CREVELING v. NEWELL, 146 Wn. App. 1035 (2008)

No. 27004-1-III.The Court of Appeals of Washington, Division Three.
August 12, 2008.

Appeal from a judgment of the Superior Court for Okanogan County, No. 05-2-00224-9, Ted W. Small, J., entered November 26, 2007.

Affirmed by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Korsmo, J.

SWEENEY, J.

This is an appeal from the summary dismissal of the plaintiff’s claims to an easement to access a water ditch on the defendants’ property. There is no factual showing or legal argument to support the claim, and we affirm the dismissal.

FACTS
David Creveling and Robert Newell are neighbors. Mr. Newell has a ditch partly on his property; it is also referred to as a canal. In the past, Mr. Creveling and his family crossed Mr. Newell’s property to access the ditch for water. The ditch has been the subject of extensive litigation in federal court and state court.

In this most recent litigation, Mr. Creveling sued to quiet title in a right-of-way on Mr. Newell’s property to access the ditch. Mr. Newell moved to dismiss the suit. The trial judge refused to quiet title and summarily dismissed the suit.

DISCUSSION
Mr. Creveling contends that he is entitled to quiet title for the right-of-way to the ditch because his family had used the ditch as a source of irrigation, domestic water, and livestock water for a hundred years prior to the litigation. And the continued use of the ditch for water is a necessity in his rural agricultural lifestyle.

We review the trial court’s grant of summary judgment de novo Blumenshein v. Voelker, 124 Wn. App. 129, 133, 100 P.3d 344 (2004). A motion for summary judgment should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c) Richardson v. Denend, 59 Wn. App. 92, 94-95, 795 P.2d 1192 (1990). Facts and reasonable inferences must be considered in the light most favorable to the nonmoving party Blumenshein, 124 Wn. App. at 133.

An easement is an interest in land and its express creation must comply with the statute of frauds, requiring conveyances by deed. RCW 64.04.010, [1] .020; Berg v. Ting, 125 Wn.2d 544, 551, 886 P.2d 564 (1995); Wilhelm v. Beyersdorf, 100 Wn. App. 836, 842, 999 P.2d 54 (2000). A valid deed must be in writing with the acknowledged signature of the grantor. RCW 64.04.020. The language must show an intent to grant with terms that are certain and definite, although no particular words are necessary to create an easement. Beebe v. Swerda, 58 Wn. App. 375, 379, 793 P.2d 442 (1990).

A property owner may create private easements or public dedications by including donations or grants on a final plat See RCW 58.17.165. An easement, although an incorporeal right, is an interest in land and cannot be created by a bare, oral promise. Perrin v. Derbyshire Scenic Acres Water Corp., 63 Wn.2d 716, 719, 388 P.2d 949 (1964). A deed is not required to establish the actual location of an easement but is required to convey the interest. Smith v. King, 27 Wn. App. 869, 871, 620 P.2d 542 (1980).

An implied easement, either by grant or reservation, may arise (1) when there has been unity of title and subsequent separation, (2) when there has been 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) when there is a certain degree of necessity that the quasi-easement exist after severance. Fossum Orchards v. Pugsley, 77 Wn. App. 447, 451, 892 P.2d 1095 (1995) Hellberg v. Coffin Sheep Co., 66 Wn.2d 664, 667, 404 P.2d 770 (1965); Roberts v. Smith, 41 Wn. App. 861, 707 P.2d 143 (1985). Unity of title and subsequent separation are absolute requirements. Fossum Orchards, 77 Wn. App. at 451.

Here, Mr. Creveling provides no legal argument or authority as to why he is entitled to an easement. He simply argues that his family has been using the ditch for one hundred years. There is no evidence of a deed conveying an easement to access the water. RCW 64.04.010, .020; Berg, 125 Wn.2d at 551. An easement is an interest in land, and its express creation requires conveyance by deed. RCW 64.04.010, .020; Berg, 125 Wn.2d at 551. That has never occurred here.

Further, the requirements for an implied easement have also not been met here. There is no showing of any unity of title. In fact, the use of the ditch is now illegal.

The trial judge then correctly dismissed this case as a matter of law. RCW 64.04.010, .020; Berg, 125 Wn.2d at 551 Wilhelm, 100 Wn. App. at 842.

We affirm the judgment.

A majority of the panel 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.

Schultheis, C.J. and Korsmo, J. concur