Easements and Boundary Disputes in Washington: Scope Is the Real Fight

What kinds of easements does Washington recognize?

Express easements come from a written grant or reservation, and Washington requires the writing: every contract creating or evidencing an encumbrance upon real estate must be by deed. RCW 64.04.010.

Easements implied by prior use arise when land in common ownership is divided and an existing use continues. The claimant must prove unity of title in a common grantor, severance of that title, a prior apparent and continuous quasi-easement benefiting one part of the estate at the expense of another, and that the easement is reasonably necessary for proper enjoyment of the dominant estate. Unity of title and severance are absolute requirements, and no amount of necessity substitutes for them.

Easements by necessity come from the policy against leaving land landlocked and useless. A claimant need not show prior use but must prove strict necessity rather than reasonable necessity, which is a materially higher bar. Merely poor access does not qualify.

Prescriptive easements are earned by use. The claimant must use another's land for ten years and show the use was open and notorious, continuous or uninterrupted, over a uniform route, adverse to the owner, and with the owner's knowledge at a time when the owner could assert his rights. Implied and prescriptive easements are both disfavored, because each takes rights without a transaction, and the claimant carries the burden. I covered that route and how permission defeats it under adverse possession and prescriptive easements.

What does my easement actually let me do?

Scope is where these cases are won. An express easement is construed like a contract, and the object is the intent of the original parties, taken from the deed as a whole. If the plain language is unambiguous, extrinsic evidence will not be considered. 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 by the parties' prior conduct or admissions.

A utility case shows how narrowly that reads. The Court of Appeals held that the grant of a right of way for "road purposes" does not authorize the owner of the dominant estate to install utility lines under the road, finding no basis for defining road purposes beyond a way established for travel of persons, animals and vehicles. Two words in a 1955 contract decided whether a parcel could get power and water across its own access road.

The doctrine cuts both ways. Because the law assumes the parties contemplated natural development of the benefited property, subdividing that parcel has been held not to overburden an easement granted to serve it. Whether a change is natural development or overburdening is a fact question about intent, not a rule you can look up. Prescriptive easements are narrower still, because the extent of the right is fixed and determined by the user in which it originated. Ten years of driving a pickup across a field earns the right to drive a pickup across a field, not to widen the track for logging trucks.

Who has to maintain a shared access road?

The default surprises most neighbors. The burden of maintaining an easement lies with the holder of that easement rather than the owner of the servient property. The owner whose land is crossed ordinarily owes nothing toward grading, graveling, plowing, or repair.

That default yields to a written agreement, which is why parcels sharing one road should have a recorded maintenance agreement allocating cost and setting a decision rule. Where no agreement exists and four owners share a deteriorating half-mile of gravel, the law supplies a rule about who owes a duty and almost nothing about how to divide a bill. That gap is why these disputes last years.

What does a survey settle, and what does it not?

A survey is a licensed professional's opinion locating a written legal description on the ground, and only a land surveyor may sign, stamp, or seal a map or description filed as a public record. RCW 58.09.030. It is usually the most valuable document in a boundary dispute. It is not a judgment, and it does not move a line.

Two competent surveyors can reach different conclusions from the same deeds, because the deeds contain conflicts that rules of construction have to resolve. Where a description's courses and distances conflict with natural objects, the natural objects control, on the reasoning that errors in measurement are likelier than errors about an identifiable creek or rock. Artificial monuments such as streets and railways likewise control over measured courses and distances. So a survey tells you where a surveyor believes the line is, and if the neighbor's surveyor disagrees, the line is not settled until the neighbors agree in writing or a court decides it.

What happens when a fence or garage crosses the line?

Being right and getting a remedy are different questions, and here the gap is widest. Washington courts have held that an encroachment can render title unmarketable even where it measured only a few inches. A two-foot garage encroachment is a title problem that surfaces at the worst moment, which is when the owner tries to sell or refinance.

Ordinarily a mandatory injunction will issue to compel removal. But a court may withhold it as oppressive, leaving damages as the remedy, where the encroacher did not simply take a calculated risk or act in bad faith, negligently, willfully or indifferently in locating the structure; the damage to the landowner was slight and the benefit of removal equally small; there was ample remaining room for a suitable structure and no real limitation on future use; it is impractical to move the structure as built; and there is an enormous disparity in resulting hardships.

The first factor does most of the work, and it is about the encroacher's state of mind when the structure went up. The benefit of balancing the equities is reserved for the innocent defendant who proceeds without knowledge or warning that his structure encroaches upon another's property or property rights. A letter putting a neighbor on notice before the concrete is poured changes the landscape permanently, and a neighbor who keeps building after notice has given up the defense.

What can I do about the neighbor's tree?

Overhanging branches that interfere with your use of the property can be a nuisance. Washington defines an actionable nuisance to include an obstruction to the free use of property that essentially interferes with the comfortable enjoyment of life and property. RCW 7.48.010. An owner injuriously affected may sue and, on judgment, obtain a warrant directing the sheriff to abate the nuisance, or an injunction where abatement would be inadequate. RCW 7.48.020. The older case law recognizes a landowner's right to cut offending branches encroaching over the line.

Now the part that generates lawsuits. Whoever cuts down, girdles, or otherwise injures or carries off any tree, timber, or shrub on the land of another without lawful authority is liable, and judgment for the plaintiff shall be for treble the amount of damages claimed or assessed. RCW 64.12.030. Mature trees are expensive, and trebled they become very expensive. A separate statute imposes treble damages plus investigative costs and reasonable attorney fees for wrongfully causing waste or injury to another's land, though it does not apply where liability is provided under the timber trespass statute. RCW 4.24.630.

The mitigating provision is narrower than defendants hope. If the trespass was casual or involuntary, or the defendant had probable cause to believe the land was his own, judgment shall be given only for single damages. RCW 64.12.040. Whether a contractor who cut to a line someone pointed at had probable cause is exactly what gets litigated. The distance between lawful trimming and a trebled judgment is a few feet and one question about who owns the trunk.

Where this goes wrong

Landlocked parcels sold without recorded access. A buyer purchases a back parcel relying on the road everyone has always used, and no recorded easement serves it. What remains is an implied easement or one by necessity, both disfavored and expensive. The related trap is a grantor purporting to grant more than he still owns. In Castanza the seller had already conveyed the servient parcel, and the court held that, being divested of ownership of the servient estate, the seller could not broaden the easement. A grant from someone who no longer owns the land conveys nothing.

Easements described by a feature that no longer exists. An easement over "the existing bulldozed road," or running "to the old barn," works until the road is regraded or the barn burns. Decades later the parties argue from aerial photographs. A description tied to a recorded survey survives; one tied to an object does not.

Assuming the title report settles it. An easement shown as an exception tells you a document exists. It does not tell you its width, route, permitted uses, or who maintains it, and the policy does not insure that you can use it as you intend. That is a separate read, which is why I wrote about how to read a preliminary title commitment.

Letting it escalate past the point where either side can afford to be right. Two neighbors litigating over a strip worth a few thousand dollars can each spend many times that, and fees are recoverable in some of these actions and not others.

What a lawyer does here that you cannot do yourself

The rules are findable. The difficulty is that nearly every question here resolves into a fact question about intent, answered from documents written by people who are long gone. That means reading the entire chain of title rather than the current deed, because the easement was usually created two or three owners back and its scope is fixed by what those parties meant. It means working with a surveyor to translate an old description into a line on the ground, and knowing which conflicts the rules of construction resolve and which they do not. It means evaluating encroachment claims against the Arnold factors honestly, including what your own side knew and when. And it means bringing or defending the actions that fix the problem, which are quiet title and ejectment under chapter 7.28 RCW, because a recorded agreement or a judgment is what makes a boundary marketable. RCW 7.28.010.

That is the work I do. I am an independent attorney in downtown Spokane, and real estate is the largest part of my practice: easement and access disputes, boundary and encroachment matters, shared road disagreements, timber trespass claims, and quiet title and ejectment actions, in superior courts across Washington, most often in Spokane, Klickitat, Kittitas, Benton, Franklin and Yakima counties. Easements and boundary agreements here are recorded with the Spokane County Auditor.

If there is a gate, a stake, or a stump involved

An early read on the documents usually narrows one of these disputes and sometimes ends it. I offer a free initial consultation by appointment at my downtown Spokane office.

Disclaimer

This article is general information about Washington law, not legal advice, and reading it does not create an attorney-client relationship. Law changes, and how it applies depends on facts specific to your situation. If you have a question about your own circumstances, speak with a lawyer.