Standing Rock Homeowners Assn. v. Misich

• Decision Date: 17 May 2001
• Docket Number: No. 18930-9-III.,18930-9-III.
• Citation: 23 P.3d 520,106 Wash.App. 231
• Parties: STANDING ROCK HOMEOWNERS ASSOCIATION, an unincorporated association of homeowners in Chelan County, State of Washington; Wenatchee Pines, Inc., a Washington corporation, Respondents, v. Jim and "Jane Doe" MISICH, husband and wife, Appellants.
• Court: Washington Court of Appeals

23 P.3d 520

106 Wash.App. 231

STANDING ROCK HOMEOWNERS ASSOCIATION, an unincorporated association of homeowners in Chelan County, State of Washington; Wenatchee Pines, Inc., a Washington corporation, Respondents, v. Jim and "Jane Doe" MISICH, husband and wife, Appellants.

No. 18930-9-III.

Court of Appeals of Washington, Division 3, Panel Ten.

May 17, 2001.

Margaret L. Arpin, Spokane, for Appellants.

J. Patrick Aylward, Donald L. Dimmitt, Stephanie A. Thies, Jeffers, Danielson, Sonn & Aylward, Wenatchee, for Respondents.

BROWN, J.

In this dispute over the installation and destruction of gates set across a road easement, James Misich appeals a judgment awarding Standing Rock Homeowner's Association damages, injunctive relief, and attorney fees. Concurrently, Mr. Misich asserts the trial court improperly denied his claim for a public road by prescription. Finding neither errors of law nor abuse of discretion, we affirm.

FACTS

Standing Rock is an unincorporated association of property owners in a Chelan County development located south of Ponderosa Pines, a development earlier known as Primitive Park, Inc. Marvin Pearson's property separates the two developments. Wenatchee Pines, Inc. is located immediately south of Standing Rock. James Misich owns property in Ponderosa Pines. Ponderosa Pines owners have a road easement running through Standing Rock over an unpaved graveled lane called Camp 12 Road. Primitive Park reserved the easement when it conveyed property to Standing Rock's predecessor in interest. Wenatchee Pines also has a road easement along Camp 12 Road running through Standing Rock.

Camp 12 Road connects with a public road linking the towns of Plain and Leavenworth. It runs partly through Forest Service land generally open to the public, except in case of emergency conditions requiring temporary closure. The road is impassable at times of the year. It has sharp corners, is poorly maintained in certain locations, and is somewhat hazardous to travel in a passenger car. Various persons, including Ponderosa Pines property owners have used Camp 12 Road since at least the late 1960s or early 1970s. Several Ponderosa Pines property owners regularly used Camp 12 Road to travel to Leavenworth.

Sandra Izett, a Wenatchee Pines property owner for more than 30 years, saw members of the general public using Camp 12 Road near her property. Ms. Izett believed she had the right to travel the length of Camp 12 Road. Until the early 1990s, the Standing Rock property was largely undeveloped. But, by the time of trial, approximately 12 vacation structures had been erected on Standing Rock lots. Standing Rock owners suffered a considerable amount of trespass and vandalism to their properties. Beginning in 1993, to prevent trespass and vandalism and to reduce maintenance, these owners erected gates across the northern and southern ends of the portion of Camp 12 Road running through Standing Rock. The gates were initially locked; later they were left unlocked. The northern gate (Standing Rock gate) is permissively located on Mr. Pearson's property. The southern gate (Wenatchee Pines gate) is permissively located on Wenatchee Pines. The county does not maintain Camp 12 Road. It is not designated a public road. Standing Rock owners pay assessments for road maintenance. The gates resulted in reduced traffic through Standing Rock.

Ponderosa Pines property owners removed and destroyed 10 to 12 of Standing Rock's gates. James Misich was present at these "gate parties." Finding of Fact (FF) 8. In April 1998, Standing Rock and Wenatchee Pines filed suit against Mr. Misich for declaratory judgment, injunctive relief, trespass, and damages. Wenatchee Pines sought to establish that Mr. Misich had no easement across its property through Camp 12 Road and therefore had no right to touch the Wenatchee Pines gate. Standing Rock sought to establish that the Standing Rock gate did not constitute an unreasonable burden on Mr. Misich's easement. Alleging a trespass it later abandoned, Wenatchee Pines sought to enjoin Mr. Misich from touching its gate. Standing Rock sought to enjoin Mr. Misich from destroying its gate. Both Wenatchee Pines and Standing Rock sought damages for gate destruction, particularly on or about August 16, 1996.

In June 1998, Mr. Misich answered admitting he "removed alleged gate on more than one occasion, and that he did so on or about August 16, 1996." Clerks Papers (CP) at 160. Mr. Misich further alleged he merely removed the gates and left them by the roadway. Mr. Misich's answer included a counterclaim for declaratory judgment and injunctive relief. Mr. Misich sought declaratory judgment establishing Camp 12 Road to be a public road, and an injunction preventing Wenatchee Pines and Standing Rock from interfering with public access. In late May 1999, a few days before trial started, Mr. Misich amended his answer and counterclaim to deny he actually removed the gates, alleging instead that he merely observed others remove the gates.

After an extensive bench trial, the trial court issued a memorandum opinion with 19 findings of fact and 11 conclusions of law. The trial court decided the portion of Camp 12 Road running through Standing Rock had not become a public road by prescription, but decided by prescription the portion of Camp 12 Road running through Wenatchee Pines had become a public road. Wenatchee Pines did not appeal. The trial court further decided the unlocked gates were reasonable restraints on the easement in light of Standing Rock's history of trespass and vandalism. In November 1999, the trial court entered final findings, conclusions, and judgment against Mr. Misich, including $2,050.02 in damages, $296.25 in costs, and $15,000 in attorney fees.

Mr. Misich appealed.

ISSUES

Did the trial court err by (A) not declaring the portion of Camp 12 Road running through Standing Rock to be a public road by prescription under RCW 36.75.080, or (B) by abusing its equitable discretion when concluding Standing Rock could maintain unlocked gates? And, did the trial court err in (C) holding Mr. Misich financially liable for gate damage or (D) attorney fees under RCW 4.24.630?

Standing Rock argues we should deny this appeal because Mr. Misich failed to comply with RAP 10.3 and 10.4. We deem this issue a preliminary motion to dismiss. However, we decide the briefing is not so deficient as to prevent review of this appeal and deny the motion. State v. Olson, 126 Wash.2d 315, 323, 893 P.2d 629 (1995). The unchallenged findings are verities on appeal. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994).

A. Public Road

Mr. Misich, relying on American Nursery Products, Incorporated v. Indian Wells Orchards, 115 Wash.2d 217, 797 P.2d 477 (1990), incorrectly argues this court independently reviews the trial court's findings of fact to determine whether they support the conclusions of law. On the contrary, we review solely findings to which the parties assign error. Hill, 123 Wash.2d at 647, 870 P.2d 313. If substantial evidence supports the challenged findings, they are binding on appeal. Id. Because Mr. Misich challenges solely Finding of Fact 19, relating to his alleged destruction of the gates, the other findings are verities. Id. at 644, 870 P.2d 313.

"Prescriptive rights are not favored in the law, and the burden of proof is upon the one who claims such a right." Granite Beach Holdings, LLC v. Dep't of Natural Res., 103 Wash.App. 186, 200, 11 P.3d 847 (2000). "The claimant must prove that his use of the land has been open, notorious, continuous, and uninterrupted for 10 years over a uniform route adverse to the owner." Id. "The claimant has the burden to prove all of the required elements." Id. "Where the land is vacant, open, unenclosed, and unimproved, use is presumed permissive." Id. "In such a case, evidence is required indicating that the use was indeed adverse and not permissive." Id.

"This rule springs from the modern tendency to restrict the right of prescriptive use to prevent mere neighborly acts from resulting in deprivation of property." Id. at 200, 11 P.3d 847. "If express permission is given to use the right of way, use does not ripen into a prescriptive easement unless the user makes a distinct, positive, assertion of a right adverse to the property owner." Id. "Possession is adverse if a claimant uses property as if it were his own, entirely disregards the claims of others, asks permission from nobody, and uses the property under a claim of right." Id.

These common law principles apply when the claimant seeks to establish a public road by prescription under RCW 36.75.080. See Primark, Inc. v. Burien Gardens Assocs., 63 Wash.App. 900, 908-09, 823 P.2d 1116 (1992). RCW 36.75.080 partly states: "All public highways in this state, outside incorporated cities and towns and not designated as state highways which have been used as public highways for a period of not less than ten years are county roads[.]" But "[m]ere travel over unenclosed land by the public is regarded as permissive rather than adverse and is insufficient to establish a public highway by prescription." Primark, 63 Wash.App. at 908, 823 P.2d 1116 (citing Stevens County v. Burrus, 180 Wash. 420, 425, 40 P.2d 125 (1935)).

When, as here, the trial court's critical findings are unchallenged; the question of adverse or permissive use is purely a question of law. See Lingvall v. Bartmess, 97 Wash.App. 245, 250, 982 P.2d 690 (1999). In this connection, Mr. Misich complains the trial court did not enter findings specific to RCW 36.75.080 and RCW 36.75.300. His contention is unpersuasive as the trial court correctly noted that the common law elements of a prescriptive easement apply to establishing a public road by prescription under RCW 36.75.080. Primark, 63 Wash. App. at 908, 823 P.2d 1116. And, RCW 36.75.300 does not apply between private parties, as that statute pertains solely to a county's authority to classify and...