
    [No. 48779-9-II.
    Division Two.
    May 2, 2017.]
    James V. Kave et al., Appellants, v. McIntosh Ridge Primary Road Association, Respondent.
    
    
      
      Kelly A. Delaat-Maher {oí Smith Ailing PS), for appellants.
    
      Mark L.B. Wheeler Jr. and John A. Kesler III (of Bean Gentry Wheeler & Peternell PLLCf Allen T. Miller (of Law Offices of Mien T. Miller PLLC)\ and Gabriella Wagner (of Wilson Smith Cochran Dickerson), for respondent.
   Maxa, A.C.J.

¶1 This 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.

¶2 In the 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(1), 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 In the unpublished portion of the opinion, we reject the Kaves’ remaining liability claims, but hold that McIntosh is not entitled to reasonable attorney fees under the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 Ridge properties.

¶3 Accordingly, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

FACTS

¶4 McIntosh 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 recreation easement.

Trail Easement

¶5 In 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.

¶6 A trail 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 legal description.

Community Recreation Easement

¶7 The 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.

¶8 Weyerhaeuser 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.

¶9 McIntosh 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.

Kaves’ Lawsuit Against McIntosh

¶10 In 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.

¶11 In 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.

McIntosh’s Counterclaims Against the Kaves

¶12 In 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.

¶13 McIntosh 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.

¶14 The 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 reconsideration.

¶15 The 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.

Verdict and Postjudgment Awards

¶16 The 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.

¶17 McIntosh 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.

¶18 Based on RCW 4.24.630(1), 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(1) 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.

¶19 The Kaves appeal the trial court’s judgment.

ANALYSIS

A. Quieting Title to the Trail Easement

¶20 The 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 Kaves.

1. Standard of Review

¶21 We 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).

¶22 McIntosh 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).

2. Analysis

¶23 A trial 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 EC&Rs.

¶24 But 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. Counsel replied:

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 trail, regardless of the easement’s legal description.

¶25 In MacMeekin v. Low Income Housing Institute, Inc., Division One of this court adhered to the traditional rule at common law that a trial court has no equitable authority to order relocation of an easement without the express consent of the owners of both the dominant and servient estates. 111 Wn. App. 188, 207, 45 P.3d 570 (2002). In Crisp v. VanLaeken, this court agreed with MacMeekin and held that the owner of the servient estate could not relocate an easement without consent of the dominant estate owner. 130 Wn. App. 320, 324-26, 122 P.3d 926 (2005). Both cases rejected the minority rule adopted by the Restatement (Third) of Property: Servitudes § 4.8(3) (Am. Law Inst. 2000) that would allow a servient estate owner to relocate an easement without the dominant estate owner’s consent. MacMeekin, 111 Wn. App. at 207; Crisp, 130 Wn. App. at 321.

¶26 Here, the trial court quieted title to the trail easement based on its existing location rather than based on the trail’s legal description. To the extent that the trail’s existing location was different from the legal description, this ruling constituted a relocation of the trail easement without the Kaves’ consent. Under MacMeekin and Crisp, the trial court had no authority to order such a relocation.

¶27 McIntosh argues that MacMeekin and Crisp are inapplicable because it did not request a relocation of the trail easement, only a confirmation that the easement was valid in its existing location. McIntosh focuses on the area map attached to the easement’s location, which referenced a 50-foot-wide trail easement. McIntosh claims that the easement’s legal description should be interpreted as requiring only that the easement be within this 50-foot corridor, not as limiting the easement to a specific, 10-foot-wide path. According to McIntosh, the trial court did not relocate the easement, but just confirmed that it did not have to be moved.

¶28 McIntosh’s argument might have merit if the area map provided the only description of the trail easement. However, the document entitled “Legal Description” unambiguously stated that the easement was 10 feet wide and then described in specific detail the exact location of the easement’s center line. The area map simply showed the “general location of the easement as a schematic representation.” CP at 1783. The legal description’s plain language is inconsistent with the argument that the easement could be located anywhere within a 50-foot corridor.

¶29 McIntosh also argues that a trial court has broad equitable authority to determine the location of an easement, citing Piotrowski v. Parks, 39 Wn. App. 37, 691 P.2d 591 (1984) and Wilhelm v. Beyersdorf, 100 Wn. App. 836, 999 P.2d 54 (2000). Neither case applies here.

¶30 In Piotrowski, the owners of adjoining properties orally agreed to establish a boundary line between the properties and erected a fence along that line. 39 Wn. App. at 38-39. The fence line turned out to be 13 feet east of the actual boundary line, and a subsequent owner sought to quiet title to the 13 feet between the fence and the actual boundary. Id. The court held that the oral agreement satisfied the criteria required to fix the common boundary and that the fence put the subsequent owner on notice of the agreed new boundary. Id. at 46. McIntosh claims that Piotrowski applies by analogy because as with the property owners in that case, the Kaves were on notice that a trail existed on their property in the existing location. But unlike in Piotrowski, the Kaves never entered into an agreement fixing the location of the trail that differed from the legal description.

¶31 In Wilhelm, the owner of landlocked property obtained an easement across adjoining property for access, but the easement as drafted did not adequately fix its location. 100 Wn. App. at 839. The appellate court held that the trial court had equitable authority to reform the easement instrument to reflect its actual use based on mutual mistake and a scrivener’s error because the easement description failed to express the parties’ clear intent. Id. at 843-45. McIntosh claims that Wilhelm establishes that if the existing location of the trail was inconsistent with the legal description, the trial court had equitable authority to fashion a remedy. But unlike in Wilhelm, the legal description here clearly and unambiguously described the location of the trail and there was no mutual mistake or scrivener’s error.

¶32 We hold that the trial court did not have authority to quiet title in McIntosh to an easement based on the existing location of the trail to the extent that the existing location differed from the easement’s legal description. The record is unclear how the trail’s existing location compared with the easement’s legal description. Therefore, we remand this claim for further proceedings consistent with this opinion.

B. Applicability of RCW 4.24.630 to Easements on the Raves’ Property

¶33 The Raves argue that the trial court erred in denying their motion for summary judgment on McIntosh’s counterclaim for RCW 4.24.630 liability and in awarding treble damages and reasonable attorney fees to McIntosh under RCW 4.24.630(1). They claim that RCW 4.24.630 cannot apply to actions that occurred on their own property. We decline to address this argument with regard to the trial court’s summary judgment order and the jury’s subsequent verdict because the Raves did not raise this argument on summary judgment or at trial.

¶34 But the Raves did assert this argument in opposition to posttrial motions on treble damages and attorney fees, and therefore we consider the argument in that context. We hold that RCW 4.24.630 does not apply to the Raves’ interference with easements on their own property, and therefore that the trial court erred in awarding treble damages and reasonable attorney fees to McIntosh under RCW 4.24.630(1).

1. Judgment for Damages

¶35 We generally do not consider arguments raised for the first time on appeal. See RAP 2.5(a); Karlberg v. Otten, 167 Wn. App. 522, 531, 280 P.3d 1123 (2012). Specific to summary judgment, RAP 9.12 provides that the “appellate court will consider only evidence and issues called to the attention of the trial court.” See, e.g., Vernon v. Aacres Allvest, LLC, 183 Wn. App. 422, 436, 333 P.3d 534 (2014) (declining to consider argument on appeal that was not made during summary judgment proceedings below), review denied, 182 Wn.2d 1006 (2015). The purpose of this rule is to ensure that we engage in the same inquiry as the trial court. Id.

¶36 Here, the Kaves did not raise the argument that RCW 4.24.630 was inapplicable because their alleged activities occurred only on their property when arguing their summary judgment motion to dismiss McIntosh’s RCW 4.24.630 claim. And they did not object on this basis when the trial court submitted the RCW 4.24.630 claim to the jury. The first time the Kaves raised this argument in their pleadings was in posttrial motions - opposing treble damages and attorney fees and moving for a new trial. Therefore, we decline to consider this argument with regard to the trial court’s denial of the Kaves’ summary judgment motion and the jury’s verdict. We affirm the portion of the judgment relating to McIntosh’s RCW 4.24.630 claims in the amount of $13,500.

2. Treble Damages and Attorney Fees

¶37 When opposing McIntosh’s motion for treble damages and reasonable attorney fees, the Kaves did assert the argument that RCW 4.24.630 was inapplicable because their alleged activities occurred only on their property. Therefore, we will consider the argument in that context.

¶38 RCW 4.24.630(1), referred to as the “waste statute,” provides:

Every person who goes onto the land of another and who removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, or wrongfully injures personal property or improvements to real estate on the land, is liable to the injured party for treble the amount of the damages caused by the removal, waste, or injury. ... In addition, the person is liable for reimbursing the injured party for the party’s reasonable costs, including but not limited to investigative costs and reasonable attorneys’ fees and other litigation-related costs.

(Emphasis added.) This plain language imposes liability only on a person who “goes onto the land of another.” RCW 4.24.630(1).

¶39 The issue here is the meaning of “land of another.” The Kaves argue that RCW 4.24.630 does not apply to servient estate owners’ interference with an easement located on their own property. McIntosh argues that because a dominant estate owner has a property interest in the easement, a servient estate owner like the Kaves can trespass on that easement and incur liability under RCW 4.24.630. We agree with the Kaves.

¶40 “An easement is a nonpossessory right to use another’s land in some way without compensation.” Maier v. Giske, 154 Wn. App. 6, 15, 223 P.3d 1265 (2010) (emphasis added). Although the dominant estate has a right to use the servient estate, the land remains the property of the servient estate. See Crisp, 130 Wn. App. at 323 (defining an “easement” as “ ‘a right, distinct from ownership, to use in some way the land of another, without compensation’ ” (internal quotation marks omitted) (quoting City of Olympia v. Palzer, 107 Wn.2d 225, 229, 728 P.2d 135 (1986))). Therefore, an easement cannot be considered the “land” of the dominant estate owner.

¶41 Here, McIntosh’s counterclaim against the Kaves under RCW 4.24.630 was premised only on the Kaves’ alleged interference with the trail easement and the community recreation easement. Both easements are on the Kaves’ property, and there was no allegation that any of the Kaves’ actions giving rise to their liability took place outside their property. Based on the plain language of RCW 4.24.630(1), the Kaves did not enter into the “land of another” even if they did interfere with the easements.

¶42 Colwell v. Etzell, 119 Wn. App. 432, 439, 81 P.3d 895 (2003), supports the finding that RCW 4.24.630 does not apply when a servient estate owner interferes with an easement on his or her property. In that case, the Colwells were the beneficiaries of a road easement on Etzell’s property. Id. at 435. The Colwells filed suit against Etzell under RCW 4.24.630 after he performed construction work on the road that allegedly interfered with the Colwells’ use of the road. Id. at 435-36. The trial court found that Etzell violated RCW 4.24.630 by intentionally interfering with the Colwells’ easement. Id. at 435, 437.

¶43 The appellate court reversed, holding that Etzell did not violate RCW 4.24.630. Id. at 435, 441-42. In quoting RCW 4.24.630(1), the court highlighted the phrase “who goes onto the land of another.” Id. at 437. The court then expressly rejected the trial court’s determination that RCW 4.24.630 liability turned not on entry upon the land of another, but on the invasion of a right in land. Id. at 438-39. Instead, the court stated, “The statute’s premise is that the defendant physically trespasses on the plaintiff’s land. There was no physical trespass in the present case.” Id. at 439. The court concluded that “RCW 4.24.630 is premised upon a wrongful invasion or physical trespass upon another’s property, a commission of intentional and unreasonable acts upon another’s property, and subsequent destruction of physical or personal property by the invader to another’s property.” Id. at 441 (emphasis added).

¶44 The court in Colwell addressed and distinguished Standing Rock Homeowners Ass’n v. Misich, 106 Wn. App. 231, 23 P.3d 520 (2001). In Standing Rock, the defendant - a dominant estate owner of a road easement - destroyed gates that had been placed on someone else’s property that interfered with use of the easement. Id. at 235-37. The court affirmed liability under RCW 4.24.630. Id. at 246-47. As the court in Colwell noted, in Standing Rock the defendant wrongfully invaded and trespassed on another’s property to destroy the gates. Colwell, 119 Wn. App. at 438-39.

¶45 We hold that RCW 4.24.630 does not apply to a servient estate owner’s interference with an easement on his or her own property. Therefore, we reverse the trial court’s award of treble damages and reasonable attorney fees to McIntosh under RCW 4.24.630.

CONCLUSION

¶46 We reverse the trial court’s grant of summary judgment to McIntosh quieting title to the trail easement to the extent that the actual trail does not conform to its legal description. We affirm the jury’s damages verdict on McIntosh’s RCW 4.24.630 claims, but reverse the trial court’s award of treble damages and reasonable attorney fees under RCW 4.24.630. We address the remaining issues in the unpublished part of this opinion. Accordingly, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

¶47 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

Worswick and Sutton, JJ., concur.

Reconsideration denied July 17, 2017. 
      
       Both MacMeekin and Crisp involved the servient estate owner’s attempt to relocate an easement. Here, McIntosh as the dominant estate owner was requesting relocation. But this distinction is immaterial. There is no indication in either case that the dominant estate owner has the right to relocate an easement without the servient estate owner’s consent. Even the Restatement relocation rule applies only to the servient estate owner. Restatement § 4.8(3).
     
      
       McIntosh argues that because Standing Rock held that a dominant estate owner can be liable under RCW 4.24.630 for damaging property within an easement, it “logically follows’’ that a servient estate owner also can be liable under RCW 4.24.630 for damaging an easement. But this argument ignores that a dominant estate owner necessarily must go onto the land of another to damage an easement, while a servient estate owner need not.
     