JAMES V. KAVE and HOLLY M. KAVE, individually and the marital community thereof, Appellants,
MCINTOSH RIDGE PRIMARY ROAD ASSOCIATION, a Washington State Corporation, Respondent.
case involves the claims of McIntosh Ridge Primary Road
Association (McIntosh) against James and Holly Kave for
interfering with a trail easement and a community recreation
easement on the Kaves' property that benefitted McIntosh.
The Kaves appeal certain summary judgment rulings, the entry
of a judgment against them following a jury trial, and the
trial court's award of treble damages and reasonable
attorney fees against them.
published portion of this opinion, we hold that the trial
court erred in (1) quieting title to an easement covering the
trail's existing location without regard to the
easement's legal description; and (2) awarding McIntosh
treble damages and attorney fees for interference with the
easements under RCW 4.24.630, which imposes liability when a
person "goes onto the land of another" and causes
waste or damage, because the statute does not apply to the
Kaves' actions taken on their own property. In the
unpublished portion of the opinion we reject the Kaves'
remaining liability claims, but hold that McIntosh is not
entitled to reasonable attorney fees under the Easements,
Covenants and Restrictions (EC&Rs) applicable to McIntosh
we affirm in part, reverse in part, and remand for
proceedings consistent with this opinion.
Ridge is a community near Tenino that was created by the
Weyerhaeuser Real Estate Development Company. In 2000,
Weyerhaeuser recorded EC&Rs that encumbered all McIntosh
Ridge properties. In 2004, the Kaves purchased two adjacent
lots within the McIntosh Ridge community - lots 12 and 18A.
At the time of the Kaves' purchase there were two
recorded easements that burdened their property for the
benefit of McIntosh - a trail easement and a community
2002, Weyerhaeuser filed an amendment to the EC&Rs that
created the trail easement. The amendment attached a document
entitled "Legal Description." Clerk's Papers
(CP) at 1782. The document identified "[a] 10 foot wide
easement . . . lying 5 feet on each side of the centerline of
the trail as built and located on the ground and generally
described below, " and provided a detailed legal
description of the easement's location. CP at 1782. The
document then stated that the easement was generally shown on
an attached area map, which depicted the easement's
location on lots 12 and 18A. The area map referred to the
easement as a "50' wide trail easement, " and
stated that the purpose of the drawing was "to show the
general location of the easement as a schematic
representation." CP at 1783.
already was in place on lots 12 and 18A when the Kaves
purchased those lots in 2004. But a 2012 survey commissioned
by McIntosh showed that the existing location of a portion of
the trail on the Kaves' property did not conform to its
community recreation easement was a circular easement with a
100 foot radius. The circle included a triangular area of
land sitting between three roads. Most of the community
recreation easement burdened the Kaves' lot 12.
had placed numerous amenities in and around the community
recreation easement before the Kaves purchased lot 12. These
amenities included a picnic shelter, log benches, hitching
posts, picnic tables, a log perimeter, a fire pit, a shed,
and a flag pole.
alleged that before September 2010, the Kaves demolished the
log benches and log perimeter, removed picnic tables, knocked
over the hitching posts, and damaged the picnic shelter. In
October 2010, McIntosh had the community recreation easement
surveyed. The survey showed that the picnic shelter was
partially outside of the easement and on the Kaves'
property. Shortly after the survey was completed, the Kaves
removed the picnic shelter. And McIntosh alleged that the
Kaves knocked over the flag pole and destroyed the fire pit,
which were entirely within the community recreation easement.
Lawsuit Against McIntosh
2012, McIntosh performed some work on the triangular piece of
land within the community recreation easement - pulling up
tree stumps, clearing vegetation, grading and installing a
ditch and culvert. The Kaves believed that there were
wetlands in that area. An environmental consultant's
report concluded that the recreational easement contained a
wetland area and that McIntosh's activities had
impermissibly disturbed this wetland.
August 2013, the Kaves filed suit against McIntosh, alleging
that McIntosh's activities had harmed wetlands within the
easement and had violated federal and state statutes and
various EC&R provisions. The Kaves sought an injunction
requiring McIntosh to restore the wetland and also requested
damages for timber trespass under RCW 64.12.030 and waste
under RCW 4.24.630. The trial court dismissed all of the
Kaves' claims before trial.
Counterclaims Against the Kaves
response to the Kaves' complaint, McIntosh in September
2013 asserted several counterclaims. McIntosh sought an order
quieting title to an implied easement over the Kaves'
property for the areas McIntosh had used and improved outside
of the express easements. In addition, McIntosh sought relief
under RCW 4.24.630 for alleged waste and damage to the trail
and community recreation easements. McIntosh also asserted
causes of action for conversion, breach of the EC&Rs,
nuisance, and unjust enrichment.
moved for summary judgment to quiet title to the trail
easement. The trial court granted the motion and stated that
McIntosh "may use the trail in its current location and
should take steps to document the current location of the
trail to the extent the trail has shifted from its original
and/or the legally described path." CP at 1916.
Kaves filed a motion for reconsideration of the trial
court's quiet title ruling. They supported their motion
with the 2012 survey map showing that a portion of the trail
easement on their property did not conform to its legal
description. And in response, McIntosh submitted portions of
a deposition indicating that the trail may have shifted over
the years. The trial court denied the Kaves' motion for
Kaves also moved for summary judgment seeking dismissal of
McIntosh's counterclaims, including the RCW 4.24.630
claim. But the Kaves did not argue that RCW 4.24.630 was
inapplicable to them because their alleged interference with
the easements occurred only on their own property. The trial
court denied the Kaves' motion, stating that there were
material issues of fact on the counterclaims.
and Post-Judgment Awards
case proceeded to trial and the jury rendered a verdict
through a special verdict form. On McIntosh's RCW
4.24.630 claim, the jury found that the Kaves (1) had
wrongfully injured personal property or improvements to land
where McIntosh had an easement and caused damages of $12,
500, and (2) had caused waste or injury to land where
McIntosh had an easement and caused damages of $1, 000.
filed a motion to treble these damages and for an award of
reasonable attorney fees, both under RCW 4.24.630. The Kaves
opposed the motion, arguing for the first time that RCW
4.24.630 was inapplicable because they did not go onto the
land of another when interfering with the easements.
on RCW 4.24.630, the trial court trebled the $13, 500 in
damages related to damage to personal property in the
easements and injury and waste to the easements. Regarding
attorney fees, the court ruled that McIntosh was entitled to
attorney fees under RCW 4.24.630 and made an express factual
finding that McIntosh's multiple claims were largely
intertwined. Therefore, the court awarded McIntosh its
attorney fees incurred in pursuing all its counterclaims,
totaling $237, 134.45.
Kaves appeal the trial court's judgment.
Quieting Title to the Trail Easement
Kaves argue that the trial court did not have authority to
quiet title to an easement at the trail's existing
location. McIntosh argues that the trial court did not
relocate the easement, but simply confirmed that the trail
could be left in its existing location. We agree with the
Standard of Review
review a trial court's order granting or denying summary
judgment de novo. Lyons v. U.S. Bank Nat'l
Ass'n, 181 Wn.2d 775, 783, 336 P.3d 1142 (2014). We
view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in that
party's favor. Lakey v. Puget Sound Energy,
Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013). Summary
judgment is appropriate where there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. CR 56(c).
argues that we should review equitable decisions made in the
context of summary judgment for abuse of discretion. The
general standard of review for a trial court's exercise
of equitable authority is abuse of discretion. Emerick v.
Cardiac Study Ctr., Inc., 189 Wn.App. 711, 730, 357 P.3d
696 (2015), review denied, 185 Wn.2d 1004 (2016).
But the issue here is whether the trial court had
authority to exercise its equitable powers to quiet
title to the trail in its current location, not whether it
properly exercised any authority it had. Whether a trial
court has the authority to order equitable relief is a
question of law that we review de novo. Niemann v. Vaughn
Cmty. Church, 154 Wn.2d 365, 374, 113 P.3d 463 (2005).
court has authority to quiet title in the dominant owner to
an easement based on the instrument creating the easement.
See Kirk v. Tomulty, 66 Wn.App. 231, 240-41, 831
P.2d 792 (1992) (affirming the trial court's decree
quieting title to an easement based on a metes and bounds
description). Therefore, the trial court had authority here
to quiet title in McIntosh to the easement described in the
legal description attached to the second amendment to the
McIntosh did not request that the trial court quiet title to
the legally described easement. During oral argument on
McIntosh's summary judgment motion, the trial court asked
McIntosh's counsel, "What exactly are you asking for
with respect to the trail easements?" CP at 2108.
That wherever the trails are right now, if
that's not where the legal easements are, that we do some
sort of adjustment to say those are the trails, and we'll
do a boundary line adjustment.
CP at 2108 (emphasis added). Counsel then confirmed that
McIntosh was requesting to quiet title to the existing
location. In its summary judgment order, the court granted
what McIntosh requested: quiet title to the existing location
of the ...