Tiller v. Lackey

• Citation: 431 P.3d 524
• Decision Date: 10 December 2018
• Docket Number: No. 76620-1-I,76620-1-I
• Court: Court of Appeals of Washington
• Parties: David TILLER and Thuy Tiller, Husband and Wife, Respondents/Cross-Appellants, v. Steven LACKEY and Sally Lackey, Husband and Wife; and Casey O’Keefe and Karen O’Keefe, Husband and Wife, Appellants/Cross-Respondents.

431 P.3d 524

David TILLER and Thuy Tiller, Husband and Wife, Respondents/Cross-Appellants,

v.Steven LACKEY and Sally Lackey, Husband and Wife; and Casey O’Keefe and Karen O’Keefe, Husband and Wife, Appellants/Cross-Respondents.

No. 76620-1-I

Court of Appeals of Washington, Division 1.

FILED: December 10, 2018

Christopher Martin Constantine, Of Counsel Inc. PS, PO Box 7125, Tacoma, WA, 98417-0125, Kenneth Lee Karlberg, Karlberg & Associates PLLC, 432 W Bakerview Rd., Bellingham, WA, 98226-8106, Gregory Earl Thulin, Attorney at Law, 2200 Rimland Dr. Ste. 115, Bellingham, WA, 98226-6643, for Appellant/Cross-Respondent.

Scott Martin Ellerby, Mullavey, Prout, Grenley & Foe, LLP, 2401 Nw 65th St., Seattle, WA, 98117-5831, Raymond Stillman Weber, Mills Meyers Swartling, 1000 2nd Ave. Ste. 3000, Seattle, WA, 98104-1064, for Respondent/Cross-Appellant.

PUBLISHED OPINION

Smith, J.

¶ 1 Steven and Sally Lackey and Casey and Karen O’Keefe (collectively Lackey) appeal the trial court order awarding their neighbors David and Thuy Tiller (collectively Tiller) a prescriptive easement over a section of a private road owned by Lackey and others. Lackey argues the trial court lacked subject matter jurisdiction over the dispute and erred by concluding the requirements of a prescriptive easement had been satisfied. Tiller argues the trial court erred by refusing to recognize an easement by necessity over the road. We hold that the court had subject matter jurisdiction and that the trial court erred by concluding the requirements of a prescriptive easement were satisfied but the requirements of an implied easement by necessity were not. We conclude the trial court’s findings support recognizing an implied easement by necessity. We remand to the trial court for entry of revised conclusions of law consistent with this opinion and a revised judgment that specifies the easement is an implied easement rather than a prescriptive easement.

FACTS

¶ 2 In June 1945, Noel and Eileen Provanche recorded the Plat of Georgia Point (plat), which the Provanches created from part of a larger parcel of property they owned on the north end of Lake Whatcom. The plat consisted of 10 contiguous waterfront lots, with lot 1 at the west end of the plat and lot 10 at the east end. The plat also included an additional parcel (street parcel), which was dedicated as a "private street reserved for the use of the owners of the Lots within the boundaries of [the] plat," solely for street purposes. The owner of each lot within the plat holds an undivided one-tenth interest in the street parcel, which consists of a 30-foot-wide strip of land that abuts the northern boundaries of lots 1 through 10. The street parcel spans the entire width of the plat, so that its western end extends west to, and is flush with, the western boundary of lot 1, and its eastern end extends east to, and is flush with, the eastern boundary of lot 10. When the plat was recorded, an active railroad right-of-way separated the northern boundary of the street parcel from North Shore Road, the main road along that part of Lake Whatcom.

¶ 3 Appellants Steven and Sally Lackey now own lot 10 (the easternmost lot) of the plat. Appellants Casey and Karen O’Keefe own lot 9.

¶ 4 In July 1949, the Provanches "carved out" and sold a piece of property (cabin lot) from their remaining property to the east of the plat. The cabin lot is not contiguous to the plat, and the Provanches retained ownership of the land separating the plat from the cabin lot. A ravine and seasonal stream separated the cabin lot from the Provanches’ remaining property to the east of the cabin lot, and there is no evidence that the cabin lot has ever been accessed from the east.

¶ 5 When the Provanches sold the cabin lot, they granted and recorded an easement (cabin lot easement) across the property they retained between the plat and the cabin lot. This property is now owned by David and Thuy Tiller and is referred to herein as the "Tiller lot." The cabin lot easement burdened the Tiller lot in favor of the cabin lot "for road purposes" for access to the cabin lot. The original cabin lot easement abutted the street parcel to the west at the eastern boundary of the plat and mirrored the street parcel’s 30 foot width and its path. In other words, the original cabin lot easement, if drawn on a map, appears as a continuation of the street parcel from the eastern boundary of lot 10, across the Tiller lot, to the western boundary of the cabin lot. In 1959, the width of the cabin lot easement was reduced from its original 30 feet to 12 feet as the result of a lawsuit between the then-owners of the Tiller lot and the cabin lot.

¶ 6 By 1947, a railroad crossing from North Shore Road to the plat (crossing) had been installed at approximately the boundary between lots 8 and 9. The extent of road installation within the street parcel at that time is unclear. However, there is evidence that by 1950, a road (Lakeview Street) had been installed within the street parcel. From the south end of the crossing, Lakeview Street branched off both west, toward lot 1, and east, toward lots 9 and 10 and the cabin lot. Figure 1 below depicts, for illustrative purposes, the plat (including the street parcel), the railroad right-of-way, North Shore Road, the Tiller lot, the cabin lot, and the cabin lot easement.¹ Figure 1 also depicts the approximate location of the crossing, as well as another railroad crossing to the east that was used to access the Provanches’ remaining property to the east of the cabin lot.

Figure 1

¶ 7 By 1976, the railroad right-of-way had been abandoned, and in August 1976, the then-owners of the lots within the plat purchased the right-of-way that had separated the street parcel from North Shore Road. The then-owners of the cabin lot and the Tiller lot did the same. Over time, some lot owners within the plat have installed crossings from their lots directly to North Shore Road across this abandoned railroad right-of-way. However, up until the time that Tiller purchased the Tiller lot in 2004, together with the portion of the abandoned railroad right-of-way between the Tiller lot from North Shore Road, the only vehicular access to the Tiller lot and the cabin lot was via Lakeview Street.

¶ 8 At some point before selling the Tiller lot to Tiller, Tiller’s immediate predecessors opened a path directly to North Shore Road from the Tiller lot, but it was not passable for an ordinary vehicle, nor was it ever formally approved by the county or used as a primary access to the Tiller lot. After acquiring the Tiller lot in 2004, Tiller continued using the crossing and Lakeview Street to access the Tiller lot from North Shore Road.

¶ 9 In July 2014, Lackey notified Tiller that Lackey intended to terminate Tiller’s use of Lakeview Street. Tiller filed a quiet title action on July 25, 2014, claiming a prescriptive easement to continue using Lakeview Street to access the Tiller lot. Tiller later amended the complaint to add claims for easement implied by prior use and easement implied from necessity.

¶ 10 At trial, multiple witnesses who once lived in or around the plat testified that Lakeview Street was the only route ever used to access the Tiller lot and the cabin lot from North Shore Road. Witnesses also testified that they were not aware of any owners of those lots ever asking, or needing to ask, permission to use Lakeview Street to access the Tiller lot or the cabin lot. Connie Myrhe, who lived on lot 9 from 1963 to approximately 1989, testified that permission was "just assumed." Karen Walter, who once lived on the Tiller lot, testified that she did not recall ever having any discussion in the neighborhood about a need to obtain permission to use Lakeview Street, saying, "[N]obody cared. It was just the way it was." Another witness testified about the direct access to North Shore Road that had been installed by Tiller’s immediate predecessors, stating that he did not believe even his four-wheel-drive pickup would be able to drive that access to the bottom (south) portion of the Tiller lot. This witness also testified that the grade from the abandoned railroad right-of-way portion of the property to the bottom portion of the Tiller lot is fairly steep.

¶ 11 David Tiller testified that when he and his wife purchased the Tiller lot, they initially planned to develop direct access from North Shore Road to the bottom portion of the property, where they planned to construct a new residence. But they later abandoned that plan due to impracticality resulting from the steepness of the slope, as well as a 2007 lawsuit by the owners of the cabin lot to keep the cabin lot easement open. Tiller later constructed a garage on the former railroad right-of-way portion of the property with direct access to North Shore Road. But access to the lower part of the Tiller lot remained via the crossing and Lakeview Street.

¶ 12 The trial court entered extensive findings of fact and conclusions of law. The court concluded that Tiller had established a prescriptive easement for ingress and egress via Lakeview Street to the western boundary of the Tiller lot, but that the requirements of an implied easement had not been met. Lackey appeals. Tiller cross appeals.

ANALYSIS

I. Subject Matter Jurisdiction

¶ 13 Whether a court has subject matter jurisdiction is a question of law reviewed de novo. Dougherty v. Dep’t of Labor & Indus., 150 Wash.2d 310, 314, 76 P.3d 1183 (2003). The trial court’s lack of subject matter jurisdiction may be raised for the first time on appeal. RAP 2.5(a)(1).

¶ 14 Lackey asserts that Tiller’s failure to follow the plat amendment procedures set forth in RCW 58.17.215 and then to appeal any adverse determination under Washington’s Land Use Petition Act, chapter 36.70C RCW, deprived the court of subject matter jurisdiction. We disagree.

¶ 15 Subject matter jurisdiction over cases involving the title to or possession of real property is expressly granted by the state cons...