No. 19469-8-III.The Court of Appeals of Washington, Division Three.
Filed: May 10, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Chelan County, No. 002000167, Hon. Lesley A. Allan, July 18, 2000, Judgment or order under review.
Counsel for Appellant(s), Samuel C. Rutherford, Foreman Arch, 7049 N Mission Hill Ln, Tucson, AZ 85718-1817.
Counsel for Respondent(s), Grant M. Johnson, P.O. Box 19, Wenatchee, WA 98807-0019.
M.K. Yount, 139 Worthen St, P.O. Box 19, Wenatchee, WA 98807-0019.
Clofas J. and Pauline Abbott sought to quiet title to a roadway across their property. Paul D. and Cynthia L. Ingram claimed an easement in the roadway for ingress and egress to their adjacent land. From a summary judgment dismissing their action, Mr. and Mrs. Abbott appeal. We affirm.
In 1963, Newton H. and Edna M. Griffith quitclaimed a portion of property that they owned to Lyle E. and Hildegarde V. Griffith. The Abbotts are the successors in interest to Lyle and Hildegarde. In the quitclaim deed to Lyle and Hildegarde, Newton and Edna `reserv[ed] an easement for roadway 20 feet in width from Wapato Lake Road across the West side of said MA9 to tract No. 3 . . . as said roadway is now in use and in existence.’ Clerk’s Papers (CP) at 14. Newton and Edna later divided tract No. 3. The Ingrams purchased one of the divided parcels in 1984.
Their parcel is bordered on one side by a public highway and abuts the Abbotts’ property on another side.
The Abbotts purchased their property in 1994. On January 5, 2000, the Abbotts filed this complaint to quiet title, naming the Ingrams as defendants. They alleged that the Ingrams had trespassed upon their property, and they asked the court to enjoin the Ingrams from doing so in the future and to rule that the Ingrams had no right, title or interest in the Abbotts’ land. The Ingrams answered and asserted their right to use the property pursuant to an express and/or prescriptive easement. They also moved for summary dismissal of the Abbotts’ action.
In opposition to the Ingrams’ motion, Mr. Abbott filed the following declaration:
It is my opinion that the original easement was for orchard purposes only and not for purposes of separate ownerships arising from the much later short-platting of the area. In other words, this was not a use as it then existed. There is also the question of how would the other ownerships in former Tract 3 and now in the short plat access this easement if, in fact, it were intended that they have an access.
CP at 13.
The superior court granted the Ingrams’ motion for summary judgment and dismissed the Abbotts’ complaint.
On appeal, the Abbotts contend that the court’s summary dismissal of their lawsuit was error. They argue that issues of material fact exist as to whether (1) Newton and Edna Griffith intended that the easement survive after they divided tract 3 and sold it to third persons, including the Ingrams, and (2) the Ingrams’ use is a material deviation from the nature and extent of the written easement.
1. The Grantors’ Intent.
According to the Abbotts, the Ingrams’ deed does not mention the easement. They infer that Newton and Edna Griffith intended to extinguish it. They raise the same inference from the fact that the lot the Ingrams acquired in 1984 represented only a small portion of the total tract that was the dominant estate at the time the easement was created in 1963. And, the Ingrams’ lot presently is served by a public highway.
“An easement which by grant, reservation, or prescription is appurtenant to land is not a mere privilege to be enjoyed by the person to whom it is granted or by whom it is reserved. It passes by a deed of such person to his grantee and follows the land without any mention whatsoever.” Winsten v. Prichard, 23 Wn. App. 428, 431, 597 P.2d 415
(1979) (quoting 2 G. Thompson, Commentaries on the Modern Law of Real Property, § 322, at 69 (J. Grimes repl. 1961). An easement is likely appurtenant if the land itself, rather than an individual, is the prime beneficiary of the easement, such as an easement created for ingress and egress. Id. at 430. An appurtenant easement passes to the dominant estate without mention `even when the dominant estate is subdivided into parcels.’ Clippinger v. Birge, 14 Wn. App. 976, 986, 547 P.2d 871
(1976) (citing Restatement of Property § 487 (1944)). Each parcel continues to enjoy the use of the servient tenement. Id.
Here, the reservation in the 1963 deed to the Abbotts’ predecessors, coupled with the fact the grantees retained ownership of the dominant estate, is prima facie evidence of an intention to benefit the retained land. See Winsten, 23 Wn. App. at 431. The Abbotts have proffered no evidence to support a different conclusion. As set forth in Winsten and Clippinger, the fact the deed in a successive transfer does not refer to the easement, and the fact that the dominant estate was divided after the easement was reserved, are not evidence of a contrary intent. Winsten, 23 Wn. App. at 431; Clippinger, 14 Wn. App. at 986. No issue of material fact exists as to Newton’s and Edna’s intent that the easement follow the land.
2. Material Deviation.
In addition, the Abbotts assert a dispute of material fact exists as whether the Ingrams’ use of the easement is a material deviation from the nature and extent of the written easement. However, they have not presented any evidence showing how the Griffiths used the easement when they created it in 1963. Hence, they have not shown an issue of material fact as to whether the Ingrams’ use of the roadway as a route to and from their property deviates from the easement’s original use. Rather, the Ingrams’ use of the roadway as a road to enter and leave their land is the use one would expect of a easement in a roadway.
Accordingly, the summary dismissal of the Abbotts’ action is affirmed.
The court has determined that 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.