Johnson v. Lake Cushman Maint. Co.

Decision Date28 August 2018
Docket NumberNo. 50113-9-II,50113-9-II
Citation425 P.3d 560
Parties Matthew A. JOHNSON and Amy K. Johnson, husband and wife, Appellants, Mark Schomaker and Katherine Schomaker, husband and wife, Plaintiffs, v. LAKE CUSHMAN MAINTENANCE CO., a Washington non-profit corporation, Respondent.
CourtWashington Court of Appeals

Carmen Renee Rowe, Gryphon Law Group PS, 1673 S. Market Blvd. #202, Chehalis, WA, 98532-3830, for Appellants.

Robert William Johnson, Robert W. Johnson PLLC, P.O. Box 1400, 103 S 4th St., Shelton, WA, 98584-0919, for Respondent.



¶ 1 Matthew and Amy Johnson1 brought an action against their homeowners’ association, Lake Cushman Maintenance Company (LCMC), to quiet title to a park and road easement LCMC held in their property, and for trespass, waste, nuisance, and timber trespass. LCMC counterclaimed to quiet title in fee or to an exclusive easement.

¶ 2 LCMC moved for summary judgment on the Johnsons’ quiet title, trespass, waste, timber trespass, and nuisance claims. The superior court granted LCMC’s motion for summary judgment in part and dismissed the Johnsons’ claims for trespass, waste, timber trespass, and quiet title. The superior court also quieted title in LCMC to an exclusive easement for park and road purposes, free and clear of any claim for use of the property by the Johnsons, except in their capacity as LCMC members. The superior court further enjoined the Johnsons, their heirs, executors, agents, and assigns from asserting any right, title, or interest in the exclusive easement, and from interfering with LCMC’s use and enjoyment of the easement. The Johnsons appeal.

¶ 3 We hold that the superior court did not err in dismissing the Johnsons’ quiet title, trespass, waste, timber trespass, and injunction claims. However, we also hold that the superior court erred in quieting title in LCMC to an exclusive easement free and clear of any claim for use by the Johnsons because LCMC failed to show that there was no genuine issue of material fact that their easement was intended to be an exclusive easement. Because the superior court erred in quieting title in LCMC to an exclusive easement, the superior court also erred in enjoining the Johnsons, their heirs, executors, agents, and assigns from asserting any right, title, or interest in or to the exclusive easement quieted in LCMC.

¶ 4 In the unpublished portion of this appeal, we hold that the superior court erred in striking the portion of Schomaker’s affidavit related to payment of taxes on the property, but it did not err in striking the other portions of the submitted affidavits.

¶ 5 Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.


¶ 6 The City of Tacoma owns a large tract of land adjoining the Cushman project reservoir.2 The City decided to make the existing Cushman project reservoir available for recreational use and to privately develop the tracts of land on or near the reservoirs.

¶ 7 In March 1966, the City entered into a 99 year lease with Lake Cushman Company [LCC], a private developer. The lease provided LCC the right to use the waters of the lakes for recreational purposes, including boating, swimming, and fishing. The lease also provided that it was "mutually understood by the parties hereto that [LCC] may sublet any part or portion of the lands hereby leased for any period or periods within the lease term upon such sublease forms first approved by the City Attorney of Tacoma." Clerk’s Papers (CP) at 142.

¶ 8 In June, LCC formed Lake Cushman Maintenance Company [LCMC], a non-profit corporation, for the express purpose of developing, repairing, maintaining, and operating the land that LCC had leased from the City of Tacoma. LCMC would also levy and collect dues or maintenance fees from the sublessees of the property within the subdivisions of Lake Cushman, as established by the LCC. LCC created LCMC to "act as a homeowners’ association for the operation, maintenance and repair of the common areas of the development." CP at 293

¶ 9 In February 1983, LCC created an "easement for the exclusive use of the Lake Cushman Maintenance Co., its successors and assigns, for park and road purposes over ... [t]hat portion of Lot 62 in the Plat of Lake Cushman No. 14." CP at 151. The easement was recorded in the Mason County Auditor’s Office under Auditor’s File No. 414987.

¶ 10 In May, LCC subdivided Lot 62 into four smaller lots (Lots 1-4) under short plat 1260. The legal description for Lots 1-4 of short plat 1260 stated that Lot 1 was "subject to an easement in favor of Lake Cushman Maintenance Co. for road and park purposes[,] recorded under Auditor’s File No. 414987." CP at 156. The legal descriptions for Lots 1-4 in short plat 1260 was recorded under Mason County Auditor’s File No. 415052.

¶ 11 In October, LCC subleased Lot 1 to Stephen and Carol Brandt. The lease agreement described the land leased as "[t]hat portion of Lot 62 in the Plat of Lake Cushman No. 14, recorded in Volume 9 of Plats, Pages 17 through 19, records of Mason County, Washington described as follows: See Exhibit "A" for legal description." CP at 94. Exhibit A was a copy of the legal description for Lot 1 in short plat 1260.

¶ 12 In March 2014, Matthew and Amy Johnson obtained a leasehold interest in Lot 1 of the short platted Lot 62 through an assignment of lease. The assignment of lease referenced short plat 1260, provided a legal description of Lot 1 in short plat 1260, and stated that the land assigned was "subject to easements, restrictions, covenants, reservations, agreements, and conditions of record." CP at 168 (capitalization omitted). The assignment of lease also included a list of special exceptions and included the "[e]asement, including its terms, covenants and provisions as disclosed by instrument; Recorded: May 12, 1983 Recording No: 414987 For: park and road purposes Affects: portion of said premises." CP at 170. The special exceptions under the assignment of lease also referenced the "[c]ovenants, conditions, restrictions, recitals, disclaimers, notices, agreements [and/or] easements as contained in Short Plat No. 1260." CP at 171. And included in the assignment of lease was a survey depicting Lot 1 of short plat 1260. The survey showed the boundaries of the easement "FOR PARK AND ROAD PURPOSES A.F. NO. 414987 GRANTED PRIOR TO SHORT PLAT NO. 1260." CP at 173. In accepting the assignment of lease, the Johnsons acknowledged that they "accept all of the terms, covenants, conditions and agreements of the assigned Lease" and "agree to be bound thereby." CP at 167.

1. The Johnsons File Complaint to Quiet Title

¶ 13 Shortly after subleasing Lot 1, the Johnsons began to notice trash and debris accumulating on the park easement located on their property. The debris mostly consisted of contraband, including alcohol containers, makeshift pipes, and needles. According to the Johnsons, every time they removed the contraband from the park on their property, more would appear. The Johnsons also began to hear noise and "late night partying." CP at 212. The Johnsons believed that these "trespassers" were responsible for the needles and drug paraphernalia continuously left on their property. CP at 212. According to the Johnsons, LCMC employs security to monitor the park until 5 PM. After security leaves for the day, "a rush of cars ... come pouring in" to use the park after hours. CP at 214.

¶ 14 Frustrated with LCMC’s response to their complaints, the Johnsons began posting "no trespassing" signs throughout the park easement area. CP at 213. LCMC removed these signs. The Johnsons also erected a gate and several hedges, which LCMC claimed limited access to the park easement.

¶ 15 On June 23, 2015, the Johnsons filed a complaint to quiet title to the park easement, claiming that the easement was void. The Johnsons sought an order declaring the park easement void, arguing that LCC and LCMC were so intertwined and related that the park easement was a grantor easement and, thus, invalid. The Johnsons also sought an injunction prohibiting LCMC and its members from using the park easement "in any manner." CP at 318. The Johnsons also brought causes of action against LCMC for trespass, waste, nuisance, and timber trespass.

¶ 16 LCMC filed an answer, asserting that its successors, and assigns were the benefited "owners of a fee title or an exclusive easement" over and across the park located on the Johnsons’ property.3 CP at 311.

LCMC also raised several affirmative defenses, including that LCMC had "established fee title" to the park through adverse possession, had established a prescriptive easement, or alternatively had an implied easement to the property. CP at 312.

¶ 17 LCMC also filed a counterclaim, asserting that LCC had granted LCMC "an exclusive easement which included right to exclude the plaintiffs as owners of the servient estate from using the property in any way." CP at 313. LCMC further asserted that its

exclusive easement is an unusual interest in land amounting to almost a conveyance of the fee title to [LCMC]. The grant of an exclusive easement to [LCMC] conveyed unfettered rights to [LCMC] as owner of the easement to use that easement for purposes specified in the grant to the exclusion of all others, including the plaintiffs.

CP at 313.

¶ 18 In its prayer for relief, LCMC requested a decree "adjudging" LCMC "to be the owner" of the park "in fee or exclusive easement, quieting its title thereto and barring [the Johnsons] ... from asserting any interest therein superior to the title of [LCMC]." CP at 314. LCMC also requested an injunction permanently prohibiting the Johnsons from interfering with LCMC’s quiet and peaceful enjoyment of the park property.

2. LCMC’s Motion for Summary Judgment

¶ 19 On October 13, 2016, LCMC filed a motion for summary judgment, seeking dismissal of the Johnsons’ quiet title, trespass,...

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