Armstrong, J.
¶1 Fred and Faith Noble petitioned to condemn a private way of necessity across Safe Harbor Family Preservation Trust property based on our holding in Safe Harbor Family Pres. Trust v. Noble, noted at 120 Wn. App. 1060, 2004 Wash. App. LEXIS 502 (Safe Harbor I). In answer, Safe Harbor (Paul and Agnes Stokes) alleged that a feasible alternative route existed over the Nobles’ adjoining landowners, Tillicum Beach, Inc. The Nobles then joined Tillicum as a potential condemnee. The trial court found that an existing way over Safe Harbor property was the least burdensome and granted the Nobles an easement over Safe Harbor property. Thereafter the trial court found that Safe Harbor was responsible for Tillicum’s involvement and ordered (1) Safe Harbor to pay Tillicum’s attorney fees of $39,920.00 and costs of $226.20; and (2) the Nobles to pay Safe Harbor’s attorney fees; however, the trial court reduced Safe Harbor’s attorney fees by 70 percent (in order to award them only fees spent in litigating against the Nobles) to $6,596.25. Safe Harbor appeals the order requiring it to pay Tillicum’s attorney fees and the order reducing its claimed attorney fees against the Nobles. We affirm.
[171]*171FACTS
¶2 In Safe Harbor I, we set forth the facts:
In the mid-1940s, Ernest and Beulah Worl subdivided their property off Highway 101 on the Hood Canal into two lots. On one lot they created a 10-foot-wide ingress and egress easement for the benefit of the other lot. They recorded this easement.
In 1972, Paul and Agnes Stokes acquired the servient estate once owned by the Worls. They deeded the property to Safe Harbor in 1985. The Stokeses continued to live on the property, which is now in trust for the benefit of their children.
In 1998, the Nobles acquired the dominant estate once owned by the Worls.
The record easement has not been used since 1972, if ever. Instead, the Nobles and their predecessors have entered off Highway 101 through a gate and crossed a paved courtyard on Safe Harbor’s property [(easement by usage)] to access their own. The trial court specifically found that there was no evidence explaining why the access used was outside the record easement.
The Stokeses erected a barrier across the courtyard access sometime before the Nobles purchased their property. The barrier was in place when the Nobles purchased their lot and they noticed it, but they never asked the Stokeses about it or discussed using Safe Harbor’s property to access their own.
Safe Harbor I, 2004 Wash. App. LEXIS, at *2-3. We also explained that because the Skokomish Tribe would not issue the Nobles a development permit for their record easement, the Nobles’ only recourse was an action to privately condemn a way of necessity. Safe Harbor I, 2004 Wash. App. LEXIS, at *7.
¶3 The Nobles petitioned to condemn a private way of necessity across Safe Harbor’s property. Safe Harbor answered that the Nobles had “a feasible alternative route” over Tillicum’s property; Safe Harbor also counterclaimed for damages because the Nobles’ condemnation action prevented Safe Harbor from finalizing a sale of its property. Clerk’s Papers (CP) at 177-79. The Nobles then successfully [172]*172moved to amend the original petition to join adjacent landowner Tillicum as an additional party defendant.
¶4 The trial court ruled that the Nobles’ proposed route over Safe Harbor property was less burdensome than the route over Tillicum’s property, it granted the Nobles an easement for ingress and egress over the proposed route, and it awarded Safe Harbor $3,300 for its loss of the property’s use.
¶5 Tillicum moved for attorney fees and costs against Safe Harbor, arguing that
[w]here the factual claims [of a litigant] are not only unfounded, but the litigant fails to present any evidence in support of them at trial, then the [trial court] should consider these failures in determining a reasonable attorney fee to award to the opposing party.
CP at 92-93. The trial court ordered Safe Harbor to pay Tillicum’s attorney fees and costs, explaining that
[c]learly in this case, [Safe Harbor] was responsible for involving [Tillicum] as a potential alternate condemnee in this action.
Under [Kennedy v. Martin, 115 Wn. App. 866, 63 P.3d 866 (2003),] RCW 8.24.030 [,] and a balancing of the equities present in this case, the court will grant the request of [Tillicum] for an award of attorney fees and costs from [Safe Harbor].
CP at 16. The trial court also awarded Safe Harbor attorney fees and costs from the Nobles, but it reduced the award because
for purposes of an award of attorney fees, time stated on the billings to [Safe Harbor] should be reduced by 70 percent representing a conservative estimate of the time spent involving [Tillicum] as an alternate condemnee and the time spent regarding issues related to the potential sale of the [Safe Harbor] property.
CP at 19-20.
¶6 On appeal, Safe Harbor essentially argues that the trial court erred in ordering it to pay Tillicum’s fees and [173]*173reducing its award of fees and costs against the Nobles because (1) the Nobles joined Tillicum as a party and, thus, should be liable for Tillicum’s fees and (2) Safe Harbor had a right to raise the affirmative defense that the Nobles had a more feasible access route over Tillicum’s property.
ANALYSIS
I. Tillicum’s Attorney Fees
¶7 The right to an easement by way of necessity arose out of English common law. Horner v. Heersche, 202 Kan. 250, 253, 447 P.2d 811 (1968) (quoting Collins v. Prentice, 15 Conn. 39, 43-44 (1842)). The majority of states still use the common-law approach to establish an easement by way of necessity. Horner, 202 Kan. at 252; see also Adams v. Planning Bd., 64 Mass. App. Ct. 383, 389-90, 833 N.E.2d 637 (2005); Stock v. Ostrander, 233 A.D.2d 816, 817-18, 650 N.Y.S.2d 416 (1996); Carstensen v. Chrisland Corp., 247 Va. 433, 438, 442 S.E.2d 660 (1994). In common-law matters of equity, a trial court has broad discretion to create an equitable remedy. Sorenson v. Pyeatt, 158 Wn.2d 523, 531, 146 P.3d 1172 (2006) (quoting In re Foreclosure of Liens, 123 Wn.2d 197, 204, 867 P.2d 605 (1994)).
¶8 In Washington, chapter 8.24 RCW governs a condemnation proceeding for a private way of necessity. Brown v. McAnally, 97 Wn.2d 360, 366-67, 644 P.2d 1153 (1982) (RCW 8.24.010
Free access — add to your briefcase to read the full text and ask questions with AI
Armstrong, J.
¶1 Fred and Faith Noble petitioned to condemn a private way of necessity across Safe Harbor Family Preservation Trust property based on our holding in Safe Harbor Family Pres. Trust v. Noble, noted at 120 Wn. App. 1060, 2004 Wash. App. LEXIS 502 (Safe Harbor I). In answer, Safe Harbor (Paul and Agnes Stokes) alleged that a feasible alternative route existed over the Nobles’ adjoining landowners, Tillicum Beach, Inc. The Nobles then joined Tillicum as a potential condemnee. The trial court found that an existing way over Safe Harbor property was the least burdensome and granted the Nobles an easement over Safe Harbor property. Thereafter the trial court found that Safe Harbor was responsible for Tillicum’s involvement and ordered (1) Safe Harbor to pay Tillicum’s attorney fees of $39,920.00 and costs of $226.20; and (2) the Nobles to pay Safe Harbor’s attorney fees; however, the trial court reduced Safe Harbor’s attorney fees by 70 percent (in order to award them only fees spent in litigating against the Nobles) to $6,596.25. Safe Harbor appeals the order requiring it to pay Tillicum’s attorney fees and the order reducing its claimed attorney fees against the Nobles. We affirm.
[171]*171FACTS
¶2 In Safe Harbor I, we set forth the facts:
In the mid-1940s, Ernest and Beulah Worl subdivided their property off Highway 101 on the Hood Canal into two lots. On one lot they created a 10-foot-wide ingress and egress easement for the benefit of the other lot. They recorded this easement.
In 1972, Paul and Agnes Stokes acquired the servient estate once owned by the Worls. They deeded the property to Safe Harbor in 1985. The Stokeses continued to live on the property, which is now in trust for the benefit of their children.
In 1998, the Nobles acquired the dominant estate once owned by the Worls.
The record easement has not been used since 1972, if ever. Instead, the Nobles and their predecessors have entered off Highway 101 through a gate and crossed a paved courtyard on Safe Harbor’s property [(easement by usage)] to access their own. The trial court specifically found that there was no evidence explaining why the access used was outside the record easement.
The Stokeses erected a barrier across the courtyard access sometime before the Nobles purchased their property. The barrier was in place when the Nobles purchased their lot and they noticed it, but they never asked the Stokeses about it or discussed using Safe Harbor’s property to access their own.
Safe Harbor I, 2004 Wash. App. LEXIS, at *2-3. We also explained that because the Skokomish Tribe would not issue the Nobles a development permit for their record easement, the Nobles’ only recourse was an action to privately condemn a way of necessity. Safe Harbor I, 2004 Wash. App. LEXIS, at *7.
¶3 The Nobles petitioned to condemn a private way of necessity across Safe Harbor’s property. Safe Harbor answered that the Nobles had “a feasible alternative route” over Tillicum’s property; Safe Harbor also counterclaimed for damages because the Nobles’ condemnation action prevented Safe Harbor from finalizing a sale of its property. Clerk’s Papers (CP) at 177-79. The Nobles then successfully [172]*172moved to amend the original petition to join adjacent landowner Tillicum as an additional party defendant.
¶4 The trial court ruled that the Nobles’ proposed route over Safe Harbor property was less burdensome than the route over Tillicum’s property, it granted the Nobles an easement for ingress and egress over the proposed route, and it awarded Safe Harbor $3,300 for its loss of the property’s use.
¶5 Tillicum moved for attorney fees and costs against Safe Harbor, arguing that
[w]here the factual claims [of a litigant] are not only unfounded, but the litigant fails to present any evidence in support of them at trial, then the [trial court] should consider these failures in determining a reasonable attorney fee to award to the opposing party.
CP at 92-93. The trial court ordered Safe Harbor to pay Tillicum’s attorney fees and costs, explaining that
[c]learly in this case, [Safe Harbor] was responsible for involving [Tillicum] as a potential alternate condemnee in this action.
Under [Kennedy v. Martin, 115 Wn. App. 866, 63 P.3d 866 (2003),] RCW 8.24.030 [,] and a balancing of the equities present in this case, the court will grant the request of [Tillicum] for an award of attorney fees and costs from [Safe Harbor].
CP at 16. The trial court also awarded Safe Harbor attorney fees and costs from the Nobles, but it reduced the award because
for purposes of an award of attorney fees, time stated on the billings to [Safe Harbor] should be reduced by 70 percent representing a conservative estimate of the time spent involving [Tillicum] as an alternate condemnee and the time spent regarding issues related to the potential sale of the [Safe Harbor] property.
CP at 19-20.
¶6 On appeal, Safe Harbor essentially argues that the trial court erred in ordering it to pay Tillicum’s fees and [173]*173reducing its award of fees and costs against the Nobles because (1) the Nobles joined Tillicum as a party and, thus, should be liable for Tillicum’s fees and (2) Safe Harbor had a right to raise the affirmative defense that the Nobles had a more feasible access route over Tillicum’s property.
ANALYSIS
I. Tillicum’s Attorney Fees
¶7 The right to an easement by way of necessity arose out of English common law. Horner v. Heersche, 202 Kan. 250, 253, 447 P.2d 811 (1968) (quoting Collins v. Prentice, 15 Conn. 39, 43-44 (1842)). The majority of states still use the common-law approach to establish an easement by way of necessity. Horner, 202 Kan. at 252; see also Adams v. Planning Bd., 64 Mass. App. Ct. 383, 389-90, 833 N.E.2d 637 (2005); Stock v. Ostrander, 233 A.D.2d 816, 817-18, 650 N.Y.S.2d 416 (1996); Carstensen v. Chrisland Corp., 247 Va. 433, 438, 442 S.E.2d 660 (1994). In common-law matters of equity, a trial court has broad discretion to create an equitable remedy. Sorenson v. Pyeatt, 158 Wn.2d 523, 531, 146 P.3d 1172 (2006) (quoting In re Foreclosure of Liens, 123 Wn.2d 197, 204, 867 P.2d 605 (1994)).
¶8 In Washington, chapter 8.24 RCW governs a condemnation proceeding for a private way of necessity. Brown v. McAnally, 97 Wn.2d 360, 366-67, 644 P.2d 1153 (1982) (RCW 8.24.010 implements the right to condemn a “private way of necessity” established in Washington Constitution article I, section 16). Nonetheless, the statute grants trial courts considerable discretion in awarding fees and costs. RCW 8.24.030 provides: “In any action brought under the provisions of this chapter for the condemnation of land for a private way of necessity, reasonable attorneys’ fees and expert witness costs may be allowed by the court to reimburse the condemnee.” (Emphasis added.) Rather than mandating an award of fees and costs based on statutory [174]*174standards, the legislature merely stated that the trial court “may” award fees and costs. That the trial court “may” award fees and costs necessarily grants the court discretion to decide what equitable grounds support an award and the amount of the award. See Kennedy, 115 Wn. App. at 872 (a trial court has discretion to award fees in light of the circumstances in each case (citing Beckman v. Wilcox, 96 Wn. App. 355, 367, 979 P.2d 890 (1999))). Moreover, although the statute limits the recipients to condemnees, it does not limit the parties against whom the court may award fees and costs.
¶9 Courts have exercised broad discretion in awarding fees and costs under RCW 8.24.030. For example, the trial court may order one condemnee to pay the fees and costs of another condemnee. Kennedy, 115 Wn. App. at 874. The trial court may award a condemnee attorney fees and costs even though the condemnee has lost the feasible alternative issue. Sorenson v. Czinger, 70 Wn. App. 270, 279, 852 P.2d 1124 (1993) (statute grants the trial court discretion in awarding fees and costs without regard to who has prevailed). And the trial court may award attorney fees and costs against a condemnor who voluntarily dismisses its condemnation action. Beckman, 96 Wn. App. at 365-66 (statutory language suggests that the legislature intended broad application of RCW 8.24.030).
¶10 Safe Harbor argues that “the clear law set forth in RCW 8.24.030 and ... enunciated in Kennedy” requires the Nobles to pay Tillicum’s attorney fees because the Nobles joined Tillicum in the action.
¶11 In Kennedy, the trial court ordered one set of condemnees to pay another’s attorney fees after the former joined the latter in the action. Kennedy, 115 Wn. App. at 868. On appeal, the first condemnees argued that they should not be penalized for adding the second condemnee because they had a right to establish an alternate path for condemnation. Kennedy, 115 Wn. App. at 870. They also argued that only condemnors may incur liability under RCW 8.24.030. Kennedy, 115 Wn. App. at 872-73. We [175]*175rejected both arguments, reasoning that “nothing in the language of RCW 8.24.030 or in the case law ... prevents a court from requiring the party responsible for involving the party seeking reimbursement of his attorney fees to pay those fees.” Kennedy, 115 Wn. App. at 873.
¶12 Moreover, that Safe Harbor did not join Tillicum does not immunize it from responsibility for Tillicum’s attorney fees under RCW 8.24.030. Safe Harbor’s claim that the Nobles had a better route over Tillicum’s property was based solely on evidence Paul Stokes provided by affidavit. He stated that the Nobles regularly used a driveway over Tillicum’s property to get to their property and that he had helped create the route some years earlier with his backhoe. The Nobles and Tillicum presented testimony that Stokes had never worked on any road over Tillicum’s property and that no road existed over the property, in part because of a blocking drain field. The trial court heard the evidence, visited the site, and concluded that Paul Stokes was not a credible witness.
¶13 RCW 8.24.030 grants trial courts broad discretion in awarding attorney fees. We conclude that the trial court did not err in looking beyond the mechanical process of joinder to answer the question of who was responsible for the litigation with Tillicum. Clearly, the full responsibility for the costs of litigating the claimed alternative feasible access rests with Safe Harbor and the Stokeses.
II. Reduction of Attorney Fees
¶14 Safe Harbor faults the trial court for reducing its award of attorney fees by 70 percent to reflect the portion of the litigation fees related to Tillicum.
¶15 As previously discussed, the trial court has broad discretion to award attorney fees under RCW 8.24.030. Sorenson, 70 Wn. App. at 279. A court abuses its discretion only if it is manifestly unreasonable or based on untenable grounds. Beckman, 96 Wn. App. at 367. “In all cases ... it is the trial judge who has watched the case unfold and who [176]*176is in the best position to determine which hours should be included in the [attorney fees] calculation.” Chuong Van Pham v. Seattle City Light, 159 Wn.2d 527, 540, 151 P.3d 976 (2007).
¶16 The trial court reduced Safe Harbor’s award of attorney fees and costs by “balancing of the equities.” CP at 18-19. After finding that the hourly rates Safe Harbor claimed were reasonable, the trial court explained:
From a review of the billings attached to the [d]eclaration of [Safe Harbor’s counsel,] . . . clearly more than [50 percent] of the time expended on behalf of [Safe Harbor] was specifically for or due to the involvement of [Tillicum] as an alternate condemnee and a smaller portion of time was spent regarding matters related to the sale of the [Safe Harbor] property. Additionally, the [trial court] will find that the time allocated for many services that may have been necessary without an alternate condemnee, such as, depositions and preparation therefore, trial preparation and trial time were substantially increased due to the inclusion of the proposed alternate condemnee. The [trial court] finds that for purposes of an award of attorney fees, time stated on the billings to [Safe Harbor] should be reduced by [70] percent representing a conservative estimate of the time spent involving [Tillicum] as an alternate condemnee and the time spent regarding issues related to the potential sale of the [Safe Harbor] property.
CP at 19-20. Safe Harbor does not argue that the trial court erred in reducing attorney fees and costs based on its counterclaim regarding the potential sale of Safe Harbor; instead, it treats the entire 70 percent reduction as due to Tillicum’s involvement. And we have held that the trial court did not err in awarding fees and costs based on Safe Harbor’s role in requiring litigation as to a possibly more feasible alternative route over Tillicum’s property. Thus, we find no error in the trial court’s reduction of fees from the Nobles to Safe Harbor based on the same rationale.
III. Attorney Fees on Appeal
¶17 Safe Harbor and Tillicum request attorney fees and costs on appeal under RCW 8.24.030. RAP 18.1(a) allows [177]*177recovery of attorney fees and costs on appeal “[i]f applicable law grants to a party the right to recover reasonable attorney fees or expenses.” The trial court found (1) that Paul Stokes, the only witness to offer evidence on behalf of Safe Harbor, was not credible, a finding that binds us, and (2) that Safe Harbor (through Paul Stokes) was responsible for involving Tillicum as a potential alternate condemnee. Because of these findings, we award Tillicum its attorney fees on appeal against Safe Harbor. And, balancing the equities between the Nobles and Safe Harbor, we deny Safe Harbor its attorney fees on appeal.
¶18 Affirmed.
Penoyar, J., concurs.