Williams Place, LLC v. State

• Decision Date: 14 April 2015
• Docket Number: No. 31681–5–III.,31681–5–III.
• Citation: 187 Wash.App. 67,348 P.3d 797
• Parties: WILLIAMS PLACE, LLC, Appellant, v. The STATE of Washington, by and through the DEPARTMENT OF TRANSPORTATION, Respondent.
• Court: Washington Court of Appeals

187 Wash.App. 67

348 P.3d 797

WILLIAMS PLACE, LLC, Appellant

v.The STATE of Washington, by and through the DEPARTMENT OF TRANSPORTATION, Respondent.

No. 31681–5–III.

Court of Appeals of Washington, Division 3.

April 14, 2015.

Kevin W. Roberts, Dunn Black & Roberts P.S., Spokane, WA, for Appellant.

Frank M. Hruban, Washington State Attorney General, Spokane, WA, for Respondent.

Opinion

SIDDOWAY, C.J.

¶ 1 Williams Place LLC was formed in 2005 by members of the Sig Jorstad family to hold land in Whitman County that the family had farmed since the mid 1950s. The limited liability company filed this inverse condemnation action in 2007, after the Washington State Department of Transportation (WSDOT) ordered the LLC's neighbor to the east to remove a bridge across Paradise Creek. Evidence was presented that a bridge at that location had provided the Jorstad family and its predecessors with access from the farm to county roads since 1882. With the removal of the bridge, Williams Place contends that a portion of its land is landlocked. It advances a number of theories in support of a right of access that was taken by WSDOT's 2007 order to remove the bridge.

¶ 2 The loss of a right to access after such a long period of use is unusual. But review of the history of the property reveals that in this atypical case, predecessors in interest to the Jorstad family lost legal options for access to their southernmost ground incrementally, either voluntarily or without objection, over decades. Williams Place retains the options of applying for access using an easement it has obtained from Whitman County. Because the trial court properly concluded that Williams Place had not demonstrated a genuine issue of fact that it had a legal right that was taken or damaged by WSDOT, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 Williams Place LLC owns 220 acres in Whitman County that is bisected by the Moscow–Pullman Highway, State Route (SR) 270. Most of the property (194 acres) is located on the north side of the highway, with approximately 26 acres located to the south. The property has been owned and farmed by the Jorstad family since the mid 1950s. For estate planning purposes, members of the Jorstad family formed and transferred title to Williams Place in 2005.

¶ 4 Paradise Creek runs along the south side of the Moscow–Pullman Highway on the Jorstad land. Before 2007, a bridge existed over the creek on land owned by the Jorstad family's neighbor to the east, close to milepost 6.9 on SR 270. As of the time this lawsuit was commenced, the owner of the land was Motley–Motley, Inc. (Motley). The Jorstad family and its predecessors have used bridges at the location, now identified as milepost 6.9 on SR 270, for as many as 125 years, although the viability of the bridges and the extent and continuity of their use is in dispute.

¶ 5 The parties' dispute over the legal right, if any, that the Jorstad family acquired as a result of its historical use of the bridge requires an understanding of county, railroad and private conduct affecting the property since the 1880s.

¶ 6 In 1881 the federal government conveyed to George W. Pinnell, by patent, the land presently owned by the Jorstads through Williams Place. In 1882, the federal government conveyed to John P. Collins, also by patent, the land presently owned by Motley. As shown in the simplified illustration below,¹ all of the land conveyed to Mr. Pinnell, the Jorstad family's predecessor, was located in the Northeast Quarter of Section 2, Township 14 North, Range 45 East, W.M. All of the land conveyed to Mr. Collin's, Motley's predecessor, was in the Northwest Quarter of Section 1 of the same township and range. All references hereafter to “Section 2” and “Section 1” are to sections 2 and 1 of Township 14 North, Range 45 East, W.M.Jorstad/Motley properties, circa 1882:

¶ 7 As shown by the illustration, the Jorstad and Motley properties were originally served by Garrison Road, a former county road built in approximately 1882. Garrison Road ran generally east and west, south of Paradise Creek. The road included a spur that ran north across Paradise Creek. While the northern spur including the bridge across Paradise Creek was located in Section 2, owned by Motley's predecessor, it was a county road that the Jorstad family's predecessors were entitled to use.

¶ 8 In 1886, Mr. Pinnell sold a strip of land 100 feet in width across his land to the Columbia and Palouse Railroad Company for the company's use in building and maintaining a railroad. He was paid $60 for the property. Motley's predecessor had conveyed an essentially identical right-of-way to the railroad in 1885.

Jorstad/Motley properties, circa 1890:

¶ 9 The railroad right-of-way bisected Mr. Pinnell's farm ground in Section 2, creating an impediment to unfettered movement between the north and south portions of his property. But Mr. Pinnell was still able to use Garrison Road to cross the railroad right-of-way and to cross Paradise Creek in traveling between the north and south portions of his land.

¶ 10 In 1933, in anticipation of Whitman County's construction of a new county road north of Paradise Creek to replace Garrison Road, Lewis and Nellie Brosa—who had by then acquired what had been Mr. Pinnell's land and would later become the Jorstad family property—conveyed a right-of-way 80 feet in width to the county. They executed a waiver of “all claims for damages of whatever kind which may be occasioned to said land or premises, or to any portion thereof, or to the undersigned by the location, establishment, opening and use of said road.” CP at 96. The replacement road was referred to as Secondary Road No. 11. It would later become Primary State Highway No. 3, which would later become SR 270.

¶ 11 When construction of Secondary Road No. 11 was completed in 1935, the Board of County Commissioners of Whitman County vacated Garrison Road, finding that it had been “thrown into disuse by reason of the establishment and construction of Secondary Road Project No. 11 and ... [was] not being used by vehicular traffic.” CP at 102. The order vacating the road recited the fact that notice had been given of the Board's plan to vacate the road and that “no objection [had] been made to vacating said road.” Id.

Jorstad/Motley properties, circa 1935:

¶ 12 The parties dispute the practical and legal effect of the vacation. The Jorstad family contends that Garrison Road and the bridge were still being used and maintained by owners of property formerly abutting the road, whom they contend continued to enjoy a private easement. WSDOT contends that upon vacation, fee title reverted to the abutting landowners and that the Paradise Creek bridge fell into a state of disrepair.

¶ 13 In 1950, the State undertook improvements that would result in the county's Secondary Road No. 11 becoming a state highway. By that time, the land formerly owned by Mr. Pinnell and the Brosas and that would later become the Jorstad property was owned by George C. Williams and Ruby May Williams. Both the Williamses and Motley's predecessor sold property needed by the State for the highway construction. Among the property transferred to the State by the Williamses and by Motley's predecessor was the strip of land located between the railroad right-of-way and the existing highway, west and east of the Paradise Creek bridge. The result was that what would become the Jorstad family property no longer abutted what would become SR 270 nor, for that matter, did Motley's. Following the 1950 conveyances, the bridge across Paradise Creek that was formerly a part of Garrison Road fell within the state-owned right-of-way.

Jorstad/Motley properties, circa 1951:

¶ 14 The Jorstad family purchased the subject property in Section 2 in 1954. In connection with the cross-motions for summary judgment below, members of the Jorstad family provided declarations attesting that at the time they acquired the property, the roadway that served as the former Garrison Road, including the Paradise Creek bridge, continued to provide access to their land south of SR 270. They claimed that after acquiring the property, Jorstad family members maintained and improved the bridge as necessary. Keith Kopf, a Jorstad family member and member of Williams Place LLC, testified that in 1974 or 1975 a truck broke through the deck of the Paradise Creek bridge, requiring reconstruction. According to Mr. Kopf, the bridge was thereafter completely rebuilt by adding new stringers and decking.

¶ 15 By 1997 the railroad tracks running through the Jorstad and Motley properties were no longer in use.

Pursuant to the federal Trails Act, 16 U.S.C. § 1247(d), Blue Mountain Railroad Company, Inc., which was by then the owner of the tracks and right-of-way, executed a donative quit claim deed in favor of Whitman County to use the railroad right-of-way as a recreation trail. The deed conformed to provisions of the Trails Act, under which interim trail use is not considered abandonment of a railroad right-of-way. Following execution of deeds to the railroad's right-of-way, Whitman County constructed what is now the Bill Chipman Trail.

Jorstad/Motley properties, circa 1998:

¶ 16 The Chipman Trail, which opened in 1998, is an 8–mile recreational trail, 10 feet in width, which runs from Pullman to Moscow. Following development of the trail, Jorstad family members were required to cross it in order to reach the Paradise Creek bridge at milepost 6.9 from their farm land south of SR 270.

¶ 17 Also in 1998, a flood damaged the Paradise Creek bridge. Mr. Kopf conceded by declaration that as a result of the flood damage, “our heavier farm equipment and heavy trucks were too big for the bridge,” but “the bridge was still used for light traffic after we installed runners to cover the bad spots in the deck.” CP at 249. Jeff Motley, who purchased the Motley property in April 2001, provided conflicting evidence, testifying by declaration that no functioning Paradise Creek bridge...