Hughes v. Boyer
| Decision Date | 08 August 1940 |
| Docket Number | 27957. |
| Citation | 104 P.2d 760,5 Wn.2d 81 |
| Parties | HUGHES et ux. v. BOYER et ux. |
| Court | Washington Supreme Court |
Department 1.
Action by Thomas B. Hughes and wife against Perry W. Boyer and wife to quiet title to easement and to enjoin defendants from interference with regrading and use of the easement. From a decree in favor of the plaintiff, the defendants appeal.
Decree affirmed.
Appeal from Superior Court, King County; Malcolm Douglas, judge.
Robert A. Devers, of Seattle, for appellants.
Padden & Moriarty and Melvin T. Swanson, all of Seattle, for respondents.
Tract 5, Pettit's Lake Washington Acre Tracts in King county was acquired by William L. Feely and wife in 1916. This was 'cut over' land grown up in brush and small timber. Feely built a cottage on the property and cut a roadway through tract 4 during that year. He never obtained the consent of any one to cut the roadway or to use it. In 1918 he built another house on his tract and continued using the same easement roadway. He lived there continuously until he sold the property to Thomas B. Hughes, September 8, 1924. Feely's deed to Hughes describes the easement as follows: 'And an easement for ingress and egress over and across the north fifty feet of Tract four of Pettit's Lake Washington Acre Tracts, lying west of said Bothel Road from said Bothel Road to the above described property and being along a driveway now existing thereon.'
Charles B. Hutchins and wife owned tract 4, which is immediately south of tract 5, owned by Hughes, of the same addition. The two tracts adjoin except that an intervening strip was dedicated between the two tracts in the plat of the addition filed in the year 1904 as East 153d Street. This street has never been open for public use, but a portion was used by Hutchins for a garden. It has never been a means during the entire year of access to tract 5. January 21, 1927, Hutchins and wife conveyed tract 4 by deed to R. Winkelman, which deed contained the following reservation: 'This deed is given subject to easement for right of way purposes over northerly 50 feet of said premises, as granted by instrument bearing Auditor's File No. 1918-494, records of King County.'
September 23, 1937, R. Winkelman and wife conveyed tract 4 to Alma Kittilsby Boyer, which deed contained the following reservation: 'Subject to easement for ingress and egress over said premises, granted by Mabel Devin Feely and William L. Feely, her husband, to Thomas B. Hughes, constructive notice of which is given by deed dated September 8, 1924, in volume 1251 of deeds, page 106, under auditor's file No 1918494, records of said county.'
On March 15, 1939, a quit claim deed was executed by Charles B. Hutchins and wife to Thomas B. Hughes, which quit claims to Hughes any interest the grantors may have retained in the easement. It will be recalled that Hutchins and wife owned tract 4 at the time the easement came into being and were the first predecessors in Boyers' title to reserve the easement in a conveyance.
Along the easterly line of tracts 4 and 5 is State Highway No. 2 which is known as the Bothel highway or Bothel Way. Its course is northeasterly and southwesterly.
Originating on the south line of plaintiffs' property, about 120 feet west of the intersection of plaintiffs' boundary line with Bothel Way, is a driveway or roadway which proceeds down grade in a southeasterly direction and enters Bothel Way at a point about 100 feet south of the intersection of plaintiffs' south line with Bothel Way. This is the easement which was cut in 1916 by Feely across the tract now owned by defendants and has been continuously used as a driveway by plaintiffs, their tenants and their predecessors in title, for purpose of access to plaintiffs' property.
In 1938 the state decided to widen Bothel Way. For this purpose the necessary land was acquired by deeds, instead of by condemnation. This improvement, because of the additional cut required on defendants' property, would make the roadway or easement of plaintiffs impossible of use. April 6, 1938, Perry W. Boyer and wife executed a deed by which they conveyed a portion of tract 4 to the state for highway purposes, which deed contains the following significant language: '* * * the grantee may reconstruct private road over and across existing location to provide access for owners of tract immediately northerly of said Tract No. 4, Pettit's Lake Washington Acre Tracts.'
Indicative of the intention of the parties of preservation of the easement the state delivered to plaintiffs a carbon copy of the foregoing deed and plaintiffs, doubtless in reliance on the fact that consent to reconstruct the easement had been secured, gave their deed to the state of Washington, dated April 9, 1938, executed May 4, 1938, which deed contained the following reservation: '* * * reserving to grantors the right, privilege and permit to grade and regrade driveway from said highway to grantors premises along existing location at their own expense over a portion of Tract 4, * * *.'
May 3, 1938, a letter bearing the signature 'Perry W. Boyer and Alma Kittisby Boyer by Perry W. Boyer,' addressed to the State Director of Highways, acknowledged that the privilege of reconstructing the private road over and across a portion of tract 4 had been granted, and their consent to the reconstruction of the easement is in the following language: '* * * we will interpose no objection for the State of Washington to turn over construction of this road to parties interested therein provided said reconstruction work is done without further encroachment of slopes than are shown on State Highway Map 12 and provided such reconstruction work is done in a reasonable manner.'
Under date of May 5, 1939 the Director of Highways wrote the following letter to Mr. Hughes:
The state completed its work on Bothel Way but when plaintiffs attempted to correct the easement defendants ejected them, whereupon plaintiffs commenced this action praying that their title to the easement be quieted, that they be allowed to proceed with the regrading of the easement to make it usable and that defendants be permanently enjoined from further interference with plaintiffs' use of the easement. The cause was tried to the court which found in favor of plaintiffs and entered decree granting to plaintiffs the relief craved. Defendants appealed.
Counsel for appellants first contend that the trial court erred in holding that the property involved is not the separate property of appellant wife. The basis of this claim is that the property over which the claimed easement...
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