Creelman v. Svenning, 16--40041--I

• Decision Date: 01 December 1969
• Docket Number: No. 16--40041--I,16--40041--I
• Citation: 1 Wn.App. 402,461 P.2d 557
• Court: Washington Court of Appeals
• Parties: C. W. CREELMAN, Respondent, v. Arville SVENNING and Jane Doe Svenning, his wife, Appellants.

Page 402

1 Wn.App. 402

461 P.2d 557

C. W. CREELMAN, Respondent, v. Arville SVENNING and Jane Doe Svenning, his wife, Appellants.

No. 16--40041--I.

Court of Appeals of Washington, Division 1, Panel Two.

Dec. 1, 1969.

Westmoreland, French & Meagher, Joseph Meagher, Everett, for appellants.

Bangs, Castle & Bright, John H. Bright, Seattle, for respondent.

UTTER, Judge.

This is an action for malicious prosecution. C. W. Creelman recovered special damages of $1,515 and general damages of $985 from Arville Svenning in an action tried to the court. Svenning appeals and his assignments of error challenge the adequacy of the record to support the court's findings of fact and conclusions of law.

The facts as found by the trial court indicate Creelman and Svenning are adjoining property owners. Creelman purchased his lot from D. L. King in 1957 and Svenning from W. C. Gilchrist in 1960.

In 1956 King and Gilchrist constructed a joint road on or near the mutual boundary line of their property and gave reciprocal easements of '4 feet more or less' as the road was put in without a survey and meandered through trees near the property line. When Svenning purchased in 1960, one of his agents, to obviate title insurance problems, obtained correction easements from King and Gilchrist. These easements were the same as the previous easements, but deleted the words 'more or less' from the description. They did provide that 'Grantee, their successors, and assigns may pass and repass over said easement road, * * *'

Although Creelman was King's contract vendee at the time the new easements were executed, the new easements were not called to Creelman's attention. He at no time was asked for any consent or permission regarding the new easements.

After Svenning took possession of his land he installed chains that blocked the road and commenced a course of conduct amounting to harassment of Creelman. Creelman continued to assert he had a right to use the road and, based on surveys, believed this in good faith.

The trial court found Svenning resolved to initiate criminal prosecution against Creelman as a result of malice, Creelman's claim of right to use the road, a desire to resolve the dispute in an inexpensive way and a desire to gain a private advantage.

Svenning initiated criminal proceedings against Creelman on June 13, 1963, charging him with criminal trespass committed on or about June 2, 1963. Svenning represented to the prosecuting attorney that Creelman had trespassed on their property on or about that date despite prior warnings.

The judge found Svenning failed to disclose to the prosecuting attorney the prior joint use of the road by the joint landowners, the use by Creelman of the road under good faith and a reasonable claim of a right, and the fact that there were reciprocal easements by previous owners of the land indicating a right to easement of 4 feet 'more or less.' The court found if these facts had been disclosed the prosecuting attorney would probably have refused to initiate criminal proceedings in this cause.

As a result of the criminal proceedings, Creelman was arrested and placed in jail and later released on bail. Ten days were lost from his employment attending court hearings. The criminal case against Creelman was dismissed at the close of the prosecution's case.

To maintain an action for malicious prosecution, the plaintiff must allege and prove (1) that the prosecution claimed to have been malicious was instituted or continued by the defendant; (2) that there was want of probable cause for the institution or continuation of the prosecution; (3) that the proceedings were instituted or continued through malice; (4)...