Donner v. Blue

• Decision Date: 23 February 2015
• Docket Number: No. 71441–4–I.,71441–4–I.
• Citation: 347 P.3d 881,187 Wash.App. 51
• Parties: Neil DONNER and Kiyomi G. Donner, husband and wife, and the marital community thereof, Appellants, v. James M. BLUE, as Trustee for Northwest Neurological Surgery Trust; John W. Rieke and Gene E. Robertson, husband and wife, and the marital community thereof; James C. Hawkanson and Jane H. Hawkanson, husband and wife, and the marital community thereof; John E. Spring, a single person; Shane Kim and Dana Kim, husband and wife, and the marital community thereof, Respondent.
• Court: Washington Court of Appeals

187 Wash.App. 51

347 P.3d 881

Neil DONNER and Kiyomi G. Donner, husband and wife, and the marital community thereof, Appellants

v.James M. BLUE, as Trustee for Northwest Neurological Surgery Trust; John W. Rieke and Gene E. Robertson, husband and wife, and the marital community thereof; James C. Hawkanson and Jane H. Hawkanson, husband and wife, and the marital community thereof; John E. Spring, a single person; Shane Kim and Dana Kim, husband and wife, and the marital community thereof, Respondent.

No. 71441–4–I.

Court of Appeals of Washington, Division 1.

Feb. 23, 2015.

Publication Ordered April 15, 2015.

Michael Duane Daudt, Terrell Marshall Daudt & Willie PLLC, Seattle, WA, for Appellants.

Pamela A. Okano, Marilee C. Erickson, Reed McClure, Mick Anthony Jaeger, Emmelyn Hart, Lewis Brisbois Bisgaard & Smith LLP, Gary A. Trabolsi, Gardner Trabolsi & Associates PLLC, Gordon G. Hauschild, Wood Smith Henning & Berman, LLP, Seattle, WA, Thomas Allan Heller, Heller Wiegenstein PLLC, Edmonds, WA, William Edward Gibbs, Bergman & Gibbs LLP, Bellevue, WA, for Respondent.

Opinion

LAU, J.

¶ 1 Homeowners Neil and Kiyomi Donner appeal an order for summary judgment dismissing their breach of easement, negligence, nuisance, and trespass claims against neighboring homeowners for damages to their residence resulting from a clogged private sewer line shared by the parties. They argue the trial court erred when it dismissed their claims because respondent James Blue is liable as the owner of the tree that obstructed the sewer line and because the remaining respondents failed to fulfill an affirmative duty to maintain the sewer line. Because no controlling authority imposes an affirmative duty to inspect the shared sewer line, we affirm the order dismissing the Donners' claims on summary judgment. We affirm the trial court's order allocating repair costs to the uphill respondents.

FACTS

¶ 2 The material facts are undisputed. Respondents John Spring, James and Jane Hawkanson, Shane and Dana Kim, and John Rieke and Gene Robertson are all uphill neighbors to the Donner home.¹ These uphill respondents' homes are situated on a steep slope, east to west, toward Lake Washington. Downhill from the uphill respondents and adjacent to the Donners' home is unimproved property owned by James Blue, as trustee for the Northwest Neurological Trust. The Blue property fronts on West Mercer Way on Mercer Island. There are no structures on the property, only natural trees and foliage. A common private sewer line serves all the parties to the litigation except for the Blue property.² The sewer line runs under Blue's property and connects to the public sewer line under West Mercer Way. Unlike the other parties, Blue's property makes no use of the sewer line since it is undeveloped.

¶ 3 During the week of July 30, 2012, tree roots on the Blue property blocked the sewer and the Donners—who were out of town that week—came home and discovered sewage had filled their basement. None of the parties had ever experienced a blockage of the sewer line. The sewage originated from the uphill respondents' homes. The Donners filed a complaint on May 22, 2013, against Blue and the uphill respondents to recover damages from the sewage. The Donners argued the uphill respondents were liable under several theories, including negligence, trespass, nuisance, strict liability, and breach of easement. In November 2013, all respondents moved for summary judgment to dismiss the Donners' claims. The trial court granted the respondents' motions for summary judgment but directed the uphill respondents to pay an equal share (along with the Donners) to repair the sewer line.³ The court awarded no consequential damages related to the damage to the Donners' home. The Donners appeal.

ANALYSIS

Standard of Review

¶ 4 This court reviews summary judgment de novo, engaging in the same inquiry as the trial court, and views the facts and the reasonable inferences from those facts in the light most favorable to the nonmoving party. Michak v. Transnation Title Ins. Co., 148 Wash.2d 788, 794–95, 64 P.3d 22 (2003). A trial court properly grants summary judgment where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” CR 56(c).

¶ 5 The parties do not dispute that the main issue here is whether the respondents owe an affirmative duty to inspect the common sewer line.

Blue's Liability

¶ 6 The Donners argue that Blue is liable under two theories. First, they argue that Blue is liable under Forbus v. Knight, 24 Wash.2d 297, 163 P.2d 822 (1945) because he owned the offending agency (the tree) causing the damage. Second, they argue that under Sunnyside Valley Irr. Dist. v. Dickie, 111 Wash.App. 209, 43 P.3d 1277 (2002), aff'd, 149 Wash.2d 873, 73 P.3d 369 (2003), Blue owed a duty as the property owner burdened by the easement to remove obstacles which could interfere with the Donners' right to use the sewer line easement. Both Forbus and Sunnyside are distinguishable from this case.

¶ 7 The Donners claim that Blue is liable under Forbus because he owned the tree that clogged the sewer line. Forbus involved two adjacent property owners. There, roots from a tree on the defendant's property invaded the plaintiff's property and clogged a sewer line, causing water and waste to flood the plaintiff's basement. Forbus, 24 Wash.2d at 298–302, 163 P.2d 822. The court reasoned that the owner of the offending agency owes a duty to restrain the encroachment:

It is not the law that the owner of premises is to be charged with negligence if he fails to take steps to make his property secure against invasion or injury by an adjoining landowner. It is the duty of the one who is the owner of the offending agency to restrain its encroachment upon the property of another, not the duty of the victim to defend or protect himself against such encroachment and its consequent injury.

Forbus, 24 Wash.2d at 313, 163 P.2d 822. Based on this rationale, the Donners contend Blue is liable for the damage caused by his tree because he owed a duty to restrain its encroachment.

¶ 8 Unlike Forbus, the dispute here implicates the rights and obligations under a private sewer easement. In Forbus, the tree invaded the plaintiff's property, clogging the plaintiff's sewer pipe. Forbus, 24 Wash.2d at 304, 163 P.2d 822. Here, the tree roots did not invade the Donners' property but, instead, clogged the sewer line underneath Blue's property. Like all the uphill respondents, the Donners use the common side sewer easement to transfer sewage from their properties. Blue is not connected to the sewer line. He therefore derives no benefit from or use of the sewer line.

¶ 9 Blue's property is burdened by the easement and the Donners receive the benefit of the easement. Under easement law, Blue's estate is the “servient” estate and the Donners' estate is the “dominant” estate. 17 William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate: Property Law § 2.1, at 80 (2d ed.2004). Generally, responsibility for the maintenance and repair of an easement to keep it in proper condition lies with the owner of the easement—the dominant estate. 1 Wash. State Bar Ass'n, Washington Real Property Deskbook § 10.4(2)(c) (3d ed.1997).

¶ 10 And according to a leading treatise on real property easements, servient owners ordinarily owe no duty to the dominant owner to repair or maintain the easement unless an agreement varies these duties:⁴

Servient owners, according to the New Restatement, have no duty to the dominant owner to “repair or maintain the servient estate or the facilities used in the enjoyment of the easement or profit.” Because the duty to maintain an easement ordinarily rests on the easement owner, servient owners had no duty to construct stairs to the beach for the benefit of a dominant estate owner.

7 Thompson on Real Property: The Law of Easements § 60.05(a) (David A. Thomas ed., 2d ed.2006) (footnote omitted) (quoting Restatement (Third) of Prop.: Servitudes S § 4.13(3) (2000)). There is scant Washington case law on point. Blue cites several cases from other states discussing in general the lack of any duty on the servient estate owner to remove or cut back vegetation that encroached onto an easement. Smith v. Muellner, 283 Conn. 510, 932 A.2d 382 (2007) ; Schwartz v. Murphy, 74 Conn.App. 286, 812 A.2d 87 (2002) ; Suitts v. McMurtrey, 97 Idaho 416, 546 P.2d 62 (1976). The Donners properly concede that easement owners owe a duty to maintain the easement benefitting their dominant estates. Appellants' Reply Br. at 1. Nevertheless, the Donners argue with no citation to authority that Forbus controls over easement law. We are unaware of any case that extends the rule in Forbus to the easement interest context. We decline to do so here.

¶ 11 Next, the Donners cite Sunnyside, arguing that “as the servient estate owner, [Blue owed] a duty to remove obstacles which could interfere with the Donners' right to use the sewer line.” Br. of Appellant at 8. Sunnyside does not support this argument. In Sunnyside, we concluded that the servient estate owner needed to remove several trees so that the plaintiff could enlarge irrigation laterals running across the defendant's property. Sunnyside, 149 Wash.2d at 878–88, 73 P.3d 369. We did not hold that the trees interfered with the plaintiff's right to use the easement laterals. Rather, the easement agreement's express language granted the easement owner the right to enlarge the laterals: “We hold the easement granted to the United States by the Dickies' predecessor gave the specific right to enlarge the lateral as deep and wide as necessary....” Sunnyside, 111 Wash.App. at 218, 43 P.3d 1277. Our Supreme Court affirmed, relying on the same rationale: “[A]n easement can be expanded over time if the express terms of the easement manifest a clear intention by the original parties to modify the initial scope based on future demands.” Sunnyside, 149 Wash.2d at 884...