Hemmen v. Jimmy
| Decision Date | 17 January 2023 |
| Docket Number | 83136-4-I |
| Parties | JEFFREY HEMMEN, individually; ROBERT CLARDY, individually; WENDE DOOHAN, individually; DIANNA MAXUM, individually; and GREG and SHERRY COCHRAN, individually and in their marital community thereof, Respondents/Cross Appellants, v. JIMMY and AMY CHO, individually or in their marital community thereof, Appellants/Cross Respondents. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Jimmy and Amy Cho own a parcel of land that includes a 30-foot-wide private road along their western boundary. After the Chos put up a gate across the road, several neighbors sued, arguing their prior use created a prescriptive easement to access the road. The trial court dismissed their claim on summary judgment. One plaintiff, Wende Doohan, proceeded to a bench trial on her claim that she benefits from an express easement to access the road. The trial court ruled for Doohan and determined that the Chos' gate unreasonably interfered with her easement rights. We affirm the trial court's dismissal of the neighbors' prescriptive easement claims at summary judgment and its ruling for Doohan on her express easement claim. But we reverse the trial court's determination that the Chos' gate unreasonably interferes with Doohan's easement and remand for further proceedings consistent with this opinion.
In 1949, W.C. Mading conveyed a parcel of undeveloped land in the East Renton Highlands of King County to A.J. Olmsted. The property sat on the southwest bank of Lake Kathleen, and Olmstead could access the property only by West Lake Kathleen Drive SE, a private dirt and gravel road. The road was an arterial from SE 128th Street to the north, running about a mile south along Lake Kathleen and terminating at the northwest corner of the Olmstead property.
In 1955, Olmsted conveyed the land to Amy Lang. The "1955 Deed" includes these exceptions:
EXECPTING the minerals and right to explore for and mine the same heretofore reserved by W.C. MADING and MAYBELLE E MADING, his wife. . . . ALSO EXCEPTING the south 30 feet of the above described land for road. . . . ALSO EXCEPTING the west 30 feet of the above described land for road.[1]
At the time of the sale, King County owned the 30-foot-wide strip of land "for road" that ran along the southern edge of the property.
In 1959, Lang conveyed the land to Charles Tidd. The deed contained the same exceptions for a 30-foot-wide road along the western and southern edges of the property. In contemplating his purchase of the property, Tidd commissioned a land survey. The survey, pictured below, shows Tidd's plan to subdivide the land into several lots and provide access to the subdivided parcels by extending West Lake Kathleen Drive SE from the northwest corner of the property south along the 30-foot-wide strip of land on the western edge of the property, and connecting the road to the southwest corner of the parcel and the 30-foot-wide strip of land along the southern edge owned by King County.
(Image Omitted)
At some point, someone, likely Tidd, developed a gravel road from the northwest corner of the property to extend West Lake Kathleen Drive SE from the north. The road continued down the 30-foot-wide strip of land along the western edge of the property and ended at the southwest corner of the parcel. Tidd subdivided and sold most of the land but kept the northern portion for himself, where he built a home.[2] Throughout the 1970s and 1980s, subsequent owners continued to subdivide the property. The gravel road crossing Tidd's parcel was the only means of ingress and egress to the subdivided parcels.
In 1983, several residents along West Lake Kathleen Drive SE executed a road maintenance agreement (RMA)[3] to share the cost of maintaining the gravel road. The agreement covered "a six block section of road known as West Lake Kathleen Drive S.E. from S.E. 140th to S.E. 144th,"[4] including the 30-foot-wide road crossing the western edge of Tidd's property. But each signatory agreed that their shared cost was "proportionate . . . to the total length or distance they must travel" to get to their residence.
In 1987, Mark and Barbara Creek bought Tidd's property. While their deed did not include an exception for the 30-foot-wide road along the western edge of the property, they knew about the exception from their title insurance.[5]That same year, the Creeks signed the RMA. Around 1991, the community organized and shared the cost of paving the entire length of West Lake Kathleen Drive SE.[6] The paved road remained a "narrow," single lane, dead-end road. Mark Creek testified that he never stopped anybody from using the road because he believed the language in his title insurance meant that his neighbors enjoyed an easement to cross his property.
In 2004, King County extended SE 144th Street eastward and connected it to the southwest corner of the Creeks' property. Now, West Lake Kathleen Drive SE no longer ended in a dead end. As a result, residents along West Lake Kathleen Drive SE had a new source of ingress and egress. And vehicular traffic along West Lake Kathleen Drive SE and the western edge of the Creeks' property increased because vehicles used it "as a quick pass-through short cut" to and from SE 144th Street.
In 2019, the Creeks sold their property to the Chos. The Chos' deed contains the same exceptions as the 1955 Deed. Shortly after moving to the property, the Chos grew concerned with the amount of traffic speeding on the road across their property. In March 2020, the Chos erected a gate to stop traffic from using their road to access SE 144th Street.
In May 2020, Lake Kathleen resident Jeffrey Hemmen sued the Chos in King County Superior Court, alleging a prescriptive easement over the Chos' road and seeking injunctive and declaratory relief. Hemmen lives west of the Chos on SE 143rd Street and began using their road to access SE 144th Street after the county connected it to West Lake Kathleen Drive SE in 2004.
The same day Hemmen filed his original complaint, he filed an amended complaint, adding claims for ejectment to remove the Chos' gate and to quiet title because of "pre-existing easements and road maintenance agreements." The amended complaint also added as plaintiffs Robert Clardy, Dianna Maxum, Greg and Sherry Cochran, and Doohan (collectively Neighbors).
The Cochrans, Clardy, and Maxum live on West Lake Kathleen Drive SE several parcels north of the Chos. Greg Cochran, born in 1959, grew up in the area and has used the Chos' road to walk and bike since he "was young." Clardy and Maxum claim to have used the Chos' road generally for over 30 years. Doohan lives southeast of the Chos on one of the parcels subdivided from the original property described in the 1955 Deed. Since buying her parcel in 2006, Doohan has mostly accessed her home from SE 144th Street, but she sometimes used the Chos' road to enter and leave the neighborhood. Below is an illustrative map the Chos included in their opening brief:[7]
(Image Omitted)
The Neighbors moved for summary judgment, arguing that their use of the Chos' road created prescriptive easement rights in their favor. The trial court denied the Neighbors' motion, citing several issues of material fact.
In January 2021, the Chos moved for summary judgment. They argued that the Neighbors' prescriptive easement claim failed as a matter of law because the Neighbors could not rebut a presumption of permissive use. The court granted the Chos' motion and dismissed the prescriptive easement claim. Only Doohan proceeded to a bench trial, claiming that the Chos' deed granted an express easement for her benefit and that the Chos' gate unreasonably interferes with her use of the road.
Before trial, the Chos moved to exclude testimony from the other Neighbors and Doohan's expert witness, Dwight Bickel, arguing that Doohan did not timely disclose him as a witness and that his testimony would amount to inadmissible legal conclusions. The Chos also moved to exclude any reference to the RMA as "irrelevant." The court denied the motions, allowing the Neighbors and Bickel to testify. After the close of testimony, the Chos moved for the trial judge to recuse herself, alleging bias in her rulings. The court also denied that motion.
After trial, the court entered extensive findings of fact and conclusions of law. The court determined that the "30-foot exception for road" language in the 1955 Deed conveying the original parcel of land from Olmsted to Lang created an express easement over the west 30 feet of the property that was never "extinguished, merged, or abandoned." And it determined that Doohan, as an owner of one of the subdivided parcels of land, benefits from the easement. Finally, the court concluded that the Chos' gate unreasonably interfered with Doohan's easement rights and ordered the Chos to remove the gate. The court stayed the order pending appeal.
The Chos appeal and the Neighbors cross appeal.
The Neighbors argue the trial court erred by granting the Chos' summary judgment motion to dismiss their claims for prescriptive easement. They also cross appeal the trial court's order denying their motion for summary judgment. The Chos argue the trial court erred by not dismissing the Neighbors as parties after granting their summary judgment motion.
We review summary judgment orders de novo. Elcon Constr Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id.; CR 56(c). We construe the facts and all reasonable inferences in a light most favorable to the nonmoving party. Elcon...
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