Logan v. Brodrick, 3977-III-3
| Decision Date | 07 July 1981 |
| Docket Number | No. 3977-III-3,3977-III-3 |
| Citation | 29 Wn.App. 796,631 P.2d 429 |
| Parties | Kermit C. LOGAN and Shirley Logan, husband and wife, Respondents, v. Jay B. BRODRICK and Marjorie J. Brodrick, husband and wife, Appellants. |
| Court | Washington Court of Appeals |
Thomas E. Cooney, Jr., John C. Cooney, Spokane, for appellants.
Roland C. Wightman, Spokane, for respondents.
Mr. and Mrs. Jay Brodrick appeal a contempt order for violating a series of court orders enjoining them from interfering with an easement.
During her lifetime, Louise Hedin owned real property located in Spokane County. Since the 1930's, and until approximately 1965 her daughter operated a small resort on that part of the property bordering Lake Spokane. Upon her death in 1963, her property passed by will equally to her daughter, her son and grandson. In 1965, Mr. and Mrs. Kermit Logan purchased the resort area from Mrs. Hedin's daughter. At about the same time, the son sold the property lying immediately adjacent on the east of the resort to Mr. and Mrs. Brodrick. The remaining property, east of and adjacent to the Brodricks, was then sold to Mr. and Mrs. Bernard Elbert. Since the early 1930's the public has had access to the resort property. In 1965 the Brodricks granted to the Logans a perpetual easement for a road over and across their property. After the purchase by the Logans they gradually improved and expanded the resort until the Brodricks, feeling the area had become a public thoroughfare, placed posts in the road to reduce the access. For the past 8 years, the easement has been the subject of intermittent litigation.
In 1973 the Brodricks were enjoined from limiting access across the easement. The Hon. Willard J. Roe, then superior court judge, concluded the Logans were entitled to a public easement across the Brodricks' property and that the easement was to be 19 feet wide to permit two-way traffic. Judge Roe further declared in his findings of fact and conclusions of law:
Since the right of use by the public is based on the prior nature and extent of the user, only those types of vehicles used or reasonably anticipated, during and prior to 1965 may use this public access road.
The volume of public traffic using the access road shall be limited to the general type of traffic using the road during and prior to 1965, and the only increases in that volume shall be on a basis consistent with increases in population and use in the Spokane area, it being the Court's finding that the rights of the (Logans) and the public shall not be unreasonably expanded beyond 1965 and prior levels. 1
In November 1973, December 1973, and November 1976, subsequent court orders were required to enforce the terms of the 1973 decision. In 1980, the matter once more found its way to court. Mr. Logan alleged that the Brodricks had positioned a fence so that it intruded into the 19-foot portion of the easement, impeding the flow of two-way traffic. The Brodricks complain that the Logans' increased use of the resort had unduly burdened the easement. They noted the Logans have built five new docks, multiple trailer pads, shelters, picnic fireplaces, and purchased additional fishing boats. As a result of these improvements, traffic has increased to a maximum of 80-plus vehicles for a weekend summer day. The Brodricks allege they have considerable problems with litter, unleashed dogs, speeding vehicles, and traffic obstructing their driveway.
The court found the Logans had not misused the easement. The trial judge concluded the Brodricks were in contempt and ordered them to purge their contempt by repositioning the fence to not intrude into the easement. 2
The central issue on appeal is whether the court erred by refusing to find that the easement was being over-burdened by the increased volume of traffic.
In determining the permissible scope of an easement, we look to the intentions of the parties connected with the original creation of the easement, the nature and situation of the properties subject to the easement, and the manner in which the easement has been used and occupied. Evich v. Kovacevich, 33 Wash.2d 151, 157, 204 P.2d 839 (1949). It can be assumed the parties had in mind the natural development of the dominant estate. Accordingly, the degree of use may be affected by development of the dominant estate. See W. Burby, Real Property, § 32 (3d ed. 1965). The law assumes parties to an easement contemplated a normal development under conditions which may be different from those existing at the time of the grant. Restatement, Property, § 484 (1944); 3 see also Cameron v. Barton, 272 S.W.2d 40, 41 (Ky. 1954). Normal changes in the manner of use and resulting needs will not, without adequate showing, constitute an unreasonable deviation...
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