Heg v. Alldredge

• Decision Date: 25 October 2004
• Docket Number: No. 51443-1-I.,51443-1-I.
• Citation: 99 P.3d 914,124 Wash. App. 297
• Court: Washington Court of Appeals
• Parties: Deborah S. HEG, Respondent, v. Ralph C. ALLDREDGE and Claudia Alldredge, husband and wife, Appellants, Estate of Lloyd O. Kalberg; John K. Sage and Shelly A. Ogden, husband and wife; Albert L. Odmark, Jr., and Nancy Ritzenthaler, husband and wife; Pope & Talbot, Inc., a Delaware corporation; Pope Resources, Inc., a Delaware corporation; Pope & Talbot, Inc., a California corporation; and Pope Resources, a Delaware limited partnership, Defendants Below.

99 P.3d 914

124 Wash. App. 297

Deborah S. HEG, Respondent, v. Ralph C. ALLDREDGE and Claudia Alldredge, husband and wife, Appellants, Estate of Lloyd O. Kalberg; John K. Sage and Shelly A. Ogden, husband and wife; Albert L. Odmark, Jr., and Nancy Ritzenthaler, husband and wife; Pope & Talbot, Inc., a Delaware corporation; Pope Resources, Inc., a Delaware corporation; Pope & Talbot, Inc., a California corporation; and Pope Resources, a Delaware limited partnership, Defendants Below.

No. 51443-1-I.

Court of Appeals of Washington, Division 1.

October 25, 2004.

Robert D. Jones, Duana Kolouskova, Johns, Monroe, Mitsunaga, PLLC, Bellevue, WA, for Appellants.

Michael Charneski, Attorney at Law, Woodinville, WA, for Respondent.

KENNEDY, J.

In this quiet title action, Ralph and Claudia Alldredge appeal the trial court's grant of summary judgment to Deborah Heg by which the trial court ruled that a recorded but unopened easement for ingress, egress, access, and road purposes is appurtenant to Heg's real property. The Alldredges contend that genuine issues of material fact preclude summary judgment as to whether the easement was abandoned and, if a trier of fact should find that it has not been abandoned, as to whether Ms. Heg ought nevertheless to be equitably estopped from enforcing the easement. They also contend that the trial court erred by failing to specify that the scope of any rights Ms. Heg may have to utilize the easement in the future can only be resolved after weighing the relative hardships on the parties based on such facts as may exist at the time that actual use of the easement is proposed. We find there are material issues of fact as to whether the easement was abandoned. There is sufficient evidence in the record to support a finding of abandonment and to support equitable estoppel on one of the three theories presented by the Alldredges, though not on the other two. Accordingly, we reverse in part and affirm in part. And although it is unclear to us whether the trial court actually intended to preclude any future court review regarding the scope of Ms. Heg's potential future use of the easement in light of the relative hardship to the parties, to the extent that the trial court may have so intended, we modify the ruling to preserve those issues.

FACTS

In the 1940s, a predecessor of the various Pope & Talbot, Inc., and Pope Resources entities that were named as defendants below subdivided property located on Whidbey Island that is bordered on the west by Admiralty Inlet, on the east by Smugglers Cove Road, and on the south by Whidbey Island State Park. The property was never formally platted, but was subdivided into parcels of various sizes having metes and bounds descriptions. Parcels A and B together contain approximately 22 acres, and are now owned by the respondent Deborah Heg. Parcel B is a waterfront parcel; Parcel A fronts on Smugglers Cove Road, a county road. Parcels C and D together contain approximately 11 acres, and are now owned by the appellants Ralph and Claudia Alldredge. Parcel D is a waterfront parcel; Parcel C fronts on the county road.

Parcels E, F, G, H, and I are waterfront parcels that are substantially smaller than Parcels A through D, and are now owned by several of the Alldredges' neighbors to the south who were defendants below but who are not parties to this appeal.

By 1957, the Pope & Talbot predecessor that subdivided the land had sold most if not all of the parcels in the subdivision, though it retained ownership of two parcels referred to as Pope Tract 1 and Pope Tract 2. Pope Tract 1 is a 60-foot wide strip of land that extends from its point of beginning abutting Parcel A in a southeasterly direction to its point of termination abutting the State Park. Pope Tract 2 is a 40-foot wide strip that connects Pope Tract 1 to Smugglers Cove Road. Pope Tract 2 was opened as a roadway initially called McClement Road, but subsequently renamed Smugglers Lagoon Lane. The Alldredges and their neighbors to the south use Smugglers Lagoon Lane to access their properties. Pope Tract 1 has never been fully opened as a roadway although it apparently provides the means by which some of the neighbors reach their yards and driveways from Smugglers Lagoon Lane.

In January 1957, Pope & Talbot, Inc., recorded a Declaration of Easement containing the metes and bounds descriptions of Pope Tract 1 and Pope Tract 2, and containing the following operative language:

This easement shall be for ingress, egress, access and road purposes. This easement shall vest in each owner of property which abuts upon the tracts of land hereinabove described and this easement shall be an easement running with the land both as to burden and benefit as to each such abutting tract.

Clerk's Papers at 336-38.¹

Appendix A to this opinion, which is found at Clerk's Papers 345, depicts Parcels A through 1 and Pope Tracts 1 and 2 as configured in 1957 when the easement was granted. By then, Bayard Wheeler owned Parcels A and B, and a private road located in the interior of Parcel A provided Wheeler with access to Smugglers Cove Road. Although both Parcel A and Parcel B abutted on the easement, Wheeler never used or proposed to use the easement granted by Pope & Talbot.

In March 1967, Wheeler sold Parcels A and B to Donald Thomas on a real estate contract under which Thomas could obtain incremental deed releases "provided that a permanent easement, right of way or public road is provided to the waterfront portion of subject property." Clerk's Papers at 180. Wheeler's conveyance to Thomas made no mention of the Pope & Talbot easement. Thomas never used or proposed to use the easement granted by Pope & Talbot. As had Wheeler, Thomas used the road on Parcel A to get to and from Smugglers Cove Road. Thomas also placed a deep road cut across the portion of his property that abuts the dead-end of the Pope & Talbot easement, leaving a four to six foot barrier between his property and the easement.

The Alldredges purchased Parcels C and D in 1989. That same year, Pope & Talbot quitclaimed to the Alldredges the portion of Pope Tract 1 that runs between Parcels C and D, thereby creating Parcel J. Thereafter, Pope & Talbot quitclaimed other portions of Pope Tract 1 to the owners of various other parcels abutting Tract 1. Pope & Talbot retained ownership of some portions of Pope Tract 1 and all of Pope Tract 2. These retained portions are called Parcel K.

Prior to the Alldredges' purchase, Parcels C, D, and J had only been used for timber purposes and were heavily wooded. The Alldredges cleared a home site and built a vacation cabin that they plan to convert to a permanent home after Ralph Alldredge retires from his law practice in California. The Alldredges do not use Parcel J for road or driveway purposes; rather they have incorporated it into their yard by landscaping it. Although their cabin is located on Parcel D, their driveway is located on Parcel C and connects to Smugglers Lagoon Lane on Parcel C. The placement of their house indicates the contemplated use of Parcel J as part of the yard of the house, rather than as a road or driveway.

The portions of the 60-foot wide easement that Pope & Talbot quitclaimed to the Alldredges' neighbors to the south have also largely been incorporated into the yards of their respective homes. One neighbor to the South, the Sages, built a septic system, which the county permitted to be built on a portion of the easement. Given the location of the well that provides the Sages with their water, relocation of the mound that serves that system would be problematic, as well as extremely expensive.

In March 1993, Thomas sold Parcels A and B to Deborah Heg. The deed to Ms. Heg references the 1957 easement. Ms. Heg and her husband have invested in excess of $2 million in the acquisition, improvement, and landscaping of Parcels A and B. They reconfigured the private road on Parcel A leading to Smugglers Cove Road from a 1940's style driveway to a curved and sweeping drive through the veritable park that they have created on Parcels A and B. The reconfigured and paved driveway serves both their residence on Parcel B and their guesthouse on Parcel A. Ms. Heg obtained approval for a boundary line adjustment increasing the size of Parcel B to nearly 5 acres and decreasing the size of Parcel A to approximately 17 acres. As a condition of approving this boundary line adjustment, the county required Ms. Heg to provide written confirmation that Parcel B will always have legal access across Parcel A to Smugglers Cove Road, and Ms. Heg complied with that requirement.

Ralph Alldredge and Deborah Heg spoke by telephone shortly before Ms. Heg purchased Parcels A and B. Among the topics discussed was a boundary line adjustment between Parcels B and D. Within a year after Deborah Heg bought the parcels, Ralph Alldredge told the Hegs that he believed that the easement had never been intended to benefit Parcels A and B, but even if so intended, that he believed the easement had been abandoned by the prior owners of Parcels A and B. Apparently, this explanation was met with silence on the part of the Hegs.

A couple of unusually rainy seasons followed the Heg purchase, and water began to run downhill off the Alldredge property onto the Heg property. Deborah notified Ralph of the problem, and Ralph asked her to recommend someone to fix the problem. She did so, and the Alldredges hired the man she recommended. After assessing the situation, this person recommended a drainage system be built, part of it to be at a location that was within the confines of the easement, and part of it to be underground on the Heg side of the property line. The Hegs approved the location, and the drain was installed at a cost to the Alldredges of over $8,000.

Intermittently during the first few years after Deborah Heg purchased Parcels A and B, she and her husband and the Alldredges discussed a boundary line adjustment...