Forsman v. Greene

• Decision Date: 07 February 2023
• Docket Number: 38583-3-III
• Parties: WILLIAM FORSMAN and MONA FORSMAN, husband and wife, Respondents, v. LOIACE W. GREENE and ELAINE A. GREENE, husband and wife, Appellants.
• Court: Washington Court of Appeals

WILLIAM FORSMAN and MONA FORSMAN, husband and wife, Respondents,
v.
LOIACE W. GREENE and ELAINE A. GREENE, husband and wife, Appellants.

No. 38583-3-III

Court of Appeals of Washington, Division 3

February 7, 2023

UNPUBLISHED OPINION

Staab, J.

William and Mona Forsman brought a quiet title action against their neighbors Loiace (Bud) and Elaine Greene, alleging that they were entitled to a prescriptive easement that would effectively widen the roadway used by the Forsmans to access their property. Following a bench trial, the Asotin County Superior Court found that the Forsmans had met their burden of proving all of the elements of a prescriptive easement for use of the road shoulder and expanded turnaround area. The trial court also held that recent modifications of the public road by Greene rendered the entire road subject to current fire code regulations.

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The Greenes appeal and raise three issues: (1) the evidence was insufficient to support the trial court's conclusion that the historic use of Ridgeview Drive created a prescriptive easement for use of the road wider than the 15-foot legal description, (2) the trial court erred in failing to apply a presumption of permissive use, and (3) the trial court erred in concluding that the road was subject to the 2015 International Fire Code.

We affirm.

BACKGROUND

Following a bench trial, we review the record in a light most favorable to the prevailing party to determine if substantial evidence supports the trial court's findings of fact and, if so, whether the findings support the conclusions of law. Real Carriage Door Co. ex. rel. Rees v. Rees, 17 Wn.App. 2d 449, 457, 486 P.3d 955, review denied, 198 Wn.2d 1025, 497 P.3d 394 (2021). We do not reweigh the evidence or credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

"'Substantial evidence' is evidence sufficient to persuade a fair-minded, rational person of the truth of the declared premise." Price v. Kitsap Transit, 125 Wn.2d 456, 464, 886 P.2d 556 (1994). The substantial evidence standard is highly deferential to the fact finder. Alpha Kappa Lambda Fraternity v. Wash. State Univ., 152 Wn.App. 401, 418, 216 P.3d 451 (2009). "This court will uphold the trial judge's interpretation of disputed testimony when any reasonable view substantiates his findings, even though there may be other reasonable interpretations." Ebling v. Gove's Cove, Inc., 34 Wn.App. 495, 501, 663 P.2d 132 (1983).

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Unchallenged findings are considered verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).

In light of our limited role on appeal and the deference afforded to the trier of fact, we set forth the evidence in a light most favorable to the Forsmans as the prevailing party.

The parties in this case own homes and property located on a steep hill in Asotin County. The property was originally owned and developed by George Cunningham. The Forsmans and several other property owners in the plat access their homes by way of a gravel road called Ridgeview Drive. Ridgeview Drive runs across property owned by the Greenes. The Greenes do not dispute the existence or status of Ridgeview Drive as a public roadway. Instead, they dispute the width of the roadway and any use beyond the 15-foot legal description, including the shoulder. The Forsmans contend that the historic use of the roadway goes beyond the 15-foot description and they have an easement by prescription to use the entire surface area of the roadway.

At trial, the Forsmans produced evidence to support their claim that the property owners and the public have historically used a much wider version of Ridgeview Drive than its 15-foot legal description. The property developer, George Cunningham, testified that the road now known as Ridgeview Drive had existed in substantially the same form since at least the mid to late 1970s. In the early 1990s, in order to secure access and utilities to future building sites, Cunningham obtained an easement from the neighboring

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property owner that formally recognized Ridgeview Drive. The easement described Ridgeview Drive as 15-feet wide.

Despite this description, Cunningham testified that he never measured the width of the actual roadway, but used a 15-foot description in the easement because the City of Asotin required it. In reality, Cunningham testified that the travelled portion of the roadway was more than 15-feet wide. He clarified that the travelled portion of the roadway was evident from the tire tracks and lack of vegetation: "You can tell that by the tire tracks. And there was no weeds, no nothing. It was all knocked down to where you could see traffic used it." Ex. P21 at 28.

In 1992, Cunningham recorded a "road maintenance agreement" on the property titles that used Ridgeview Drive to ensure subsequent owners would maintain the road. In 1994, Cunningham filed a "plat dedication" making Ridgeview Drive a public roadway. Despite this dedication, the property owners continued to maintain Ridgeview Drive.

In 1995, Cunningham built the residence that would eventually be purchased by the Forsmans and sold it to William Stanley. Stanley sold it to Ronald Ritz who sold it to the Forsmans in 2016. Cunningham testified that the Stanleys, the Ritzes, and the Forsmans all continuously used the "entirety" of Ridgeview Drive out to the "surface area/shoulder" to access the house and did so for a period of ten years. The public also

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used the road. These owners did not have permission to use the roadway and did not hide their use.

Cunningham and his wife divorced in the late 1990's. The house they were living in was sold to the Greenes in 2004. In 2007, Greene purchased the land on which Ridgeview Drive crosses. Initially, the Greenes used Ridgeway Drive to access their home but later built an alternate access to their property.

In 2007, the Greenes had their land surveyed, and Bud Greene placed fence posts along Ridgeview Drive to mark the property boundary. In approximately 2015, Bud Greene began placing impediments such as boulders, fence posts, fence panels, and gates on the traveled portion of the roadway and shoulder.

William Forsman testified that when he and his wife purchased their property in 2016, he noticed fence posts along the shoulder of the road, but not in the traveled portion. He estimated that the road being used at that time was 20 to 25 feet wide. After Greene placed boulders and a gate across the road in 2016, Forsman testified that he could not back into his driveway or "drive out as far (width-wide) on the road as you used to be able to." Clerk's Papers (CP) at 365-66. The rock and gate placements also prevented access to utility vaults outside the road that was previously possible. Another property owner testified that after Greene installed impediments along the shoulder, it was difficult or impossible to maintain the road.

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Greene conceded at trial that the road shoulder was historically used to access the utilities. He admitted to turning away a fiber optic company's workers by telling them they were trespassing when they came to access the utility vaults behind his fence panels. Greene also refused Forsman's request to remove obstructions so concrete construction trucks could reach Forsman's property.

In late 2018, the Forsmans sent the Greenes a letter demanding the removal of the impediments interrupting the historical use of the road. When the Greenes refused, William Forsman took down the fence panels and gate himself.

In February 2019, the Forsmans filed a lawsuit against the Greenes seeking a prescriptive easement, express easement, easement by necessity, right of public easement and/or condemnation. The trial court judge visited the site, reviewed the court file and conducted a two-day trial. At least one survey was admitted at trial.^[1]

At trial, Forsman's expert testified that the historic road was under the pit rock and current weeds and implied that Greene covered up the evidence of the normal lane of travel. The expert opined that the objects...