Appeal from Superior Court of Island County. Docket No: 94-2-00559-1. Date filed: 11/16/95. Judge signing: Hon. Joan McPherson.
Authored by Walter E. Webster. Concurring: Ann L. Ellington, Ronald E. Cox
The opinion of the court was delivered by: Webster
WEBSTER, J. -- A grantor conveys an easement through a deed that evidences an intent to burden a particular piece of property. If the easement benefits another piece of property, it is appurtenant; if not, it is in gross (that is, personal to the grantor). When the grantor does not declare whether the easement is appurtenant or in gross, the law presumes it to be appurtenant to the land benefited. Still, courts consider the language used, the purpose of the easement, and other circumstances, before deciding whether a particular easement benefits land or is in gross.
In this case, the Summers decided to subdivide twelve acres of land that they owned in Island County. As part of this process, they recorded a Declaration of Covenants, Conditions, Easements, and Restrictions. In that declaration, they created an in gross easement across two of their four proposed lots leading to an adjacent parcel they did not own. Two months later, they revised their short plat application. That revision changed the easement to one for "road purposes . . . for benefit of one single family residence located on the property lying adjacent to and immediately West . . . of the main tract." Given the language used in the revision, the easement's purpose, its perpetual duration, and its limitation to a single family residence, the Summers intended to create an appurtenant easement for the benefit of the property to the west. Furthermore, the short plat revision sufficiently identified that property, and the defect in the revision (the grantors' signatures were not acknowledged) was cured by statute. Consequently, the trial court correctly granted summary judgment in favor of the Adams, owners of the property to the west, and we affirm.
The Summers owned twenty two acres in Island County and decided to short plat twelve. After dividing those twelve acres into four lots, they recorded a "Declaration of Covenants, Conditions, Easements and Restrictions." They created twelve easements. Some benefited the four lots. For example, easements A and B led west from Mutiny Bay Road into the middle of the four lots (see map on next page). Another (easement C) benefited the ten acres -- known as Parcel A -- that the Summers also owned. And one, that came later to be known as easement L, extended west across Lot 2 to property that the Summers did not own. This easement, together with easements A & B, received special treatment in the Declarations. They were in gross, and the Summers reserved a right to make them appurtenant to any property they might choose.