York v. Cooper

• Decision Date: 26 July 1962
• Docket Number: No. 36190
• Citation: York v. Cooper, 373 P.2d 493, 60 Wn.2d 283 (Wash. 1962)
• Court: Washington Supreme Court
• Parties: Arthur F. YORK and Hazel B. York, his wife, Appellants, v. Charles F. COOPER and Lucetta D. Cooper, his wife, Respondents and Cross-Appellants.

Page 283

60 Wn.2d 283

373 P.2d 493

Arthur F. YORK and Hazel B. York, his wife, Appellants, v. Charles F. COOPER and Lucetta D. Cooper, his wife Respondents and Cross-Appellants.

No. 36190.

Supreme Court of Washington, Department 2.

July 26, 1962.

Arthur F. York, Tacoma, for appellant and respondent.

Charles F. Cooper, Tacoma, for respondent and cross-appellant.

OTT, Judge.

Arthur F. York and Hazel B. York, his wife, and Charles F. Cooper and Lucetta D. Cooper, his wife, own adjoining residence properties in the city of Tacoma. Prior to 1929, the former owners established a mutual easement from North Warner Street to the east boundary line of their respective properties, extending 4 1/2 feet onto the property of the Coopers and 3 feet on the property of the Yorks. Approximately 30 feet of the 7 1/2-foot area, beginning at the sidewalk on North Warner Street, were paved. The easement was used for the primary purpose of ingress and egress for vehicular deliveries of fuel to the basements of both properties. When automobiles were occasionally parked on the easement property, only 6 to 12 inches remained between the vehicle and the residences.

In 1953, the Coopers converted their furnace to an oil burner and thereafter received fuel deliveries by means of a hose from a truck parked on North Warner Street. The Coopers, at various times, protested to the Yorks and their tenants relative to the use of the easement area for the parking of motor vehicles. The protests were unheeded, and, on or about September 20, 1960, the Coopers erected a fence on their property line from the sidewalk on North Warner Street to the east end of their property, thus blocking vehicular use of the easement.

Arthur F. York and wife commenced this action against Charles F. Cooper and wife to enjoin the Coopers from obstructing the use of the easement in any manner so as to defeat the purpose for which it was established and commonly used.

The Coopers' answer admitted that an easement had been established and that they had erected the fence. They affirmatively alleged that the Yorks' use of the area for parking of automobiles and boats had exceeded the purpose for which the easement was granted and constituted a nuisance, and that the noise and fumes from the automobiles caused Lucetta Cooper to become ill. They requested that the Yorks be enjoined from using the area for parking purposes.

The cause was tried to the court, which entered findings of fact that the easement had been used for parking purposes for limited periods of time, and that the unrestrained use of the area for parking purposes could constitute a nuisance. The court restrained the use of the easement for parking purposes to a 12-hour period, and directed the Coopers to remove the fence.

From a judgment entered upon the findings, both parties gave notice of appeal.

Arthur F. York and wife abandoned their appeal. Charles F. Cooper and wife perfected their appeal and have furnished this court with a transcript of the pleadings, the court's findings of fact, conclusions of law and judgment. There is no statement of facts. The Coopers filed a brief pro se, and the Yorks made no appearance.

The Coopers accept the court's findings of fact, but contend that they do not support the conclusions of law, and that the court erred (1) in granting an easement 'for the purpose of limited parking in the affected area,' and (2) because 'In arriving at that decision little or no consideration was given to the NUISANCE AND HEALTH HAZARD' created by the parked automobiles.

When the court's findings of fact are not challented, we accept them as verities. Rule on Appeal 43, RCW Vol. O; Tremlin v. Tremlin, 159 Wash.Dec. 152, 367 P.2d 150 (1961). Further, in...