Moe v. Cagle
| Decision Date | 19 September 1963 |
| Docket Number | No. 36698,36698 |
| Citation | 385 P.2d 56,62 Wn.2d 935 |
| Court | Washington Supreme Court |
| Parties | Edward J. MOE and Margaret Moe, his wife, Respondents, v. Robert S. CAGLE and Margery Cagle, his wife, Appellants. |
MacDonald, Hoague & Bayless, Seattle, for appellant.
Stanley N. Kasperson, Seattle, for respondent.
*
Plaintiffs Edward J. Moe and wife, owners of a servient estate, sought to establish in this action that the posture of a garage located on a portion of the servient property constitutes a permissive, revocable use. Plaintiffs prevailed, and defendants Robert S. Cagle and wife, owners of the dominant estate, appeal.
The estates lie between Forest Avenue (also called 80th Avenue S.E.) and Lake Washington on Mercer Island. The elevation drops sharply from the avenue to the lake, and, in topography, forms an upper and lower level. Lying between these levels is a road and the site on which the garage is located. Plaintiffs own the upper level and on this portion their home is situated. They also own a 32-foot projection extending to the lake shore, on which has been erected a boat house and patio, and which is utilized for picnics and other recreational uses. Defendants Robert S. Cagle and wife own the balance of the property on the lower level, which, with the exception of Lake Washington as a passage, is landlocked.
The trial court in its construction of a written grant of right-of-way executed July 10, 1952, ruled dogmatically that the document was not ambiguous and could be construed without consideration of the negotiations and other circumstances surrounding the grant.
From the record the following facts are gleaned: A prior servitude, referred to as a foot path, but wide enough to support a modern right-of-way, had been formally granted. It was extinguished by quit-claim deed delivered when the written easement was executed. Further, for an undisclosed number of years, a roadway had been used by defendants over and across the location of the present right-of-way, and the defendants had built, used, and maintained the garage in its present location. The garage is a substantial improvement, 20 by 24 feet in size, of permanent construction, with a concrete foundation. Whether these uses were permissive or adverse, and, if permissive, whether they constituted a revocable or irrevocable license, or an easement, of course, does not appear. In view of the fact that its owners were planning to convey the servient estate, we surmise it was the mutual desire to reduce the existing intentions, rights, and burdens to writing.
The easement of July 10, 1952, was 'made by and between MAURICE MAHER and JANET MAHER, his wife, hereinafter referred to as the grantors, and ROBERT S. CAGLE and MARGERY CAGLE, his wife, hereinafter referred to as the grantee.' All parties executed and acknowledged it. The grantors were predecessors in interest of the servient estate. The formal grant is in the following terms 'In consideration of the covenants and agreements herein contained grantors hereby grant and convey to the grantees, their successors and assigns, an easement for a right of way for a private road over and across the following described land: [legal description follows.]'
Following the grant are four covenants, one of which provides:
'Grantees covenant to keep, and maintain their garage in a good and serviceable and neat condition; said garage being located on a portion of said herein granted easement.'
The trial court considered these four sequent covenants as being in the nature of exceptions which limit and restrict, but do not furnish shades of meaning to or expose tenuous interests. We disagree with this basis of construction of the easement, for the grant is 'subject to' the covenants and, thus, the entire instrument must be construed from its four corners. In other words, the grant is subordinate and obedient to the terms of the covenants. On the one hand, the grant may be restricted thereby, but, on the other hand, it may, by the same token, be broadened. 3 Powell on Real Property, § 407, p. 402, states that, although form is less significant today than it once was, nevertheless, a careful conveyancer should grant an easement in terms and '* * * then specify carefully the acts on the servient land which are thereby privileged; * * *' Obviously, this was the purpose of the covenants.
Plaintiffs contends that a strict construction of the expression of the parties must be given. We disagree. The fact that defendants paid all surveying and legal costs has no particular significance, because the trial court refused to permit any testimony as to the surrounding circumstances. There is nothing to support an inference that defendants dictated terms. In absence of proof to the contrary, it seems obvious that the assumption of the entire cost was merely a part of the consideration given to grantors.
The legal description of the right-of-way in the express grant included the entire route of the private road. (This road, it is noted, is of benefit to both estates.) At its termination, an enlarged area in the shape of a quadrilateral at right angles to the roadway is then legally described and included in the grant. On this enlarged area, the garage is placed. The trial court concluded that this area may be used permanently by defendants as a parking area, we presume on the theory that the reasonable use of a roadway includes the right to park thereon. It is obvious, however, that the garage area was not intended to be a part of the road, for it would serve no useful purpose as a road. Plaintiffs maintain that by inclusion in the grant, it was intended for use as a turn-around. Neither its shape, nor the circumstances, supports this inference. In view of the circumstances and the proper aids to construction, 1 we think the more reasonable inference is that...
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Dougherty v. Holiday Hills Community Club, Inc.
...P.2d 56 (1963). In that case, the easement stated that it was granted in consideration of a set of covenants in the body of the easement. Id. at 937. The Supreme Court stated that "the grant is subordinate and obedient to the terms of the covenants. On the one hand, the grant may be restric......
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Dougherty v. Holiday Hills Cmty. Club, Inc.
...intended to expand the use and benefit of the F-3 easement to any lots other than lots 24 through 27. HHCC also relies on Moe v. Cagle, 62 Wn.2d 935, 385 P.2d 56 (1963). In that case, the easement stated that it was granted in consideration of a set of covenants in the body of the easement.......
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Ball v. Smith
...evident that the trial court's ruling on the offer of proof made any such action futile and therefore unnecessary. See Moe v. Cagle, 62 Wash.2d 935, 385 P.2d 56 (1963). Moreover, the trial court's rejection of the offer of proof may not be sustained on the basis that the opinion of the witn......
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Table of Cases
...145, 118 P. 32 (1911): 10.7(6)(a) Mobley v. Harkins, 14 Wn.2d 276, 128 P.2d 289 (1942): 5.2(2), 17.11(1), 17.3(2)(d)(iii) Moe v. Cagle, 62 Wn.2d 935, 385 P.2d 56 (1963): 7.4(3), 7.6(1)(a) Mon Wai v. Parks, 43 Wn.2d 562, 262 P.2d 196 (1953): 17.7(1)(b), 17.7(3)(f), 17.12(2)(c)(i) Monegan v. ......
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§7.6 - Extent of an Easement
...terms, the easement owner will be limited to use that is "reasonable" and that is least burdensome to the servient estate. Moe v. Cagle, 62 Wn.2d 935, 385 P.2d 56 (1963). For example, an easement "for road purposes" has been held not to create a right to install utilities over the easement.......
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§7.3 - Creation of Easements by Express Conveyance
...that may restrict or broaden the uses of an easement. The grant is subordinate and obedient to the terms of the covenants. Moe v. Cagle, 62 Wn.2d 935, 385 P.2d 56 (4) Recording of easements Every conveyance not recorded in the county where the property is situated is void against subsequent......