Crescent Harbor Water Co., Inc. v. Lyseng
| Citation | 753 P.2d 555,51 Wn.App. 337 |
| Decision Date | 09 May 1988 |
| Docket Number | No. 20445-9-I,20445-9-I |
| Parties | CRESCENT HARBOR WATER COMPANY, INC., a Washington corporation, Respondent, v. David R. LYSENG, a single man, Appellant, Seattle First National Bank, and Washington State Housing Finance Commission, Defendants. |
| Court | Court of Appeals of Washington |
Mark D. Theune, Cohen, Manni & Theune, Oak Harbor, for Crescent Harbor Water Co., Inc.
David Lyseng appeals from an order of summary judgment granting Crescent Harbor Water Co., Inc. (Crescent Harbor) an easement for access to and use of a well and water system located on Lyseng,s property. We affirm.
Crescent Harbor is a nonprofit corporation organized in 1969 by William and Kathleen Massey (Massey), John and Betty McPhee (McPhee), and Joyce Wernik to own and maintain an existing water supply system. A well, pump and pipes located on real property then owned by Massey and McPhee and now owned by Lyseng serve the water system. Property owners using Crescent Harbor pay annual use and maintenance fees to Crescent Harbor.
In August 1969, Terry Leon Guerrero and her former husband purchased the subject property from Massey and McPhee. Guerrero held title to the property until 1982. While Guerrero held title, Crescent Harbor did not seek permission to use or access the water system. Guerrero believed Crescent Harbor used the system as a matter of right. In 1985, Lyseng purchased the property. Representatives of Crescent Harbor approached Lyseng in 1987 and asked him to execute an easement for access to and use of the well located on his property. 1 Lyseng refused.
Crescent Harbor brought a declaratory judgment action for a prescriptive easement and moved for summary judgment. Following oral argument, the trial judge indicated he would grant Crescent Harbor an easement, but wanted additional briefing on whether Crescent Harbor was also entitled to an easement by implied reservation. Lyseng then filed a motion for summary judgment. 2 The trial court treated Lyseng's motion as a motion for reconsideration. Ultimately the trial court found that Crescent Harbor held an implied and a prescriptive easement and entered a judgment of easement for the well and water system and for access thereto. 3 Lyseng appeals, contending Crescent Harbor's alleged failure to comply with water rights statutes bars it from claiming an easement; that Crescent Harbor's use of the involved property was not adverse; that the trial court erred in considering certain evidence and in finding an implied easement; and that as a bona fide purchaser, Lyseng took the property free of unrecorded easements.
Lyseng first contends that because Crescent Harbor does not allege compliance with the water code of 1917, RCW Lyseng's water rights arguments overlook the differences between a determination of easement and a determination of a claim for water rights. The former, as applied to this case, concerns a well, pipes, pumping apparatus and access thereto. The latter concerns the water that flows within the well and pipes. The two subjects are physically distinct. The two subjects are also legally distinct. An easement is a privilege to use the land of another. State ex rel. Shorett v. Blue Ridge Club, Inc., 22 Wash.2d 487, 494, 156 P.2d 667 (1945). It is a private legal interest in another's property. Bakke v. Columbia Vly. Lumber Co., 49 Wash.2d 165, 170, 298 P.2d 849 (1956). Water rights claims are limited to a determination by the Department of Ecology as to whether a water use permit should be granted and to whom. Water rights claims do not and cannot involve property interest questions, as the Department of Ecology has no authority to adjudicate private rights in land. Mack v. Eldorado Water Dist., 56 Wash.2d 584, 587, 354 P.2d 917 (1960); Funk v. Bartholet, 157 Wash. 584, 593-94, 289 P. 1018 (1930).
90.03, and the water rights registration act, RCW 90.14, it should be barred by public policy from making a claim of easement. Lyseng also argues that the trial court was without jurisdiction to adjudicate Crescent Harbor's claim of easement. Lyseng's lack of jurisdiction argument is based on Crescent Harbor's failure to join a necessary party pursuant to RCW 90.03 and 90.44 4 and to exhaust its administrative remedies under water rights statutes
We hold that the water rights statutes cited by Lyseng are irrelevant to Crescent Harbor's claim of easement.
Lyseng also contends that the trial court erred in granting an easement to Crescent Harbor. He first argues that To establish a prescriptive easement, the claimant's use must be: (1) adverse to the right of the servient owner; (2) open, notorious, continuous, and uninterrupted during the entire prescriptive period; and (3) the servient owner must have had knowledge of the use at a time when he or she was able to assert and enforce his or her rights. Bradley v. American Smelting & Ref. Co., 104 Wash.2d 677, 694, 709 P.2d 782 (1985); Pedersen v. Department of Transp., 43 Wash.App. 413, 417, 717 P.2d 773 (1986). The adverse use required to establish a prescriptive easement is
the court erroneously found Crescent Harbor holds a prescriptive easement because Crescent Harbor's use of the well and water system was not adverse.
such use of property as the owner himself would exercise, entirely disregarding the claims of others, asking permission from no one, and using the property under a claim of right.
Malnati v. Ramstead, 50 Wash.2d 105, 108, 309 P.2d 754 (1957). When the initial use is permissive, such as when it is allowed as a matter of neighborly courtesy or accommodation, that use cannot ripen into a prescriptive easement unless the user makes a distinct, positive assertion of a right adverse to the property owner. Ormiston v. Boast, 68 Wash.2d 548, 551, 413 P.2d 969 (1966); State ex rel. Shorett v. Blue Ridge Club, Inc., supra 22 Wash.2d at 495, 156 P.2d 667; Washburn v. Esser, 9 Wash.App. 169, 171, 511 P.2d 1387 (1973).
When Crescent Harbor was formed, the property where the well is located was owned by Massey and McPhee, who were also the incorporators and original trustees of Crescent Harbor. Lyseng contends that due to the close relationship between Massey, McPhee and Crescent Harbor, Crescent Harbor's initial use of the well was permissive. Lyseng concludes that because no evidence of a positive assertion of an adverse right appears in the record, the trial court erred in finding that Crescent Harbor holds a prescriptive easement. We disagree, as we find Crescent Harbor's initial use was not permissive.
When the owner of a servient estate confers upon another the right to use that property as if it had been legally conveyed, the resultant use is made under a claim of right, rather than by permission. 2 G. Thompson, Real Property § 345, at 239-40 (1980); accord Lechman v. Mills, 46 Wash. 624, 628-30, 91 P. 11 (1907); Washburn v. Esser, supra.
In Washburn, a group of property owners constructed a road that crossed each of their lots. The owners shared in the cost of construction and repair of the road. One owner subsequently sold part of his lot to the Washburns, who blocked the road where it crossed their property. The court rejected the Washburns' argument that the initial use was permissive and had not ripened into a prescriptive easement, reasoning:
We believe the circumstances in the instant case establish the exceptional situation in which a use of another's land is adverse even though the landowner agreed to the use of his property. The important question is whether the landowner permitted the use as a mere revocable license or whether an oral grant of a permanent right to use the property was intended. It is generally agreed that use of an easement under claim of right by virtue of an oral grant may be adverse so as to give a title by prescription, although the parol grant itself is void under the statute of frauds. If the use of the easement acquired by the oral grant continues for the prescriptive period of 10 years in a manner that is open, notorious, continuous and adverse to the owner of the land, the oral grant then ripens into a prescriptive easement to permanently use the road.
Washburn, 9 Wash.App. at 172, 511 P.2d 1387 (citations omitted).
Reviewing the evidence and reasonable inferences therefrom in the light most favorable to Lyseng, we find the trial court was clearly warranted in finding the requisite adversity for a prescriptive easement. Crescent Harbor's Articles of Incorporation provide for perpetual corporate existence for the sole purpose of "own[ing] the water system served by the well located on [the subject] property...." Crescent Harbor at no time sought permission from owners of Lyseng next argues the trial court's judgment for easement was in error because the court improperly considered Guerrero's beliefs regarding Crescent Harbor's right to use the well and water system. 5 He argues that under Chaplin v. Sanders, 100 Wash.2d 853, 676 P.2d 431 (1984), evidence offered to show his predecessor in interest's belief as to the status of Crescent Harbor's use is irrelevant.
the servient estate to access, use and maintain the well and in fact caused Guerrero to believe the corporation used the well as a matter of right. Since incorporation, Crescent Harbor has assumed total responsibility for all expenses associated with the well and water system, including maintenance, repairs, power bills and water analysis. This undisputed evidence permits only one reasonable inference: the original owners of the servient property, Massey and McPhee, intended to grant Crescent Harbor a permanent right to access and use the well and water system. We conclude that Crescent Harbor's use of the well and water system was initially made under a claim of right, and affirm the trial court's finding that Crescent Harbor holds a...To continue reading
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