Wood v. Thurston County, No. 31453-3-II (WA 2/15/2005)

• Court: Washington Supreme Court
• Writing for the Court: Quinn-Brintnall
• Decision Date: 15 February 2005
• Docket Number: No. 31453-3-II
• Citation: Wood v. Thurston County, No. 31453-3-II (WA 2/15/2005), No. 31453-3-II (Wash. Feb 15, 2005)
• Parties: ADAM and JANE WOOD, husband and wife and their marital community, Appellants, v. THURSTON COUNTY, Respondent.

Page 1

Unpublished Opinion

ADAM and JANE WOOD, husband and wife and their marital community, Appellants, v. THURSTON COUNTY, Respondent.

No. 31453-3-II

Court of Appeals of Washington, Division Two.

Filed: February 15, 2005

Appeal from Superior Court of Thurston County. Docket No. 03-2-00079-2. Judgment or order under review. Date filed: 02/13/2004. Judge signing: Hon. Daniel J Berschauer.

Counsel for Appellant(s), Benjamin D Cushman, Cushman Law Offices PS, 924 Capitol Way S Ste 203, Olympia, WA 98501-1278.

Counsel for Respondent(s), Donald R. Jr Peters, Attorney at Law, 2424 Evergreen Park Dr SW Ste 102, Olympia, WA 98502-6041.

QUINN-BRINTNALL, C.J.

Adam and Jane Wood appeal the trial court's order granting summary judgment in favor of Thurston County and dismissing their complaint for damages from the County's removal of 200 trees from the edge of a roadway easement on the Woods' property. We affirm.

FACTS

The Woods bought property in 1998 that is partially transected by an easement for Rainier Road, an arterial roadway in Thurston County. Dedicated in 1914 `to the use of the public forever,' the County's easement interest extends 30 feet on each side of the road's centerline. Clerk's Papers (CP) at 44. When the Woods purchased their property, the fence line between their home and the road was planted in trees. The County widened the shoulder of Rainier Road in 2000 and removed approximately 200 of the Woods' trees from the easement. None of the trees removed from the right-of-way exceeded 16 inches in diameter. The trees were removed without the Woods' permission and without compensation.

The Woods filed a complaint against the County seeking damages for the removal of the trees. In their subsequent motion for summary judgment, they asserted that the County only had the right to remove trees from the easement for reasons of public necessity and that, if removal of their trees was necessary, compensation was required. Jane Wood filed a supporting declaration in which she observed that the County had removed all of her neighbor's trees along the right-of-way and all but 17 of the Woods' trees. She complained of the manner in which the County proceeded with the tree removal and also asserted as follows: `The removal of those trees was not required. Mailboxes closer to Rainier Road SE than the trees that were removed were spared. Further, some trees were left along the fence line, which were closer to Rainier Road SE than the trees which were removed.' CP at 25.

The County responded by filing a cross-motion for summary judgment. The County asserted that all of the trees it had cut were growing within the 30-foot right-of-way and were subject to the easement. The County further contended that their removal was an exercise of its police powers and did not require compensation. In support of its motion, the County submitted a declaration from Lester Olson, the director of its roads department. Olson stated that the road improvements were authorized by the Thurston County Board of Commissioners in 1999 and that trees had to be removed from the right-of-way overlaying the Woods' property when the County widened the shoulders on Rainier Road.

6.. . . It was necessary to remove these trees to meet federal safety standards for `clear zones'. A `clear zone' is required so that if a vehicle leaves the roadway, it will not impact a major obstacle within the shoulder such as trees or telephone poles. Trees may also be removed if their root system impacts the impervious surface of the roadway either currently or perceived in the future.

. . . .

9. The trees removed from the right of way were those that infringed upon the newly expanded shoulder. These trees were also within the newly constructed drainage area and would have impeded the flow of water within the drainage area, possibly creating a standing water condition on the roadway. These trees would also have impacted the ability to maintain the drainage area. Trees too close to a roadway also inhibit the melting of ice during winter months and create prolonged icy patches. Douglas fir trees are also a high risk for root infringement upon the impervious surface of the roadway as they mature.

10. The trees were removed to protect the safety of the traveling public as they proceeded upon the roadway as well as the pedestrians who may be traveling alongside the roadway.

CP at 46-47.

The trial court granted the County's motion for summary judgment, finding as a matter of law that the removal of trees in the easement was for a public use or necessity and that the County did not owe compensation beyond the timber value of the trees, if any, that exceeded the removal costs. The Woods now appeal, contending that the trial court improperly concluded that the County's removal of their trees was a matter of public necessity that did not warrant compensation for the loss of the trees' aesthetic value.

ANALYSIS

A defendant in a civil action is entitled to summary judgment when he or she shows there is an absence of evidence supporting an element essential to the plaintiff's claim. Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992); see also Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). The defendant may support the motion by challenging the sufficiency of the plaintiff's evidence regarding any material issue. Las, 66 Wn. App. at 198. The inquiry then shifts to the plaintiff, who may not rely on the allegations in the pleadings but must set forth specific facts by affidavit or otherwise showing that a genuine issue exists. Young, 112 Wn.2d at 225-26; Las, 66 Wn. App. at 198. Such an affidavit must be based on personal knowledge admissible at trial and not merely on conclusory allegations, speculative statements, or argumentative assertions. Las, 66 Wn. App. at 198. A reviewing court must take the position of the trial court and consider the facts in the light most favorable to the nonmoving party. Young, 112 Wn.2d at 226.

As the trial court noted, several issues in this case are undisputed. The parties agree that the property that is the subject of the lawsuit was dedicated as an easement for `the use of the public forever' in 1914. CP at 66. The parties also agree that the Woods own a fee interest in the subject property to the centerline of Rainier Road and that the County has an easement extending 30 feet from the centerline of the road. The parties further agree that the Woods own any vegetation growing on the easement.

It also is undisputed that the Woods, as the abutting property owners, could make use of the easement in any manner that was not incompatible with the purpose of the easement. Thompson v. Smith, 59 Wn.2d 397, 407-08, 367 P.2d 798 (1962); State ex rel. York v. Bd. of Comm'rs of Walla Walla County, 28 Wn.2d 891, 902-03, 184 P.2d 577 (1947). Under this rule, a public authority may cut trees in roadway easements when necessary, even when those trees provide some benefit to the abutting landowner. See 39 Am. Jur. 2d Highways, Streets, and Bridges sec. 317 (1999) (abutting landowner is deemed to have planted trees growing within the confines of a right-of-way with the understanding that they can remain only so long as the space they occupy is not required for public use); Rueckel v. Texas E. Transmission Corp., 3 Ohio App. 3d 153, 158, 444 N.E.2d 77 (Ohio Ct. App. 1981) (plaintiffs not entitled to grow trees on right-of-way that interfere with the exercise of the easement rights); Crowell v. New York, 18 A.D.2d 7, 10, 238 N.Y.S.2d 72 (N.Y. App. Div. 1963) (interest of abutting owner in trees within highway limits is subject to the power of the public authorities to improve the highway to its entire width), aff'd, 13 N.Y.2d 1132 (N.Y. 1964).

The issue thus becomes whether the trial court properly held on summary judgment that the County removed the Woods' trees from the right-of-way as a matter of public necessity. In support of its motion for summary judgment, the County submitted the declaration of Olson in which he stated that the trees were removed (1) to create a `clear zone;' (2) because they impeded the drainage from the roadway; (3) because they could create icy patches on the roadway; and (4) because they created the risk of root infringement upon the roadway. He concluded that the trees were removed to protect the safety of those who traveled upon and alongside the roadway.

The only factual response to these assertions was the declaration that Jane Wood submitted with her own motion for summary judgment. The bulk of that declaration complained about the manner in which the County removed the trees. With regard to the propriety of the removal itself, Wood stated that it was not required because the County spared some mailboxes and trees that were closer to the highway than the trees that were removed.

The trial court found the Wood declaration inadequate to create an issue of fact as to the necessity for the tree removal.

Lester Olson sets forth specific facts and multiple reasons why it was necessary to remove the trees. The evidence produced by the plaintiffs does not contradict those reasons. Plaintiffs' evidence consists of conclusions. {Jane} Wood's opinion that some trees were left that were...