Maier v. Giske

• Decision Date: 04 January 2010
• Docket Number: No. 62737-6-I.,62737-6-I.
• Citation: 223 P.3d 1265,154 Wn. App. 6
• Parties: James MAIER and Elizabeth Hendrix-Maier, husband and wife, Appellants/Cross-Respondents, v. Nancy GISKE, Respondent/Cross-Appellant.
• Court: Washington Court of Appeals

223 P.3d 1265

154 Wn. App. 6

James MAIER and Elizabeth Hendrix-Maier, husband and wife, Appellants/Cross-Respondents, v. Nancy GISKE, Respondent/Cross-Appellant.

No. 62737-6-I.

Court of Appeals of Washington, Division 1.

January 4, 2010.

David F. Cooper, Vashon, WA, Thomas F. Peterson, Adam R. Asher, Socius Law Group, PLLC, Seattle, WA, for Appellants/Cross-Respondents.

David S. Mann, Gendler & Mann, LLP, Seattle, WA, for Respondent/Cross-Appellant.

LAU, J.

¶ 1 This appeal involves a series of real property disputes between two Vashon Island neighbors. James Maier and Elizabeth Hendrix-Maier filed suit against Nancy Giske alleging that she constructed a fence and planted shrubbery to block their easement access. Giske disputed the easement's validity and claimed the Maiers injured her plants and caused her bluff to collapse. She also sought to acquire parts of the Maiers' property through adverse possession. Because the trial court concluded the Maiers' purported easement failed to comply with the statute of frauds, it dismissed their claims on summary judgment. And after a bench trial on her counterclaims, it quieted title in Giske to some of the property she sought, awarded her $21,130 for plant damage, and rejected one of her adverse possession claims and her claim for loss of lateral support. Both sides appeal.

¶ 2 We conclude the trial court erred in granting summary judgment based on the statute of frauds because the written legal description in the Maiers' deed is sufficient to allow the easement to be located without recourse to oral testimony. The court also erred in awarding Giske damages for plants not located on her property. We affirm the trial court in all other respects. Thus, we reverse in part, affirm in part, and remand.

FACTS

¶ 3 In the 1940s, Giske's grandparents, Howard and Hilda Giske, acquired several properties off the end of Southwest Maury Park Road on Vashon Island. In 1952, they transferred a portion of their property to Giske's uncle and aunt, who subsequently transferred it to her parents. Giske acquired this parcel from her father and began living there in 1978.

¶ 4 Giske's grandparents also retained a large piece of land immediately to the east of this parcel until their deaths. In 1976, the executrix of Hilda Giske's estate sold a portion of this property to the Luehrs family. The deed conveyed

That portion of Government Lot 3, Section 16, Township 22 North, Range 3 East, W.M., described as follows:

Beginning at a point on the East boundary line of said Government Lot 3; North 0°19'24" West 422.51 feet from the Southeast corner thereof; thence North 68°44'27" West 32.26 feet to a point on a line 30 feet West of and parallel to the East boundary line of said Government Lot 3; thence continuing North 68°44'27" West 161.31 feet to a point on a line 180 feet West of and parallel to the East line of said Government Lot 3 and the true point of beginning of the tract herein described; thence North 0°19'24" West parallel to the East line of said Government Lot, to the Government meander line; thence Northwesterly along said meander line to a point on a line 255 feet West of and parallel to the East line of said Government Lot 3; thence South 0°19'24" East along a line parallel to the East line of said Government Lot to a point North 68°44'27["] West of the true point of beginning; thence South 60°44'27" East to the true point of beginning;

. . . .

TOGETHER WITH a non-exclusive easement over a strip of land 15 feet in width and extending from the Westerly margin of the above described tract to the East line of said Government Lot 3; the Northerly line of said 15 foot strip running North 68°44'27" West from a point on the East line of said Government Lot, distant North 0°19'24" West 422.51 feet from the Southeast corner of said Government Lot.

In 1977, the Luehrs sold the property to the Whetstones, and in 1999, the Whetstones conveyed it to the Maiers. Each instrument conveying the property contained the same easement description quoted above.

¶ 5 Giske's son, Max Batres, ultimately acquired the portion of Hilda Giske's estate lying immediately south of the Maiers' property. The disputed easement runs over the northern 15 feet of this parcel. Batres does not reside on the property, and Giske, whose property is immediately to the west of his, acts as its caretaker for him.

¶ 6 There is a gravel driveway linking the three parcels to Southwest Maury Park Road. It extends over the northern edge of Batres's property and turns onto the southeastern corner of the Maiers' property, terminating near their residence. There is a concrete parking pad on Batres's property where the drive turns that Giske uses to access her house.

¶ 7 In approximately 1982, the Whetstones constructed a fence along the southern boundary of their property, extending west from the gravel driveway. However, they built the fence two feet north of the surveyed property line. Giske installed planks and raised a berm along the south side of the fence. She landscaped the area with numerous plants, including a large Pacific wax myrtle tree. Near her front porch and on her side of the fence, but in the southwestern corner of the Whetstones' property, she also planted several Camellia japonica shrubs. She regularly cultivated the area south and southwest of the Whetstones' fence and maintained exclusive, uninterrupted control of it between 1982 and 2004.

¶ 8 In 2004, the Maiers began removing the southern boundary fence. They installed a string line two feet south of the former fence along the surveyed boundary line between their property and the Batres property. In the process, they significantly damaged the wax myrtle tree Giske had planted. The Maiers also removed a large camellia from the area near Giske's front porch.

¶ 9 Giske contracted to have a new fence installed on her son's property immediately west of where the gravel driveway turned north to the Maiers' property. The Maiers objected that they had an easement across the northern 15 feet of Batres's property based on their deed. They claimed the new fence was interfering with their right to access the easement area on which they planned to build a vehicle turnaround. As the construction crew was installing the fence, Elizabeth Hendrix-Maiers argued with Giske, and after the crew left, she pushed over one of the fence posts. The Maiers also removed nine arborvitae shrubs Giske had planted along the access way to her house.

¶ 10 The neighbors' conflicts extended beyond the disputed easement area. Giske alleged that the Maiers cut down her shore pine to its trunks. The shore pine was slightly on her side of the north-south running boundary line between her property and the Maiers' property. The Maiers claimed they only cut branches overhanging their property.

¶ 11 They also disputed ownership of a small triangular area on the northwestern corner of the Maiers' property. A boundary survey indicated the area belonged to the Maiers. But Giske claimed she planted a white mountain ash tree and other vegetation in the area and that she had acquired the land by adverse possession.

¶ 12 Along the northern edge of the Maiers and Giske properties are bluffs overlooking Puget Sound. In 2005, the Maiers began excavating the western portion of their bluff to relocate a stairway and boat platform. Shortly after the excavation began, Giske's bluff, which was directly adjacent, began to collapse. She blamed the Maiers for the damage to her property.

¶ 13 In 2006, the Maiers brought trespass and nuisance claims against Giske, alleging interference with their easement rights. In her answer, Giske asserted as affirmative defenses that the easement's scope was limited to the existing driveway and that it was extinguished by adverse possession or abandonment. Giske also asserted several counterclaims. She sought to quiet title based on adverse possession to (1) the two-foot strip between the Batres property and the Whetstones' fence, (2) the southwest corner of Maiers' property near her house, and (3) the northwest corner of the Maiers' property where she planted the mountain ash. Additionally, she requested damages for injury to various plants and for the loss of lateral support to her bluff.

¶ 14 Before trial, Giske moved for summary judgment dismissal of the Maiers' claims. She argued and the trial court found that the easement was void for failure to comply with the statute of frauds because it did not sufficiently describe the servient estate. Accordingly, it dismissed the Maiers' claims.

¶ 15 After a bench trial on Giske's counterclaims, the court awarded her treble damages for the injured plants under Washington's timber trespass statute. It also found that the Maiers' destruction of the trees and shrubs caused her significant emotional distress and awarded her $7,000 in emotional damages. The court quieted title in Giske to the two-foot strip and the southwest corner of the Maiers' property but rejected her claim to the northwest corner of their property. Additionally, the court found that Giske failed to demonstrate by a preponderance of the evidence that the Maiers' actions caused her bluff to collapse. The Maiers appeal, and Giske cross-appeals.

ANALYSIS

Validity of Easement

¶ 16 The Maiers contend the trial court erred in granting Giske's summary judgment motion because their easement was sufficiently described to satisfy the statute of frauds. We review summary judgment orders de novo, engaging in the same inquiry as the trial court. Harberd v. City of Kettle Falls, 120 Wash.App. 498, 507, 84 P.3d 1241 (2004). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Citizens for Responsible Wildlife Mgmt. v. State, 149 Wash.2d 622, 630, 71 P.3d 644 (2003). And whether an agreement violates the statute of frauds is a question of law. Dickson v. Kates, 132...