Kemmer v. Keiski

68 P.3d 1138
CourtCourt of Appeals of Washington
DecidedMay 20, 2003
Docket27782-4-II
StatusPublished
Cited by21 cases

This text of 68 P.3d 1138 (Kemmer v. Keiski) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kemmer v. Keiski, 68 P.3d 1138 (Wash. Ct. App. 2003).

Opinion

68 P.3d 1138 (2003)
116 Wash.App. 924

Louise KEMMER, Appellant,
v.
Ernest E. KEISKI, et al., Respondents.

No. 27782-4-II.

Court of Appeals of Washington, Division 2.

May 20, 2003.

*1139 Christopher Martin Constantine of Counsel Inc. PS, Tacoma, WA, for Appellant.

Daniel Herbert Bigelow, William John Faubion, Cathlamet, WA, for Respondents.

MORGAN, J.

By means of a notice of appeal filed September 6, 2001, Louise Kemmer purports to appeal two judgments. The first, entered on May 31, 2000, granted a 12-foot easement across her property. The second, entered on August 10, 2001, expanded the 12-foot easement to 30 feet at some points. Holding that the first judgment was not timely appealed, we decline to review or disturb it. Holding that the second judgment was precluded by the first, we vacate and reverse it.

Many years ago, Fritz Keiski owned property that straddled Highway 101 in Pacific County. On a date the record does not show, he divided the property into three lots, each of which also straddled Highway 101. He conveyed one lot to each of his three children.

One of Fritz's children was a son named Ernest. On a date the record does not show, Ernest transferred his lot to his own son, Fritz's grandson, Ernest E. Keiski (hereafter "Keiski"). In 1969, Kemmer acquired another of the three lots, apparently from one of Ernest's siblings or a successor. Keiski and Kemmer are now neighbors, his western boundary being her eastern one.

When Fritz owned the property, he used an unimproved driveway to access his land north of the highway, including that which later became the northern portion of Keiski's lot. The highway right of way included a drainage ditch near its northern edge. The ditch had a culvert in it at a point opposite what later became Kemmer's lot. Fritz would follow the unimproved driveway from the highway, across the top of the culvert, onto what is now the northern portion of Kemmer's lot, then turn east to reach what is now the northern portion of Keiski's lot.

In 1997, Keiski blocked Kemmer's access to certain land south of the highway. Kemmer sued, claiming title by adverse possession. On February 13, 1998, Keiski counterclaimed for an easement allowing him to travel from the highway, across the culvert, onto Kemmer's property, then east to his own property.

A bench trial was held on January 5, 2000 and February 28, 2000. During closing argument, Keiski moved to amend his pleadings to allege an "easement implied by necessity[.]"[1] Kemmer did not object to the motion to amend, but she moved for a continuance so she could brief the merits of such an easement. The court granted both motions.

On April 6, 2000, the court issued a one-sentence written opinion. It said that Keiski was "entitled to a[n] implied easement by necessity along the southerly 12' of Plaintiff's proposed route."[2]

On May 31, 2000, the court entered written findings of fact, conclusions of law, and a judgment. The findings stated in part:

8. Regarding the property of the parties lying northerly of Highway 101, at the time of ownership by the original grantor there was a crossing northerly from Highway 101 onto [Kemmer's] property. The common grantor of the parties would use that crossing and then bear easterly to get to the parcel now owned by [Keiski].

9. The area used to cross this property to access [Keiski's] property was unimproved.

*1140 10. The area necessary ... for an easement to access [Keiski's] lands across [Kemmer's] property is as follows: [Inserted here was a legal description of the easement that the court was then intending to grant.]

11. At the time [Kemmer] purchased from the common grantor, there was clear evidence that the access to property now owned by [Keiski] north of Highway 101 was by crossing [Kemmer's] property from Highway 101.[[3]]

The conclusions stated in part:

4. [Keiski] is entitled to an easement by necessity to use the crossing on [Kemmer's] property which allows access from Highway 101 north across to [Kemmer's] property. The easement by necessity shall then turn easterly and continue until it reaches [Keiski's] property. The easement may not exceed 12 feet in width....[[4]]

The judgment stated in part:

3. [Keiski] is hereby granted an easement by necessity to use the crossing on [Kemmer's] property which allows access from Highway 101 north across to [Kemmer's] property. The easement by necessity shall then turn easterly and continue until it reaches [Keiski's] property. The easement shall not exceed 12 feet in width.[[5]]

Although the judgment resolved all claims and all parties then pending before the court, no one appealed it at that time. Nor, then or later, did anyone move to alter, amend, or set it aside.

On September 11, 2000, Keiski filed a motion for contempt (i.e., a motion asking the court to enforce the judgment by using its contempt power). In a supporting affidavit, he alleged that Kemmer had fenced both sides of "the twelve foot easement road."[6] He then went on:

10. The fence they built is tight against the easement line. I cannot now get into my property with my pickup, much less a dump truck, farm truck, log truck or perhaps anything bigger than a compact tractor....

11. The error in the Court's ruling required use of the smaller turning radius on the surveyed roadway designed by [the surveyor]. This radius is so tight I cannot use the roadway;

12. I had planned on using the roadway for access to my 13 acres of trees and to develop a building site on the hill. I am now unable to do so. Further, if there is a fire the fire department will not be able to gain access to my property ... with their trucks[.][[7]]

Although his motion was only for Kemmer's alleged contempt, he claimed that the court should not have "limit[ed] the width of my access road to twelve feet[,]" and that the court should now "clarify" its judgment by "expanding the easement road to the original twenty feet requested[.]"[8]

On September 18, 2000, Kemmer countered with her own motion for contempt. She asserted that she had fenced the easement because a large truck Keiski had hired to dump rock on the easement had not stayed within the easement's 12-foot width. She added:

At the time of trial, the evidence was taken in argument made to the Court regarding this easement. It is an easement which arose out of the previous usage by the parties' common grantor. The previous usage by the common grantor clearly did not include either rocking the easement [or] using large dump trucks on the easement. After a full trial, the Court made its ruling and [Keiski] now is trying to expand the ruling by a motion for contempt. This is entirely inappropriate, [and] the Court's ruling is res judicata....[[9]]

*1141 On November 15, 2000, Keiski filed a letter from one Lyle Hutchens, an employee of a company named DEVCO Engineering. Hutchens stated:

We have reviewed the access easement.... We understand this easement was intended to provide ingress and egress for a loaded log truck to your property.
The easement as proposed does not provide sufficient area to accommodate the turning movement of any typical log truck nor does it provide sufficient area for the turning movement of any typical dump truck, even without a trailer.

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Cite This Page — Counsel Stack

Bluebook (online)
68 P.3d 1138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kemmer-v-keiski-washctapp-2003.