105 Wn.2d 366, BROWN v. VOSS

CITE:          105 Wn.2d 366, 715 P.2d 514

               BROWN v. VOSS


FILE DATE:     March 6, 1986

CASE TITLE: Will H. Brown, et al, Petitioners, v. Fred
               R. Voss, et al, Respondents.

[1] Easements - Express Easement - Scope - Expansion of Dominant Estate. An easement that is expressly limited to serving a specifically identified dominant estate, is unlawfully enlarged if it is used to gain access to a combined use of the dominant estate and an adjoining parcel, even though the use does not increase the burden on the servient estate.

[2] Injunction - Determination - In General. The appropriateness of an injunction depends on the facts, circumstances, and equities of the particular case, including the degree of injury sustained by the party seeking the injunction.

[3] Injunction - Review - In General. A trial court's decision to grant or deny injunctive relief is reviewed only for an abuse of discretion.

NAMES OF CONCURRING OR DISSENTING JUDGES: Dore and Goodloe, JJ., dissent by separate opinion.

NATURE OF ACTION: Action to prevent interference with the plaintiffs' use of their easement across the defendants' land. The plaintiffs had acquired a parcel of land contiguous to their dominant estate and had begun construction of a house located on both parcels. The defendants counterclaimed to enjoin the plaintiffs' use of the easement for any land other than the dominant estate.

Superior Court: The Superior Court for Mason County, No. 14076, Robert J. Doran, J., on July 15, 1982, granted a judgment permitting the plaintiffs to use their easement to access both parcels of land so long as the land was used only for a single family residence.

Court of Appeals: The court at 38 Wn. App. 777 held that injunctive relief was appropriate to prevent the plaintiffs' misuse of their easement, REVERSED the judgment, and ENJOINED the plaintiffs from using the easement to benefit any land other than the dominant estate.

Supreme Court: Holding that the plaintiffs had misused the easement but that the trial court had not abused its discretion in determining that an injunction was not appropriate under the circumstances, the court REVERSES the decision of the Court of Appeals and reinstates the judgment.




MAJORITY OPINION: The question posed is to what extent, if any, the holder of a private road easement can traverse the servient estate to reach not only the original dominant estate, but a subsequently acquired parcel when those two combined parcels are used in such a way that there is no increase in the burden on the servient estate. The trial court denied the injunction sought by the owners of the servient estate. The Court of Appeals reversed. BROWN v. VOSS, 38 Wn. App. 777, 689 P.2d 1111 (1984). We reverse the Court of Appeals and reinstate the judgment of the trial court.

A portion of an exhibit depicts the involved parcels.

In 1952 the predecessors in title of parcel A granted to the predecessor owners of parcel B a private road easement across parcel A for "ingress to and egress from" parcel B. Defendants acquired parcel A in 1973. Plaintiffs bought parcel B on April 1, 1977, and parcel C on July 31, 1977, but from two different owners. Apparently the previous owners of parcel C were not parties to the easement grant.

When plaintiffs acquired parcel B a single family dwelling was situated thereon. They intended to remove that residence and replace it with a single family dwelling which would straddle the boundary line common to parcels B and C.

Plaintiffs began clearing both parcels B and C and moving fill materials in November 1977. Defendants first sought to bar plaintiff's use of the easement in April 1979 by which time plaintiffs had spent more than $11,000 in developing their property for the building.

Defendants placed logs, a concrete sump and a chain link fence within the easement. Plaintiffs sued for removal of the obstructions, an injunction against defendant's interference with their use of the easement and damages. Defendants counterclaimed for damages and an injunction against plaintiffs using the easement other than for parcel B.

The trial court awarded each party $1 in damages. The award against the plaintiffs was for a slight inadvertent trespass outside the easement.

The trial court made the following findings of fact:

           The plaintiffs have made no unreasonable use of the
      easement in the development of their property. There
      have been no complaints of unreasonable use of the roadway
      to the south of the properties of the parties by other
      neighbors who grant easements to the parties to this action
      to cross their properties to gain access to the property
      of the plaintiffs. Other than the trespass there is no
      evidence of any damage to the defendants as a result of
      the use of the easement by the plaintiffs. There has
      been no increase in volume of travel on the easement to
      reach a single family dwelling whether built on tract
      B or on Tacts [SIC] B and C. There is no evidence of
      any increase in the burden on the subservient estate from
      the use of the easement by the plaintiffs for access to
      parcel C.

           If an injunction were granted to bar plaintiffs access
      to tract C across the easement to a single family residence,
      Parcel C would become landlocked; plaintiffs would not
      be able to make use of their property; they would not
      be able to build their single family residence in a manner
      to properly enjoy the view of the Hood Canal and the surrounding
      area as originally anticipated at the time of their purchase
      and even if the single family residence were constructed
      on parcel B, if the injunction were granted, plaintiffs
      would not be able to use the balance of their property
      in parcel C as a yard or for any other use of their property
      in conjunction with their home. Conversely, there is
      and will be no appreciable hardship or damage to the defendants
      if the injunction is denied.

           If an injunction were to be granted to bar the plaintiffs
      access to tract C, the framing and enforcing of such an
      order would be impractical. Any violation of the order
      would result in the parties back in court at great cost
      but with little or no damages being involved.

           Plaintiffs have acted reasonably in the development
      of their property. Their trespass over a "little" corner
      of the defendants' property was inadvertent, and DE MINIMIS.
      The fact that the defendants counter claim seeking an
      injunction to bar plaintiffs access to parcel C was filed
      as leverage against the original plaintiffs' claim for
      an interruption of their easement rights, may be considered
      in determining whether equitable relief by way of an injunction
      should be granted.

Relying upon these findings of fact, the court denied defendant's request for an injunction and granted the plaintiffs the right to use the easement for access to parcels B and C "as long as plaintiffs [SIC] properties (B and C) are developed and used solely for the purpose of a single family residence." Clerk's Papers, at 10.

The Court of Appeals reversed, holding:

"     In sum, we hold that, in denying the Vosses' request
      for an injunction, the trial court's decision was based
      upon untenable grounds. We reverse and remand for entry
      of an order enjoining the use of the easement across parcel
      A to gain access to a residence any part of which is located
      on parcel C, or to further the construction of any residence
      on parcels B or C if the construction activities would
      require entry onto parcel C. WASHINGTON FED'N OF STATE
      EMPLOYEES v. STATE, [99 Wn.2d 878, 887, 665 P.2d 1337

BROWN v. VOSS, SUPRA at 784-85.

The easement in this case was created by express grant. Accordingly, the extent of the right acquired is to be determined from the terms of the grant properly construed to give effect to the intention of the parties. SEE ZOBRIST v. CULP, 95 Wn.2d 556, 561, 627 P.2d 1308 (1981); SEATTLE v. NAZARENUS, 60 Wn.2d 657, 665, 374 P.2d 1014 (1962). By the express terms of the 1952 grant, the predecessor owners of parcel B acquired a private road easement across parcel A and the right to use the easement for ingress to and egress from parcel B. Both plaintiffs and defendants agree that the 1952 grant created an easement appurtenant to parcel B as the dominant estate. Thus, plaintiffs, as owners of the dominant estate, acquired rights in the use of the easement for ingress to and egress from parcel B.

[1] However, plaintiffs have no such easement rights in connection with their ownership of parcel C, which was not a part of the original dominant estate under the terms of the 1952 grant. 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. E.G., HERITAGE STANDARD BANK & TRUST CO. v. TRUSTEES OF SCHS., 84 Ill. App. 3d 653, 405 N.E.2d 1196 (1980); KANEFSKY v. DRATCH CONSTR. CO., 376 Pa. 188, 101 A.2d 923 (1954); S.S. KRESGE CO. v. WINKELMAN REALTY CO., 260 Wis. 372, 50 N.W.2d 920 (1952); 28 C.J.S. EASEMENTS 92, at 772-73 (1941).

Plaintiffs, nonetheless, contend that extension of the use of the easement for the benefit of nondominant property does not constitute a misuse of the easement, where as here, there is no evidence of an increase in the burden on the servient estate. We do not agree. If an easement is appurtenant to a particular parcel of land, any extension thereof to other parcels is a misuse of the easement. WETMORE v. LADIES OF LORETTO, WHEATON, 73 Ill. App. 2d 454, 220 N.E.2d 491 (1966). SEE ALSO, E.G., ROBERTSON v. ROBERTSON, 214 Va. 76, 197 S.E.2d 183 (1973); PENN BOWLING REC. CTR., INC. v. HOT SHOPPES, INC., 179 F.2d 64 (D.C. Cir. 1949). As noted by one court in a factually similar case, "[I]n this context this classic rule of property law is directed to the rights of the respective parties rather than the actual burden on the servitude." NATIONAL LEAD CO. v. KANAWHA BLOCK CO., 288 F. Supp. 357, 364 (S.D. W. Va. 1968), AFF'D, 409 F.2d 1309 (4th Cir. 1969). Under the express language of the 1952 grant, plaintiffs only have rights in the use of the easement for the benefit of parcel B. Although, as plaintiffs contend, their planned use of the easement to gain access to a single family residence located partially on parcel B and partially on parcel C is perhaps no more than technical misuse of the easement, we conclude that it is misuse nonetheless.

[2, 3] However, it does not follow from this conclusion alone that defendants are entitled to injunctive relief. Since the awards of $1 in damages were not appealed, only the denial of an injunction to defendants is in issue. Some fundamental principles applicable to a request for an injunction must be considered. (1) The proceeding is equitable and addressed to the sound discretion of the trial court. (2) The trial court is vested with a broad discretionary power to shape and fashion injunctive relief to fit the PARTICULAR FACTS, CIRCUMSTANCES, AND EQUITIES OF THE CASE BEFORE IT. Appellate courts give great weight to the trial court's exercise of that discretion. (3) One of the essential criteria for injunctive relief is actual and substantial injury sustained by the person seeking the injunction. WASHINGTON FED'N OF STATE EMPLOYEES, COUN. 28 v. STATE, 99 Wn.2d 878, 665 P.2d 1337 (1983); PORT OF SEATTLE v. INTERNATIONAL LONGSHOREMEN'S UNION, 52 Wn.2d 317, 324 P.2d 1099 (1958).

The trial court found as facts, upon substantial evidence, that plaintiffs have acted reasonably in the development of their property, that there is and was no damage to the defendants from plaintiffs' use of the easement, that there was no increase in the volume of travel on the easement, that there was no increase in the burden on the servient estate, that defendants sat by for more than a year while plaintiffs expended more than $11,000 on their project, and that defendants' counterclaim was an effort to gain "leverage" against plaintiffs' claim. In addition, the court found from the evidence that plaintiffs would suffer considerable hardship if the injunction were granted whereas no appreciable hardship or damages would flow to defendants from its denial. Finally, the court limited plaintiffs' use of the combined parcels solely to the same purpose for which the original parcel was used I.E., for a single family residence.

Neither this court nor the Court of Appeals may substitute its effort to make findings of fact for those supported findings of the trial court. STATE v. MARCHAND, 62 Wn.2d 767, 770, 384 P.2d 865 (1963); THORNDIKE v. HESPERIAN ORCHARDS, INC., 54 Wn.2d 570, 575, 343 P.2d 183 (1959). Therefore, the only valid issue is whether, under these established facts, as a matter of law, the trial court abused its discretion in denying defendants' request for injunctive relief. Based upon the equities of the case, as found by the trial court, we are persuaded that the trial court acted within its discretion. The Court of Appeals is reversed and the trial court is affirmed.

CONCURRING JUDGES: Dolliver, C.J., and Utter, Pearson, Andersen, Callow, and Durham, JJ., concur.


DISSENTING OPINION: The majority correctly finds that an extension of this easement to nondominant property is a misuse of the easement. The majority, nonetheless, holds that the owners of the servient estate are not entitled to injunctive relief. I dissent.

The comments and illustrations found in the Restatement of Property 478 (1944) address the precise issue before this court. Comment E provides in pertinent part that "if one who has an easement of way over Whiteacre appurtenant to Blackacre uses the way with the purpose of going to Greenacre, the use is improper even though he eventually goes to Blackacre rather than to Greenacre." Illustration 6 provides:

"     6. By prescription, A has acquired, as the owner
      and possessor of Blackacre, an easement of way over an
      alley leading from Blackacre to the street. He buys Whiteacre,
      an adjacent lot, to which the way is not appurtenant,
      and builds a public garage one-fourth of which is located
      on Blackacre and three-fourths of which is located on
      Whiteacre. A wishes to use the alley as a means of ingress
      and egress to and from the garage. He has no privilege
      to use the alley to go to that part of the garage which
      is built on Whiteacre, and he may not use the alley until
      that part of the garage built on Blackacre is so separated
      from the part built on Whiteacre that uses for the benefit
      of Blackacre are distinguishable from those which benefit

The majority grants the privilege to extend the agreement to nondominant property on the basis that the trial court found no appreciable hardship or damage to the servient owners. However, as conceded by the majority, any extension of the use of an easement to benefit a nondominant estate constitutes a misuse of the easement. Misuse of an easement is a trespass. RAVEN RED ASH COAL CO. v. BALL, 185 Va. 534, 39 S.E.2d 231, 167 A.L.R. 785 (1946); SELVIA v. REITMEYER, 156 Ind. App. 203, 295 N.E.2d 869 (1973). The Browns' use of the easement to benefit parcel C, especially if they build their home as planned, would involve a continuing trespass for which damages would be difficult to measure. Injunctive relief is the appropriate remedy under these circumstances. SELVIA, at 212; GREGORY v. SANDERS, 635 P.2d 795, 801 (Wyo. 1981). In PENN BOWLING REC. CTR., INC. v. HOT SHOPPES, INC., 179 F.2d 64, 66 (D.C. Cir. 1949) the court states:

"     It is contended by appellant that since the area
      of the dominant and nondominant land served by the easement
      is less than the original area of the dominant tenement,
      the use made by appellant of the right of way to serve
      the building located on the lesser area is not materially
      increased or excessive. It is true that where the nature
      and extent of the use of an easement is, by its terms,
      unrestricted, the use by the dominant tenement may be
      increased or enlarged. McCullough et al. v. Broad Exchange
      Company et al., 101 App.Div. 566, 92 N.Y.S. 533. But
      the owner of the dominant tenement may not subject the
      servient tenement to use or servitude in connection with
      other premises to which the easement is not appurtenant.
      See Williams v. James, Eng.Law.Rep. (1867), 2 C.P. 577.
      And when an easement is being used in such a manner, an
      injunction will be issued to prevent such use. Cleve
      et al. v. Nairin, 204 Ky. 342, 264 S.W. 741; Diocese of
      Trenton v. Toman et al., 74 N.J.Eq. 702, 70 A. 606; Shock
      v. Holt Lumber Co. et al., 107 W.Va. 259, 148 S.E. 73.
      Appellant, therefore, may not use the easement to serve
      both the dominant and nondominant property, even though
      the area thereof is less than the original area of the
      dominant tenement.

SEE ALSO KANEFSKY v. DRATCH CONSTR. CO., 376 Pa. 188, 101 A.2d 923 (1954). Thus, the fact that an extension of the easement to nondominant property would not increase the burden on the servient estate does not warrant a denial of injunctive relief.

The Browns are responsible for the hardship of creating a landlocked parcel. They knew or should have known from the public records that the easement was not appurtenant to parcel C. SEE SEATTLE v. NAZARENUS, 60 Wn.2d 657, 670, 374 P.2d 1014 (1962). In encroachment cases this factor is significant. As stated by the court in BACH v. SARICH, 74 Wn.2d 575, 582, 445 P.2d 648 (1968): "The benefit of the doctrine of balancing the equities, or relative hardship, is reserved for the innocent defendant who proceeds without knowledge or warning that his structure encroaches upon another's property or property rights."

In addition, an injunction would not interfere with the Browns' right to use the easement as expressly granted, I.E., for access to parcel B. An injunction would merely require the Browns to acquire access to parcel C if they want to build a home that straddles parcels B and C. One possibility would be to condemn a private way of necessity over their existing easement in an action under RCW 8.24.010. SEE BROWN v. MCANALLY, 97 Wn.2d 360, 644 P.2d 1153 (1982).

I would affirm the Court of Appeals decision as a correct application of the law of easements. If the Browns desire access to their landlocked parcel they have the benefit of the statutory procedure for condemnation of a private way of necessity.

CONCURRING JUDGES: Goodloe, J., concurs with Dore, J.