City of Seattle v. Nazarenus, 35627
| Decision Date | 04 October 1962 |
| Docket Number | No. 35627,35627 |
| Citation | 374 P.2d 1014,60 Wn.2d 657 |
| Parties | The CITY OF SEATTLE, a municipal corporation, Respondent, v. Carl Ludwig NAZARENUS, Joanne P. Nazarenus, his wife, Appellants, and Mutual Life Insurance Company of New York, a corporation, Defendant. |
| Court | Washington Supreme Court |
Phil R. McIntosh, Seattle, for appellants.
A. C. Van Soelen, Corp. Counsel, and John P. Harris, Seattle, for respondent.
This action was instituted by the city of Seattle to compel appellants Nazarenus and wife to remove certain portions of their dwelling from the right of way described in an agreement for a perpetual easement for the construction, operation, and maintenance of an electric transmission system which extends from the city to its hydroelectric plants located on the Skagit River in Whatcom County. The agreement was executed and delivered to the city in 1923 by one James Fraunfelter (the alleged predecessor in interest of appellants), and filed for record in the office of the county auditor of King County on October 29, 1923.
Appellant husband testified that he bought his present home in June, 1946. In 1954, he began the construction of the addition to his living room, the walls consisting of pumice blocks (which are fireproof) and a handsplit wooden shake roof. When this addition was about three fourths completed, a representative of the city advised him that it encroached on the right of way. 1 He completed the addition in 1955 and put in the carport in November, 1956. It has the same type of roof as the addition (which is not fireproof). He estimated that the eave overhang was about five feet from a vertical line between the nearest wire and the ground.
In 1957, the city commenced this action alleging the existence of this perpetual easement, that appellants were the owners of the fee interest of the real property subject thereto, and that they had at some time subsequent to 1923, without the knowledge or consent of the city, constructed an addition to their dwelling which encroached on the area covered by the easement and had thereby created a hazardous condition to life and property, which interfered with the city's enjoyment of its rights thereunder.
Appellants' answer denied most of the material allegations of the city's amended complaint except that it admitted the recording of the agreement for a perpetual easement in 1923 and that subsequent thereto appellants had constructed an addition to their dwelling. The answer contained two affirmative defenses (the allegations thereof being denied by the city's reply): (1) that any hazardous condition as alleged by the city was created solely by its own acts, and that the city should be restrained from creating or maintaining such condition as it affected appellants, and (2) that the perpetual easement agreement was void as being in violation of the statute of frauds.
The case was tried before the court sitting without a jury and was continued from time to time for the convenience of the parties. Some fifty exhibits were offered in evidence.
After the conclusion of the trial, the court made five findings of fact (most of which form the basis for appellants' assignments of error). These will be discussed later in this opinion.
The court's decree from which this appeal is taken states:
'IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the defendants Nazarenus shall, within 90 days of the date of this decree, commence removal of the westerly 12.8' of their living room from the plaintiff's transmission line right of way, and shall also, within the same period, commence the removal of the westerly 16' of their carport from said transmission line right of way, and said removal of the portions of defendants' residence referred to herein shall be completed within 180 days of the signing of this decree; provided that the enforcement of this decree shall be stayed in the event said defendants, their heirs, successors and assigns, secure and maintain in full force and effect a good and sufficient liability insurance policy with an insurer acceptable to plaintiff City of Seattle naming said plaintiff as an insured, and insuring against any and all loss, injury (including death) or damage of any kind whatsoever sustained by plaintiff or by any person or persons or property resulting from damage to, or destruction or breakage of, plaintiff's transmission lines caused by defendants' encroaching structures catching on fire, with a limit of $300,000.00 for all such losses, injuries (including death) or damages resulting from each such occurrence; and provided further that said insurance policy shall be approved as to form by plaintiff's corporation counsel; that a copy of such policy or certificate evidencing the same shall be filed with the plaintiff's Superintendent of Lighting within sixty (60) days of the date hereof; and that such obligation to maintain the aforementioned insurance policy shall be binding upon said defendants' heirs, successors and assigns, and shall be an encumbrance against said defendants' real property and a covenant running with the land, said property being more particularly described as follows, to-wit:
'The north 57.32 feet of the west 1/2 of Lot 5 and the south 6.0 feet of the west 1/2 of Lot 6, Block 1, Northend Country Estates.'
In their brief, appellants state the four questions presented to be as follows:
'1. Are the rights and real estate, subject matter of Exhibit No. 1 [], defined with sufficient certainty to satisfy the requirements of the Statute of Frauds or is Exhibit No. 1 a void instrument?
'2. Is there any proof that that real estate described in Exhibit No. 1 includes any part of appellant's real estate?
'3. Under any rights which may have been created by Exhibit No. 1, does respondent have the right to vary and shift its established routes of transmission lines at it may from time to time desire?
Appellant first argues that the easement agreement (Exhibit No. 1) violates the statute of frauds in that the legal description is defective because it refers to the location of certain stakes in the ground. They contend that their location can only be established by oral testimony, and thus under our recent decision in Bigelow v. Mood, 56 Wash.2d 340, 353 P.2d 429 (1960), the easement agreement is void for the reason stated.
In our view, the description of the land covered by the easement agreement can be ascertained from the instrument itself. It contains the following:
'The exterior boundaries of the strip or parcel of land on which the Transmission System is to be constructed, together with the approximate location of 12 towers and 25 telephone poles are shown in red on the blueprint hereto attached and hereby made a part hereof.'
This attached blueprint (which is made a part of the easement agreement) shows the boundaries of the easement right of way as well as the proposed location of the various towers and telephone poles. All things shown thereon can be located by reference to the government monuments specified on the blueprint. The Bigelow case has no application. We hold that there is no violation of the statute of frauds, because parol evidence is not necessary to establish the boundaries of the right of way.
Appellants' second contention is that there is no proof that the legal description of the right of way contained in the easement agreement includes any of their property.
In 1923, when the agreement was executed, the land owned by appellants' predecessor in interest was unplatted. In fact, the evidence indicates that it was not then cleared but was covered with trees and had no improvements on it. For that reason the city was given the right to clear trees 'from endangering said Transmission System.'
Appellants challenge the trial court's finding of fact No. 1, in which the court found that the city is the grantee of a perpetual easement (which was duly recorded) for the purposes above mentioned over and across the portion of appellants' real property which is involved in this case.
There was substantial evidence produced by the city to support this finding, both documentary and oral testimony. Appellants introduced no evidence to the contrary. Under these circumstances, this court will not retry factual issues but will accept the findings as verities. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959). What we have just said applies also to findings No. 3 and No. 4.
Appellants, in their brief, in support of their third contention, quote portions of the easement agreement and argue that:
'It does not: grant a right of way; vest any title in the grantee; exclude the grantor; provide a license to change any selected route of lines.'
They then point out that, when they purchased their home property in 1946, the city was maintaining its transmission line on the westerly side of the right of way and that, after appellants had extended their living room and built their carport in 1954 and 1956, respectively (these constituting the alleged obstructions), the city moved its transmission line to the easterly side of the right of way so that part of it passed over a portion of their property but not directly over the alleged obstructions.
Appellants cite two prior decisions of this court, McCue v. Bellingham Bay Water Co., 5 Wash. 156, 31 P. 461 (1892), and Rhoades v. Barnes, 54 Wash. 145, 102 P. 884 (1909), which involved easements described in general terms (without specifying the exact location of the right of way), which held that the grantee, having once established the location of the right of way, could not thereafter change it.
These cases have no application to the situation before us where the easement agreement specifically describes...
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