IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
fO G
MIT D. TILKOV and SUSAN L. •:-v TILKOV, in their individual capacities Nos. 69615-7-1 o
and as a marital community; TIBOR 70092-8-1 re- GAJDICS; KATHRYN LYNNE COTTER; (Consolidated Cases) cc
and SANDRA D. HULME, DIVISION ONE Appellants/Cross-Respondents, CO
v.
DAVID L. DUNCAN, in his individual capacity; BLACK PINES, LLC, a Washington limited liability company, UNPUBLISHED OPINION
Respondents/Cross-Appellants. FILED: July 28, 2014
Spearman, C.J. — Neighboring property owners dispute: (1) the existence of
individual easements across David Duncan's and Black Pines' properties, benefitting Mit
Tilkov, Tibor Gajdics, Kathryn Cotter, Sandra Hulme, and unnamed class members
(collectively, "the class members"); and (2) whether certain trees and fences on the Duncan and Black Pines properties are spite structures erected in violation of RCW
7.40.030. Nos. 69615-7-1,70092-8-1/2
The trial court dismissed the class members' express and prescriptive easement
claims on the parties' cross motions for summary judgment. We reverse, in part, finding
that the class members are entitled to judgment on their prescriptive easement claims.
Tilkov and Cotter substantially prevailed in a bench trial on the spite structure
claims. We reverse, in part, because insufficient evidence supports the trial court's
conclusion that a fence extender along the Black Pines-Tilkov property line is a spite
structure.
FACTS
Many of the facts relevant to this case were established in an earlier lawsuit
against Duncan to enforce an express easement granted to Bell's Grove Property
Owners of Point Roberts (BGPOPR), a nonprofit corporation of which the class members
are all members.
David Bell originally owned all the property at issue in this and the BGPOPR
action, including large tracts to the north and south of a Whatcom County right-of-way
(Edwards Drive) and adjoining beachfront. He never formally subdivided the land;
however, in the 1950s and 1960s, Bell sold 58 lots on the north side of Edwards Drive
(Bell's Grove) to individual purchasers. He retained an open area between the 58 upland
lots as open space (the "reserve"). He also retained a large tract located between the
beach and the southern border of Bell's Grove that had lots on either side of Edwards
Drive. Nos. 69615-7-1,70092-8-1/3
Adam Burhoe purchased one of the Bell's Grove lots in 1953. Burhoe created an
informal plan of survey identifying the Bell's Grove lots, the lots retained by Bell and the
"reserve."
The class members' predecessors-in-interest acquired their properties by
individual deed from Bell. Included in these deeds was language that generally allowed
the grantees access over Bell's land to the beach.1 These deeds did not prescribe a
specific route by which the purchaser was to access the beach.
In 1962, Bell sold the "reserve" to BGPOPR to be used as a common area for the
58 Bell's Grove lots. The deed in this transaction included language granting an
easement for beach access similar to that in the class members' individual deeds.
However, the BGPOPR deed was more specific about the location of the easement,
describing it as "the area lying between the extended north and south lines of the
conveyed tract from the southerly portion of the conveyed tract to the beach."
In 2000, Duncan acquired the large tract retained by Bell. He subdivided the
property and, in 2009, he conveyed the lots north of Edwards Drive to Black Pines LLC,
of which he is the sole owner.
1The class members' deeds refer to this easement in slightly differentvariations of grammar and structure, but in substance are all the same: The purchaser is to have the perpetual privilege of foot gravel [sic] to and from the said property to the tide flats on the Beach, for recreational use; this easement to apply to foot paths over the reserve on the Grantor's said plat, and extends to the second party, Grantees, heirs, executors and administrators and assigns. (The Tilkov easement.) Nos. 69615-7-1,70092-8-1/4
Easement Claims
In the 1960s, Bell's Grove residents accessed the beach using the "original path,"
which was essentially a straight line down the middle of the "reserve," also known as
"Bell's Grove Common Area," through Bell's retained lots. In the early 1970s, the
residents changed their route slightly, with Bell's permission. They began using the
"historic path," which veers away from the original path in a southeasterly bearing on the
south side of Edwards Drive.2 In 2003, Duncan closed off the historic path and provided a
new access path, which lay slightly east of and parallel to the "original path" on the north
side of Edwards Drive. South of Edwards Drive, the path veered sharply toward the
eastern boundary of Duncan's property, which it followed to the beach.
In 2005, BGPOPR sued Duncan to establish an exact location of BGPOPR's
easement and alternatively pursued a claim for a prescriptive easement along the historic
path. In 2007, the trial court entered a judgment, finding that BGPOPR had an express
easement for a footpath in the area between the extended north/south lines from Bell's
Grove Common Area, across Duncan's and Black Pines' properties to the beach.
Duncan has designated a path in compliance with the 2007 judgment. The path is
currently in use by Bell's Grove residents, including the class members. The portion of
the path on the Black Pines property does not line up with the portion on the Duncan
property. Although BGPOPR did not appeal the 2007 judgment, it moved the trial court to
require that the two segments of the path line up. During this process, Duncan
2 This historic path routed traffic away from Bell's campground business. Nos. 69615-7-1, 70092-8-1/5
represented to the court that members of BGPOPR could use any portion of the right-of-
way they wished. The trial court in the BGPOPR action reserved ruling on the motion.3
Although the class members are all members of BGPOPR, the BGPOPR action
concerned only the rights granted under the deed to BGPOPR. Any rights granted under
the deeds to the individual lot owners were not litigated in that case. However, BGPOPR
was represented in the proceeding by its president, Tilkov. The trial court in the BGPOPR
action rejected BGPOPR's claim for a prescriptive easement over the historic path,
concluding that use of that path had been permissive, not hostile. The trial court also
rejected BGPOPR's claim that the easement was at whatever fixed, specific route
BGPOPR desired.
In the present action, the class members, in their individual capacities,4 assert
claims similar to those raised by BGPOPR. They seek recognition of an easement, either
by express grant or by prescription, over the original path. Duncan and Black Pines
contend that the class members' easement claims are barred by res judicata and/or
collateral estoppel and that the class members have only a floating easement, satisfied
by the path created in 2007 following the BGPOPR action.
Spite Structure Claims
In 2003, prior to the commencement of the BGPOPR action, Duncan planted 30 to
40 cypress trees in several forest-like, uneven rows along Edwards Drive on the Duncan 3 The record does not disclose that the trial judge in either the BGPOPR matter or the present case ever resolved this issue.
4 On Duncan and Black Pines' motion, the trial court certified a class representing all of the Bell's Grove residents who possess grants of easement substantially similar to the Tilkov easement. Nos. 69615-7-1,70092-8-1/6
property (the cypress grove). He also began building a six-foot-high wire fence along the
common boundaries between the Black Pines property and the properties owned by
Tilkov and Cotter.
Duncan also planted 30 poplar trees (the poplar grove) prior to commencement of
the BGPOPR action. The Poplar grove consisted of three rows of ten trees running north
to south on lot 1 of the Black Pines property, which lies directly south of the Cotter
property. As a part of a later installation of a septic mound on lot 1, Duncan relocated
some of the poplars near the shared boundary with the Cotter property and included
them as part of an expanded grove that added two additional rows running north to south
on the east side of the original grove. These additional two rows of poplars were planted
after the BGPOPR action concluded.
After the 2007 judgment in the BGPOPR action, Duncan planted a row of 16
cypress trees along the northern border of the Black Pines property, within 10 feet of the
Tilkov and Cotter property lines (the 16 cypress trees). He also began to fill in the fence
with wood. In 2010, he began installing a solid, one-foot-high "extender" on the fence
where it borders the Tilkov property.
At trial, the class members maintained that the cypress grove, poplar grove, 16
cypress trees, and fence extender are spite structures, erected in violation of RCW
7.40.030. The trial court concluded that the poplar grove on the Black Pines property was
not a spite structure within the meaning of RCW 7.40.030, but the 16 cypress trees and
fence extender were. The court ordered Duncan and Black Pines to abate the 16 cypress
trees and fence extender and entered a permanent injunction against installation of any
-6- Nos. 69615-7-1,70092-8-1/7
fence, plant, or hedge above six feet in height within ten feet of the property line shared
with Tilkov and Cotter.
The trial court also concluded that RCW 7.40.030 applies only to structures
located "directly contiguous" to land owned by the complaining party. The trial court
therefore precluded recovery against Duncan (for claims related to the cypress grove)
because his property is not contiguous with the class members' properties. The trial court
also precluded recovery by Hulme and Gajdics against Black Pines (for claims related to
the poplar grove, the 16 cypress trees, and the fence extender) because the Black Pines
property is not contiguous with the Hulme or Gajdics properties.
The parties all challenge the judgment.
DISCUSSION
The class members claim that the trial court erred in dismissing their motion for
summary judgment and entering judgment in favor of Duncan and Black Pines on the
easement claims. They argue that, at a minimum, a genuine issue of material fact exists
as to whether they possess an express or prescriptive easement over the original path.
We review summary judgment decisions de novo. Ranger Ins. Co. v. Pierce
County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is proper ifthere
is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. CR 56(c). A genuine issue of material fact exists if "reasonable minds could
differ on the facts controlling the outcome of the litigation." Ranger, 164 Wn.2d at 552. Nos. 69615-7-1,70092-8-1/8
When determining whether an issue of material fact exists, the court must construe all
facts and inferences in favor of the nonmoving party, jd.
In response to the class members' claims, Duncan and Black Pines first assert
that summary judgment was proper because the easement claims are barred by the
doctrine of res judicata or collateral estoppel.
Res judicata precludes the relitigation of claims that were litigated, or could have
been litigated, in a prior action. Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887
P.2d 898 (1995). Although Duncan and Black Pines nominally asserted the defense of
res judicata in their answer to the class members' complaint, they failed to raise the issue
in their motion for summary judgment or in response to the class members' motion. This
failure waives the issue on appeal and we decline to consider it. Millioan v. Thompson,
110 Wn. App. 628, 633, 42 P.3d 418 (2002).
Similar to res judicata, the doctrine of collateral estoppel prevents parties from
being allowed to have a "second bite at the apple" and relitigate issues that were
resolved in a prior dispute. The doctrine precludes only those issues that have actually
been litigated and finally determined in the earlier proceeding. Shoemaker v. City of
Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987). Collateral estoppel applies where
the following elements exist:
"1) the issue decided in the prior adjudication must be identical with the one presented in the second; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea of collateral estoppel is asserted must have been a party or in privity with a party to the prior litigation; and (4) application of [the] doctrine must not work an injustice."
-8- Nos. 69615-7-1, 70092-8-1/9
State v. Mullin-Coston. 152 Wn.2d 107, 114, 95 P.3d 321 (2004) (emphasis omitted)
(quoting State v. Bryant, 146 Wn.2d 90, 98-99, 42 P.3d 1278 (2002)).
Here, Duncan and Black Pines cannot satisfy the first requirement because they
fail to establish that the issues presented in this case are the same as those litigated in
the BGPOPR action. In the BGPOPR action Duncan stipulated that "the rights granted
under the individual deeds to the lot owners were not the subject of" the lawsuit.
Additionally, the prescriptive easement claims in the two cases almost certainly involve
different evidence and infringement of different rights because the claims relate to
different paths (BGPOPR claimed prescriptive rights over the so-called historic path;
here, the class members claim prescriptive rights over the original path).
Because the class members' easement claims are not barred by res judicata or
collateral estoppel, we consider them on the merits.
Duncan and Black Pines asserted at trial, and maintain on appeal, that the
express grants of easement in the class members' individual deeds fail because they
insufficiently describe the subservient estate and therefore violate the statute of frauds.
See Berg v. Ting, 125 Wn.2d 544, 551, 886 P.2d 564 (1995); RCW 64.04.010, .020. The
class members respond that there is at least a genuine issue of material fact on this
issue.
In order to satisfy the statute of frauds, a grant of easement must describe the
burdened property in terms "'sufficiently definite to locate it without recourse to oral
testimony, or else it must contain a reference to another instrument which does contain a
sufficient description.'" Berg, 125 Wn.2d. at 551 (quoting Bigelowv. Mood, 56 Wn.2d 340, -9- Nos. 69615-7-1, 70092-8-1/10
341, 353 P.2d 429 (I960)).5 Duncan and Black Pines argue that the class members'
grants do not meet this standard and consequently fail as a matter of law. They note:
(1) there is no legal description of the "reserve" in evidence and (2) the said plat was not
recorded and did not exist as a legally recorded plat at the time the deeds were granted.
Berg involved a grant of easement across portions of two properties that the
owners sought to subdivide. Because the easement was meant to burden only certain
plots in the future subdivision and not the entire property, the parties described the
burdened estate by reference to "a future 'finally approved' short plat application," a
document that would not exist until almost four years after the grant of easement. Berg.
125 Wn.2d at 549. Our Supreme Court held that reference to a then nonexistent
instrument was insufficient to describe the burdened property, jd. at 551.6
Here, the class members' deeds provide:
The purchaser is to have the perpetual privilege of foot travel to and from the said property to the tide flats on the beach, for recreational use; this easement to apply to foot paths over the reserve on the rGrantor'sj[71 said plat of the Party of the First Part, and extends to the second party, Grantees, heirs, executors, administrators and assigns. . . .
5This requirement does not mandate that the area comprising the easement be described in a conveying document. An easement may be "floating" on the servient property, meaning the easement's location need not be directly established in the conveying document. However, while the easement itself can be "floating," the servient estate must still be sufficiently described in order to comply with the statute of frauds. Berg. 125 Wn.2d at 551.
6 In Berg, examination of the referenced document further disclosed why the description was insufficient. Although the grant of easement as drafted referenced portions of "lot G" in the burdened property, there was no lot G in the finally approved short plat. id, at 549. Additionally, "the finally approved short plat the purported easement appealed]...to be located entirely on lot E, but the grant describe[d] no easement over lot E." kL
7 Cotter's grant of easement omits the "Grantor" term in describing the "said plat."
-10- Nos. 69615-7-1,70092-8-1/11
(Tilkov easement) (Emphasis added.) The record contains no legal description of the
"reserve." And while, under Berg, such a description is not required if the burdened
property is otherwise sufficiently described, here, the description of the burdened
property is inadequate. The "said plat"8 named in the grants was not recorded at the time
of the conveyance, nor was it identified in the grants by reference to landmarks,
boundaries, or other identifiable markers. The only "reserve" identified in the record is
that noted on the map prepared by Burhoe. But that identification is not helpful because
(1) only one of the class members (Hulme) acquired a deed prior to the creation of the
map, (2) there is no indication in the record that Bell ever saw the map or was aware of
the use of the term "reserve" therein, and, (3) to the extent the "reserve" area is indicated
in the map, it provides no access to the beach. Thus, the description of the burdened
property contained in the class members' deeds is ambiguous.
The class members argue that any ambiguity in the description could have been
resolved by expert testimony.9 However, we rejected a similar argument in Berg v. Ting,
68Wn. App. 721,728, 850 P.2d 1349, 1353 (1993V rev'd on other grounds. 125Wn. 2d 544, 556-62, 886 P.2d 564 (1995). In Berg, the class members argued that before
determining whether the grant of easement's ambiguous description of the burdened
property satisfied the statute offrauds, the trial court should have determined by extrinsic
8Aside from the plan of survey created by Burhoe, the record contains no plat map of the properties at issue.
9To this end, they offered the declaration of Dennis DeMeyer, a surveyor who interpreted the grant language "as identifying two different locations burdened by the easement": (1) the portion ofBell's remaining land that lay between the upland lots and the tide flats, represented in the plan ofsurvey as lots 61 and 62 (Duncan and Black Pines' properties) and (2) the tract marked as "reserve" on the plan of survey.
-11- Nos. 69615-7-1,70092-8-1/12
evidence the parties' intentions regarding the location of the relevant tracts, jd The court
explained that trial courts are not required, as a general matter, to look beyond a written
conveyance to extrinsic evidence in order to determine the parties' intentions, id.10 Thus,
the trial court was not obligated to consider extrinsic evidence that could potentially save
the express grants of easement in this case.
In the alternative, the class members argue that the grants of easement here are
removed from the statute of frauds under the equitable doctrine of part performance. We
disagree.
The doctrine of part performance empowers Washington courts to enforce an
agreement to convey an estate in real property that does not satisfy the statute of frauds
if equity and justice so require. IcL at 571 (citing Miller v. McCamish. 78 Wn.2d 821,
826, 479 P.2d 919 (1971)). We consider three factors to determine if there has been part
performance of the agreement sufficient to remove it from the statute of frauds:
(1) delivery and assumption of actual and exclusive possession; (2) payment or tender of
consideration; and (3) the making of permanent, substantial, and valuable improvements
referable to the contract. ]d. In applying the doctrine of part performance to an express
grant of easement that failed to comply with the statute of frauds, the Berg court
explained:
[T]he three factors of part performance will have diminished probative value because possession will never be exclusive, and making valuable improvements will often be inconsistent with limited rights granted.
10 Citing Snvder v. Peterson. 62 Wn. App. 522, 526-28, 814 P.2d 1204 (1991), the court noted that such inquiry is appropriate in cases where the deficient description is the result of a scrivener's error or a mutual mistake.
-12- Nos. 69615-7-1, 70092-8-1/13
[However], it does not follow that consideration alone should be sufficient part performance to take a grant of easement out of the statute of frauds. Although the part performance doctrine ... is a flexible doctrine, its evidentiary function must be preserved, and we will not abandon that function simply because the doctrine may be difficult to apply in certain situations.
]d at 559.
In the present matter, we find no reason to fashion an equitable remedy despite
evidence that the first two part performance factors are present. There is no evidence
that either party will be unjustly enriched by the failure to recognize an express easement
in this case or that the class members will otherwise be harmed ifsuch a right is not
recognized. To the contrary, the evidence tends to establish that whether or not the class
members have an express easement, they have access to the beach via the path created
pursuant to the 2007 judgment in the BGPOPR action.
Because the class members have failed to establish that the grants of easement
satisfy the statute of frauds or merit removal from the statute under the doctrine of part
performance, their express easement claims fail as a matter of law. Duncan and Black
Pines were entitled to judgment on this issue.
We reach a different conclusion with respect to the class members' prescriptive
easement claims. A prescriptive easement exists when a nonowner's use of the servient
estate is: (1) open and notorious, (2) over a uniform route, (3) continuous and
uninterrupted for 10 years, (4) hostile or adverse to the owner of the land sought to be
subjected, and (5) with the knowledge of such owner at a time when he was able in law
to assert and enforce his rights. Kunkel v. Fisher, 106 Wn. App. 599, 602, 23 P.3d 1128
-13- Nos. 69615-7-1,70092-8-1/14
(2001). Application of the elements is a mixed question of law and fact. Chaplin v.
Sanders. 100 Wn.2d 853, 863, 676 P.2d 431 (1984). In the present case, the relevant
facts are uncontested, and the parties only dispute whether the elements of "hostility" and
"continuous use" were met.
With respect to the "hostility" requirement, Duncan and Black Pines argued
below11 that use of the original path could not be hostile because Bell intended the class
members and their predecessors-in-interest to use the original path pursuant to the
individual deeds. However, we have held that use of land pursuant to a grant, which does
not comport with the statute of frauds but was, nevertheless, meant to convey a
permanent right of use, will still be considered "hostile" to the owner. Lee v. Lozier. 88
Wn. App. 176, 183, 945 P.2d 214 (1997); see also Crescent Harbor Water Co. v. Lvseng.
51 Wn. App. 337, 342, 753 P.2d 555 (1988) ("When the owner of a servient estate
confers upon another the right to use that property as if it had been legally conveyed, the
resultant use is made under a claim of right, rather than by permission") (emphasis
added). Here, it is undisputed that Bell intended to convey a "perpetual privilege" of use
of the original path. Thus, at the outset, the use of the original path by the class members
and their predecessors-in-interest was hostile. However, this hostile use terminated at the
time of the 1962 grant of the BGPOPR easement, under which the class members or
their predecessors-in-interest acquired a right to use the original path as members of
BGPOPR. Consequently, in order for the class members to satisfy the "continuous use"
11 On appeal, Duncan and Black Pines do not respond to the class members' prescriptive easement claim. However, they argued the issue in their motion for summary judgment before the trial court.
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element of prescription, they must demonstrate continuous and uninterrupted use of the
original path during the 10-year period from 1952 (or earlier) to 1962.
The record establishes that Tilkov, Gajdics, and Cotter do not meet this
requirement because none of their predecessors-in-interest acquired the
property before 1952. However, Hulme testified that her predecessors-in-interest—
her parents—purchased the property in 1951 and used the original path every summer at
least through 1962. Additionally, Gabriel Hill, a class member who was deceased at the
time of the summary judgment proceedings, testified in the BGPOPR action that he first
started spending summers at a cabin in Bell's Grove in the early 1930s. He testified that
he accessed the beach from Bell's Grove via the original path. Thus, Hulme and Hill
establish that their use of the original path was continuous and uninterrupted for the
relevant 10-year period from 1952 to 1962.
We conclude as a matter of law that Hulme and Hill have established an easement
by prescription. We further conclude, based on the unchallenged order certifying the
class, that the prescriptive rights thus established are applicable to the entire class.12 The
trial court's entry of judgment for Duncan and Black Pines on this issue was error.
Duncan and Black Pines contend that the trial court erred in entering judgment for
Tilkov and Cotter. They argue first that trees are not "structures" within the meaning of
RCW 7.40.030 and, second, that insufficient evidence supports the conclusion that the 16
12 We note that the trial court converted the proceeding to a class action on motion of Duncan and Black Pines and that Duncan and Black Pines do not contest the class members' assertion that the use of the land by any class member can be relied upon to establish the prescriptive rights of the entire class.
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cypress trees and the fence extender are spite structures erected in violation of the
statute. The class members claim that the trial court erred when it precluded Gajdics and
Hulme from recovery under the statute based on the conclusion that RCW 7.40.030
applies only to structures located "directly contiguous" to land owned by the complaining
party.
We review de novo the trial court's application of the statute. Okeson v. City of
Seattle. 150 Wn.2d 540, 548-49, 78 P.3d 1279 (2003). When a statute is unambiguous,
construction is not necessary and the plain meaning controls. Faben Point Neighbors v.
City of Mercer Island, 102 Wn. App. 775, 778, 11 P.3d 322 (2000).
Duncan and Black Pines claim that the trial court erred in concluding that the 16
cypress trees are "structures" within the plain meaning of RCW 7.40.030. They argue that
the plain meaning of "structure" unambiguously means something artificial and built, i.e.,
a fence, building, or edifice, and not trees, which are "naturally grown." Br. of Resp'ts' at
35. In support of this argument, they cite Karasek v. Peier. 22 Wash. 419, 426, 61 P. 33
(1900).
In Karasek. the trial court found that appellant's fence violated the spite structure
statute and ordered its removal. On appeal, appellant argued that a fence was not a
structure as that term is used in the statute.13 Our Supreme Court rejected the argument,
citing the definition of "structure" in the Century Dictionary, which read, "'In the broadest
sense, a structure is any production or piece of work artificially built up or composed of
13 The statute, as cited in that case, is section 5433 of Ballinger's Code (2 Hill's Code of Procedure section 268) and is virtually identical to RCW 7.40.030.
-16- Nos. 69615-7-1,70092-8-1/17
parts joined together in some definite manner; any construction.'" Karasek, 22 Wash, at
425. Respondents contend that because the definition cited by the court contained the
word "artificially," it necessarily follows that a configuration of trees cannot be a structure.
We disagree. First, the Karasek court did not consider the question presented here, i.e.,
whether an artificial configuration of trees could constitute a "structure" under the statute.
And second, we do not read the cited definition as excluding a fence-like structure made
of living instead of artificial parts. The current Webster's Third New International
Dictionary is consistent with this view. It defines "structure," in relevant part, as: "2.b:
something made up of more or less interdependent elements or parts: something having
a definite or fixed pattern of organization." Webster's Third New International
Dictionary 2267 (2002). Thus, no distinction is drawn between structures consisting of
natural versus man-made or artificial parts.
Additionally, since Karasek, this court has concluded that a row of trees planted
along a property line might be legally equivalent to a fence or wall. In Lakes at Mercer
Island Homeowners Ass'n v. Witrak. 61 Wn. App. 177, 181-82, 810 P.2d 27 (1991), we
determined that whether a row of trees planted along a property line constituted a fence
was a question for the fact finder. Although we did not consider the spite structure statute
in Lakes, our reasoning—if a row of trees looks and acts like a fence, then courts can
treat it like a fence—is instructive here.14
14 Duncan and Black Pines cite Dalton v. Bua, 47 Conn. Supp. 645, 648, 822 A.2d 392 (2003), noting that the Connecticut Supreme Court interpreted a similarspite structure statute, and one that preexisted Washington's law, to not apply to hedges or trees. In lightof the above-cited Washington authority, it is apparent that Washington courts depart from the Connecticutinterpretation of "structure."
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We conclude that when in artificially arranged configurations, trees can form a
"structure," as that term is used in RCW 7.40.030. The trial court did not err in so
concluding.
We also find no error in the trial court's conclusion that RCW 7.40.030 applies only
to structures located "directly contiguous" to land owned by the complaining party.
RCW 7.40.030 (emphasis supplied) provides in relevant part: "An injunction may
be granted to restrain the malicious erection, by any owner or lessee of land, of any
structure intended to spite, injure or annoy an adjoining proprietor." The class members
argue that the trial court improperly applied the "contiguous" language in lieu of the
statutory "adjoining" language. But their own briefing makes plain that "contiguous" and
"adjoining" are synonyms: "The dictionary definition of contiguous is 'being in actual
contact: touching along a boundary or at a point.' www.merriam-webster.com/dictionary.
Whereas, adjoining is defined as 'touching or bounding at a point or line.' www.merriam-
webster.com/dictionary." Br. of Appellant at 41-42. These definitions are nearly identical
and convey substantially the same meaning. The class members assert, "The definitive
distinction between the two words is the requirement in 'contiguous' for there being actual
contact or touching." Br. of Appellant at 42. However, given that both definitions cite
"touching" at a boundary as the key characteristic, the contention is meritless.
Additionally, Dalton is distinguishable because that case involved allegations that a hedge had been maliciously allowed to grow to great heights, id. at 648. The plaintiffs in Dalton did not object to the actual planting of the hedge, they only wanted it to be maintained at a given height, id. The Dalton court expressly noted that the issue was distinct and "significantly different" from a claim of malicious planting, as is present here. Id.
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We conclude that the trial court appropriately limited relief under the statute. All of
the class members were precluded from recovery against Duncan (for claims related to
the cypress grove) because his property is not contiguous with the class members'
properties. Hulme and Gajdics were also precluded from recovery against Black Pines
(for claims related to the poplar grove, the 16 cypress trees, and the fence extender)
because the Black Pines property is not contiguous with either the Hulme or Gajdics
property.
Next, we consider the trial court's conclusions with respect to the alleged spite
structures located on the Black Pines property—the poplar grove, the 16 cypress trees,
and the fence extender. "When a trial court has weighed the evidence . . ., appellate
review is limited to determining whether substantial evidence supports its findings of fact
and, if so, whether the findings support the trial court's conclusions of law." Hegwine v.
Longview Fibre Co.. 132 Wn. App. 546, 555, 132 P.3d 789 (2006). "The substantial
evidence standard is deferential and requires the appellate court to view all evidence and
inferences in the light most favorable to the prevailing party." Lewis v. Dep't of Licensing,
157 Wn.2d 466, 468, 139 P.3d 1078 (2006).
The standard for proving entitlement to relief under RCW 7.40.030 is:
(1) that the structure damages the adjoining landowner's enjoyment of his property in some significant degree; (2) that the structure is designed as the result of malice or spitefulness primarily or solely to injure and annoy the adjoining landowner; and (3) that the structure serves no really useful or reasonable purpose.
Baillargeon v. Press. 11 Wn. App. 59, 66, 521 P.2d 746 (1974).
•19- Nos. 69615-7-1, 70092-8-1/20
The class members claim that the trial court's conclusion that the poplar grove is
not a spite structure under RCW 7.40.030 is error because it is not supported by
substantial evidence. Although they do not expressly address the Baillargeon factors on
appeal, the record discloses that there was conflicting evidence at trial regarding the first
two Baillargeon factors.15
With respect to the first factor, the class members contend that the poplars—which
will grow 40-50 feet in height with a spread of 30 feet at maturity—obstruct air and light
on the Cotter property. However, they also admit that the nearest row of poplars is 24
feet away from the shared property line with Black Pines.
With respect to the second factor, the class members claim the size of the trees in
and of itself evinces malice or spite and that, with respect to the two rows of trees planted
after the BGPOPR judgment, the timing indicates that they were planted primarily or
solely to injure and annoy Cotter. However, they assign no error to the trial court's
findings that (1) tree planting is Duncan's hobby, (2) he began planting the poplar grove
well before the BGPOPR action commenced, and (3) the two relocated rows were
planted in order to accommodate a septic mound installed on the Black Pines property.
Accordingly, these findings are verities on appeal. Keever &Assocs.. Inc. v. Randall. 129
Wn. App. 733, 741, 119 P.3d 926 (2005).
The trial judge, as trier of fact in the bench trial, was entitled to weigh the
inconsistencies and the credibility of the evidence. Lodis v. Corbis Holdings. Inc.. 172
15 We note that the trial court correctly identified this standard in its conclusion of law 2.
-20- Nos. 69615-7-1,70092-8-1/21
Wn. App. 835, 861, 292 P.3d 779 (2013). And this court may not substitute its evaluation
of the evidence for that made below. Goodman v. Boeing Co.. 75 Wn. App. 60, 82-83,
877 P.2d 703 (1994). We conclude that viewed in the light most favorable to Duncan and
Black Pines (the prevailing parties), the evidence and inferences therefrom are sufficient
to support the trial court's conclusion that the poplar grove is not a spite structure.
Next, Duncan and Black Pines claim the trial court erred in concluding that the 16
cypress trees form a structure erected in violation of RCW 7.40.030. We reject the
argument because the trial court's conclusion that the three Baillargeon factors were met
is supported by its findings, which, in turn, are supported by substantial evidence.
The trial court found the cypress trees will mature to create a 60- to 70-foot-high
wall directly in front of the Tilkov and Cotter properties, which would limit "in significant
degree" the light and air available to portions of each property. Duncan and Black
Pines assign error to this finding, but the undisputed evidence shows that (1) the 16
cypress trees will likely reach heights of 60 to 70 feet and have a spread 15 to 25 feet
wide, (2) the trees were planted within 10 feet of the Tilkov and Cotter property lines, and
(3) the trees were organized in "a row" along the Cotter boundary and "an irregular
staggered row" along the Tilkov boundary. This evidence is more than sufficient to
sustain the trial court's conclusion that 16 trees formed a structure that significantly
damaged Tilkov's and Cotter's ability to enjoy their property.
Substantial evidence also supports the trial court's conclusion that the 16 cypress
trees were planted with malice or spitefulness primarily or solely to injure and annoy the adjoining landowners. The trial court properly took into account its unchallenged findings -21- Nos. 69615-7-1,70092-8-1/22
regarding the size and arrangement of the trees and their proximity to the property line. In
addition, the trial court found that, unlike the poplar grove, the cypress trees were planted
after the ongoing conflict between the parties began.
Substantial evidence also supports the trial court's finding that the 16 cypress
trees serve no reasonable or useful purpose, as required under the third prong of
Baillargeon. Duncan and Black Pines argue that Duncan planted the trees for their
beauty and privacy and that, "[i]n addition to their aesthetic value, trees provide a number
of other valuable services, including, inter alia, protection from wind and soil erosion,
prevention of water pollution, providing shade, and serving as habitat for wildlife." Br. of
Resp'ts' at 40. However, the trier of fact was entitled to disbelieve this contention. See
Lodis. 172 Wn. App. at 861. This is especially so in light of the undisputed evidence that
at the time of planting, Duncan and Black Pines' properties already had the benefit of at
least two groves consisting of over 60 trees, and Duncan's privacy was already
safeguarded by a six-foot wooden fence along the Tilkov and Cotter property lines.
Because the record contains substantial evidence of each of the Baillargeon
factors, we find no error in the trial court's determination that the 16 cypress are spite
structures.
With respect to the fence extender, Duncan and Black Pines renew their
objections under the second and third Baillargeon factors and also claim insufficient evidence supports a finding of the first factor. We agree with the lattercontention. The trial court failed to articulate a basis for concluding that the fence extender
blocked light or air on the Tilkov property to any appreciable degree. Moreover, no -22- Nos. 69615-7-1,70092-8-1/23
evidence was presented that it did. On the contrary, Tilkov testified that while the seven-
foot fence with the extender darkened his property, it did not block light from his windows.
He also testified that there was "an unbroken mass of vegetation" on his side of the Black
Pines fence line, which he maintained at a height somewhere between 12 and 20 feet.
Verbatim Report of Proceedings, (July 31, 2012) at 67-68. Thus, there was no evidence
that the fence extender had an effect on the light and air of the Tilkov property separate
from that attributable to the six-foot fence and Tilkov's own vegetation or that it otherwise
limited Tilkov's enjoyment of his property as required under Baillargeon. We therefore
find insufficient evidence supports the trial court's conclusion that the fence extender is a
spite structure.
CONCLUSION
We hold that the express grants of easement in the class members' individual
deeds fail because their ambiguous description of the subservient estate does not satisfy
the statute of frauds. Additionally, there is no basis in this case for removal of the grants
from the statute of frauds based on part performance. But we conclude that as a matter
of law, the class members have a prescriptive easement over the original path and they
are entitled to judgment. We remand for entry of judgment consistent with this opinion.
And while we affirm the trial court's rulings as to whether Tilkov and Cotter were
entitled to relief under RCW 7.40.030 with regard to the poplar grove and the 16 cypress
trees, we reverse the trial court's ruling with respect to the fence extender because there
is no articulable basis for concluding that the fence extender limited Tilkov's use and
enjoyment of his property, in violation of the statute.
-23- Nos. 69615-7-1, 70092-8-1/24
Duncan and Black Pines request attorney fees and costs pursuant to RAP 18.9(a),
which authorizes the appellate court to order a party or counsel who files a frivolous
appeal to pay sanctions, including an award of attorney fees and costs to the opposing
party. See Yurtis v. Phipps. 143 Wn. App. 680, 696, 181 P.3d 849 (2008) (citing
Rhinehartv. Seattle Times. Inc.. 59 Wn. App. 332, 342, 798 P.2d 1155 (1990)). An
appeal is frivolous when it presents "no debatable issues upon which reasonable minds
might differ and ... is so devoid of merit that there is no possibility of reversal." Lutz Tile.
Inc. v. Krech. 136 Wn. App. 899, 906, 151 P.3d 219 (2007). We deny the request
because the issues presented in this appeal are not frivolous.
Remand for entry of judgment consistent with this opinion.
} U^ > WE CONCUR:
A^gg^^,
-24-