Berg v. Ting

• Decision Date: 05 January 1995
• Docket Number: No. 60928-4,60928-4
• Citation: 886 P.2d 564,125 Wn.2d 544
• Parties: Norman BERG and Marjorie Berg, husband and wife, Respondents, v. Robert Y. TING and Kathy Ting, and their marital community, Petitioners, and First Nationwide Bank, a federal savings bank; the City of Seattle; John L. Cahill and Beverly J. Cahill, husband and wife, and the marital community composed thereof, Defendants.
• Court: Washington Supreme Court

Page 544

125 Wn.2d 544

886 P.2d 564

Norman BERG and Marjorie Berg, husband and wife, Respondents, v. Robert Y. TING and Kathy Ting, and their marital community Petitioners and First Nationwide Bank, a federal savings bank; the City of Seattle; John L. Cahill and Beverly J. Cahill husband and wife, and the marital community composed thereof, Defendants.

No. 60928-4.

Supreme Court of Washington En Banc.

Jan. 5, 1995.

Reconsideration Denied March 29, 1995.

Betts, Patterson & Mines, P.S., Bruce H. Hurst, Karen J. Summerville, Thomas F. Peterson, Seattle, for petitioners.

Davis, Wright & Tremaine, Stephen M. Rummage, Seattle, for respondents.

BRACHTENBACH, Justice.

Neighboring residential property owners dispute whether a grant of easement complies with the statute of frauds, and, if not, whether the easement is nevertheless enforceable under the doctrine of part performance.

Norman and Marjorie Berg (the Bergs) and Robert Y. and Kathy Ting (the Tings) are owners of adjacent waterfront parcels on Lake Washington in Seattle. The Bergs brought an action to quiet title to an easement across the Tings' property. The trial court granted summary judgment in favor of the Tings on the basis that the grant of easement did not comply with the statute of frauds, and was void and unenforceable. The Court of Appeals reversed, holding that although the grant of easement did not comply with the statute of frauds, it was enforceable under the doctrine of part performance. We reverse the Court of Appeals, and reinstate summary judgment in favor of the Tings.

The Tings' property is located directly northeast of and adjacent to the Bergs' property. The Tings purchased their property in October 1988 from John and Beverly Cahill. In 1983, the parcel directly northeast of and adjacent to the Cahills' property was owned by Dr. and Mrs. Kenneth Hanson, who had signed a contract to sell the parcel to Mr. and Mrs. Stuart Young. Later in 1983, the Cahills and the Youngs submitted an application to the City of Seattle for a short plat which would allow them to subdivide the Cahill and Young properties. They proposed dividing the two parcels into seven lots, five on the Hanson property and two on the Cahill property.

The Bergs publicly opposed the short plat application. They wrote letters to the City of Seattle and neighboring property owners, and expressed opposition at neighborhood meetings. In 1984, the Cahills, the Youngs and the Bergs met, and agreed that the Bergs would withdraw their opposition to the short plat application in exchange for an easement down the subdivision's driveway and across the Cahill property to the Berg property. On March 3, 1984, the parties executed their written agreement and a grant of easement. The Bergs dropped their opposition to the application.

The next month, the City gave conditional approval to the short plat application. Although the plan still contained seven lots, they were reconfigured. Consequently, on June 8, 1984, the parties executed an updated agreement prepared by the Bergs' attorney. On the same day, they executed the grant of easement which is at issue in this case. The grant of easement provides in part that the

[g]rantors have combined their respective properties for the purpose of subdividing them and have applied to the City of Seattle for approval of a Short Subdivision, Variance, Shoreline Substantial Development Permit and a SEPA-Environmental Determination, under Master Use Permit Application No. 83-549 (the "Application").

Clerk's Papers, at 202-03.

Paragraph 5 of the grant then provided:

5. Grant of Easement. For value received, the receipt of which is hereby acknowledged by Grantors, Grantors hereby grant, convey and warrant to Grantees and their licensees, invitees, heirs, successors and assigns a perpetual, nonexclusive easement in, under and over the following tracts:

TRACT A: The area designated as the private driveway across Lots A, B, C, and F, the exact location of which shall be determined by reference to the conditionally granted Application when the same is finally approved and recorded; and

TRACT B: That portion of Lots F and G of the Short Subdivision applied for under the Application as the same is finally approved and recorded situated between the private driveway referred to in TRACT A above and the shore of Lake Washington, the upland boundary of which portion shall be a line commencing at the northwest corner of Lot G and running southerly to the point of intersection with the southerly boundary of the private driveway referred to in TRACT A above, thence westerly 50 feet along the southerly boundary of said private driveway, thence southerly, in a line parallel to the westerly boundary of Lot G, to the southerly boundary of Lot F;

to provide ingress and egress and for utilities to and for the benefit of the Berg Property, subject to the following terms and conditions:

A. With respect to Tract B, Grantees shall have the right, but not the obligation, to locate and construct a 20-foot road across Tract B between any point on the private driveway referred to in Tract A and Grantees' property line

....

Clerk's Papers, at 203. The grant also provided that the Cahills could construct a 20-foot-wide road from the private driveway to provide access to the beachfront of lot F or G, and that if they did, the Bergs could not locate their own road, but could locate and construct a 20-foot road from such road constructed by the Cahills to the Bergs' property line. Clerk's Papers, at 203-04. The grant provided that once a road was constructed to the Bergs' property line, it was to be surveyed and the agreement modified to limit the scope of easement over the surveyed road, but that prior to such a survey and modification, "the easement shall encompass all of Tract B." Clerk's Papers, at 204.

Appended to the document were the legal descriptions of the Berg, Cahill (Ting) and Young properties.

The grant provided that in the event of litigation, the prevailing party would be entitled to costs and attorney fees.

The grant of easement was recorded on June 18, 1984. The Youngs' interest in the Hanson property expired, and they did not purchase it. Thus, the grant of easement (which was not signed by the Hansons) involves only the Cahill property.

Final approval of the short plat application did not occur until May 2, 1988. As finally approved, the application contained six, not seven lots, and the lots were reconfigured and redesignated.

As discussed hereafter, a grant of easement must describe a specific subservient estate; that is an absolute. Here, the grant of easement attempts to describe the subservient estate by reference to a future "finally approved" short plat application. That document did not exist until almost 4 years after the grant.

Examination of the finally approved short plat discloses beyond question the fatal error of the attempted description of the subservient estate. The most glaring deficiency is the description of tract B as part of the subservient estate. It describes the easement as being over a portion of lots F and G as in the finally approved short plat. There is no lot G in the finally approved short plat. Equally fatal is the fact that in the finally approved short plat the purported easement appears (so far as it affects Tings' property) to be located entirely on lot E, but the grant describes no easement over lot E.

The finally approved application was recorded on May 6, 1988, several months before the Tings purchased the Cahill property in October. The deed from the Cahills to the Tings does not mention the easement. The Bergs never used or improved any of the Cahill property for an easement. Shortly after the Tings purchased the property, Mr. Berg mentioned the easement to the Tings. The Tings have refused to acknowledge the easement.

In March 1990, the Bergs brought this action to quiet title in the easement across the Tings' property. The parties filed cross motions for summary judgment. The Tings argued that the grant of easement was invalid because it did not adequately describe the servient estate and therefore violated the statute of frauds. The Tings pointed out that the grant of easement provided that the location of tracts A and B would be determined with regard to the finally approved and recorded short plat application.

The trial court granted the Tings' motion. The trial court said in its oral ruling that the grant did not sufficiently describe the servient estate, but instead referred to a future document with uncertain terms and uncertain legal descriptions. The trial court also commented, in response to the Bergs' claim that the statute of frauds should not be applied to work a fraud, that it found no evidence of fraud on the Tings' part, noting particularly that the Bergs' attorney drafted the grant of easement. The trial court awarded the Tings costs and attorney fees.

The Bergs appealed. The Court of Appeals reversed, holding that the grant of easement violated the statute of frauds, but is enforceable under the doctrine of part performance. The court also reversed the award of attorney fees in favor of the Tings, and directed the trial court to award fees in favor of the Bergs. The court awarded the Bergs costs and attorney fees on appeal. In a motion for reconsideration, the Tings argued for the first time that they are bona fide purchasers. The Court of Appeals denied the motion for reconsideration.

The Tings' petition for review was granted.

The trial court and the Court of Appeals both held that the grant of easement is void on its face and does not comply with the statute of frauds. However, while the trial court granted summary judgment to the Tings on this basis, the Court of Appeals held that the grant of easement is enforceable under the doctrine of part performance. The Bergs maintain that, contrary to the holdings of the trial court and the Court of Appeals, the grant of...