149 Wn.2d 873, Sunnyside Valley Irrigation Dist. v. Dickie

Whether the easements on Dickie's tracts grant SVID the right to enlarge its right-of-way over time based upon future demands for irrigation and maintenance?

ANALYSIS

Findings of fact are reviewed under a substantial evidence standard, defined as a quantum of evidence sufficient to persuade a rational fair-minded person the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). If the standard is satisfied, a reviewing court will not substitute its judgment for that of the trial court even though it may have resolved

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a factual dispute differently. Croton Chem. Corp. v. Birkenwald, Inc., 50 Wn.2d 684, 314 P.2d 622 (1957). Questions of law and conclusions of law are reviewed de novo. See Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979). The interpretation of an easement is a mixed question of law and fact. Id.What the original parties intended is a question of fact and the legal consequence of that intent is a question of law. Id.

The intent of the original parties to an easement is determined from the deed as a whole. Zobrist v. Culp, 95 Wn.2d 556, 560, 627 P.2d 1308 (1981). If the plain language is unambiguous, extrinsic evidence will not be considered. City of Seattle v. Nazarenus, 60 Wn.2d 657, 665, 374 P.2d 1014 (1962). If ambiguity exists, extrinsic evidence is allowed to show the intentions of the original parties, the circumstances of the property when the easement was conveyed, and the practical interpretation given the parties' prior conduct or admissions. Id.

An easement defined in general terms, without a definite location or description, is called a floating or roving easement (floating easement). See Berg v. Ting, 125 Wn.2d 544, 552, 886 P.2d 564 (1995). Generally, a floating easement becomes fixed after construction and cannot thereafter be changed. Rhoades v. Barnes, 54 Wash. 145, 149, 102 P. 884 (1909). If the floating easement has an undefined width, it is bounded by the doctrine of reasonable enjoyment. Everett Water Co. v. Powers, 37 Wash. 143, 152, 79 P. 617 (1905). Under the doctrine of reasonable enjoyment, the width is restricted to that which is reasonably necessary and convenient to effectuate the original purpose for granting the easement. Id.

The issue of whether the scope of an easement can change over time to accommodate anticipated, but not yet realized, future demands is a subject of first impression in Washington. Dickie argues that the width of the easement became fixed when the lateral was first constructed between 1905 and 1923, when the maintenance area was considerably smaller and the maintenance work was primarily done with

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manual labor. Dickie contends that allowing widening does not comport with Rhoades, which held that the size and location of a floating easement becomes fixed upon its original construction. Rhoades, 54 Wash. at 149.

In Rhoades, a water company obtained a floating easement for a 4 1/2 inch pipe across the grantor's land. Id. at 146. Needing additional water, the water company received "permission," but not an easement, to move to another location and lay an 8 inch pipe. Id. The water company then granted a third party permission to use water from this 8 inch pipe. Id. The successor property owner objected to the third party's use. Id. at 147. The third party contended their property rights emanated from the original grant for the 4 1/2 inch pipe. Id. Finding against the third party, the Rhoades court held that the grant for the 4 1/2 inch pipe in one location did not automatically create an identical right in the 8 inch pipe at the other location. Id. at 147-49. It also held that the size and location of a floating easement is established and fixed after its original construction, and the grantee is not thereafter permitted to change the scope at will. Id. at 149; see also McCue v. Bellingham Bay Water Co., 5 Wash. 156, 159, 31 P. 461 (1892) (holding that the grantee cannot relocate a floating easement after already selecting and constructing a water pipeline pursuant to the original grant even if the grantee only considered the original location temporary); Everett Water Co., 37 Wash. at 151 (holding that the location of a floating easement became fixed when the grantee selected a location and dug a ditch on the grantor's land); Smith v. King, 27 Wn. App. 869, 620 P.2d 542 (1980) (holding that a person cannot relocate a floating easement if his or her predecessor already constructively located it pursuant to a quitclaim deed). Rhoades and its progeny are not relevant here because they do not concern easements that contain language contemplating future enlargement.

Dickie also contends that Mielke v. Yellowstone Pipeline Co., 73 Wn. App. 621, 624, 870 P.2d 1005 (1994), supports their position that a floating easement can never change

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over time. In Mielke, the grantee needed to replace the pipeline, that was permitted by the floating easement. Id. at 623. The threshold issue concerned the "replacement" language in the deed. Id. at 624. The grantee claimed the industry custom was to lay replacement pipeline parallel to the existing line while the original line remained in operation. Id. at 623. To construct the new pipeline safely, the grantee said it needed to maintain a safe distance from the old pipeline. Id.After construction of the new pipeline, the old pipeline would be removed. Id. The grantee claimed that the only practicable location for the new pipeline was 10 feet or more west of the old pipeline. Id. Although conceding that the location of the right-of-way became fixed when the original pipeline was installed, the grantee asserted that the width of its easement under the doctrine of reasonable enjoyment permitted its proposed replacement. Id. at 624-25.

Without deciding the issue, the Mielke court found that a question of material fact existed on the "replacement" width and remanded the case accordingly. Id. The court held that the location of the pipeline's "replacement" was established by the scope of the original easement, and the doctrine of reasonable enjoyment established the width. Id. The court in Mielke merely followed the existing law established in Rhoades and Everett Water Co. Id. In Mielke, unlike the easement on Dickie's land, the plain language did not express intent to enlarge the scope of the easement over time. Id. at 622.

Several states have considered whether the scope of an easement can change over time to accommodate future demands. In the touchstone case from Oregon, the plaintiffs sought to enjoin the defendant from widening a large millrace (otherwise referred to as a canal) in the city of Eugene. Patterson v. Chambers Power Co., 81 Or. 328, 159 P. 568 (1916). The millrace channeled water from the Willamette River through the city of Eugene to certain mills situated on 23 acres of mill property. Id. at 330. The plaintiffs owned valuable property along the banks of the

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millrace. Id. at 331. After more than 48 years, the defendant sought to widen the millrace by 20 feet on each side, which would seriously impair the beauty and value of the plaintiffs' property. Id. The plain language of the easement granted the right to dig the millrace " 'as wide and deep as may be necessary' " for the mill operations. Id. at 332 (quoting deed). The defendant claimed the easement granted a right to widen the millrace indefinitely as the needs might require. Id. at 331-32. The plaintiffs argued the easement was void for being indefinite. See id. at 333-34.

Analyzing the easement as a contract, the Patterson court held the right-of-way was not indefinite when the true intent of the parties could be ascertained. Id. at 334. The court found the grantor did not want to grant more than future development may require and not until that requirement presented itself. Id. at 335. The grantor, therefore, restricted the easement width to the growth of the manufacturing industries supplied by the millrace. Id. The court analogized the grant to future indefinite demands specified in contingent contracts that are routinely enforced. Id. Also, relying on Everett Water Co., the Patterson court indicated the grant was not indefinite because the grantor has just as much of a right to convey part of his or her interest in the land as the right to convey the whole. Patterson, 81 Or. at 337.

In Collins v. Driscoll, another case relied on by the Patterson court, the grantor permitted a grantee to dig a ditch as deep as desired. Collins v. Driscoll, 34 Conn. 43 (1867); Patterson, 81 Or. at 339-40. The Collins court held by implication that this included the foreseeable sloping of the ditch walls to prevent the sides from collapsing even though the sloping cut into the grantor's land. Collins, 34 Conn. at 47-48. The Patterson court held that easements would be enforced if the express terms manifest a clear intention by the original parties to modify the initial scope based on future demands. Patterson, 81 Or. at 340-41; see also Carroll Elec. Coop. Corp. v. Benson, 312 Ark. 183, 188,

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848 S.W.2d 413 (1993) (allowing for the extension of power lines beyond the original placement because the easement expressly granted future extensions); Utah Power & Light Co. v. Bishop, 26 Utah 2d 60, 484 P.2d 1187 (1971) (granting the right to add power lines where the express language in the deed permitted additional lines into perpetuity); Phillips Petroleum Co. v. Lovell, 392 S.W.2d 748, 750 (Tex. App. 1965) (permitting the grantee to lay additional pipelines where the easement expressly granted the right to lay additional pipelines based on future demands); cf. Fisher v. Palo Verde Irrigation Dist., 157 Cal. App. 2d 105, 109-10, 320 P.2d 95 (1958) (barring the widening of an irrigation canal because the deed contained no express provision to enlarge even though the area rehabilitation plan indicated a potential future need to widen).

We find Patterson and its progeny persuasive and hold that an easement can be expanded over time if the express terms of the easement manifest a clear intention by the original parties to modify the initial scope based on future demands. The face of the easement must manifest this clear intent. The four corners rule ensures subsequent purchasers have clear actual or constructive notice of the encumbrance based upon future demand. See, e.g., Patterson, 81 Or. at 333 (basing the holding in part on constructive notice to the purchasers); Utah Power & Light Co., 26 Utah 2d at 61 (basing the allowance to expand future power lines in part on the defendant receiving actual or constructive notice). The easements on Dickie's properties grant "the right and permission to enter upon said land for the . . . enlargement and repair of said . . . laterals, . . . and to . . . maintain and repair the same . . . ." We find that this language manifests a clear intent to enlarge the lateral and its maintenance area based upon future demands.

Only when this intent is found should a court go to the next step of determining whether the proposed expansion is necessitated by the future demands contemplated by the original parties. To do this, we must determine the width of