105 Wn. App. 888, LOWE v. DOUBLE L PROPS.

[No. 17583-9-III. Division Three. April 3, 2001.]

Aaron L. Lowe, et al., Appellants, v. Double L Properties, Inc., et al., Respondents.

[1] Injunction - Nature - In General. An injunction is an equitable remedy over which trial courts have broad discretion, exercised according to the circumstances of each case.

[2] Injunction - Review - Standard of Review. A decision made by a trial court in fashioning injunctive relief is entitled to great weight by a reviewing court but will be overturned if it is based on untenable grounds, is manifestly unreasonable, or is arbitrary.

[3] Appeal - Findings of Fact - Failure To Assign Error - Effect. Unchallenged findings of fact are verities on appeal.

[4] Easements - Express Easement - Scope - Access Restriction - Intent of Parties - Surrounding Circumstances. Whether the owner of an estate encumbered by an ingress and egress easement may erect a gate or other barrier across the easement depends upon the intent of the parties who created the original easement. In the absence of a clear expression of intent, the question of whether access to the easement may be restricted depends upon the situation of the parties, the situation of the property subject to the easement, the manner in which the easement has been used and occupied, and the surrounding circumstances.

[5] Easements - Express Easement - Scope - Access Restriction - Validity - Test. The owner of an estate encumbered by an easement may restrict access to the easement by means of a gate or other barrier if the owner has been subjected to a greater burden than originally contemplated by the creators of the easement, the restriction is reasonably related to abating the increased burden, and the restriction does not unreasonably

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interfere with the use of the easement by the owner of the dominant estate.

[6] Easements - Change in Use - Response by Estate Holders - Validity. The existing use of an easement may be increased by the dominant estate holder, but only if the increased use does not compel the servient estate holder to change how it uses the estate over which the easement runs. Similarly, the servient estate holder may not interfere with the dominant estate holder's mere increase in use of the easement, but may resist any attempted change in use of the easement by the dominant estate holder.

[7] Easements - Express Easement - Scope - Injunctive Relief - Balancing of Respective Interests. A trial court fashioning injunctive relief to resolve a dispute over an easement by necessity for ingress and egress obtained by default judgment may balance the respective interests of the dominant and servient estate holders.

[8] Easements - Express Easement - Livestock Ranch - Gate For Livestock Control - Additional Gates - Validity. The owner of a livestock ranch that is encumbered by an ingress and egress easement across which there exists a gate for livestock control may install additional gates across the easement for the same purpose if the dominant estate holder knew at the time the easement was created that the servient estate was a working ranch that needed gates to control its livestock, the additional gates are necessary for livestock control, and the gates do not unnecessarily interfere with the ingress and egress rights of the dominant estate holder.

[9] Trial - By Court - Findings of Fact - Review - Deference. An appellate court will defer to a trial court's findings of fact if reasonable minds could differ on the evidence.

[10] Judgment - Res Judicata - Prior Determination - Final Judgment - Summary Judgment - No Appeal Taken. An unappealed summary judgment is a final judgment and has res judicata effect.

[11] Easements - Express Easement - Maintenance - Limitation - Right Granted by Judgment. The doctrine of res judicata bars a trial court from limiting the right of a dominant estate holder to maintain an easement as granted by a prior judgment.

[12] Appeal - Record on Appeal - Insufficiency - Absence of Material Findings - Remedy - Remand. Where a lack of material findings by a trial court hinders appellate review of the trial court's judgment, remand is necessary for entry of additional findings.

Nature of Action: Action for injunctive relief. The plaintiff, the dominant estate holder of an ingress and egress

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easement obtained by a default judgment, sought to compel the servient estate holder, the owner of a livestock ranch, to remove certain additional gates that the servient estate holder had erected across the easement.

Superior Court: The Superior Court for Spokane County, No. 93-2-03120-8, Neal Q. Rielly, J., on May 6, 1998, entered a judgment that allowed the defendant to keep three of its gates, required the defendant to modify the gates to make them easier to open and close and to improve their safety, allowed a cattle guard installed by the plaintiffs to replace a fourth gate, required the defendant to give notice to the plaintiffs before installing any more gates, restricted the plaintiffs in how they may maintain the easement, and imposed a reduced speed limit on the easement.

Court of Appeals: Holding that the trial court properly balanced the equities in fashioning the injunction in respect to the gates, but that the trial court abused its discretion by restricting the plaintiffs' maintenance of the easement and imposing the speed limit, the court affirms the judgment in part and reverses it in part.

Thomas M. Roberts (of Roberts & Mahoney, P.S.), for appellants.

Stephen R. Matthews and Donald C. Brockett (of Phillabaum, Ledlin, Matthews & Gaffney-Brown), for respondents.

[As amended by order of the Court of Appeals May 22, 2001.]

Brown, J. - Double L Properties, Inc., the servient estate holder, erected gates across Aaron L. and Denise S. Lowe's ingress and egress easement acquired by default judgment.

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Mr. Lowe sought injunctive relief. The trial court permitted the gates, restricted maintenance, and imposed speed limits. The Lowes appeal. We clarify the difference between intended and imposed easements. We decide the trial court did not err when ruling that the servient estate holder could increase its use of gates over the easement to control livestock. On the other hand, the trial court abused its discretion when ordering the maintenance. And we remand the speed limit issue for entry of additional findings.

FACTS

Double L, controlled by the Nibarger family, used to own Lookout Mountain. The Lowes purchased it at a bankruptcy sale. Double L owns much of the surrounding property and operates a working horse and cattle ranch. The Lowes, by default, acquired an easement by necessity for ingress and egress through the Double L property over an existing gravel road, over which certain nonparty entities also had an easement.

A heavy front gate (1) existed on the easement. Eventually, Double L erected three more gates (2, 3, and 4) across the easement. Some were constructed of barbed wire and were very difficult to open. Mrs. Lowe needed help to open some of them. In the winter, Mrs. Lowe had particular difficulty passing through gate 4, the upper gate dividing the two properties. At times, the Lowes did not close gates 2, 3, and 4, allowing Double L stock to wander within a Double L perimeter fence. Once, the Nibarger family blocked the easement and attempted to intimidate the Lowes for their failure to close the gates. Mr. Lowe at times drove more than 10 mph on the easement, particularly in front of the Nibarger barn and house.

In June 1994, Mr. Lowe filed an amended complaint in the default case asking for damages and injunctive relief. Mr. Lowe partly demanded removal of the three new gates and requested an order permitting him to "maintain, regrade, and/or snowplow" the easement when he determined

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it necessary. Clerk's Papers (CP) at 15. The trial court granted Mr. Lowe summary judgment (unappealed) on the road maintenance issue, stating "[t]hat the Lowes be entitled to maintain, regrade and snowplow their easement at their expense without interference from defendants." CP at 18. The trial court denied summary judgment on the gates after finding material fact issues existed as to whether the gates unreasonably interfered with the easement. Double L was ordered to "adjust the barbed wire gates so that anyone can easily open them including Mrs. Lowe and their children." CP at 18. Double L eventually filed an amended counterclaim that partly demanded a judgment restricting the Lowes' easement "to ingress and egress over the existing roadway" and entitling Double L "to maintain gates to properly secure and operate their ranching property." CP at 30.

A bench trial occurred in July and October 1996, including a view of the easement. In May 1998, the trial court entered findings, conclusions, and a judgment. The trial court found "a need for gates to manage the animals." Finding of Fact (FF) 10. But the court found also that Double L "acted unreasonably at times." FF 15. The trial court allowed gates 1, 2, and 3 to remain, but ordered a number of modifications to permit easier passage and to improve safety. The trial court ordered Double L to notify the Lowes when gate 2 should be closed or left open. The trial court allowed a cattle guard installed by the Lowes to replace gate 4. The trial court further ordered Double L to give 60-day written notice to the Lowes whenever it wanted to install more gates across the easement.

Additionally, the Lowes were ordered to "follow reasonable speed restrictions placed upon the roadway by Nibargers." Conclusion of Law (CL) 11. The court mandated a 10 mph speed limit from gate 1 to gate 2 and a 20 mph limit from gate 2 to gate 4. The trial court recognized that weather conditions might require greater speed to ascend the easement. The court further ordered the Lowes to obtain permission from Double L "before conducting significant

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maintenance on the roadway." CL 12.

The Lowes appeal. Double L has abandoned its cross-appeal.

ANALYSIS

A. Gates

The issue is whether the trial court erred by abusing its discretion in permitting Double L, the servient estate holder, to increase and alter the gates across the easement. Because of subsequent circumstances, solely gate 2 remains at issue.

[1, 2] The trial court entered injunctive relief. "A suit for an injunction is an equitable proceeding addressed to the sound discretion of the trial court, to be exercised according to the circumstances of each case." Steury v. Johnson, 90 Wn. App. 401, 405, 957 P.2d 772 (1998) (citing Fed. Way Family Physicians, Inc. v. Tacoma Stands Up For Life, 106 Wn.2d 261, 264, 721 P.2d 946 (1986); Rupert v. Gunter, 31 Wn. App. 27, 30, 640 P.2d 36 (1982)). "Appellate courts must give great weight to the trial court's decision, interfering only if it is based on untenable grounds, is manifestly unreasonable or is arbitrary." Steury, 90 Wn. App. at 405 (citing Fed. Way, 106 Wn.2d at 264; Rupert, 31 Wn. App. at 30). This standard of review applies throughout this opinion.

[3-5] Here, the trial court entered 19 findings of fact without challenge. Accordingly, they are verities on appeal. See Green v. Lupo, 32 Wn. App. 318, 322-23, 647 P.2d 51 (1982) (construing easement grant).

Whether or not the owner of land, over which an easement exists, may erect and maintain fences, bars, or gates across or along an easement way, depends upon the intention of the parties connected with the original creation of the easement, as shown by the circumstances of the case; the nature and situation of the property subject to the easement; and the manner in which the way has been used and occupied.

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Rupert, 31 Wn. App. at 30-31 (citing Evich v. Kovacevich, 33 Wn.2d 151, 204 P.2d 839 (1949)). "Similarly, if the easement is ambiguous or even silent on some points, the rules of construction call for examination of the situation of the property, the parties, and surrounding circumstances." Rupert, 31 Wn. App. at 31 (citing City of Seattle v. Nazarenus, 60 Wn.2d 657, 374 P.2d 1014 (1962)). "When the owner of a servient estate is being subjected to a greater burden than that originally contemplated by the easement grant, the servient owner has the right to restrict such use and to maintain gates in a reasonable fashion necessary for his protection, as long as such gates do not unreasonably interfere with the dominant owner's use." Rupert, 31 Wn. App. at 31 (citing United States v. Johnson, 4 F. Supp. 77 (W.D. Wash. 1933); 28 C.J.S. Easements 98(b), at 781 (1941)); accord Steury, 90 Wn. App. at 406; Green, 32 Wn. App. at 324.

[6-8] Thus generally, the dominant estate holder may increase an existing intended or imposed use, but may not compel a change in use on the servient estate holder. The inverse follows; the servient estate holder may not interfere with a mere increase in use, but may properly resist any attempted change in use by the dominant estate holder.

Here, Double L did not "grant" the easement; no intent is involved. Instead, we have an imposed use arising from a default judgment for an easement by necessity. Double L's response admittedly has been to restrict Mr. Lowe's access "as much as possible." Given the circumstances attendant when the easement was imposed, the trial court did not err by balancing the respective interests to fashion an appropriate remedy. Rupert, 31 Wn. App. at 31. The trial court considered ample evidence, visited the scene, and entered undisputed findings. The Lowes knew Double L was a working ranch when imposing the easement and knew Double L needed gates to control its livestock. The use of a gate was a known type of limit on the easement; adding necessary gates did not constitute a change but merely the increased use of a known limitation. Therefore, the court

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did not abuse its discretion in deciding the gates were necessary to control the livestock. Rupert, 31 Wn. App. at 32.

On the other hand, the gates were quite difficult to open and hazardous in certain conditions to operate. Double L intimidated the Lowes and once physically blocked their access. From these facts, the trial court did not abuse its equitable discretion in deciding Double L had acted unreasonably at times and that the gates, albeit necessary for livestock control, needed modification to allow the imposed use, ingress and egress. Id.

[9] Mr. Lowe, relying on out-of-state authorities, extensively argued here and below that cattle guards would be a less restrictive alternative to gates. See, e.g., Craig v. Kennedy, 202 Va. 654, 119 S.E.2d 320, 322 (1961) (holding servient landowner could install unlocked gate but dominant owner could also replace gate with cattle guard). Although the trial court ordered a cattle guard at gate 4, it rejected the idea at gate 2, deciding instead that a modified gate should remain at that location. Reasonable minds could certainly differ whether a cattle guard or gate is preferable at gate 2, but this court defers to the fact-finder's determinations on the evidence. See Hilltop Terrace Homeowner's Ass'n v. Island County, 126 Wn.2d 22, 34, 891 P.2d 29 (1995).

Given the evidence available to the trial court and the broad latitude given it in fashioning an equitable remedy, we conclude the trial court did not abuse its discretion by allowing gate 2 to remain as a livestock control measure. Rupert, 31 Wn. App. at 32.

B. Maintenance

[10, 11] The issue is whether the trial court erred by abusing its discretion when conditioning the Lowes' ability to maintain their easement upon permission from Double L before conducting "significant maintenance." CL 12.

Double L resisted Mr. Lowe's attempts to maintain the

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easement alleging gravel was harmful to horses' hooves. However, in 1994, the trial court granted partial summary judgment to Mr. Lowe, allowing him to maintain the road as needed without interference from Double L. Double L did not appeal. Logically, that should have ended this dispute. Nevertheless, in 1998, the trial court added the limit that Mr. Lowe gain "permission" from Double L prior to conducting "significant maintenance." CL 12. Double L contends the trial court merely required Mr. Lowe to "notify" it before conducting maintenance. However, the trial court stated that Mr. Lowe is to obtain "permission" from Double L before undertaking significant maintenance. CL 12.

In sum, the unappealed summary judgment became res judicata as to the Lowe's maintenance rights. See W.G. Platts, Inc. v. Wendt, 70 Wn.2d 561, 565, 424 P.2d 629 (1967). Here, the court, acting on its own initiative, abused its discretion by modifying the earlier judgment to require Mr. Lowe to obtain permission from Double L before conducting maintenance on the easement. The servient estate holder's ability to limit the dominant estate holder's existing maintenance rights was changed. Moreover, the court did not enter findings supporting its conclusion on this issue. See, e.g., Keyes v. Bollinger, 27 Wn. App. 755, 760, 621 P.2d 168 (1980) (remand necessary due to disparity in findings and conclusions); Baldus v. Bank of Cal., 12 Wn. App. 621, 634, 530 P.2d 1350 (1975) (reversal required due to findings not supporting conclusions).

C. Speed Limits

The issue is whether the trial court erred by abusing its discretion when imposing speed limits on the easement.

Double L failed to plead any need for speed limits. Nevertheless, the court took evidence on this point. At times, Mr. Lowe drove more than 10 mph on the easement, "particularly in front of the Nibarger barn and the house." FF 12. But, no other findings exist to justify imposition of speed limits.

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[12] Because the lack of material findings hinders meaningful review, remand is necessary for entry of additional findings. Bowman v. Webster, 42 Wn.2d 129, 134-36, 253 P.2d 934 (1953).

CONCLUSION

We hold the trial court did not err by allowing expanded use of gates and less intrusive alternatives, but did err when ordering maintenance. We remand the speed limitation issue for entry of additional findings.

Affirmed in part, reversed in part, and remanded.

Kurtz, C.J., and Sweeney, J., concur.

Reconsideration granted and opinion modified May 22, 2001.