Chen v. Thomas
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 29661-6-II
Title of Case: John Chen etux, Respondents v. Walter Thomas
etux, Appellants
File Date: 01/13/2004
SOURCE OF APPEAL
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Appeal from Superior Court of Kitsap County
Docket No: 01-2-00539-3
Judgment or order under review
Date filed: 11/04/2002
JUDGES
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Authored by C C Bridgewater
Concurring: David H Armstrong
Elaine Houghton
COUNSEL OF RECORD
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Counsel for Appellant(s)
Maureen D Burke
Cairncross & Hempelman PS
524 2nd Ave Ste 500
Seattle, WA 98104-2323
J. Thomas Richardson
Cairncross & Hempelmann PS
524 2nd Ave Ste 500
Seattle, WA 98104-2323
Counsel for Respondent(s)
Charles Kenneth Wiggins
Attorney at Law
241 Madison Ave N
Bainbridge Island, WA 98110-1811
DIVISION II
JOHN CHEN and RHONDA CHEN, No. 29661-6-II
husband and wife,
Respondents,
v.
WALTER THOMAS and SUSAN THOMAS, UNPUBLISHED OPINION
husband and wife,
Appellants.
BRIDGEWATER, J. -- Walter and Susan Thomas appeal the trial court's
action in quieting title and awarding damages and attorney fees to their
neighbors, John and Rhonda Chen, regarding a trail to the beach that
crosses the Chens' property. We affirm.
FACTS
I. Background of Beach Lots
The Thomases own property next to the Chens on the eastern side of
Bainbridge Island. At one time, Neil and Bernadine Macdonald owned both
parcels of land. The beach trail at issue in this case existed when the
Macdonalds purchased the land in 1950.
In 1973, the Macdonalds divided their large parcel of land into three
lots. They sold the southern lot to Robert and Bertha Wing, the
predecessor-in-title to the Chens. In September 1986, the Chens purchased
their lot from Howard and Betty Donelson and Claude and Leslie McVey, who
had purchased the property in 1977 from the Wings. The Macdonalds kept the
two remaining northern lots until June 1990. At that time, the Thomases
bought both lots from the Macdonalds.
The beach trail is accessed by using a long flight of wooden stairs.
The top of the stairs begins slightly north of the Thomases' house on the
top of the bluff in the middle of the Thomases' two lots. The trail curves
south and crosses in front of the steep bank in a southeasterly fashion at
the base of the stairs. The trail then goes east and down the slope where
it crosses onto the Chens' property. It passes under a fallen fir and
continues to curve toward the north headed down toward the water. Here, it
again crosses over the property line and back again onto the Thomases'
property and to the beach. The Macdonalds maintained the beach trail in
its exact location. Every spring or summer the Macdonalds cleared the
trail of any vegetation grown up around it.
Even after dividing their property and selling the southern lot, the
Macdonalds believed the entire trail remained on their property and they
continued to maintain the trail. During 1973 to 1990, the Macdonalds
cleared the trail, including the disputed portions, annually, used the
trail every summer to access the waterfront, and maintained their access by
making improvements to the trail. In 1990, as they prepared to sell their
property, they hired Chris Adams to clear the trail and install more
railroad ties on the trail to make it easier to use.
II. History of the Current Dispute
The Thomases purchased the northern lots in June 1990. In October
1991, the Chens hired a professional surveyor to plot the land. The survey
revealed that the trail encroached on the Chens' property in two locations.
The Thomases continued to use the trail as they always had, including the
disputed areas, even though they knew the disputed areas belonged to the
Chens.
The Chens hired Adams in 1999 to build a flight of stairs from the
Chens' yard down their slope. Adams began constructing the trail but
stopped after the Thomases informed him that they and the Chens had an
ongoing dispute between them regarding the trail. The Thomases then
physically removed the beams Adams placed on the trail. The Thomases and
the Chens then began placing competing 'No Trespassing' signs in the upper
switchback area. This continued for several weeks during the summer of
1999. The Chens also wrote a letter to the Thomases demanding that they
stop using the portions of trail that crossed onto the Chens' property.
The Thomases ignored the Chens' letter and continued to use the trail.
After receiving the letter, the Thomases clear cut the disputed areas
so that the trail was visible from the top of the bluff on the Chens'
property. They built a footbridge, hand railing and stairs in the disputed
area, and covered the trail with woodchips. While making these
improvements, the Thomases trespassed on the Chens' property, cutting down
a maple tree and two alder trees. The Thomases' new railing impeded the
Chens' ability to walk on their property.
On February 27, 2001, the Chens brought an action to quiet title
against the Thomases.
III. The Trial
At trial, both parties presented evidence attempting to establish use
of the disputed areas of the trail. The Thomases called Mrs. Macdonald to
testify about her use of the trail from 1950 to 1990. She testified to the
extensive amount of work done on the trail during their years of ownership.
Mrs. Macdonald also admitted that toward the end of their ownership, they
did not use the trail as much as when they were younger.
Mr. Thomas testified to using the trail from 1990 to the time of
trial. When the Thomases first bought the property, they kept the trail
looking natural. Mr. Thomas further testified that he had planted twig
dogwoods and spread clover, grass seeds, wildflowers, and poppy seeds along
the trail. He also stated that if the trail was left untouched for two
weeks, the vegetation overtook the trail. And Adams testified that no
other alternative routes to the beach existed.
The Chens offered the testimony of Mr. Donelson, whom the Chens
purchased the property from in 1986. Mr. Donelson testified that when he
first saw the property, the lower bank area was so overgrown that he had to
bushwhack his way through the property to get to the lower level or down to
the beach. Mr. Donelson further testified to placing a black drainage pipe
along the north boundary of the property (the common boundary with the
Macdonalds). Mr. Donelson left the pipe on the surface and within a year
the vegetation covered the pipe. Mr. Donelson also noted that during the
times he walked down to the beach, he never saw any signs that someone was
using the trail.
Mr. Chen also testified about the state of the trail when they first
bought the property. Before purchasing the lot, Mr. Chen and his architect
walked up the northern boundary of the property. They found very old
railroad tie steps leading up from the beach, but at the top of the stairs
they were unable to go further because of the underbrush. From 1986 to
1990, Mr. Chen went down to the disputed areas two or three times a year
but he never saw evidence of a trail or any use of the trail.
In 1991, after the Macdonalds had Adams redevelop the trail before
they sold their property, Mr. Chen saw the trail for the first time. He
testified that the trail went under a fallen fir log and that railroad tie
steps leading underneath the fallen fir tree had been installed. It was
then that the Chens hired a surveyor. The survey verified that the
redeveloped trail looped onto the Chens' property.
Mr. Chen further stated that from 1993 to 1999, he and his wife went
into the disputed area two or three times a year to check on the drainage
pipe and also to plan where they might build their own trail. During that
time, the undergrowth continued growing and the Chens never saw any
evidence that the trail was being used or cleared.
At the close of trial, the Thomases asked the court to consider
finding an easement by implication. The court considered both the adverse
possession claim and the easement by implication claim, finding that the
Thomases failed to satisfy the elements of either claim. The trial court
quieted title in favor of the Chens and also awarded them attorney fees and
costs under RCW 4.24.630(1). The Thomases appeal the trial court's
decision.
ANALYSIS
I. Implied Easement
The Thomases first argue that the trial court erred when it placed a
10-year use requirement on an easement by implication and when it concluded
the Macdonalds' use of the trail did not create a quasi-easement. The
Chens concede there is no 10-year requirement for an easement by
implication but asserts that the trial court's error was harmless. We
agree because there is no finding that the Thomases satisfied the element
of reasonable necessity for creation of an implied easement.
In Conclusion of Law No. 5, the trial court found an implied easement
did not exist because the Thomases had not proved an open and visible trail
existed for a 10-year period. The trial court's interpretation of the
elements necessary for an implied easement involves the application of
Washington law. We review questions of law de novo. Rivett v. City of
Tacoma, 123 Wn.2d 573, 578, 870 P.2d 299 (1994).
For a court to find an implied easement exists, three elements are
necessary: (1) unity of title and subsequent separation; (2) an apparent
and continuous quasi easement, which existed for one part of the estate to
the detriment of the other during the unity of title; and (3) a certain
degree of necessity from the quasi-easement after severance. Hellberg v.
Coffin Sheep Co., 66 Wn.2d 664, 668, 404 P.2d 770 (1965) (citing Adams v.
Cullen, 44 Wn.2d 502, 505, 268 P.2d 451 (1954)). The requirement of unity
of title and subsequent separation must absolutely exist. Hellberg, 66
Wn.2d at 668. But, the second and third elements are used as aids to
determine, among other things, the parties' presumed intention as disclosed
by the extent and character of the use of the property. Hellberg, 66 Wn.2d
at 668.
The Thomases satisfied the first element of an implied easement. The
Macdonalds owned both the Chens' property and the Thomases' property as a
single parcel until 1973. In 1973, the Macdonalds sold the Chen property
but kept the Thomas property until 1990.
We assume, without holding, that the Thomases also satisfied the
second element. The Macdonalds continued to maintain and use the beach
trail even after the division of their property in 1973. In fact, the
trial court found that at least from 1950 to 1989 the beach trail existed
on the Chen and Thomas properties. Thus, arguably, the Thomases proved an
apparent and continuous quasi-easement existed that benefited one part of
the estate to the detriment of the other part of the estate. For the
purpose of this opinion, we accept this element without holding that it was
met.
But, the problem here is that the grantor did not make a reservation
of an easement when making the grant. For this element to be satisfied the
intent of the grantor is essential. See Rogers v. Cation, 9 Wn.2d 369,
376, 115 P.2d 702 (1941). Mrs. Macdonald testified that she did not know
that the path crossed the boundary into what is the Chens' property;
without that knowledge it would be impossible to intend to retain an
implied easement. But, nonetheless, we accept for the purposes of this
opinion that the element has been met.
The remaining issue is the issue of necessity. Case law holds that
the test for 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 v. Robbins, 180 Wn. 176, 189, 38
P.2d 1047 (1934). The trial court did not find reasonable necessity, but
it made the following finding: '. . . that there was testimony to support
the proposition that use of the trail was reasonably necessary to access
the beach.' Clerk's Papers (CP) at 492.
This finding is not a finding of 'reasonable necessity.' The trial
court's oral decision illuminates the finding; the trial court stated that
it was not making a necessary finding even though there was testimony that
may have shown reasonable necessity. There was no evidence that the use of
the Chens' portion of the trail was the only access to the beach or even
that the cost of the Thomases building an alternative was
disproportionately expensive. The problem with this theory was basically
that it was not alleged in the pleadings and testimony was not developed at
trial that would demonstrate any degree of 'necessity.'
Two other reasons militate against any argument of 'necessity,'
regardless of whether the test is 'reasonable necessity' or 'strict
necessity.' First, the Thomases put in an alternative set of steps down to
the beach on their own property. Secondly, the test for an implied
easement is whether the alleged easement is reasonably necessary to make
any use of the property. See Cullen, 44 Wn.2d at 508. The Thomases can
use their property without the easement, i.e., they have access to a public
street and they can descend their stairs down the bluff to the lower
portion of their property. Regardless of the court's error in considering
a time limit, there was clearly no necessity finding.
II. Prescriptive Easement
The Thomases argue that the trial court erred when it failed to find a
prescriptive easement existed. To establish a prescriptive easement, the
claimant must show: (1) use adverse to the right of the servient owner;
(2) open, notorious, continuous, and uninterrupted use for the entire
prescriptive period; and (3) knowledge of such use by the owner at a time
when he was able to assert and enforce his rights. Dunbar v. Heinrich, 95
Wn.2d 20, 22, 622 P.2d 812 (1980). The prescriptive period in Washington
is 10 years. Todd v. Sterling, 45 Wn.2d 40, 42, 273 P.2d 245 (1954). The
Thomases' argument fails because they do not satisfy the 10-year
prescriptive period.
The Thomases' use of the trail after 1991 when the Chens recognized
the trail was on part of their property was adverse to the Chens.
Moreover, the Chens knew of the Thomases' use of the trail but did not take
sufficient action to enjoin them from using the trail until February 2001,
when they sued the Thomases. The use of the trail, however, was not
continuous over the prescriptive period of time.
Mr. Thomas testified to a continuous use of the trail, but evidence in
the record suggests otherwise. He admitted at times letting the trail go
for a couple of weeks. Within that period of time, the vegetation
basically closed up the trail. Pictures the Chens admitted show the
property in 1999. There is clearly no visible trail in the pictures. The
trial court found that the Thomases' use of the trail was not open and
notorious enough to give a landowner notice that someone was using the
trail. The trial court did not err by finding no prescriptive easement
existed.
III. Adverse Possession
Determining whether adverse possession was established by the facts as
found is a question of law, which this court reviews de novo. Peeples v.
Port of Bellingham, 93 Wn.2d 766, 771, 613 P.2d 1128 (1980), overruled on
other grounds by Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984).
If substantial evidence supports the trial court's findings, this court
upholds the findings. Staaf v. Bilder, 68 Wn.2d 800, 803, 415 P.2d 650
(1966). Evidence is substantial if it is sufficient to persuade a fair-
minded person of the truth of the declared premise. Ridgeview Prop. v.
Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982).
The Thomases argue that they satisfied the required elements for
adverse possession. Four elements are necessary to establish an adverse
possession claim. A party must show that possession is: (1) open and
notorious; (2) actual and uninterrupted; (3) exclusive; and (4) hostile.
ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). The
possession must also continue for a 10-year period. RCW 4.16.020(1).
Because evidence supports the trial court's findings that the Thomases
failed to satisfy all elements for adverse possession, their argument
fails.
1. Open and Notorious
The Thomases contend that the trial court erred by finding that they
had not established open and notorious use of the trail. Our Supreme Court
held in Chaplin that when an owner has actual knowledge of possession, the
requirement's purpose was satisfied. Chaplin, 100 Wn.2d at 862. The trial
court found that the trail existed from as early as 1950. However, the
court also found that the Chens did not become aware that they owned the
property until 1991 after surveying it. At that time, the Chens informed
the Thomases that the trail encroached on the Chens' property, and they
asked the Thomases not to trespass on their property.
The Thomases contend that this court must consider the character of
the land when determining whether possession was open and notorious. The
Supreme Court established that 'necessary use and occupancy need only be of
the character that a true owner would assert in view of its nature and
location.' Krona v. Brett, 72 Wn.2d 535, 539, 433 P.2d 858 (1967)
(emphasis added), overruled on other grounds by Chaplin, 100 Wn.2d 853.
Applying this standard to the evidence finds that the Thomases did not
openly and notoriously use the trail.
The Thomases preferred to keep the trail in its native state. Mr.
Thomas testified that he only cleared it of vegetation so that the trail
remained passable. Moreover, he stated that if the trail was left
untouched for two weeks, the vegetation overtook the trail. Further, Mr.
Chen testified that during the time he used the trail after 1991, no
visible trail existed. Mr. Chen did not see a clearly visible trail until
1999 when Mr. Thomas clear cut the trail. The trial court did not err by
finding that the Thomases had not satisfied the element of open and
notorious use.
2. Actual and Uninterrupted Use
The Thomases also argue the trial court's findings contradict its
conclusion that the Thomases did not establish actual possession over the
trail. Possession, for adverse possession purposes, 'depends to a great
extent upon the nature, character, and locality of the property involved
and the uses to which it is ordinarily adapted or applied.' Frolund v.
Frankland, 71 Wn.2d 812, 817, 431 P.2d 188 (1967), overruled on other
grounds by Chaplin, 100 Wn.2d 853. In the instant case, the Thomases used
the trail to access the beach. By maintaining and cleaning the trail,
Thomas used it in the way it would be 'ordinarily adapted or applied.'
Frolund, 71 Wn.2d at 817. The trial court erred by finding that the
Thomases did not have actual possession of the trail.
3. Exclusive Use
The Thomases next assert that the trial court erred by finding they
failed to establish the exclusivity element of adverse possession. They
contend that case law holds that to prove exclusivity the adverse possessor
only needs to show he exercised control over the property in a manner like
that of a true owner. The Thomases' interpretation of case law is
incorrect.
In Thompson v. Schlittenhart, 47 Wn. App. 209, 212, 734 P.2d 48,
review denied, 108 Wn.2d 1019 (1987), Division One found the exclusivity
element to be lacking where the adverse possessor shared use of the
disputed area. The Supreme Court agreed with this holding in ITT Rayonier
where it found that shared use of the disputed property 'did not rise to
the level of exclusive possession indicative of a true owner.' ITT
Rayonier, 112 Wn.2d at 759.
The record provides ample evidence showing that both the Chens and the
Thomases used the disputed area. Moreover, the record does not provide
sufficient evidence that the Thomases attempted to exclude the Chens from
the property. Although the Thomases posted 'No Trespassing' signs, the
Chens ignored and removed the signs. Thus, like in Thompson and ITT
Rayonier, the Thomases failed to provide adequate evidence of exclusion and
dominion over the beach trail.
4. Hostility
To prove the hostility requirement, the adverse possessor needs to
show they treated the land as their own against the world throughout the
statutory period. Chaplin, 100 Wn.2d at 860-61. The Thomases treated the
land as their own, but they did not do so for 10 continuous years. The
Thomases purchased the property in 1990. At that time, a clear, visible
trail existed to give notice to the Chens that the Thomases were attempting
to possess their land. Granite Beach Holdings, L.L.C. v. Dep't of Natural
Res., 103 Wn. App. 186, 201, 11 P.3d 847 (2000). The Chens became aware
the trail encroached on their property in 1991. But, evidence in the
record supports the trial court's findings that the Thomases did not keep
the trail clear and visible for the statutory period. Thus, the Thomases
did not meet the hostility requirement.
Because the Thomases cannot satisfy all the adverse possession
elements, their claim fails. ITT Rayonier, 112 Wn.2d at 757.
IV. Award of Attorney Fees and Costs
The Thomases next argue that the trial court erred by awarding
attorney fees and costs to the Chens under RCW 4.24.630(1). The Chens
reply that because RCW 4.24.630(1) requires different elements than RCW
64.12.030, the trial court did not err by awarding them attorney fees and
costs. We agree.
Statutory interpretation is a question of law that this court reviews
de novo. Berger v. Sonneland, 144 Wn.2d 91, 104-05, 26 P.3d 257 (2001).
This court does not construe an unambiguous statute where plain words do
not require construction. Davis v. Dep't of Licensing, 137 Wn.2d 957, 963-
64, 977 P.2d 554 (1999). Instead we derive the meaning of words from the
wording of the statute itself. State v. Tili, 139 Wn.2d 107, 115, 985 P.2d
365 (1999).
We necessarily give effect to all the statutory language in construing
a statute so that we do not render any portion meaningless or superfluous.
Davis, 137 Wn.2d at 963. In order to avoid strained, unlikely, or
unrealistic consequences, this court will harmonize provisions of an act to
ensure proper construction of each provision. State v. Pesta, 87 Wn. App.
515, 521, 942 P.2d 1013 (1997).
RCW 4.24.630 is not ambiguous. It exempts courts from awarding fees
where RCW 64.12.030 applies. RCW 4.24.630(2). RCW 64.12.030 applies where
a tree or shrub is cut without lawful authority.1 RCW 4.24.630 establishes
liability to a party removing timber intentionally and unreasonably while
knowing, or having reason to know that he lacks authorization.2 We
harmonize these two statutes. If the Thomases were correct, then the
provision of RCW 4.24.630(1) referring to timber removal would be
meaningless because it would always be actionable under RCW 64.12.030, and
thus excluded. There are different elements in the two statutes, thus,
application is different depending on which statute is addressed. The
Chens proved every element of RCW 4.24.630(1). The trial court properly
awarded treble damages, attorney fees, and costs under RCW 4.24.630(1). We
also award attorney fees for that portion of the appeal relating to the
defense of fees under RCW 4.24.630.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
Bridgewater, J.
We concur:
Houghton, P.J.
Armstrong, J.
1 RCW 64.12.030 states in pertinent part:
Whenever any person shall cut down . . . any tree . . . on the land of
another person . . .without lawful authority, in an action by such person .
. . against the person committing such trespasses or any of them, if
judgment be given for the plaintiff, it shall be given for treble the
amount of damages claimed or assessed therefor, as the case may be.
2 RCW 4.24.630 states:
(1) Every person who goes onto the land of another and who removes
timber . . . from the land . . . is liable to the injured party for treble
the amount of the damages caused by the removal, waste, or injury. For
purposes of this section, 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.