No. 60894-1-I.The Court of Appeals of Washington, Division One.
July 21, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-17071-7, Laura C. Inveen, J., entered October 11, 2007.
Affirmed by unpublished opinion per Ellington, J., concurred in by Schindler, C.J., and Cox, J.
ELLINGTON, J.
Kahne and Kahne Properties, LLC contends it is entitled to an easement or private way of necessity over its neighbor’s property. We agree with the trial court that no easement was created and that Kahne’s existing access precludes private condemnation. We affirm in all respects, including the grant of attorney fees to Charles and Tye Brown, and we award attorney fees to the Browns on appeal.
BACKGROUND
Four properties are relevant to this case. They are arranged in a four-square grid, one tract in each corner. The parties designate them by reference to their current owners: Brown, Blank, Kahne, and Templeton. We adopt that convention.
The two southern parcels, Blank and Templeton, are abutted on their southern border by S.E. Green Valley Road. The Brown property lies in the northeast quadrant. It has no direct outlet to a public road, and its owners use an easement over the Blank property in the southeast quadrant to access their property. North of the Templeton property in the southwest quadrant is the Kahne property, which also has no direct outlet to any public road. Access to the Kahne property currently requires passage over a driveway on the Templeton property.
The history of the parcels is relevant. Originally, Dale and Beverly Higgins (Higgins) owned all four of the properties. In 1989, Higgins sold the Templeton property to Anna Davis. Later, Davis also bought the Kahne property.
Higgins briefly regained ownership of the Templeton and Kahne properties in 2001 before selling them both to Patrick and Debra Anardi and Dawn Schram (the Anardis) the same year. The Anardis recorded a 60 foot road and utility easement over the Templeton property in favor of the Kahne property to the north. The easement also affords the right to unfettered use of an existing driveway on the Templeton property. As the easement has not been developed, it is this driveway that currently provides access to the Kahne property.
In 2003, the Anardis sold the Templeton property to Tessie Dillon, who then gifted it to her son, Lonnie Templeton. In 2005, the Anardis sold the Kahne property to Kahne and Kahne Properties, Inc.
Higgins sold the Blank property to Konrad and Janet Blank, who granted an access easement for access to the Brown property to the north. Higgins then sold the Brown property to its current owners, Charles and Tye Brown.
In 2006, Kahne filed a lawsuit seeking a way over the Brown property under alternative claims for express easement by grant, easement implied by prior use, easement implied by necessity, and private condemnation.[1] The trial court dismissed Kahne’s claims on summary judgment and awarded attorney fees and costs to the Browns. Kahne appeals.
DISCUSSION
The usual standard of review for summary judgment applies.[2]
Private Condemnation
The principal issue here is whether Kahne is entitled to condemn a private way of necessity over the Brown property under RCW 8.24.010.[3] “[T]he statute which gives a landlocked owner a way of necessity over lands of a stranger is not favored in law and thus must be construed strictly.”[4] To condemn a private way of necessity, Kahne must show that access over the Brown property is reasonably necessary for the proper use and enjoyment of its own property.[5]
In condemnation cases, “reasonably necessary” is defined rather strictly.[6] It is insufficient to show that the proposed way is more convenient or advantageous than another route.[7]
Kahne must show that there is “not any other practicable or feasible way out.”[8] A land owner cannot condemn a private way of necessity when he has an easement over other neighboring property.[9]
Kahne argues it lacks feasible access to its property because the 60-foot easement recorded by the Anardis is invalid.[10]
The Anardis owned both the Kahne and Templeton tracts when they recorded the easement. Because one cannot create an easement over one’s own property, Kahne contends the easement was ineffective.[11] That may be; however, the Anardis accomplished the same task by reserving the easement when they sold the Templeton property to Tessie Dillon.[12]
In Carlson, Davis bought a landlocked tract from his father and for several years maintained a way over his father’s land to a highway. Davis eventually sought to condemn a way of necessity over another neighbor’s land that would provide a more convenient and practicable route. The court held Davis had not established reasonable necessity because he already had an implied easement over his father’s property.
In law, the land of [Davis’s father] is the land of the petitioner. A way of necessity “never exists where a man can get to his property through his own land. That a road through his neighbors would be a better road, more convenient, or less expensive, is not to the purpose; . . . It is only where there is no way through his own land, that right of way over the land of another can exist.”[13]
Likewise, Kahne cannot establish a way of necessity over the Brown property because it can access its property through the easement on Templeton’s property.[14]
Kahne next contends it is entitled to condemn a way over the Brown property even if the easement over the Templeton property is valid, because King County owns the development rights and will not permit Kahne to build a road upon the easement.[15]
In 1984, Higgins sold the development rights for the Templeton and Blank properties to King County as part of its Farmland Preservation Program. In January 2006, the program coordinator informed Kahne that the county would object to a new road across the Templeton property because it “could cause” an impermissible addition of nontillable surface area for that parcel.[16] But Kahne has neither applied for, nor been denied, authorization to build a road on the easement. Accordingly, it is unclear whether the county’s objections would in fact preclude Kahne from building the road on the easement.
This uncertainty, however, is irrelevant. Kahne does not dispute that it can, and presently does, access its property using Templeton’s driveway. Of this access, Kahne merely complains it is not “unfettered” because Templeton keeps a locked gate at the entrance. But Kahne has a right to unfettered access secured by the Anardi easement and the Dillon deed, which provide, “Grantees shall have unfettered access over the current driveway.”[17] Templeton is not a party to this lawsuit, but his declaration acknowledges Kahne’s right to use the driveway. If Templeton is impeding access, Kahne must seek its relief from him.
Kahne next argues its existing access over the Templeton property does not bar condemnation of a private way of necessity over the Brown property. But the authority Kahne relies on for this argument is inapt. In Beeson v. Phillips, [18] where the owner could not access the only buildable part of its property, access to the unbuildable portion did not preclude a private condemnation action. The same was true in State ex rel. Huntoon v. Superior Court for King County, [19] where the majority of the property was separated from the accessible portion by a lake. These cases are inapposite. Kahne has actual access to its entire property. This case is more like Carlson and Dreger, where the court found no reasonable necessity because the would-be condemnor had alternative access.
Implied Easement
Kahne next contends there are genuine issues of material fact as to whether the Brown property is subject to an easement implied by prior use. We disagree.
To establish an implied easement, Kahne must show, among other things, that access over the Brown property was reasonably necessary to the proper enjoyment of the Kahne property when Higgins sold it to Davis.[20] But Davis already owned the Templeton property to the south. Because that parcel has direct access to the public road, it was not reasonably necessary to use the Brown property for access. No easement was implied.[21]
Express Easement
Kahne also suggests there may be a genuine issue of material fact as to whether the depiction of an access road over the Brown property on a map attached to a mortgage on the Kahne property created an express easement. Kahne concedes, however, that this is insufficient. An express easement must be in writing, and though no particular words are necessary, the intention to grant or reserve the easement must be apparent.[22] Such is not the case here.
Attorney Fees
The private condemnation statute provides that “[i]n any action brought under the provisions of this chapter for the condemnation of land for a private way of necessity, reasonable attorneys’ fees and expert witness costs may be allowed by the court to reimburse the condemnee.”[23] The trial court awarded attorney fees and costs to the Browns under this provision.
Kahne contends the court erred by failing to segregate fees incurred defending against the condemnation claim from those incurred defending against the common law claims. Kahne also argues that the court improperly awarded fees for clerical work and for time spent on out-of-state research, that the court valued a paralegal’s time too highly, and that we should reduce the award simply because we have the discretion to do so.
Kahne must show that the court manifestly abused its broad discretion.[24]
Attorney fees should be awarded only for services related to causes of action that allow for fees.[25] If fees are authorized for only some of the claims, the award must properly reflect a segregation of time spent on issues for which fees are authorized from time spent on other issues.[26] But where the claims are so related that no reasonable segregation can be made, there need be none.[27] Here, the court reasonably found that it would be impractical to segregate time spent on the common law claims when all the claims arose from the same operative facts and involved closely related legal issues. There was no abuse of discretion in the fees award.
Kahne points to a few billing entries that arguably reflect administrative work. Most also reflect substantive legal work, without designating how much time was spent on each task. In total, the entries amount to less than $1,000 of a fee award in excess of $40,000. Determining the amount of fees should not be unduly burdensome for the court or the parties.[28] There was no error.
The remaining arguments are without merit. We affirm the fees award. Additionally, we grant the Browns’ request for attorney fees on appeal pursuant to RCW 8.24.030 and RAP 18.1.
(2000). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Civil Rule (CR) 56(c).
(1982).
(1951); Bushy v. Weldon, 30 Wn.2d 266, 269, 191 P.2d 302 (1948). Unity of title and subsequent separation are not here at issue.