Wilhelm v. Beyersdorf

• Decision Date: 18 May 2000
• Docket Number: No. 18007-7-III.,18007-7-III.
• Court: Washington Court of Appeals
• Parties: Claudia Dorsey WILHELM, as her sole and separate property, Respondent and Cross-Appellant, Terance R. Kordash and Lissette M. Kordash, husband and wife, Respondents, v. Steven R. BEYERSDORF and Sarah B. Beyersdorf, husband and wife, Appellants.

999 P.2d 54

100 Wash.App. 836

Claudia Dorsey WILHELM, as her sole and separate property, Respondent and Cross-Appellant, Terance R. Kordash and Lissette M. Kordash, husband and wife, Respondents, v. Steven R. BEYERSDORF and Sarah B. Beyersdorf, husband and wife, Appellants.

No. 18007-7-III.

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

May 18, 2000.

Paul J. Allison, Laurel H. Siddoway, Randall & Danskin, Spokane, for Appellants.

Joseph P. Delay, Delay, Curran, Thompson & Pontarolo, John M. Riley, III, Witherspoon, Kelley, Davenport & Toole, Spokane, for Respondents.

SCHULTHEIS, J.

In granting partial summary judgment on an easement dispute, the trial court reformed the road easement description to conform to the road's actual use. Steven and Sarah Beyersdorf, owners of the servient estate, appeal, contending the dominant estate owners are not entitled to reformation. They also argue that they were bona fide purchasers and that equity supports leaving the easement in its current configuration. One of the dominant estate owners, Claudia Dorsey Wilhelm, contends on cross-appeal that the trial court erred in denying her damages and in failing to require the Beyersdorfs to remove or lower a wellhead built on the easement. We affirm.

FACTS

In May 1969, Ms. Wilhelm and her husband, Charles Dorsey, purchased 40 acres of land in Spokane County. Because their parcel was "landlocked," in 1970 they negotiated access to their property by way of an easement over land owned by J.K. and Virginia Featherman. The easement, drafted by the Feathermans, was reviewed by the Dorseys' attorney, who advised them that its description did not adequately fix the location of the easement. In relevant part, the easement states as follows:

The easement and right-of-way hereby granted covers a strip of land 40 feet in width across the above described land, or 20 feet on each side of a center line, together with such additional widths as are necessary to provide for cuts, fills, turnouts, and for curves at the angle points, beginning at a point approximately 200 feet South of the Northeast corner of the hereinabove described grantors' parcel, and the road is to go Westerly, thence South; thence Westerly to foot or exit of gully; also existing road commencing from Northwest corner of grantors' property; thence southerly to exit of gully previously described; thence south across gully on west line of parcel being an existing road; thence South across gully, thence West and exit on West line of parcel. Configuration of topography plus existence of old logging road fixes the location of the easement herein.

The Dorseys decided not to pay for a survey and accepted the easement as written. Mr. Dorsey constructed a road over the Featherman property, beginning at the northwest corner and expanding on a preexisting logging road. From 1970 on, the 16-foot-wide access road was used by the family on a regular basis. Mr. and Ms. Dorsey divorced in 1976 and Ms. Dorsey, now Ms. Wilhelm, was awarded the property.

Ms. Wilhelm recorded the Featherman easement in June 1977. About a week later, she sold 10 acres of her property to Terance and Lissette Kordash. At the same time, she granted an easement to the Kordashes, including a grant of her rights under the Featherman easement. The Kordashes have used the easement as an access to their property since 1977.

In August 1993 the Beyersdorfs purchased the parcel of land over which the Featherman easement runs. A title report provided to them before closing indicated that the land was subject to several easements, including the Dorseys' "permanent easement and right-of-way," described as affecting "[a] portion of the Southeast quarter of Section 12 being 40 feet in width which cannot be located by the instruments of record." The Beyersdorfs' real estate broker assured them there were no easements on their property.¹ When they visited the site, they saw what they described as an old logging road winding through dense woods, unimproved and apparently unused.

The Beyersdorfs began drilling a domestic well on the road surface of the easement in August 1995. At that time, Ms. Wilhelm had moved off her property and her adult daughter was living in the home. The daughter confronted the well driller in August 1995 because construction partially blocked the road. In response, the contractor, who had also begun construction of the Beyersdorfs' home nearby, moved the road west of the wellhead and poured gravel to repair it. Ms. Wilhelm's daughter did not contact the Beyersdorfs herself.

Ms. Wilhelm filed suit in December 1995 seeking a declaratory judgment regarding the right to use the easement. She later added a claim of easement by prescription and requested damages for interference with the easement. She also sought reformation of the easement and an injunction for removal of the wellhead. In April 1996 she hired surveyor James Benthin to survey the existing road. His completed survey describes the location of the easement as pointed out by Ms. Wilhelm. According to his affidavit, "The description in the Featherman easement may or may not conform to the physical location of the road easement on the ground. The Featherman easement description was ambiguous."

In July 1996, Ms. Wilhelm moved for partial summary judgment reforming the Featherman easement to conform to the Benthin survey, or in the alternative, granting a prescriptive easement. Before the trial court ruled on the motion, the Kordashes filed a complaint against the Beyersdorfs and then joined in Ms. Wilhelm's motion for partial summary judgment and her complaint. The trial court granted the Wilhelm/Kordash motion for partial summary judgment on the claim of reformation only. After denial of the Beyersdorfs' motion for reconsideration, the trial court entered an order of partial summary judgment in January 1997 and a supplemental order (containing findings and conclusions) in March 1997.

The remaining claims for damages and for removal of the well were tried in November 1997. By memorandum opinion the trial court denied the claims for damages and held that the wellhead did not have to be removed as long as the Beyersdorfs are able to accommodate any future plans by the plaintiffs to expand or improve the easement to its full 40-foot width. The Beyersdorfs were permanently restrained from interference with the use or expansion of the easement.

REFORMATION

The Beyersdorfs first contend there was no lawful basis for the trial court to reform the description of the easement. They argue the Featherman easement description was inadequate to create an easement and could not be reformed on the basis of a scrivener's error or mutual mistake. In reviewing the partial summary judgment we engage in the same inquiry as the trial court. Halbert v. Forney, 88 Wash.App. 669, 673, 945 P.2d 1137 (1997). Summary judgment is proper if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Id.

Every conveyance of real estate and any interest or encumbrance on real estate must be by written deed, signed and acknowledged. RCW 64.04.010, .020; Berg v. Ting, 125 Wash.2d 544, 551, 886 P.2d 564 (1995). The statute of frauds requires that any conveyance of an interest in land, including an easement, must contain a description of the land sufficient to locate it without oral testimony (or it must refer to another instrument that does contain a sufficient description). Id. In the case of an easement, the document does not have to establish the easement's actual location. Id. Only the servient estate must be described in sufficient legal terms. Id. The original Featherman property, the servient estate here, is properly located by its exact legal description in terms of "lot and block and addition or plat[.]" Id. at 553, 886 P.2d 564 (quoting RCW 65.04.030(1)). Consequently, the Featherman easement effectively created a valid easement over the Featherman property as the servient estate for the benefit of the Dorsey property as the dominant estate. The remaining questions are whether the Featherman easement applies to the portion of the original Featherman estate that was eventually sold to the Beyersdorfs, and whether the trial court properly reformed the easement to conform to the road used by Ms. Wilhelm and the Kordashes. The Beyersdorfs argue that the map of the Featherman property and the easement description indicate the road should run from 200 feet below the northeast corner of the Featherman property, then west, south and west again. Because their parcel is centered on the west border of the Featherman property, far from the road that begins in the northeast corner, they contend the parties could not have intended the easement to run across their property.

Apparently the portion of the Featherman easement that describes a strip of land running from the northeast corner of the section does not conform to any current road that provides access to the Wilhelm or Kordash properties. The document actually appears to create two access points, however. Another portion of the easement describes an "existing road commencing from Northwest corner of grantors' property [traveling south across a gully and exiting] on west line of parcel[.]" This language comes closest to describing the current road used by the Kordashes and Ms. Wilhelm to access their properties. It is that section of the Featherman easement that the trial court reformed.

A trial court has equitable power to reform an instrument if there is clear, cogent and convincing evidence of a mutual mistake or a unilateral mistake coupled with inequitable conduct. Kaufmann v. Woodard, 24 Wash.2d 264, 270, 163 P.2d 606 (1945). Ms. Wilhelm did not argue unilateral mistake. Mutual mistake occurs if the intention of the parties is identical at the time of the transaction and the writing executed by them does not express that intention. Tenco, Inc. v. Manning, ...