No. 36447-6-II.The Court of Appeals of Washington, Division Two.
September 3, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-2-06769-5, Rosanne Buckner, J., entered May 15, 2007.
HOUGHTON, P.J.
Lynwood and Barbara Pelot[1] and Richard and Ina Ewan owned neighboring parcels of real property. The Ewans accessed their property via an easement across the Pelots’ property. Barbara Pelot appeals the trial court’s grant of declaratory and injunctive relief for the Ewans after finding that a gate she erected across the easement unreasonably interfered with their access. She also appeals the trial court’s order that she must request that the Ewans remove a continuing trespass fence from her property within 30 days of its decision. We vacate that portion of the trial court’s order limiting Pelot’s time to request removal of a continuing trespass fence to 30 days, but otherwise we affirm.
FACTS[2]
The Ewans owned real property Parcels A and B in Pierce County. In 1992, they built a home on Parcel B. In 1994, they recorded an easement describing a 30-foot-wide corridor running north and south between Location 2 and Location 4 on Parcel B’s western border for “ingress, egress and utilities for the benefit of Parcel A and Parcel B” and for access to both Parcels from public roads. They also installed a wrought iron gate at Location 2 to control access to both Parcels.
In 1998, the Ewans sold Parcel B to the Pelots. They retained ownership of Parcel A.[3] At the time of sale, the Ewans had partially fenced Parcel B’s perimeter, but they had not erected fencing along the easement.
Pursuant to the purchase and sale agreement, the Ewans completed the fencing around Parcel B’s perimeter.[4] During the fence construction, they relocated the Location 2 gate to Location 3.[5] They also installed fencing along the easement, the eastern border of which was on the Pelots’ property.
Lynwood Pelot objected to the gate’s relocation. The Ewans removed it and it remained lying on the property from 1998 until 2006.[6]
The Ewans moved from the area after selling Parcel B to the Pelots. They visited Parcel A approximately once a year but did not develop it. Richard Ewan’s father, Richard Ewan, Jr., lived nearby and monitored the Ewans’ property and used the easement “[j]ust about every day.” 1 Report of Proceedings (RP) at 28.
In 2006, the Pelots reinstalled the gate across the easement at Location 2. The Ewans objected and sought its removal. The Pelots replaced the original gate with a lightweight aluminum cattle gate that they kept unlocked.[7]
On April 7, the Ewans filed a complaint seeking a declaratory judgment and injunctive relief. They asked the trial court to enjoin the Pelots from encroaching on and diminishing their use of the easement.
At a bench trial, Richard Ewan testified that he created the easement for access and originally installed a gate at Location 2 when he owned both Parcels. He said that access to Parcel A became more important after he sold Parcel B to the Pelots, and he no longer wanted a gate at Location 2. Pelot’s counsel objected that Ewan’s subjective intent was irrelevant in determining the parties’ intent regarding the easement. The trial court overruled the objection.
Pelot testified that she reinstalled the gate at Location 2 because lost drivers came onto her property “about every other day,” including at night “about once a week,” making her feel unsafe. 1 RP at 60. She testified that she needed the gate at Location 2 for security reasons, to cut down on traffic from lost travelers, and to keep her dogs from escaping. She also testified that drivers left garbage on lots between the main road and Parcel B but that she had not found garbage on her own property.
During trial, Pelot amended her answer to include a counterclaim that the fence along the easement constituted a continuing trespass on her property. She sought an order that the Ewans remove it at their expense.
On April 9, 2007, the trial court gave its oral ruling. It noted the importance of Richard Ewan’s originally owning both parcels “ultimately because he is the one who created the easement” and the fact that the Location 2 gate originally prevented access to both Parcels when they were owned in common by Ewan was “a very significant finding.” 3 RP at 196, 197.
On May 15, the trial court entered written findings, the following of which Pelot challenges on appeal:
O. Approximately two times per week, lost travelers would come through Locations 1, 2, and 3 to the Pelot house and ask for directions; occasionally, this would occur at night. Ms. Pelot would not go out and answer her door so she could not testify about the purpose of someone coming down her driveway in the middle of the night.
P. There was no illegal use, litter, picnicking, or trespass on Parcels A or B.
. . . .
R. Defendants Pelot are not subjected to a greater burden than originally contemplated by the Plaintiff, the creator of the easement(s). Even assuming some security concerns, Defendant Pelot could resolve this concern by locating a gate at Position 3, well within her own property. This would eliminate the issue of access to the North/South easement from Position 2/3 to Position 4.
S. A gate at Position 2 is an unreasonable interference with Plaintiff’s use of Parcel A.
CP at 43-44.
Pelot also challenges the trial court’s following conclusions of law:
A. Whether or not the owner of a servient estate may erect a gate across an easement depends on the intention of the parties involved in the creation of the easement. If the easement is ambiguous or silent regarding certain points, the rules of construction call for examination of the situation of the property, the parties and the surrounding circumstances. And servient owners are entitled to impose reasonable restraints on the right of way to avoid a burden on the servient estate greater than that originally contemplated. . . .
. . . .
C. A gate at Location 2 is an unreasonable interference with Plaintiffs’ use of Parcel A. D. The use of Ms. Pelot’s driveway by lost travelers from Location 2 down to her house on Parcel B is not so great a burden that it justifies interference with Ewan’s access at Location 3. A reasonable alternative would be to reinstall fencing between Location 2 and Location 3 along the northernmost side of the Parcel B Easement, which would be a 30 foot piece of fence, and to locate a gate at Location 3. This would prevent any lost traveler access to the Pelot home and would allow Ewan unrestrained, ungated access through the Parcel B easement to Parcel A.
. . . .
F. Defendant Pelot may demand removal of the fencing on the east side of the Parcel B Easement within 30 days of entry of the Findings of Fact, Conclusions of Law and Decision. If Defendant Pelot does so, Plaintiff Ewan must contract and pay for removal of that fencing within 90 days of the demand. Defendant Pelot is not required to relocate her gate to Location 3. It would be to Defendant Pelot’s advantage to maintain that fencing on the east side of the Parcel B Easement if she wants to relocate the gate; if she chooses not to, that’s her choice and she can demand that the fencing on the east side of the Parcel B Easement be removed at Mr. Ewan’s expense.
CP at 44-45.
The trial court determined that the gate Pelot erected at Location 2 was an unreasonable interference with the Ewans’ easement access and that she must remove it within 90 days. Related to its conclusion of law F, it ruled that the easement fence constituted a continuing trespass on Pelot’s property and decreed that the Ewans must remove it at their expense if Pelot so demanded within 30 days. Pelot appeals.
ANALYSIS
A suit for injunction is an equitable proceeding addressed to the trial court’s sound discretion, which it exercises on a case-by-case basis. Standing Rock Homeowners Ass’n v. Misich, 106 Wn. App. 231, 240, 23 P.3d 520 (2001). We give great deference to the trial court, interfering in its decision only where it bases its ruling on unreasonable or untenable grounds. Lowe v. Double L Props., Inc., 105 Wn. App. 888, 893, 20 P.3d 500 (2001).
In addressing a challenge to the trial court’s factual findings and conclusions of law, we limit our review to determining whether substantial evidence supports its findings and whether those findings, in turn, support its legal conclusions Panorama Vill. Homeowners Ass’n v. Golden Rule Roofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000) (2001). Substantial evidence exists where there is a sufficient quantity of evidence to persuade a fair-minded, rational person of the finding’s truth. Panorama Vill., 102 Wn. App. at 425.
Ewan’s Testimony
Pelot first contends that the trial court erred in admitting Richard Ewan’s testimony regarding his subjective intent in creating the easement. Pelot asserts that it was irrelevant.
We review the trial court’s evidentiary rulings for an abuse of discretion. Hoglund v. Meeks, 139 Wn. App. 854, 875, 170 P.3d 37 (2007). In determining whether a land owner may maintain a fence across an easement, the trial court looks at the parties’ intent as demonstrated by the case circumstances, the nature and situation of the property subject to the easement, and the manner in which the easement has been used and occupied. Standing Rock, 106 Wn. App. at 241. Subjective intent does not constitute evidence of the parties’ intent in interpreting the meaning of a writing. Lynott v. Nat’l Union Fire Ins. Co., 123 Wn.2d 678, 684, 871 P.2d 146 (1994).
Although the trial court allowed Richard Ewan’s testimony regarding his subjective intent, the record does not show that it relied on that testimony. In overruling counsel’s objection to the testimony, the trial court stated, “I think I can take [it] into consideration and rule legally what ultimately the documents provide.” II RP at 141.
The trial court based its written findings and conclusions on the recorded easement as evidence that Ewan intended the easement to serve as access when he owned both Parcels. Its oral findings likewise reflect its consideration of the case circumstances and nature and situation of the property subject to easement, as demonstrated by property diagrams, documentary evidence, and testimony, showing that Ewan recorded the easement providing access to both Parcels and erected a gate at Location 2 when he owned both Parcels. See Standing Rock, 106 Wn. App. at 241. The trial court did not abuse its discretion.[8]
Findings of Fact
We next address Pelot’s challenges to findings of fact O, P, and R as unsupported by substantial evidence. Pelot argues that she testified that trespassers entered her property approximately every other day and at all times of the night, constituting an increased burden on the easement over what the Ewans contemplated. She also argues that trial court’s findings that a gate at Location 2 unreasonably interfered with the Ewans’ use and a gate at Location 3 would similarly resolve her security concerns were unsupported and illogical in light of its determination that the easement fence (to which she must attach a gate at Location 3) was a continuing trespass.
Pelot testified that lost drivers came onto her property “about every other day” after making wrong turns because the roads were not marked, and that what made her feel most unsafe was when those drivers arrived at night which occurred “about once a week.” 1 RP at 60. She testified that she did not know why nighttime drivers entered the property because she did not answer the door at night. She testified that she had always had concerns about people coming onto her property and probably should not live in the country because she “really [did not] like it in the dark out there.” 1 RP at 49. She also testified that she would perhaps be less concerned about security if there was a gate at Location 3. Finally, she testified that she did not recall finding garbage on her own property.
Ewan’s father testified that there were no trespassers, picnickers, littering, motorcycles, additional traffic, speeding vehicles, stock or cattle, or children on the easement and that the easement’s use or circumstances had not changed since the Pelots moved to Parcel B in 1998. He testified that Pelot had never related any security problems to him and that he also had no personal knowledge of any security problems. Richard Ewan also testified that his father monitored the easement daily. He said that his father never reported evidence of damage or security issues.[9]
This testimony comprises substantial evidence supporting the trial court’s challenged findings. The evidence showed that (1) lost travelers entered Pelot’s property approximately twice a week; (2) there was no illegal use, litter, picnicking, or trespassing occurring on either Parcel; (3) Pelot was not subject to a greater burden regarding the easement than that originally contemplated by the Ewans; and (4) Pelot’s security concerns could be equally addressed by a gate at Location 3.[10]
Conclusions of Law
We next turn to Pelot’s challenges to the trial court’s conclusions of law C and D.[11] Pelot asserts that a gate at Location 2 was not an unreasonable interference with the Ewans’ use of Parcel A, the use of Pelot’s driveway by lost travelers was an increased burden justifying interference with the Ewans’ access, and installing a gate at Location 3 was not a reasonable alternative.
As noted, whether a servient estate owner may maintain a gate across an easement depends on the parties’ intent connected with the easement’s original creation, as shown by the case circumstances, nature and situation of the property subject to the easement, and manner of easement use and occupation Rupert v. Gunter, 31 Wn. App. 27, 30-31, 640 P.2d 36
(1982). When an easement is silent on the subject of gates, the trial court must examine the situation of the property, the parties, and the surrounding circumstances. Rupert, 31 Wn. App. at 31. A servient estate owner subjected to a greater burden than that originally contemplated by the easement has the right to restrict use and maintain a gate as reasonably necessary for his protection, so long as the gate does not unreasonably interfere with the dominant estate owner’s use Standing Rock, 106 Wn. App. at 241.
As already addressed, substantial evidence supported the trial court’s finding that (1) the Ewans recorded the easement for access when they owned both Parcels; (2) the Ewans originally installed a gate at Location 2 to control access when they owned both Parcels; (3) approximately twice a week and occasionally at night, lost travelers came to Pelot’s property; (4) there was no illegal use, litter, picnicking, or trespass on either parcels; and (5) Pelot was not subject to a greater burden than that originally contemplated by the Ewans, but even granting her security concerns, those could be equally resolved by a gate at Location 3 without interfering with the Ewans’ access.
Testimony also demonstrated a three-fold burden on the Ewans of a gate at Location 2. Namely, it showed that it interfered with their access to Parcel A when they visited the property, it affected their property value, and it affected their future access should they choose to develop Parcel A. On the other hand, beyond aesthetic reasons and her desire to remove the easement fence, Pelot failed to articulate why a gate at Location 3 would not address her security concerns.
Substantial evidence supports the trial court’s findings, which in turn supported its conclusions of law. The trial court properly concluded that, under these circumstances, a gate at Location 2 unreasonably interfered with the Ewans’ use of Parcel A, the use of Pelot’s driveway by lost travelers was not so great a burden as to justify interference with the Ewans’ access, and a reasonable alternative was to install a gate at Location 3.[12] , [13]
Conclusion of Law F
Finally, Pelot challenges that portion of the trial court’s order limiting her ability to seek the Ewans’ removal of the easement fence to 30 days.
We review the trial court’s exercise of discretion in an equitable proceeding for an abuse of discretion. Steury v. Johnson, 90 Wn. App. 401, 405, 957 P.2d 772 (1998). Errors of law constitute an abuse of discretion. Council House, Inc. v. Hawk, 136 Wn. App. 153, 159, 147 P.3d 1305 (2006).
A cause of action for a continuing trespass exists where there is an intrusive condition on a person’s land causing actual harm to that person’s property and the condition is abatable, meaning that one can take curative action to stop continuing damages. See Bradley v. American Smelting Refining Co., 104 Wn.2d 677, 693, 709 P.2d 782 (1985); Fradkin v. Northshore Util. Dist., 96 Wn. App. 118, 125-26, 977 P.2d 1265 (1999). Because a trespasser is under a continuing duty to remove the intrusive condition, sequential causes of action continue until the trespasser removes it. Wallace v. Lewis County, 134 Wn. App. 1, 15, 137 P.3d 101 (2006) Fradkin, 96 Wn. App. at 124-25.
Here, the trial court found as a matter of law that the easement fence constituted a continuing trespass. It is clear from the record that the trial court intended to give Pelot the option to either have the Ewans remove the fence or keep it in order to erect a gate at Location 3 to address her security concerns. But the trial court gave no basis in law for limiting Pelot’s time to request the fence’s removal to 30 days.[14]
As the trial court ruled that the fence was a continuing trespass, Pelot has had sequential and persisting causes of action to have it removed, and the Ewans are under a continuing duty to remove it. Wallace, 134 Wn. App. at 15. The trial court’s limitation of the Ewans’ duty to remove the fence to within 30 days of its decree was an error of law.
We vacate that portion of the trial court’s order limiting Pelot’s time to request removal of the fence to within 30 days of its decree and otherwise affirm.
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. and QUINN-BRINTNALL, J., concur.