Hubbard v. Grandquist

• Decision Date: 14 September 1937
• Docket Number: 26511.
• Parties: HUBBARD et ux. v. GRANDQUIST et ux.
• Court: Washington Supreme Court

71 P.2d 410

191 Wash. 442

HUBBARD et ux. v. GRANDQUIST et ux.

No. 26511.

Supreme Court of Washington

September 14, 1937

Department 2.

Appeal from Superior Court, King County; Kazis Kay, Judge.

Suit by Thomas E. Hubbard and wife against Gust Grandquist and wife. From a decree for plaintiffs, the defendants appeal.

Affirmed.

Bell McNeil & Bowles, of Seattle, for appellants.

Allen &amp Wilkins, of Seattle (Edgar R. Rombauer, of Seattle, of counsel), for respondents.

BEALS Justice.

During the spring of 1925, the defendants, Gust and Anna Grandquist, were the owners of a tract of land located on the east side of Fifteen Avenue Northwest, in the city of Seattle. April 28th of that year, the defendants, by contract of conditional sale, agreed to sell to L. E. Sexauer the south forty-four feet of the tract. At this time, the land which Mr. Sexauer agreed to purchase was improved with a five-room bungalow. The grade of the street was approximately four feet higher than the lot level, but the lot had been filled in to the street grade as far back as the front of the house.

At this time, a garage stood on or near the southeast corner of the tract sold, and Mr. Sexauer, desiring to raise the entire lot to the grade of the street, moved the garage to the northeast corner as soon as he had filled that portion of the lot. In driving his car in and out of this garage, Mr. Sexauer, in driving past his house, used a portion of the land remaining in defendants' ownership, as there was insufficient land between his house and his lot line to afford him a driveway wide enough for the ordinary automobile. The driveway used was four feet on defendants' land, and three feet on that covered by the contract of sale.

During the summer of 1925, the defendants constructed a dwelling on the portion of the tract which they still owned, and have resided there ever since. Defendants paid for filling in the southerly portion of their land and bringing the same up to grade, including that portion of their land occupied by the driveway. Defendants used the driveway located partially on their lot and partially on that which they had agreed to sell to Mr. Sexauer, for deliveries of fuel, and it appears that for a while they maintained a garage on their southerly lot line, adjacent to that belonging to respondents. Mr. Grandquist testified that he wanted a driveway, and that he intended to construct one entirely on his own property. The only permanent improvement on the existing driveway was made when the street was paved, at which time an opening was left in the curb at the appropriate position to be used in connection with the driveway, and some small amount of concrete paving laid. The cost of this matter was assessed one-half against each lot.

During the early portion of the year 1930, plaintiffs, Thomas E. and Cora Hubbard, took an assignment from Mr. and Mrs. Sexauer of the latter's interest in the real estate contract. Prior to making this purchase, plaintiffs examined the premises and observed the driveway, which had, at that time, been in use for almost five years. Plaintiffs entered into possession of the property, carried out the terms of the contract, and during the year 1932 received from defendant a deed to the property. During all this time, and continuously until January, 1936, the driveway was used in common by plaintiffs and defendants, and apparently it was never intimated that either party objected to the use of the driveway by the other, until the date last mentioned, when defendants commenced the erection of a fence on their property line, which would, of course, prevent the use of the driveway as it had theretofore been located. Plaintiffs thereupon instituted this action to enjoin defendants from interfering with the use of the driveway, and from a decree in plaintiffs' favor, defendant have appealed.

By its express terms, the decree entered by the trial court establishes a permanent easement in favor of respondents, covering the south four feet of appellants' property, and a similar easement in favor of appellants, covering the north three feet of respondents' property.

As stated by appellants in their brief, the formal assignment of errors made present two questions:

'(1) Have the plaintiffs proved facts sufficient to establish an easement in the property of the defendants?

'(2) Have the plaintiffs a right to recover against the defendants as a matter of law?'

Appellants argue that the complaint was prepared, and the case tried below, upon the theory that respondents were contending that they had acquired an easement by prescription. The trial court entered findings of fact and conclusions of law, and appellants contend that the court's findings are based upon the theory that the evidence showed that respondents were entitled to maintain the easement which the court awarded them because of adverse use thereof for the statutory period. It does not appear that the findings entered state only facts which tend to support respondents' claim upon the ground of their adverse use of the driveway for ten years or more. In their answering brief, respondents base the major portion of their argument upon their contention that the record shows that the court properly granted them an easement as by implication. In their complaint, respondents alleged that at the time they took an assignment of the real estate contract, the driveway in question was well established, and that they purchased the premises with the understanding that the driveway would remain as established--a community driveway. They also alleged that the driveway had been at all times thereafter used jointly by the parties to the action, and that because of the location of the dwelling house upon their property, the construction of any other driveway on their property was impossible, save at great expense and in such manner as would greatly diminish the value of their land. Respondents also alleged that prior to the institution of this action they fully performed the contract and became the owners of the property in fee simple.

The allegations referred to sufficiently present the question of respondents' claim to an easement by implication, and if the evidence supports a decree in their favor upon this ground, the decree will not be reversed, even though the facts found by the trial court do not support the decree. This was an action in equity, and findings were not required. The evidence is Before us by way of a statement of facts, and will be considered in deciding whether or not the decree finds support therein. On appeal, the case is heard de novo, and this court must search the entire record in determining whether or not the decree entered shall be affirmed or reversed. Soboda v. Nolf & Co., 91 Wash. 446, 157 P. 1100; Olson v. Fireoved, 129 Wash. 635, 225 P. 643.

Appellants argue that the record does not support a decree in respondents' favor, upon the ground that respondents have acquired an easement by prescription. It clearly appears that the use of appellants' property was, in the first instance, permissive only, and it does not appear that this use changed its character and was asserted adversely to appcilants or under a claim of right, until some date much less than ten years prior to the institution of this action.

In the case of Bailey v. Hennessey, 112 Wash. 45, 191 P 863, 864, this court held that the trial court had correctly determined that an easement by implication existed and was impressed...