Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

RANDALL INGOLD TRUST, by and through                             No.  41115-6-II
its trustee, BANK OF AMERICA, N.A.,

                             Respondent,

       v.

STEPHANIE L. ARMOUR,? DOES 1-5,                            UNPUBLISHED OPINION

                             Appellant.

       Johanson, J.  --  Stephanie Adams appeals the grant of partial1 summary judgment in favor 

of the Randall Ingold Trust.  The trial court granted summary judgment on Ingold's claim to quiet 

title in the easement and ejectment of Adams's fence.    Adams appeals, arguing that issues of 

material fact exist.   We affirm in part and reverse in part.  We affirm the trial court's (1) 

? Stephanie L. Armour is now known as Stephanie L. Adams.  We refer to her as Adams 
throughout this opinion.

1 After entry of the partial summary judgment, the parties stipulated to the dismissal of Ingold 
Trust's remaining claims, without prejudice.  Although entitled "Partial Summary Judgment," the 
order constituted a final judgment.  Clerk's Papers (CP) at 198 n.1. 

No. 41115-6-II

acknowledgment of a perpetual, nonexclusive easement, in favor of the Ingolds; (2) determination 

that Ingold has not expanded or overburdened the easement; and (3) determination that Adams's

fence unreasonably interferes with Ingold's easement.   But we reverse the trial court's order 

ejecting Adams's entire fence because that determination was not ripe for judicial determination.

                                            FACTS

       Ingold  and  Adams   own adjoining parcels of real estate.  They share a         common 

predecessor in interest, Charles Sinding.  In 1962, Sinding sold a portion of his property along 

with the following express easement:

       GRANTING to the Purchasers, his heirs, successors and assigns, a perpetual non-
       exclusive easement for road purposes, over, through and across the East 30 feet of 
       the Northeast quarter of the Southeast quarter of Section 21, Township 21 North, 
       Range 1 East of the Willamette Meridian.

Clerk's Papers (CP) at 63.

       Ingold currently owns the property that the easement benefits, and Adams currently owns 

the property that the easement burdens.  The easement begins at a public road and heads north,

running along the entire eastern property boundary that  Adams shares with Ingold.  Ingold 

currently uses a minimal section of the easement at the southeast corner of Adams's property, to 

access his driveway and his home.  The following map is helpful:2

2 The southern half of this map shows a separate property, owned by Jeffrey and Melissa 
Stephens.  The Stephenses are not parties to this appeal and the easement encumbering their 
servient property is not an issue on appeal.  

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No. 41115-6-II

CP at 35.

       In 1991, the prior owners of Ingold's property adjusted the eastern boundary line further 

east.  This adjustment increased the property in size from approximately 10 acres to 15 acres.  

The map shows the "new" (1991) eastern boundary; the former boundary is evident by the eastern 

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No. 41115-6-II

boundary lines to the north and to the south of the Ingold property.  The Ingold home straddles 

the old eastern boundary line of the Ingold property.

       Adams keeps horses and livestock on her property and uses the easement for pasture.  In 

2008, Ingold asked Adams to remove a hog wire fence that meandered through the easement 

north of Ingold's driveway.  Adams refused.  But in 2009, she removed that fence and built a 

permanent fence directly along the property line she shares with Ingold.  This new fence abuts 

Adams's boundary with Ingold; it starts north of Ingold's driveway and runs along the entire 

boundary line to the northwest corner of Ingold's property. The southern end of the fence has a 

gate.  The gate provides access to the easement and to Adams's property but it does not allow 

access from the easement to Ingold's property.  Once inside the gate, Adams's fence completely 

blocks access from the easement to Ingold's property because the fence does not have another 

gate or any other exit.

       When  Adams     refused to acknowledge the easement and refused to remove her 

encroachments,  Ingold filed a complaint for quiet title, ejectment, declaratory judgment, and 

damages.  Ingold moved for partial summary judgment on its quiet title and ejectment claims.  

The trial court granted Ingold's motion.  The court found:

       [T]he easement is very clear.  I don't think there's any doubt about what it means
       and what the purpose is.  I don't think there's a need for trial.  I think it's the 30 
       feet between the two parcels of property for ingress, egress and utilities.

Report of Proceedings (RP) at 11-12.  Although the  trial  court  found that Adams's fence 

obstructed the easement and granted ejectment, the trial court did not require Adams to remove 

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No. 41115-6-II

her fence immediately but only upon Ingold's 30-days' written notice that it intends to use the 

easement for its stated purposes.  

       The parties stipulated to dismissal of Ingold's remaining claims without prejudice.  The 

court entered final judgment in favor of Ingold and awarded Ingold statutory attorney fees and 

costs.

                                          ANALYSIS

       Adams argues that the trial court improperly granted Ingold's summary judgment motion

because material issues of genuine fact exist regarding (1) whether Ingold's property expansion 

unduly burdens the easement and (2) whether Adams's fence  along the length of the shared 

border unreasonably interferes with Ingold's use of the easement.  Ingold responds that the trial 

court properly granted summary judgment because Adams does not dispute (1) the existence or 

validity of the express easement or (2) that her fence completely blocks access to Ingold's 

property from the easement.  We agree with the trial court and Ingold regarding (1) the existence 

and validity of the easement, (2)  that  Ingold's property expansion does not overburden the 

easement, and  (3)  that  it is unreasonable for Adams's fence to  block all access to Ingold's

property from the easement.  But the issue of ejecting Adams's fence, and whether the whole 

fence or merely portions must be removed, was not ripe for determination.

                                     I.  Standard of Review

       We review an order granting summary judgment de novo and engage in the same inquiry 

as the trial court.  Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008).  

A trial court properly grants summary judgment "if the pleadings, depositions, answers to 

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No. 41115-6-II

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to a judgment as a 

matter of law." CR 56(c); Visser v. Craig, 139 Wn. App. 152, 157, 159 P.3d 453 (2007).       We

view the facts and any reasonable inferences from those facts in the light most favorable to the 

nonmoving party; we will affirm summary judgment if there are no genuine issues of material fact 

and the moving party is entitled to judgment as a matter of law.  CR 56(c); Ranger, 164 Wn.2d at 

552.  Although the trier of fact usually decides questions of fact, when reasonable minds could 

reach but one conclusion, questions of fact may be determined as a matter of law.      Steury v. 

Johnson, 90 Wn. App. 401, 405, 957 P.2d 772 (1998).

                              II.  No Overburdening of Easement

       Adams relies on Brown v. Voss, 105 Wn.2d 366, 372, 715 P.2d 514 (1986) and Visser, 

139 Wn. App. at 159.  She argues that (1) a 1991 boundary adjustment to Ingold's property, 

which increased the property size, overburdened the easement beyond the scope of the original 

grantor's intent and (2) the trial court should have conducted a balancing test to determine the 

appropriate remedy.3   Ingold replies that this case is distinguishable from Brown and  Visser

because  this  dispute does not involve use of the easement to access property not  originally 

benefitted by the easement.  We agree with Ingold.

3 Adams also argues in passing, that the trial court erroneously granted summary judgment 
because Ingold "has no need for the remainder of its easement." Br. of Appellant at 11.  She does 
not cite authority to support her assertion.  RAP 10.3(a)(6).  Contrary to her argument, Division 
Three of this court held, "Generally, the dimensions of an easement do not contract merely 
because the holder fails to use the entire easement area."  810 Props. v. Jump, 141 Wn. App. 688, 
699, 170 P.3d 1209 (2007).

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No. 41115-6-II

       In determining the permissible scope of an easement, we look at the parties' intent in the 

original creation of the easement, the nature and situation of the properties subject to the 

easement, and the manner in which the easement has been used and occupied.  Logan v. Brodrick, 

29 Wn. App. 796, 799, 631 P.2d 429 (1981).  We examine the deed as a whole to determine the 

original parties' intent concerning an easement.  Sunnyside Valley Irrigation Dist. v. Dickie, 149 

Wn.2d 873, 880, 73 P.3d 369 (2003).  But if "the plain language is unambiguous, extrinsic 

evidence will not be considered."  Sunnyside Valley, 149 Wn.2d at 880.  We determine the extent 

of the right acquired by an express easement from its terms.  810 Props. v. Jump, 141 Wn. App. 

668, 695, 170 P.3d 1209 (2007).

       The easement in question here grants "a perpetual non-exclusive easement for road 

purposes, over, through and across the East 30 feet of the [Adams property]." CP at 63.  Adams 

argues that genuine issues of material fact concerning the original owners' intent exist because the 

easement does not contain any language suggesting it would be appropriate to expand the 

easement.4  But Adams's argument incorrectly assumes that the increase to Ingold's property,

from approximately 10 acres to 15 acres, corresponds to a per se expansion of the easement.  

       To support her argument, Adams relies on our Supreme Court's observations in Brown:

       As a general rule, an easement appurtenant to one parcel of land may not be 
       extended by the owner of the dominant estate to other parcels owned by him, 
       whether adjoining or distinct tracts, to which the easement is not appurtenant. . . .  
              . . . If an easement is appurtenant to a particular parcel of land, any 
       extension thereof to other parcels is a misuse of the easement.

4 Importantly, Adams does not challenge the existence, validity, or benefiting party of the 
easement described in the 1962 deed.  Further, Adams does not allege that the plain language of 
the easement is generally ambiguous.

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No. 41115-6-II

Brown, 105 Wn.2d at 371-72.  Despite stating that rule, however, the Brown court affirmed the 

trial court's decision, which refused to grant an injunction.  The Brown court reasoned that 

because of the particularities of the case, the proceeding was equitable and therefore, the trial 

court had broad discretion to shape appropriate relief based on fundamental equitable principles.  

Brown, 105 Wn.2d at 372-73.

       Despite some similarities to Brown,5 this case is crucially different because in Brown, the 

easement holder of the dominant estate sought to traverse the servient estate to reach not only the 

original benefited property, but also the subsequently acquired parcel.  Brown, 105 Wn.2d at 368.  

In contrast, here, the express easement is appurtenant to Ingold's parcel all along Ingold's 

western boundary.  Ingold's 1991 expansion of his eastern border does not extinguish the express 

easement appurtenant to his western border.  Because Ingold does not extend the easement to 

tracts of land to which the easement is not appurtenant, neither Brown nor Visser dictate that 

Ingold expanded or overburdened his easement.  See Brown, 105 Wn.2d at 371; Visser, 139 Wn. 

App. at 159 (quoting Brown).

       Adams argues that here, the trial court should have balanced the same equitable relief 

factors that the Brown court  considered to determine the  easement's  scope.  But Adams's

argument blurs the distinction between the easement rule and equitable relief.  In Brown, our 

Supreme Court articulated the easement rule but refused to apply it despite the dominant estate 

having "misuse[d]" the easement.  Brown, 105 Wn.2d at 372.  Instead, the Brown court affirmed 

5 In Brown, as here, an express grant created a private road easement and the dominant estate 
subsequently acquired another parcel not benefited by the original grant of easement.  Brown, 105 
Wn.2d at 368, 371.

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No. 41115-6-II

the trial court's equitable remedy in favor of the dominant estate because of the particularities of 

the case.  Brown, 105 Wn.2d at 372-73.  In this case, the trial court did not need to balance the

equitable relief factors because Ingold sought access only to property covered by the original 

grant of easement (the northwest portion of the original parcel), to which the easement expressly 

granted access in plain unambiguous language.  Because the scope of the easement is clear from 

its terms, the trial court properly did not consider extrinsic evidence.  Sunnyside Valley, 149 

Wn.2d at 880; 810 Props., 141 Wn. App. at 695.  Further, Adams has not argued that equitable 

relief (rather than a property rule) compels a different analysis; nor has she indicated what those 

equitable considerations would be.

       In granting summary judgment, the trial court correctly found that the "easement is very 

clear" and that there is not "any doubt what it means and what the purpose is."    RP at 11-12.  

Adams's argument presumes, without attempting an explanation, that Ingold overburdens the 

easement; the record before us does not support this argument.  Therefore, Adams fails to show

that questions of material fact exist that preclude summary judgment.  We hold that the trial court 

did not err either in acknowledging Ingold's easement or in determining that Ingold has not 

overburdened the easement.

                                    III.  Ejectment of Fence

       Adams argues that whether her fence unreasonably interferes with Ingold's use of the 

easement is an issue of material fact, which      should have precluded summary judgment.  

Specifically, Adams argues that the trial court failed to weigh relative burdens of the dominant 

and servient estates and incorrectly ruled, as a matter of law, that the fence "obstructs use of the 

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No. 41115-6-II

easement." Br. of Appellant at 15 (quoting Final Judgment, CP at 208). Ingold responds that the 

trial court did not err because it is undisputed that Adams's fence completely obstructs access to 

Ingold's property from the fenced portion of the easement.  We hold that the fence does 

unreasonably interfere with Ingold's use of the easement because it completely blocks Ingold's 

access.  But  whether Adams's fence should be completely ejected6 is not ripe  for judicial 

resolution.

       Servient owners have a right to use their land "for purposes not inconsistent with its 

ultimate use for the reserved purpose."  Thompson v. Smith, 59 Wn.2d 397, 407, 367 P.2d 798 

(1962).  If the easement is ambiguous or silent on the construction of fences or gates, then we

examine the situation, parties, and surrounding circumstances.  Rupert v. Gunter, 31 Wn. App. 

27, 31, 640 P.2d 36 (1982).  But under the doctrine of ripeness, we limit rendering judgment to 

justiciable controversies, which require:

       [A]n actual, present and existing dispute, or the mature seeds of one, as 
       distinguished from a possible, dormant, hypothetical, speculative, or moot 
       disagreement    . . .  [and]  which involves interests that must be direct and 
       substantial, rather than potential, theoretical, abstract or academic.

Lakewood Racquet Club, Inc. v. Jensen, 156 Wn. App. 215, 223,  232 P.3d 1147 (2010)

(comparing the Uniform Declaratory Judgment Act to traditional limiting doctrines).      Adams 

argues that the trial court must balance the servient owner's burden with the dominant owner's 

inconvenience before determining that her fence obstructs the easement.  We note that the case 

6 The ejectment order does not require Adams to remove her fence immediately but upon 
30 -- days' written notice from Ingold of his intent to use the easement.  

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No. 41115-6-II

law on which Adams relies is inapposite because it involves changed circumstances (i.e., increased 

and unauthorized use of the easement) and  Adams does not suffer from an increased or 

unauthorized use of the easement.7  See Rupert, 31 Wn. App. at 29-31; Steury, 90 Wn. App. at

403-05.  But because Ingold did not show his actual or intended use of the easement, the trial 

court's ejectment of the entire fence was premature.  Once Ingold's intended use is known, it may 

not be necessary for Adams to remove the entire fence; but perhaps Adams needs to remove only 

a portion of the fence, or simply install gates.  We limit rendering judgment to actual and existing 

circumstances and refrain from rendering judgment when the dispute, as is the case here, remains

hypothetical or speculative.  Lakewood Racquet Club, Inc., 156 Wn. App. at 223.       Therefore,

because this issue was not ripe for judicial determination, we reverse the trial court's order to 

eject Adams's fence upon 30-days' notice from Ingold.

                                      ATTORNEY FEES

       Ingold requests attorney fees for this appeal on the basis that it is frivolous. RAP 18.9(a); 

"An appeal is frivolous if there are no debatable issues upon which reasonable minds might differ 

and it is so totally devoid of merit that there [is] no reasonable possibility of reversal."  State ex 

rel. Quick-Rueben v. Verharen, 136 Wn.2d 888, 905, 969 P.2d 64 (1998) (internal quotations 

omitted). Here, debatable issues existed, thus we deny Ingold's request for attorney fees under 

RAP 18.9(a).

7 In fact, Adams highlights that Ingold has not used that portion of the easement, implying that his 
disuse extinguishes the easement.  Adams is mistaken; a servient estate cannot adversely possess 
or extinguish an express easement.  See Beebe v. Swerda, 58 Wn. App. 375, 384, 793 P.2d 442 
(servient owner's use of easement during periods of non-use by dominant owner properly 
characterized as privileged rather than adverse), review denied, 115 Wn.2d 1025 (1990).

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No. 41115-6-II

       We affirm in part and reverse in part.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                                   Johanson, J.
We concur:

                  Hunt, P.J.

                  Van Deren, J.

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