### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II TED SPICE, No. 48075

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Appellant,

v. BRYAN BARTELSON and DOROTHY M. BARTELSON, husband and wife, UNPUBLISHED OPINION

Respondents.

S UTTON , J.

— Ted Spice and Bryan and Dorothy Bartelson , 1 adjacent property owners , were prior litigants in a lawsuit resulting in two superior court orders , including an order restricting
the Bartelson s from claiming a water easement through Sp ic e’s property. Spice later sued the
Bartelson s for trespass over the Bartelson s ’s use of a water line through Spice’s property

. Spice appeals the superior court’s summary judgment order and ruling that he did not meet the exclusive possession element on his claim of trespass against the Barte l son s
. We hold that , under the plain language of the superior court’s prior orders , (1) Spice’s propert y is not subject to a claim for water service by the Bartelson s and (2) Spice has established trespass through misuse of the easement

. W e also hold that the superior court erred in granting summary judgment to the Bartelson s , awarding statutory costs , and in denying Spice’s motion to reconsider

. Thus, we reverse the

1 The correct spelling of Respondent s ’ last name appears to be Bartelson , based on signature s
. Both versions

—

Bartelson and Bartleson

— appear in the record with equal frequency. Filed Washington State Court of Appeals Division Two February 7, 2017No. 48075

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superior court’s order granting summary judgment to the Bartelson s , the court’s award of statutory

costs to the Bartelson s , and the superior court’s order denying summary judgment to Spice. We
also grant summary judgment to Spice on his trespass claim a gainst the Bartelson s and remand to the superior court to determine the nature and extent of the damages to Spice

. FACTS
I. B ACKGROUND Spice and the Bartelson s are neighboring property owners in Puyallup, Washington

. Spice

owns two properties and the Bartelson s own three properties. 2 The property parcel numbers,
addresses , and ownership are depicted in the following chart:

Parcel Address Owner
0420224094 11403 to 11405 58th St. Ct. E. Bartelson s ( Duplex )
0420224095 11323 to 11325 58th St. Ct. E. Bartelson s ( Duplex )
0420224138 11306 58th St. Ct. E. Bartelson s ( Five Acre )
0420224137 11305 58th St. Ct. E. Spice
0420224096 11319 58th St. CT E. Spice

Access disputes arose between the Bartelson s , who owned only the Five Acre parcel at the time, and the other property owners on 58th St. Ct. E

. that resulted in a right

- of

- way litigation in
2008

. During the right

- of

- way litigation, Spice separately sued the Bartelson s in 2009 for using a

2 All five properties were previously owned by James Williams as one estate. The estate was subdivided over time, but an easement for ingress and egress along the main driveway (58th St. Ct. E.) was not granted as each property was sold.No. 48075

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water line that ran from the Bartelson s’ s Five Acre parcel , through Spice’s 11319 parcel , and which connected to Spice’s water meter. The superior court consolidated the cases and, after the parties
resolved their dispute, the superior court entered two order s dated April 16, 2010 , the “ Road
Easement ” and the “ Road Maintenance Order , ” 3 and a “ Water Line Order. ” 4 Clerk’s Papers ( CP )

at 286

- 317 , 190

- 201

. These orders included recip rocal easements for the purpose of maintaining
the road a t 58 th St. Ct. E. and provided cost sharing provisions for such maintenance. The Water Line Order expressly addressed any claim by the Bartelson s for water service through S pice’s properties. In this appeal, the parties dispute w hether the Bartelson s hav e a right to install and use
a water line within the road easement.
II

. P RIOR L ITIGATION O RDERS
A. R OAD E ASEMENT The Road Easement (58th St. Ct. E.) connects to 114th Ave. E. then travels west through
the Bartelson s’ s duplex properties , then across both of Spice’s parcels, and ends on the
Bartelson s ’ s Five Acre parcel

. Because of the parties’ settlement, the superior court moved part
of the Bartelsons’ s Five Acre boundary line west to ensure right

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- way access by Spice to his property at 11305. Th e Road Easement includes the parties’ reciprocal easements.

3 Exhibits E and G, respectively, of the Order Re Joint Easements for Road and Road Maintena nce ( April 16, 2010 ). CP 298

- 301, 306

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.
4 Amended Order Re Joint Easement for Water Lines and Release of Claim of Water Service ( April 16, 2010 )

. CP 190

- 201. The superior court amended the Water Line Order during the prior litigation to address the fear of a future ambiguity surrounding the permitted use of the Road Easement.No. 48075

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In the R oad Easement, Spice conveyed to the Bartelson s “a permanent non

- exclusive road easement a road easement ( sic ) and right

- of

- way with the right to erect, construct, install, lay and thereafter use, operate, inspect, repair, ma intain, and replace over , across and/or under a certain parcel of real property [describes the location of the road]. ” CP at 298. The Road Easement further

states that “ this easement and right

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- way shal l give and convey to [ the Bartelson s ] the right of ingress and egress

. . . for the purpose of constructing, maintaining and repairing the above described road improvements. ” CP at 300. The Road Easement “ includes a construction ease ment over, across, and und er [58th St. Ct. E. ] for installation of any gravel necessary for full use of the property and any other terms in the Road Maintenance Order .” CP at 300 (emphasis added). The
Road Easement does not mention utilities , but it expressly refer s to the terms of the Road
Maintenance Order.
B. R OAD M AINTENANCE O RDER
Because the parties desire d “to provide for the future ma intenance and repair of [58 th St. Ct. E.] and to share the cost of such maintenance and repair i n a fair and equitable manner , ” the superi or court entered a separate Road Maintenance Order for road maintenance and cost sharing

. CP at 307. The Road Maintenance Order address es pavi ng improvements and maintenance, initiating and sharing cost s for common work, initiating and paying for individ ual work , and maintaining the landscaped side s of the road

. T he Road Maintenance Order also includes a provision that reads : “ The Road [Easement] shall include all and any amenities within the easement areas such as paving, gravel, landscaping,

common utilities , fences, etc. ” CP at 307 (e mphasis added). On appeal, Spice and the Bartelson s dispute the meaning of the phrase “ common utilities

. ”No. 48075

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I n addition to the Road Easement and Road Maintenance Order, the superior court simultaneously ordered a rele ase of c laim of w ater s ervice (Water Line Order) for Spice and against the Bartelson s
. C. W ATER L INE O RDER The Water Line O rde r addresse s tw o issues relevant to this appeal : ( 1) the water line that fed a spigot on the Bartelson s ’ s Five Acre parcel but attached to Spice’ s water meter and ( 2) Spice’s desire to prevent the Bartelson s from using Spice’s propert ies for a water easement.
The Water Line Order state s , “ [Appellant is] hereby allowed to cap off any water lines currently servicing the properties [11305 and 11319] that extend onto the Bartleson (sic) [Five
Acre parcel]. ” CP at 191.
The second relevant provision of the Water Line Order states, “ [Appellant’s ] properties will not be subject to any claim for easement for water, o r water rights for the benefit of the
Bartleson (sic) [Five Acre parcel]. ” CP at 191. Spi ce asserts that the superior court amended the Water Line Order to include a release of water claim by the Bartelson s to clarify the rights of the parties with respect to wa ter use in the Road Easement.
D. E VENTS L EADING TO L ITIGATION After entry of the superior court’s orders, Spice immediately capped the water line connecting the Bartelson s ’ s Five Acre parcel with Spice’s wate r meter. The Bartelson s began using portable toilets on the Five Acre parcel since they no longer had water service. Eventually, Spice noticed that the portable toilets were gone and began investigating the Bartelson s ’ s apparent

water source. The parties agree that the water l ine now servicing the Bartelson s ’ s Five Acre parcelNo. 48075

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runs from the Bartelson s duplex at 11323

- 25, to and along 58 th St. Ct. E., through Spice’s property,
and ends at the Bartelson s ’ s Five Acre parcel.
E. T HE C URRENT W ATER L INE The parties disagree over who installed the Bartelson s ’ s current water line and when the
install ation occurred

. Spice argues that the water l ine was installed after the prior litigation and thus the wa ter line is subject to the superior court’s prior orders

. Spice relies on (1) a work order installing a new line, valve, and meter a t the 11323

- 25 duplex in 2008, but that did not include extending t he line to the Five Acre parcel , (2) the fact that the water line’s construction is modern plastic and not galvanized ste el like the original water lines on the p roperties , (3) the seller’s statement that the
Five Acre parcel did not co ntain a water utility when sold , and (4) a tenant’s statement who used
an office on the Five Acre parcel for 15 years without water access. 5 Spice concedes that there may have been water on the Five Acre parce l prior to the Bartelson s ’ s purchase; 6 h owever, Spice argues that water access was cut off once the water line to his meter was capped shortly after the prior litigation ended

.

5 The tenant moved out in 2004 at Williams’s death and was the last occupant of the property prior to the Bartelson s ’ s ownership.

6 A tenant from the 1980’s testified that there was running water on the property from at least two spigots. Bryan Bartelson testified that the property had three working spigots and plumbing fixtures in two of the buildings when t he y bought the property.No. 48075

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The B artelson s argue that they discovered an existing water li ne and began using it. After
the water access wa s capped , the Bartelson s state that t he y investigated and found a spigot on the
Five Acre parcel that produced water when t he y turned on a valve at their 11323

- 25 duplex. The
Bartelson s further state that t his spigot on the Five Acre parcel did not work when the Five Acre parcel was re ceiving water from the line att ached to Spice’s meter. The Bartelson s contend that the water line they are using is on a separate, pre

- existing line than the one installed at the 11323

- 25 duplex in 2008. The Bartelson s state that t he water line installed at the duplex in 2008 ran from
the meter on 114th Ave

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. to the 11325 side of the duplex ; yet the current water lin e at issue runs from the 11323 side of the duplex to the Five Acre parcel. Spic e refutes the Bartelson s ’ s account stating that there was no val v e for the Bartelson s to turn on at the duplex because the duplex ’s
water control val v es were always turned on i n order to provide water service to the tenants.
The Bartelson s assert that after discovering the water line, t he y traced the line and found
that it followe d the r oad easement

. The Bartelson s extended the water line past the road easement
to better serve the Five Acre parcel . During a r oad easement improvement project, Bryan
Bartelson states that he dug up and replaced the original water line because it was a grey electrical pipe instead of a black water pipe.
III

. S PICE ’ S L AWSUIT , S U MMARY J UDGMENT M OTIONS , AND THE C OURT ’ S R ULING
In 2014, Spice sued the Bartelson s , claiming that the Bartelson s ’ s installation and use of
the water line constitutes an intentional and continuing trespass on Spice’s property. The
Bartelson s served interrogatories on Spice and asked Spice to itemize his damages. Three months later, Spice responded as follows: “1

. Reasonable value of use of property since t he water line(s)
were installed. 2

. Costs of removing water line(s). Amounts are bei ng determined by an appraiser,No. 48075

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and this answer will be supplemented when the report is received.” CP at 523. In response to the
Bartelson s ’ s interrogatory asking if the alleged trespass restricts Spice’s use of his property, Spice responded, “ Current use is not hindered, but future development of the property is potentially
restricted.” CP at 524. In response to the Bartelson s ’ s request for production to provide copies of bills paid as a result of the trespass, Spice provided a water locator service inv oice for $360. Spice did not supplement his response s to the interrogatories. During Spice’s deposition, the Bartelson s asked Spice to explain how he has been damaged by the alleged trespass. Spice responded , “I can’t give you specifics. . . . I’ve got a guy who is going to do the appraisal on what the damages are, and I can’t give you specifics on all that. ” CP

at 166. When the Bartelson s asked whether there were any other damages, Spice’s responses and the follow up questions were as follows: [ Spice ] : Well, I mean, it could be

- - you could factor in: What is the potential use of the property. Q: What

- - - potential use of your property? [ Spice ] : Of his property, his five Acre

. Q: How is that a damage to you? [ Spice ] : It could be

- - - if he’s benefiting financially . . . there should be some value to me . . . using my easement. [U]sing those water lines across my property to supply his development.
CP at 168

- 69. Spice filed a motion for summary judgment a rguing that the Bartelson s did n ot have an
easement for water use through Spice’s property under the Road Easement and Road Maintenance
Order , or the Water Line Order. The Bartelson s responded and filed a cross motion for summaryNo. 48075

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judgment , arguing that their actions are permitted un der the R oad Easement and Road Maintenance
Order

. Spice moved to continue the summary judgment hearing to provide additional evidence on
his damages. The Bartelson s objected and the superior court did not rule on the request for a continuance

. After hearing arguments on the cross summary judgment motions , the superior court agreed
with the Bartelson s and ruled that the Road Maintenance Order provides for the right to install
“c ommon utilities” within the road easement , a nd also ruled that water is a “ common utility.” Verbatim Report of Proceedings (VRP) at 26

. The superior court ruled that “there was no invasion by [ the Bartelson s of Spice’s] property interest in the exclusive possession of his land since the property in question was subject to easement for ro ad s and common utilities.” CP at 353

. The superior court granted summary judgment to the Bartelson s , dismissed Spice’s cla im with prejudice, and denied summary judgment to Spice. The superior court also awarded the Bartelson s $320 in statutory costs. 7 Spice filed a motion for reconsideration and also filed three document s supporting his request for damages: A n invoice billing the cost of locating the water line ($360), an estimate of
the cost to remove the water line ($11, 852), and an appraiser’s report estimating the value of the water easement, if sold ($9,702). The Bartelson s objected that the damages evidence is no t newly
discovered evidence under CR 59(a)(4) and should not be considered, and that the receipts d id not change the superior court’s ruling that Spice failed to show exclusive possession of the property
at issue

. The superior court denied Spice’s motion to reconsider. Spice appeals.

7 The court did not cite any authorit y in its order.No. 48075

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10 ANALYSIS
I. S TANDARD OF R EVIEW We review a summary judgment order de novo and engage in the same inquiry as the superior court. Club Envy of Spokane, LLC v. Ridpath Tower Condo. Ass’n , 184 Wn. App. 593, 599, 337 P.3d 1131 (2014). S ummary judgment is proper if there is “no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c).

“‘ A material fact is one that affects the outcome of the litigation. ’ ” Elcon Const., Inc. v. E. Wash.
Univ. , 174 Wn.2d 157, 164, 273 P.3d 965 (2012) (quoting Owen v. Burlington N. Santa Fe R.R. , 153 Wn.2d 780, 789, 108 P.3d 1220 (2005))

. We view the facts and reasonable inferences from
those fac ts in the light most favorable to the nonmoving party. Club Envy , 184 Wn. App. at 599.
II. L EGAL P RINCIPLES The owner of an easement trespasses 8 if he misuses or deviates from an existing easement. Olympic Pipe Line Co. v. Thoeny , 124 W n. App. 381, 3 93, 101 P.3d 430 (2004)

. “ Damages for a temporary

. . . trespass are the cost of restoration and the loss of use . N ominal damages may also
be available. ” Olympic Pipe Line , 124 Wn. App. at 393

- 94 (citations omitted)

.

8 To establish a claim of trespass, a plaintiff must show (1) an invasion of property affecting an interest in exclusive possession , (2) an intentional act , (3) that it is reasonably foreseeable that the act would disturb the plaintiff’s possessory interest , and (4) actual and substantial damages. Wallace v. Lewis County , 134 Wn. App. 1, 15 , 137 P.3d 101 (2006). Because we hold that Spice prevails on his trespass claim against the Bartelson s based on the plain language of the Road Easem ent, the Road Maintenance Order, and the Water Line Order entered by the superior court, we do not discuss each element of trespass

.No. 48075

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A. I NTERPRETATION OF T HE S UPERIOR C OURT ’ S O RDERS Spice argues that the superior court erred in ruling that the term “utilities” includes the
Bartelson s ’ s installation and use of a water line that crosses through Spice’s property at the location
of the road easement

. The Bartelso n s argue that the superior court correctly interpreted the term “utilities” to include their right to access water through Spice’s property. We read th e Road
Easement and Road Maintenance Order together with the Wat er Line Order because the superior
court entered these orders on the same day. S unnyside V alley Irrig ation Dist. v. Dickie , 149 Wn.2d 873, 880 73 P.3d 369 (2003)

. When the orders are read together, we agree with Spice that the plain language of the Road Maintenance Order does not define or expand the scope of the Road
E asement and further hold that the plain language of the Road Easement does not allow Bartelson to use or install a water line across Spice’s property. Thus, we reverse the superior court’s order granting summary judgment t o the Bartelson s , reverse the court’s award of statutory costs to the
Bar telson s , and reverse the superior court’s order denying summary judgment to Spice. We also grant summary judgment to Spice on his trespass claim against the Barte lson s , and remand to the superior court to determine the nature and extent of the damages to Spice.
1. The Road Easement
The Road Easement states that the Bartelson s are granted “a permanent non

- exclusive road easement a road easement ( sic ) and right

- of

- way with the right to erect, construct, install, lay and thereafter use, operate, inspect, repair, ma intain, and replace over , across and/or under a certain parcel of real property [describes the location of the road]. ” CP at 298 . The Road Easement further
states that “th is easement and right

- of

- way shall give and convey to [ the Bartelson s ] the right of ingress and egress

. . . for the purpose of constructing, maintaining and repairing the aboveNo. 48075

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described road improvements. ” CP at 300

. The plain language of the Road Easement does not
include the word “utilities” and provides the parties only the right of ingress and egress to the properties , and for road maintenance and improvements along 58 th St. Ct. E.
2. The Road Maintenance Order The language of the Road Maintenance Order describe s the terms of maintenance of the road and the responsibilities of the parties to address future road maintenance , nothing more. T he
Road Maintenance Order expressly provides “ for the future ma intenance and repair of [58 St. Ct. E.] and to share the cost of such maintenance and repair in a fair and equitable manner.” CP at
307

. When read together with the Road Easement, the Road Maintenance Order does not define or expand the scope of the Road Easemen t. Specifically, the Road Maintenance Order does not expand the use of an easement designed for ingress and egress to allow for utilities.
3. The Water Line Order The Water Line Order expressly provides that “ [Spice’s] properties will not be subj ect to any claim for easement f o r water, or water rig hts for the benefit of the Bart l e son (sic) property.”
CP at 191

. The plain language of the Water Line Order does not allow the Bartelson s to subject Spice’s property to an ease ment for water to benefit the Bartelson s
. As analyzed above, t he Road Maintenance Order did not define or expand the scope of the Road Easement; the Road Maintenance Order only detailed the parties’ rights and responsibilities for maintaining and improving the road

. The language of the superior court’s orders is clear and

un ambiguous. Thus, we hold that the Bartelson s do not have a claim for water service over Spice’s properties

.No. 48075

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B

. S UMMARY J UDGMENT O RDER S The superior court found that Spice fail ed to prove exclusive possession 9 of the road at
58 th St. Ct. E. , “[T]he [c]ourt finds that there was no invasion by [ the Bartelson s of Spice’s] property interest in the exclusive possession of his land since the property in question was subject
to easement for roads and common utilities.” CP at 353. Based on our analysis above, the
Bartelson s do not have a claim for water service over Spice’s p roperties. Because the parties filed cross motions for summary judgment, we must view the evidence in a light most favorable to the non

- moving party. CR 56; Club Envy , 184 Wn. App. at 599

. As

to the Bartelson s ’ s motion for summary judgment, we view th e evidence in a light most favorable to Spice . As analyzed above , because we hold that the Bartelson s do not have a claim for water
service through S pice’s properties, we hold that the superior court erred in granting summary judgment to the Bartelso n s an d erred in denying Spice’s motion to reconsider. As to Spice’s motion for summary judgment, we view the evidence in a light mo st favorable to the Bartelson s
. The Bartelson s ’s use of the water line was a misuse of the r oad easement and, thus, a trespass. See Olympic Pipe Line , 124 Wn. App. at 393. Therefore, we hold
that the superior court erred in denying summary judgment to Spice

.

9 The superior court did not rule on the remaining three elements of trespass

— an intentional act, a reasonable foreseeabili ty that the act would disturb the plaintiff’s possessory interest, or actual and substantial damages. S ee Wallace , 134 Wn. App. at 15.No. 48075

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14 ATTORNEY FEES AND COSTS
Both p arties claim attorney fees and costs on appeal under RCW 4.24.630 (1) 10 and under
the Road Maintenance Order

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Because we reverse the superior court’s order granting summary judgment to the
Bartelson s and award of statutory costs to them , we also deny the Bartelson s ’s attorney fees and
costs and award attor ney fees and costs to Spice.
CONCLUSION
We hold that, under the plain language of the superior court’s prior orders, Spice’s property is not subject to a claim for water service by the Bartelson s and Spice has established trespass through misuse of the easement . We also hold that the superior court erred in granting summary judgment to the Bartelson s , awarding statutory costs, and in denying Spice’s motion to reconsider. Thus, we reverse the superior court’s order granting summary judgment to the Barte lson s , the court’s award of statutory costs to the Bartelson s , and the superior court’s order denying summary

10 RCW 4.24.630(1) in relevant part states that the trespasser “is liable for reimbursing the injured party for the pa rty’s reasonable costs, including but not limited to investigative costs and reasonable attorneys’ fees and other litigation

- related costs.”

11 The relevant part of t he Road Maintenance Order allowing for attorney fees and costs states , “In the event that any Owner incurs costs and attorney’s fees in enforcing this Order, the prevailing party shall be awarded such costs and attorney’s fees against the other Owner, provided such costs and fees are reasonable and necessary.” CP at 310.No. 48075

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judgment to Spice. We also grant summary judgment to Spice on his trespass claim against the
Bartelson s and remand to the superior court to de termine the nature and extent of the damages to Spice. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so order ed.

S UTTON , J. We concur:

B JORGEN , C.J.

W ORSWICK , J.