FILED 

July 23, 2013 

In the Office of the Clerk of Court 

W A State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

MIKE WALCH and MARCIA WALCH, ) 


Husband and wife, ) 


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Appellants, ) 


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v. ) f 


1 KERRY A. CLARK and PATRICIA L. ) 

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I CLARK, husband and wife; W.L. CLARK ) 

F AMIL Y, LLC, a Washington Limited ) 

Liability Company; ROBERT C. ) 

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FOLKMAN and PATRICIA W. ) 

FOLKMAN, husband and wife, 

) 

Respondents. ) 

No. 30129-0-111 

UNPUBLISHED OPINION 

KORSMO, C. J. - This is an action to attempt to obtain an easement by necessity 

across commercial property for the benefit of other commercial property owners. The 

trial court dismissed the common law theories ofrelief at summary judgment and then 

rejected the statutory theory after bench triaL We affirm the trial court's rulings 

concerning the easement and partially affirm the attorney fees award. We remand for the 

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court to segregate its fee award and consider respondents' CR 11 argument. Whether 

\ respondents are entitled to attorney fees on appeal will be determined by the outcome of 

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 the remand. 


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No. 30129-0-111 

Walch v. Clark 

respondents are entitled to attorney fees on appeal will be determined by the outcome of 

the remand. 

FACTS 

Mike and Marcia Walch own Rainier Skyline Excavators, Inc. (RSE), a company 

that designs and builds portable hydraulic track drive skyline excavators. In 2000, the 

Walches became interested in buying some property in Cle Elum, Washington. They 

wanted to use the property, which included a pond known as the DaIle Pond, to 

demonstrate, display, and sell RSE's machinery as well as to manufacture excavators. 

Many components used to assemble the excavators must be transported on extra-long 

lowboy trailers, called superloads. These superloads can be up to 165 feet in length and 

can carry several hundred thousand pounds. 

The Walches purchased the property in May 2004. The real estate contract 

identifies the Walches' access to the property by way of an existing easement over the 

property located to the east of the Walches' property, then continuing east over and 

across the Burlington Northern Santa Fe (BNSF) railroad corridor, and then proceeding 

north over and across the BNSF railroad crossing to Owens Road, "so long as the railroad 

shall allow." Ex 1. At that point, Owens Road becomes a public right-of- way owned by 

the city ofCle Elum (City). 

The City has a private agreement with the Owens family to use Owens Road south 

of the BNSF railroad crossing to access the City's sewage treatment plant. A trucking 

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No. 30129-0-111 

Walch v. Clark 

company and several private residents all use the BNSF crossing on Owens Road for 

access to their respective properties, but they do not have permits from BNSF to cross the 

railroad right-of-way. 

The respondents in this action, the Clarks and the Folkmans, own property located 

to the west of the Walches' property, in the Swiftwater Business Park. All the property 

owned by the parties in this action is presently zoned by the City as being within its 

Industrial District. I 

On August 9,2010, the Walches filed suit for a 30-foot easement across the 

respondents' properties. The Walches alleged that a road existed at this location, and that 

they used this road to access the property when they were deciding whether to purchase.2 

The Walches claimed an easement implied from prior use and/or prescription or, 

alternatively, an easement by necessity pursuant to RCW 8.24.010. 

The trial court dismissed the common law claims for prescriptive easement or 

implied easement by prior use before trial. However, the statutory claim proceeded to 

bench trial, where the Walches claimed they were entitled to an easement by necessity 

because their property was effectively landlocked for several reasons: (1) they had no 

legal, insurable access over the railroad right-of-way, and (2) as a practical matter they 

I See chapter 17.36 of the Cle Elum Municipal Code. 

2 The respondents disputed this claim, and the trial court found that there was no 

evidence that a road ever existed at this location. 

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No. 30 129-0-III 

Walch v. Clark 

could not physically enter or exit the property because the super-lowboy trailers could not 

use Owens Road. 3 

Mr. Walch testified that he had not taken any steps to submit any land use 

applications for the property because he did not want to do any studies or plans until they 

had legal access to the property. He also acknowledged that he had not hired any 

engineers to examine the route feasibility or made any attempts to obtain an estimate of 

the cost of improving Owens Road for the use ofthe super-lowboys. Additionally, he 

testified that the Walches could not get their access insured because they do not have a 

BNSF permitted easement for access to their property. The Walches had not sought a 

permit to cross the railroad at Owens Road. 

City administrator Matt Morton testified that the Walches had never submitted any 

land use applications, their intended use ofthe property would be a conditional use, there 

was no guarantee that the Walches would be permitted to use the property for RSE, and it 

was premature to give an opinion on whether the City would grant a permit of any kind. 

He also testified that the Dalle Pond on the Walch property is classified as a category 

three wetland, which could further complicate the land use permit process. 

3 In particular, they alleged that the superloads could not negotiate the turns at 

Owens Road, which also was too narrow, and the trailers would get high centered on the 

railroad tracks. 

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No. 30129-0-111 

Walch v. Clark 

The trial court dismissed the Walches' RCW 8.24.010 claim without prejudice, 

finding that the Wa1ches had physical access to their property over the BNSF railroad 

crossing and that until such access was denied or withdrawn the Walches could make use 

and enjoyment oftheir property for those uses authorized by the City within the industrial 

zone. The court concluded that the property was not landlocked and there was no 

guarantee that RSE could be situated on the property. 

Respondents requested attorney fees and costs under RCW 8.24.030 for defending 

all three easement claims. Finding that the claims all involved the same underlying set of 

facts and were so interrelated that segregation of fees was not required, the trial court 

awarded attorney fees for defending all three claims. The Wa1ches then timely appealed 

to this court. 

ANALYSIS 

The Wa1ches challenge the court's statutory easement ruling and the attorney fee 

awards. All parties seek attorney fees on appeal. We will first discuss the easement 

ruling before turning to the fee arguments. 

Easement 

The trial court determined that the Wa1ches had "not established a reasonable 

necessity for a private way of necessity because their property is not landlocked and 

because they have no guarantee that a future use oftheir property would include situating 

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No. 30129-0-111 

Walch v. Clark 

the RSE, Inc. manufacturing business on the property." Clerk's Papers (CP) at 251. We 

agree with both of those assessments and affirm the denial of the easement. 

This matter was tried on the authority ofRCW 8.24.010 that provides: 

An owner, or one entitled to the beneficial use, of land which is so situate 

with respect to the land of another that it is necessary for its proper use and 

enjoyment to have and maintain a private way of necessity ... on, across, 

over or through the land of such other ... may condemn and take lands of 

such other sufficient in area for the construction and maintenance of such 

private way of necessity. . .. The term "private way of necessity," as used 

in this chapter, shall mean and include a right of way on, across, over or 

through the land of another for means of ingress and egress. 

This statute is "not favored in law and thus must be construed strictly." Brown v. 

McAnally, 97 Wn.2d 360,370,644 P.2d 1153 (1982). To condemn a private way of 

necessity, the Wa1ches needed to show that access over the respondents' property was 

reasonably necessary for the proper use and enjoyment of their property. See id. 

The landowner's necessity does not have to be absolute, but it must be reasonably 

necessary under the facts of the case. State ex reI. Polson Logging Co. v. Superior Court, 

11 Wn.2d 545, 562-63, 119 P.2d 694 (1941). It is insufficient to show that the proposed 

route is more convenient or advantageous than another route. State ex. reI Carlson v. 

Superior Courtfor Kitsap County, 107 Wash. 228, 232, 181 P. 689 (1919). The party 

seeking to condemn the private way bears the burden ofproving the reasonable necessity, 

including the absence ofaltematives. Noble v. Safo Harbor Family Pres. Trust, 167 

Wn.2d 11, 17,216 P.3d 1007 (2009). 

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No. 30129-0-111 

Walch v. Clark 

However, "a potential condemnor should not be prevented from condemning a 

private way of necessity merely because the condemnor may enjoy the permissive user of 

a 'way.'" Brown, 97 Wn.2d at 368. The WaIches primarily rely upon this quote from 

Bro",!n, arguing that although they currently have access to the property, they have no 

legally protected access and are entitled to pursue their private condemnation action. We 

agree. The existence of an access route does not bar a private condemnation action under 

the statute.4 Id. at 366-68. Existing access, however, is evidence that can be considered 

in adjudging the necessity of the proposed private condemnation action. That is how the 

trial court treated the matter. 

The existing access is strong evidence that the property is not currently 

landlocked. There also was evidence that the Walches had not undertaken efforts to 

determine the feasibility ofobtaining permission from BNSF railroad or of improving the 

existing access route to accommodate the superloads RSE would need to use. In light of 

these facts, the trial court did not err in determining that the property was not landlocked. 

The trial court also determined that necessity had not been established because it 

was only speculative that RSE would be able to use the property for its intended 

4 The Walches seek to extend Brown and apply the statute to condemn a new route 

rather than obtain legal standing to their existing route. In light of our agreement with the 

trial court that the WaIches did not prove the necessity for private condemnation, we do 

not address the propriety of their proposed route or of their argument for extending 

Brown. 

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No. 30129-0-111 

Walch v. Clark 

purposes. The testimony showed that a conditional use permit would be necessary to 

address zoning related restrictions on the property and there also were environmental 

concerns to address. Given these hurdles, it was understandable that the superloads 

might never need to.access the property. 

In Brown, the would-be condemners received approval of their proposed 

development on various conditions that included the need to obtain an easement 

permitting access to the property. Id. at 364-65. The Walches approached the matter 

from the opposite perspective by attempting to obtain their access before seeking 

approval of their development plans. While there is no legal impediment to using this 

approach, the uncertainty of the property's future use is a proper fact for the trier of fact 

to consider in assessing the necessity of the proposed private condemnation. 

The record supported the trial court's determination that the Walches had not 

established the necessity of their proposed private condemnation. The property was not 

currently landlocked and it was uncertain whether future access would be inadequate. 

We thus affirm that aspect of the judgment. 

Attorney Fees 

The Walches attack the trial court's ruling assessing fees against them for defense 

of the common law claims as well as the reasonableness of the fee award. All parties 

seek attorney fees on appeal and the respondents also suggest alternative bases for 

upholding the fee award. We conclude that the trial court erred in not segregating the fee 

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No. 30129-0-111 

Walch v. Clark 

awards, the fees were otherwise reasonable, and we remand for consideration of the CR 

11 claim that was raised, but not decided, at trial. The Walches are not awarded any fees 

for the appeal; whether respondents obtain appellate attorney fees is dependent upon the 

outcome of the remand. We approach the fee question in a slightly different manner than 

it was presented by the parties. 

RCW 8.24.030. Attorney fees in a private condemnation action are governed by 

RCW 8.24.030, which provides in relevant part: 

In any action brought under the provisions of this chapter for the 

condemnation of land for a private way of necessity, reasonable attorneys' 

fees and expert witness costs may be allowed by the court to reimburse the 


condemnee. 


This court reviews a trial court's award of attorney fees for an abuse of discretion. 


Mahler v. Szucs, 135 Wn.2d 398, 435,957 P.2d 632 (1998). Discretion is abused when it 

is exercised on untenable grounds or for untenable reasons. State ex rei. Carroll v. 

Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). 

Attorney fees should be awarded only for services related to causes of action that 

allow for fees. Absher Constr. Co. v. Kent Sch. Dist. No. 415, 79 Wn. App. 841, 847, 917 

P .2d 1086 (1995). If fees are authorized for only some of the claims, the fee award must 

properly reflect a segregation of time spent on issues for which fees are authorized from 

time spent on other issues. Hume v. Am. Disposal Co., 124 Wn.2d 656,672,880 P.2d 

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No. 30129-0-111 

Walch v. Clark 

988 (1994). However, if the claims are so related that no reasonable segregation can be 

made, the court does not need to require segregation. See id. at 673. 

In awarding attorney fees, Washington courts apply the lodestar method and the 

trial court must enter findings of fact and conclusions of law supporting its decision to 

award fees. Mahler, 135 Wn.2d. at 434-35. The findings are necessary for an appellate 

court to review the award. Bentzen v. Demmons, 68 Wn. App. 339, 350, 842 P.2d 1015 

(1993). Where a trial court fails to create the appropriate record, remand for entry of 

proper findings and conclusions is the appropriate remedy. Mahler, 135 Wn.2d at 435. 

The Walches asserted three easement claims: an easement by necessity under 

RCW 8.24.010, a prescriptive easement, and an implied easement by prior use. The latter 

two common law claims were dismissed by agreement at summary judgment. After 

prevailing at trial, the respondents presented requests for attorney fees that segregated the 

fees related to the statutory action from those related to the common law claims, but 

argued on various theories that they were also entitled to attorney fees for defending the 

common law claims. 

The Walches contend on appeal that the court erred by finding that the claims 

were too interrelated to segregate and that the fee award was excessive. We agree that· 

the claims could be segregated and reverse the trial court's finding that it was not 

appropriate to segregate. However, we see no abuse of discretion in assessing the amount 

of attorney fees for the defense of the statutory claim. 

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No. 30 129-0-III 

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Initially, we agree with the Wa1ches that RCW 8.24.030 does not apply to the 

common law claims. The statute applies to any actions "brought under the provisions of 

this chapter." RCW8.24.030. It does not thereby extend to all related claims. However, 

the trial court still has authority to grant the entirety of a fee request when it is impractical 

to segregate covered and noncovered claims. Bume, 124 Wn.2d at 673. 

While that is how the trial court treated the requests here, it was not impractical to 

segregate the claims. The respondents did in fact segregate their requests. Indeed, the 

trial court also awarded fees to the respondents based on each category of claims. There 

were three distinct legal theories subject to different discovery and legal research efforts. 

It was not impractical to segregate. The trial court erred in concluding otherwise. 

The Wa1ches also challenge the reasonableness of the total fee award. We see no 

abuse of discretion. The Walches imposed significant costs on their neighbors who 

properly proved their defense costs, including the claims that were not subject to 

reimbursement under the statute. The Wa1ches do not challenge the hourly rate charged 

by respective counsel. The court reviewed the time slips and properly applied the 

lodestar formula to calculate the fee award. The fees awarded each respondent were 

reasonable. The Walches sought an easement across commercial property owned by two 

parties and cannot now claim it was unreasonable for both respondents to fully contest 

the action at great expense to all. 

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The attorney fee awards for the defense of the statutory claim are affirmed; the 

awards under the statute for the defense ofthe common law claims are reversed. 

Common Law Theories. Respondents also sought CR 11 sanctions in the trial 

court on the common law claims, arguing that they were brought without proper 

investigation. The trial court did not address this argumem in light of its decision to grant 

fees under the statute. On appeal, the respondents reprise this argument as an alternative 

basis for affirming the fee award. The Walches contend that the argument cannot be 

addressed due to the failure of the respondents to cross appeal. 

Only a party who has been aggrieved by a trial court action can appeal. RAP 3.1. 

The respondents were not aggrieved; the trial court awarded attorney fees on the common 

law claims. They had no basis for seeking affirmative relief. Instead, they properly 

raised the issue as an alternative basis for affirming the trial court. Wolstein v. Yorkshire 

Ins. Co., 97 Wn. App. 201, 206-07, 985 P.2d 400 (1999). 

This court is not in a position to decide the CR 11 issue in the absence offinding 

by the trial court. Since we have reversed the fee award under the statute for the common 

law claims, we remand this issue to the trial court for consideration ofthe respondents' 

CR 11 argument related to those claims. 

Attorney Fees on Appeal. Finally, all parties seek attorney fees on appeal. The 

Walches seek fees for responding to the CR 11 argument. However, as that argument 

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was properly brought to this court, the Walches have not prevailed on that issue and there 

is no basis for awarding fees to them. 

Respondents seek their attorney fees based on either RCW 8.24.030 or for 

responding to a frivolous appeal. This appeal was not frivolous. The Walches presented 

a debatable issue concerning the necessity of their private condemnation action. The 

statute does provide a basis for awarding fees to the respondents. However, at this point 

they have not substantially prevailed. While they have won on the merits of the private 

condemnation action, their attorney fee award has been reduced, at least temporarily. 

If, on remand, respondents prevail on their CR 11 argument and regain their fees 

for the common law claims, the trial court also should award respondents their reasonable 

attorney fees for defending the appeal in this court. If they do not prevail on the CR 11 

claim, then no party will receive any fees for the appeal. 

Affirmed in part, reversed in part, and remanded. 

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A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Korsmo, C.J. 

WE CONCUR: 

Brown, 1. Kulik, J. 

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