved easement for a driveway was held to exist, though it appears it was not
impossible, but only impractical and expensive, to build a driveway over another
route. Probably the best that can be said is that, if a higher degree of necessity
is required in Washington for a reserved implied easement than for one by
implied grant, the question depends more upon the facts of a particular case than
upon some general, abstract test.
17 Stoebuck &Weaver, supra. § 2.4, at 92-93 (emphasis added) (footnotes omitted).
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Restaurant Kims' reliance on Adams is misplaced. Adams adopted no strict
necessity standard. The Adams court noted that necessity and prior use are
counterbalancing factors. With implied easements, the stronger the evidence of prior
use during common ownership, the less necessity is required, and vice versa. Adams.
44 Wn.2d at 509 (quoting Restatement of Property § 476 cmt. g at 2983). Adams
establishes that even assuming a "higher degree of necessity" to prove an implied
easement by reservation, the claimant need not show that alternative means of ingress
oregress are impossible. Impracticality is enough.13 Adams. 44 Wn.2d at 510 ("It is
apparent from the many photographs in evidence that if [an alternative] driveway could
be constructed, it could only be done at great cost and would not be a satisfactory
substitute for the present driveway. . . .").
In Fossum Orchards v. Pugslev. 77 Wash. App. 447, 892 P.2d 1095 (1995),
Division Three of this court applied a "reasonable necessity" or "certain degree of
necessity" standard in addressing an easement implied by reservation. Fossum
involved a five-acre parcel of land originally owned by Delva and Ora Mae Harris. The
southern end of the property contained a ditch and a weir box for delivering water to the
Harris property. Fossum. 77 Wn. App. at 449. In 1978, the Harrises split the land into
three lots. Fossum. 77 Wn. App. at 449. In 1983, they installed pipe the entire length
of the property to delivery water from the weir. In 1985, they sold the southernmost lot
13 Restaurant Kims cite Wreggittv. Porterfield. 36 Wash. 2d 638, 640, 219 P.2d 589(1950) for the proposition that "'necessity must be of such a nature as to leave no room
for doubt of the intention of the parties.'" Appellant's Br. at 21. Wreggitt preceded
Adams, and Adams distinguished it on the basis that the court there rendered its
decision on a theory of easement by implied grant. Adams. 44 Wn.2d at 506-07.
Adams specifically noted, "[Wreggitt] is not authority for the rule that an easement
cannot be created by implied reservation." Adams. 44 Wn.2d at 507.
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(lot 1), which contained the weir, to a new owner. Fossum. 77 Wn. App. at 450. The
Harrises sold lot 2 in 1986. The new owner discovered that the water pipe continued
north onto lot 3 and disconnected it. Fossum. 77 Wn. App. at 450. The Harrises sold
the remaining lot (lot 3) in 1988. Fossum, 77 Wn. App. at 450. Through another
transaction, Fossum Orchards obtained title to lot 3. Fossum. 77 Wn. App. at 450.
None of the deeds referred to any reserved easement across lots 1 and 2 for the benefit
of lot 3. Fossum, 77 Wn. App. at 450-51. Although lot 3 had been used as a cherry
orchard in the early 1970s, no evidence showed it had been irrigated since that time.
Fossum. 77 Wn. App. at 450. Fossum began planting an orchard on lot 3 and asked
the owner of lot 1 for permission to connect to the water system. Fossum. 77 Wn. App.
at 451. Lot 1's owner refused, and Fossum sued, claiming an implied easement.
Fossum. 77 Wn. App. at 451. The trial court found an implied easement in favor of lot 3
across lots 1 and 2 for access to the irrigation system located on lot 1. Fossum. 77 Wn.
App. at 449.
On appeal, Division Three of this court referred to the necessity element as "a
certain degree of necessity" and "reasonable necessity." Fossum. 77 Wn. App. at 451.
The court affirmed the trial court's determination that the Harrises and their purchasers
intended to create an implied easement for the benefit of lot 3, noting that (1) the weir
box and pipe for conveying water to the Harris property existed at the time the Harrises
severed the property and conveyed lots 1 and 2, (2) no alternative source of water was
reasonably available, and (3) the failure to record or reference the easement in
subsequent conveyance documents did not extinguish the easement because the
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purchasers had sufficient notice to be charged with knowledge of the easement.
Fossum. 77 Wn. App. at 452-53.
Even if we assume a more rigorous necessity standard applies, the trial court's
findings leave no doubt this standard is met. Restaurant Kims' strict necessity claim to
prove an implied easement by reservation is not persuasive.
Restaurant Kims next claim, "The necessity must have existed in 1978. The
findings are devoid of any 1978 analysis. The trial court erroneously examined and
found necessity in 2009." Appellant's Br. at 23-24. Restaurant Kims cite no authority
for this contention in their opening brief.14 Nonetheless, controlling authority holds to
14 In their reply, Restaurant Kims reiterate their argument that "[t]he necessity
must have existed in 1978 at the time of the unity of title" and cite without elaboration or
analysis Hellberg v. Coffin Sheep Co.. 66 Wash. 2d 664, 668, 404 P.2d 770 (1965)."
Appellant's Reply Br. at 9. Hellberg is inapposite. Like the cases noted above, Hellberg
analyzes necessity from the claimant's standpoint at the time he claims the easement.
"The evidence fully substantiates the trial court's finding that there is no exit from land
held by Hellberg and no road available other than the road in question (the old Coffin
road) for convenient service to the areas leased by Coffin to Hellberg." Hellberg. 66
Wn.2dat669.
In their statement of additional authorities, Restaurant Kims cite our decision in
Veach v. Culp. 21 Wash. App. 454, 458-59, 585 P.2d 818 (1978). There, we determined
that a deed establishing a railroad right of way across another landowner's property
conveyed fee simple title in favor ofthe railroad. Then we addressed the landowner's
alternative argument regarding implied easement:
In the alternative, the Veaches claim an easement by implied reservation
across the right-of-way in order to reach theirwaterfront property and to enjoy
riparian rights expressly reserved in the granting clause of the Zobrist deed.
Riparian rights, such as access, swimming, fishing and boating, are conferred
upon a property owner by virtue ofthe contiguity of his property to a body of
water. The Veaches are riparian owners of their own waterfront strip of land and
that part of the railroad right-of-way which abuts on the lake. That, however,
does not give them the right to cross over the railroad's property to gain access
to the shore unless they can show that the Zobrist conveyance implied an
easement by reservation. Such an easement may arise when the party claiming
it shows: (1) unity of title and subsequent separation, (2) an apparent and
continuous quasi-easement existing for the benefit of the retained parcel to the
detriment of the conveyed parcel during the unity of title, and (3) "strict" necessity
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the contrary. "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[s]
a substitute." Bays v. Haven. 55 Wash. App. 324, 329, 777 P.2d 562 (1989) (emphasis
added); see also Adams. 44 Wn.2d at 507 (same). Cases applying this test evaluate
necessity from the standpoint of the party presently claiming the easement, not from the
standpoint of the parties that originally created the easement. The higher the degree of
necessity at the time the claimant demands the easement, the more likely the easement
will be implied. See Adams. 44 Wn.2d at 510 (court evaluated necessity by referring to
present-day usage and difficulty of constructing a substitute access route and
concluded that constructing a new driveway could only be done at great cost and would
not be a satisfactory substitute for claimant's use of the present driveway); Bays. 55
Wn. App. at 329 (affirming trial court's finding that claimant established reasonable
that the guasi-easement exist after severance. Adams v. Cullen, 44 Wash.2d
502, 268 P.2d 451 (1954). The necessity is to be determined from the conditions
existing at the time of the conveyance. Unity of title and subsequent separation,
which are absolute requirements, were satisfactorily proven by the Veaches.
They failed in their burden of proof, however, as to the second and third
characteristics of an easement by implied reservation. Although the presence or
absence of either or both of these characteristics is not necessarily conclusive,
their absence supports the trial court's finding that no easement was intended by
the original parties to the conveyance.
Veach. 21 Wn. App. at 458-49 (emphasis added) (some citations omitted). Restaurant
Kims use the emphasized language above to argue that strict necessity applies and
must be determined at the time of conveyance. Our Supreme Court reversed Veach.
Veach v. Culp. 92 Wash. 2d 570, 599 P.2d 526 (1979). The court concluded the railroad's
right-of-way was an easement, not fee simple title, and that the landowners could use
the right-of-way in a manner that does not materially interfere with the railroad's use.
The court stated, "Having determined that the railroad's right-of-way is one of easement,
we need not reach the theory of implied easement advanced by the [landowners]."
Veach. 92 Wn.2d at 575. The court concluded, "The decision of the Court of Appeals
and the judgment ofthe trial court are reversed." Veach. 92 Wn.2d at 576.
Given our discussion above and below, Restaurant Kims' reliance on Veach is
not persuasive.
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necessity because their permit application was denied and direct access was
impractical); Fossum. 77 Wn. App. at 452 (no alternative source of water reasonably
available to claimant).
As discussed above, the court's findings regarding necessity are either
unchallenged or insufficiently argued on appeal and nevertheless supported by
substantial evidence (see findings of fact 29, 30, 32, 33, 34, 35, 38). For example, the
court found that Market Kims' son, Sung-Soo Kim, credibly testified about the
importance of using the Restaurant Parcel's parking lot for delivery of merchandise to
the Market Parcel, garbage pickup, and customer parking. He noted it was very
inefficient and inconvenient for the market to receive deliveries on the north side, and he
stated that using the north side "man door" for market truck deliveries was "like trying to
get an elephant through the front door." RP (Dec. 2, 2009) at 300, 312. He also
testified that delivery and service truck drivers confirmed to him that using the loading
dock is more efficient than the north side man door because inventory can be placed
directly in the loading bay rather than hand-trucked through a man door.15 RP (Dec. 2,
2009) at 275, 287. He estimated that paving and structural remodels to bring a loading
dock to the market's north side would cost $300,000 to $350,000, a "significant financial
burden" for his parents. RP (Dec. 2, 2009) at 296. Based on this unrebutted testimony,
the trial court made the following unchallenged finding:
15 Garbage truck driver Bruce Koch and Darigold truck driver Gill Brackinreed
also testified. Brackinreed testified that while it might be easier to maneuver a truck on
the north side, it had no receiving area and he never delivered there. RP (Dec. 1, 2009)
at 163-64. Koch testified that it would be easier to maneuver a garbage truck in an
open vacant lot as opposed to a busy parking lot. RP (Dec. 1, 2009) at 189. Neither
witness testified about the logistics of running the market business or the cost of
switching deliveries to the north side.
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[S]witching deliveries of merchandise and services to the other side of the market
would be cost prohibitive and an unsatisfactory substitute for the historical use of
the loading dock area. It would require a large structural remodel of the building
which would be very expensive. It also would require the Market Parcel to
change its primary commercial access, which permitting agencies may not allow.
Requiring the owners of the Market Parcel to use options other than the historical
use would be substantially less convenient, both logistically and financially.1161
We conclude substantial evidence supports the trial court's necessity findings
and the findings support its conclusions of law.
CONCLUSION17
Substantial evidence supports the court's findings and the findings support its
conclusion that Market Kims established an implied easement by reservation across
portions of Restaurant Kims' parking lot. We affirm.
WE CONCUR:
l^A, €. j \C5\tw ^
16 The trial court also made an unchallenged finding that other witnesses
corroborated Sung-Soo Kim's testimony "as to the general area of the Restaurant
Parcel parking lot they had historically used to gain access to the Market Parcel."
Overwhelming evidence in the record supports this finding and the court's other findings
regarding historical use and necessity of the shared parking lot. See RP (Dec. 1, 2009)
at 85-131 (Blair Beebe testimony); RP (Dec. 1, 2009) at 139-45 (Perry testimony); RP
(Dec. 1, 2009) at 149-68 (Brackinreed testimony); RP (Dec. 1, 2009) at 174-92 (Bruce
Koch testimony).
17 Given our disposition, we need not address whether the trial court properly
determined Market Kims established a prescriptive easement over the same area.
Because the trial court properly determined an implied easement exists over portions of
the Restaurant Parcel's parking lot, the court did not abuse its discretion in denying
Restaurant Kims' motion to reconsider.
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