Olson v. Trippel

893 P.2d 634, 77 Wash. App. 545
CourtCourt of Appeals of Washington
DecidedApril 20, 1995
Docket16681-0-II
StatusPublished
Cited by17 cases

This text of 893 P.2d 634 (Olson v. Trippel) 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
Olson v. Trippel, 893 P.2d 634, 77 Wash. App. 545 (Wash. Ct. App. 1995).

Opinion

Morgan, J.

Floyd and Sandra Olson appeal orders denying summary judgment to them, and granting summary judgment to Elmer and Winifred Trippel. We reverse.

Wollochet Heights Estates is a residential subdivision in Gig Harbor, Washington. One of its blocks, block 2, contains lots 8 through 13. A map is shown below.

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*547 On October 1, 1965, a written easement agreement was executed by the owners of lots 8 through 12. It created an easement across the southwest corner of lot 12, 1 the east 12 feet of lot 9, and the north 12 feet of lot 11. It provided that the easement across the southwest corner of lot 12 "shall run with and be appurtenant to lots 8 [and] 9”. 2 It further provided that the easement over the east 12 feet of lot 12 and the north 12 feet of lot 11 "shall run with and be appurtenant to lots 8, 9, and 10”. 3 After execution, it was duly recorded with the county auditor.

Not long after the 1965 agreement had been executed, the Trippels purchased lots 9 and 12. They then "wish[ed] to substitute” an easement that would not bisect their newly combined lots. Thus, on May 23, 1967, they entered into a new easement agreement with the owners of lots 8, 9,10 and 12. The new agreement provided in pertinent part:

RECITALS
A. By an instrument dated October 1, 1965, and recorded under Pierce County Auditor’s Fee No. 2121671, GRANLUND [the owner of lot 10] and BRENTIN [the owner of lot 8] were granted an easement over certain property hereinafter particularly described, for ingress and egress. The property over which such easement was granted [lot 9] is now owned hy TRIPPEL.
B. TRIPPEL has, since acquiring the property mentioned in Paragraph A [lot 9], acquired additional property [lot 12] and wishes to substitute an easement over such property and in consideration thereof to receive a release and relinquishment of the above-mentioned easement.
C. All parties to this instrument are agreed that such substitution is appropriate and desirable.
AGREEMENTS
In consideration of the foregoing, and of the conveyances and releases hereinafter made, the parties agree, convey, grant, release and relinquish, as follows:
1. GRANLUND and BRENTIN release, relinquish and convey to TRIPPEL whatever right, title or interest they may have in and to the east twelve feet of Lot 9, Block 2, Wollochet Heights *548 Estates, according to Plat recorded in Book 23 of Plats, Pages 21, 22 and 23, Records of Pierce County Washington, and to the easement in their favor created by that certain instrument dated October 1, 1965 and recorded under Auditor’s Fee No. 2121671, Auditor’s Records of Pierce County, Washington.
2. TRIPPEL hereby grants and conveys to BRENTIN an easement for ingress and egress over the north twelve feet of Lot 12, Block 2, Wollochet Heights Estates as per the afore mentioned plat and over a triangular portion of Lot 9, Block 2 Wollochet Heights Estates, as per the afore mentioned plat, at the northeast corner of said Lot 9, measured twelve feet along the common line between Lots 9 and 12 and twelve feet along the common line of Lots 8 and 9, and by a line connécting the afore mentioned two lines to form a triangle at such northeastern corner.[ 4 ]

After execution, the 1967 agreement was duly recorded with the county auditor. As can be seen, it failed to state whether the new easement was appurtenant to lot 8 or personal to the then-owners of lot 8, the Brentins.

Today, the Trippels still own lots 9 and 12. Lot 8, however, has changed hands several times. On April 7, 1970, the Brentins executed a real estate contract giving people named Clary a vendee’s interest. On February 6, 1973, the Clarys assigned their vendee’s interest to people named Knapp. On February 26,1973, the Brentins gave the Knapps a fulfillment deed. On July 16,1974, the Knapps gave a statutory warranty deed to people named Wilson, and on December 20, 1978, the Wilsons gave a statutory warranty deed to the Olsons, who are the present owners and Appellants herein. The 1970 contract said that lot 8 was being sold "with appurtenances”. The 1973 assignment and the 1973 fulfillment deed did not mention an easement or "appurtenance”. The 1974 and 1978 warranty deeds specifically described an easement over the northeast corner of lot 9 and the north 12 feet of lot 12.

Through the years, the various owners of lot 8 used the easement over lots 9 and 12 as a driveway. 5 Then, in 1991, the Trippels blocked the easement by building a fence.

*549 In 1992, the Olsons sued to quiet title. Shortly thereafter, each side moved for summary judgment. The Olsons contended the 1967 agreement created an easement appurtenant to lot 8 which they, the present owners of lot 8, were entitled to use. The Trippels contended the 1967 agreement created an easement in gross which had expired in February 1973, when the Brentins conveyed their last remaining interest in lot 8.

Each side relied on the recorded documents in the Olsons’ chain of title. The Trippels also relied on four affidavits. The first, signed by them, recounted their purchase of lots 9 and 12 and said that they had "wanted to extinguish the easement” because it bisected their newly combined lots. It then went on:

The Brentins, however, wished to retain the use of an access to the hack of their Lot 8 during their ownership of it. We agreed upon the northerly 12 feet of Lot 12 and northeast corner of Lot 9. We then had the 1967 instrument drawn up . . .[ 6 ] A second affidavit, signed by Aletta K. Brentin, related:
In executing the [1967] Easement Agreement, my [deceased] husband and I intended that we were to receive only a personal interest in the new easement along the north 12 feet of Lot 12 and the northeast corner of Lot 9 (the new easement across the Trippels’ northern boundary). We and the Trippels intended that the easement would last only as long as we owned lot 8[ 7 ]

It also said that the Brentins had "considered the easement extinguished” when they sold lot 8 to the Knapps, and that they had given the Knapps a statutory warranty fulfillment deed "without purporting to convey an easement”. 8

A third affidavit, signed by Diane Clary-Lewis, said that she and her then-husband were told by a realtor that the driveway "was not a legal easement in any way but that the Trippel’s [stc] were very willing to let us use their driveway as a courtesy”. 9 It also said the Clarys relayed that information to the Knapps when the Knapps purchased lot 8.

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Cite This Page — Counsel Stack

Bluebook (online)
893 P.2d 634, 77 Wash. App. 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olson-v-trippel-washctapp-1995.