ZONNEBLOEM, LLC, a Washington limited liability company, MANDL HOLDINGS, LLC, a Washington limited liability company, Respondents/Cross-Appellants,
BLUE BAY HOLDINGS, LLC, a Washington limited liability company, Appellant/Cross-Respondent,
Bay Holdings, LLC appeals the trial court's summary
judgment order dismissing its damages claim against
Zonnebloem, LLC and Mandl Holdings, LLC for interference with
a prescriptive easement that Blue Bay claimed over
Zonnebloem's and Mandl's properties. Blue Bay alleged
that its prescriptive easement followed the historical route
of an electric power line that went from a power pole on the
edge of Zonnebloem's parking lot property, across the
Mandl building, and to Blue Bay's building.
Blue Bay demolished an existing structure and replaced it
with a new building, it asked Puget Sound Energy (PSE) to
reconnect the power line to its new building. But PSE
required a written easement from Zonnebloem and Mandl before
it would reconnect the line, even if Blue Bay had a
prescriptive easement along the power line's historical
route. Zonnebloem and Mandl could not agree with PSE on the
easement's terms, and Blue Bay was required to obtain
power through a different route at significant expense. Blue
Bay asserted that Zonnebloem and Mandl's refusal to grant
an express easement to PSE constituted a wrongful
interference with Blue Bay's use of its claimed
summary judgment, the trial court dismissed Blue Bay's
claim for damages against Zonnebloem and Mandl for wrongful
interference with the claimed prescriptive easement. After a
bench trial, the court ruled that Blue Bay had established a
published portion of this opinion, we hold that although an
owner of property subject to an easement has an obligation to
not unreasonably interfere with the use of an easement, as a
matter of law Zonnebloem and Mandl's refusal to grant an
express easement to PSE for an area broader than the
prescriptive easement did not constitute unreasonable
interference. Therefore, we affirm the trial court's
dismissal on summary judgment of Blue Bay's claim for
wrongful interference with its prescriptive easement.
unpublished portion of this opinion, we address and reject
Zonnebloem and Mandl's claim that the trial court erred
in ruling that Blue Bay had a prescriptive easement over
their properties and Blue Bay's claim that the trial
court erred in ruling that Mandl had acquired a portion of
Blue Bay's property by adverse possession. Accordingly,
we affirm the trial court on all issues on appeal.
Access to Blue Bay's Property
Bay and Mandl own adjoining commercial buildings on Front
Street in Poulsbo, and Zonnebloem owns a parking lot located
behind those buildings. Historically, a line from a power
pole on Zonnebloem's parking lot provided electric power
to both the Mandl building and the Blue Bay building. The
line connected to the Mandl building before running down the
side of that building and connecting to the Blue Bay
building. When Blue Bay demolished the existing building on
its property, it disconnected the power line.
Bay subsequently requested that PSE reconnect the power line
to its new building. But PSE required a written easement for
an area two feet on either side of the power line as it ran
from the power pole on the Zonnebloem parking lot to the side
of Blue Bay's building. Zonnebloem and Mandl negotiated
with PSE, but PSE would not agree to Zonnebloem and
Mandl's request to include a termination clause in the
easement. Therefore, no easement was executed, PSE would not
reconnect the power line along the historical route, and Blue
Bay was forced to install a power connection along a
different route at a cost of over $50, 000.
October 2013, Zonnebloem and Mandl filed a complaint against
Blue Bay regarding certain property disputes. Blue Bay filed
a counterclaim, alleging that it had a prescriptive easement
for the power line from the power pole on the Zonnebloem
property to the Blue Bay building. Blue Bay also asserted a
damages claim based on the allegation that Zonnebloem and
Mandl's refusal to grant an express easement with PSE
unreasonably interfered with Blue Bay's claimed
and Mandl filed a motion for summary judgment on Blue
Bay's damages claim. The trial court granted summary
judgment and dismissed Blue Bay's damages claim for
interference with the claimed prescriptive easement.
Bay appeals the trial court's summary judgment dismissal
of its damages claim.
Summary Judgment Standard
review summary judgment orders de novo. Keck v.
Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). On
summary judgment, we construe all evidence and reasonable
inferences in favor of the nonmoving party. Id.
Summary judgment is appropriate when the record shows
"no genuine issue as to any material fact" and
"the moving party is entitled to a judgment as a matter
of law." CR 56(c); see Keck, 184 Wn.2d at 370.
A fact is material if it affects the case's outcome.
Keck, 184 Wn.2d at 370 n.8. A genuine issue of
material fact exists if the evidence would be sufficient for
a reasonable jury to find in favor of the nonmoving party.
Id. at 370. "If reasonable minds can reach only
one conclusion on an issue of fact, that issue may be
determined on summary judgment." Sutton v. Tacoma
Sch. Dist. No. 10, 180 Wn.App. 859, 865, 324 P.3d 763
summary judgment, the moving party has the initial burden to
show there is no genuine issue of material fact. Lee v.
Metro Parks Tacoma, 183 Wn.App. 961, 964, 335 P.3d 1014
(2014). A moving defendant meets this burden by showing that
there is an absence of evidence to support the plaintiffs
case. Id. Once the moving party has made such a
showing, the burden shifts to the nonmoving party to set
forth specific facts that rebut the moving party's
contentions and show a genuine issue of material fact.
See Eicon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d
157, 169, 273 P.3d 965 (2012).
Claim for Interference with a Prescriptive Easement
Bay argues that the trial court erred in dismissing its
damages claim for wrongful interference with its claimed
prescriptive easement, which it argues occurred when
Zonnebloem and Mandl refused to grant a written easement to
easement is a nonpossessory right to use the land of another.
Maier v. Giske, 154 Wn.App. 6, 15, 223 P.3d 1265
(2010). The person who benefits from an easement, known as
the easement holder or dominant estate owner, has a property
interest in the land subject to the easement, known as the
servient estate. M.K.K.I., Inc. v. Krueger, 135
Wn.App. 647, 654-55, 145 P.3d 411 (2006). The easement
represents a burden on the servient estate. Id. at
general, the owner of a servient estate may use his or her
property in any reasonable manner that does not interfere
with the easement holder's use of the easement. See
Littlefair v. Schulze, 169 Wn.App. 659, 665, 278 P.3d
218 (2012). In addition, a servient estate owner may engage
in reasonable conduct that affects access to the easement as
long as that conduct does not unreasonably interfere with the
easement holder's use. See Nw. Props. Brokers
Network, Inc. v. Early Dawn Estates Homeowner's' Ass
'n, 173 Wn.App. 778, 792-93, 295 P.3d 314 (2013)
(addressing the installation of a gate that restricted access
to an easement). The reasonableness of a restraint depends on
a balancing of the necessity of the restraint for the
protection of the servient estate against the degree of
interference with the easement holder's use. Id.
Restatement (Third) of Property: Servitudes states the
same rule: "[T]he holder of the servient estate is
entitled to make any use of the servient estate that does not
unreasonably interfere with enjoyment of the servitude."
Restatement (Third) of Property: Servitudes § 4.9 (Am.
Law Inst. 2000). Comment c to that section further states,
"The owner of the servient estate is not entitled to
interfere unreasonably with legitimate enjoyment of the
servitude. . . . Actions that make it more difficult to use
an easement... are prohibited by the rule stated in this
section, unless justified by the needs of the servient
estate." Restatement (Third) of Property: Servitudes
§ 4.9 cmt. c.
easement holder may obtain any appropriate remedy for
unreasonable interference with an easement. See Bauman v.
Turpen, 139 Wn.App. 78, 92, 160 P.3d 1050 (2007) (citing
Restatement (Third) of Property: Servitudes § 8.3). The
Restatement states that one appropriate remedy is a claim for
compensatory damages. RESTATEMENT (THIRD) OF PROPERTY:
Servitudes § 8.3. This statement is consistent with the
general rule that the holder of a nonpossessory interest in
property can sue for damage to that interest. Affiliated
FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wn.2d
442, 458, 243 P.3d 521 (2010).
these authorities, a servient estate owner is liable for
damages if he or she unreasonably interferes with the
easement holder's use of the easement. Further, in this
context there is no legal difference between the rights of an
express easement holder and the rights of a prescriptive
easement holder. Therefore, we apply the same standard of
liability to interference with a prescriptive easement.
Scope of Servient Estate Owner's Obligation
Bay argues that the evidence presented at summary judgment
showed that Zonnebloem and Mandl interfered with its claimed
prescriptive easement by not granting an express easement
over the Zonnebloem and Mandl properties to PSE. Blue Bay
asserts that the reasonableness of Zonnebloem and Mandl's
refusal to grant PSE an easement must be determined as a
question of fact rather than on summary judgment.
Bay's argument is based on the assumption that a servient
estate owner has a legal obligation in certain circumstances
to take affirmative action - in this case, to grant an
express easement to PSE - to facilitate the easement
holder's use of the easement. No Washington case has
addressed this issue.
Bay relies on a California case, Dolnikov v.
Ekizian, in which the court held that a servient estate
owner could be liable for unreasonable interference with an
easement for failing to take an affirmative action that was
necessary for the easement holder to use the easement. 222
Cal.App.4th 419, 422, 165 Cal.Rptr.3d 658 (2013). In that
case, the easement holder had an express easement for a
driveway over the servient estate that had fallen into
disrepair. Id. at 423-24. The easement holder was
constructing two houses on the parcel serviced by the
easement and wanted to repair the easement driveway.
Id. In order to obtain construction permits for the
driveway, the easement holder needed the servient estate
owner to sign a community driveway covenant. Id. at
424-25. The servient estate owner repeatedly refused,
resulting in a revocation of the driveway permits.
Id. A jury found the servient estate owner liable
for interfering with the easement, and the trial court
awarded damages to the easement holder and required the
servient estate owner to sign any necessary forms.
Id. at 426-27.
appeal, the court held that a servient estate owner must not
unreasonably interfere with the use of an easement, relying
on the Restatement (Third) of Property: Servitudes § 4.9
and comment c. Dolnikov, 222 Cal.App.4th at 429-30.
The court stated that whether the servient estate owner's
particular conduct constitutes an unreasonable interference
with the easement is a question of fact. Id. at 430.
But the court concluded that the servient estate owner's
refusal to sign the covenant was unreasonable and could
constitute an unreasonable interference with the easement
holder's use and enjoyment of the easement. Id.
acknowledge that, as in Dolnikov, there may be
circumstances in which a servient estate owner can be liable
for wrongful interference with an easement for failing to
take a reasonable affirmative action to facilitate the
easement holder's use of the easement. But the existence
of such a rule does not resolve this case. The question here
is whether Zonnebloem and Mandl's failure to take a
specific affirmative action - granting an express easement to
PSE -creates a genuine issue of material fact on wrongful
interference with Blue Bay's prescriptive easement.
factors are significant here. First, by granting an express
easement to PSE, Zonnebloem and Mandl would relinquish a
valuable property right - part of the bundle of rights
associated with fee ownership of property - to a third party.
See Kiely v. Graves, 173 Wn.2d 926, 936, 271 P.3d
226 (2012). The facts here are significantly different than
in Dolnikov, where the servient estate owner was
required to undertake only a ministerial act to allow the
easement holder to use the easement for a community driveway.
Blue Bay provides no authority for the proposition that a
servient estate owner can be subject to liability for failing
to give up a property right to facilitate an easement
holder's use of the easement.
the easement that PSE requested and that Blue Bay demanded be
granted was for an area broader than the area of use that
created the prescriptive easement. Again, the facts here are
significantly different than in Dolnikov, where the
servient estate owner's requested act did not change the
parameters of the easement. Generally, a trial court has no
authority to change the location of an easement at the
request of an easement holder. See Kave v. Mclntosh Ridge
Primary Road Ass 'n, 198 Wn.App. 812, 820-21, 394
P.3d 446 (2017). Blue Bay provides no authority for the
proposition that a servient estate owner can be subject to
liability for failing to grant an express easement that is
broader - covering a different location - than the existing
prescriptive easement in order to facilitate the easement
holder's use of the prescriptive easement.
on these two factors, we hold as a matter of law that (1) it
was not unreasonable for Zonnebloem and Mandl to refuse to
grant an express easement to PSE even though that refusal
interfered with Blue Bay's use of its prescriptive
easement, and (2) their refusal did not constitute an
unlawful interference with Blue Bay's claimed
prescriptive easement. Accordingly, we hold that the trial
court did not err in granting summary judgment in favor of
Zonnebloem and Mandl on Blue Bay's damages claim.
affirm the trial court's dismissal on summary judgment of
Blue Bay's damages claim for interference with its
claimed prescriptive easement. We consider the remaining
issues in the unpublished portion of ...