IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

TED SPICE, No. 48075-1-II

Appellant,

v.

BRYAN BARTELSON and DOROTHY M. 

BARTELSON, husband and wife,

UNPUBLISHED OPINION

Respondents.

SUTTON, 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 Bartelsons from claiming a water easement through Spice’s property. Spice later sued the 

Bartelsons for trespass over the Bartelsons’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 Bartelsons. We hold that, under the plain 

language of the superior court’s prior orders, (1) Spice’s property is not subject to a claim for water 

service by the Bartelsons and (2) Spice has established trespass through misuse of the easement. 

We also hold that the superior court erred in granting summary judgment to the Bartelsons, 

awarding statutory costs, and in denying Spice’s motion to reconsider. Thus, we reverse the 

 

1 The correct spelling of Respondents’ last name appears to be Bartelson, based on signatures. 

Both versions—Bartelson and Bartleson—appear in the record with equal frequency. 

Filed

Washington State

Court of Appeals

Division Two

February 7, 2017
No. 48075-1-II

2

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

costs to the Bartelsons, and the superior court’s order denying summary judgment to Spice. We

also grant summary judgment to Spice on his trespass claim against the Bartelsons and remand to 

the superior court to determine the nature and extent of the damages to Spice.

FACTS

I. BACKGROUND

Spice and the Bartelsons are neighboring property owners in Puyallup, Washington. Spice 

owns two properties and the Bartelsons 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. Bartelsons (Duplex)

0420224095 11323 to 11325 58th St. Ct. E. Bartelsons (Duplex)

0420224138 11306 58th St. Ct. E. Bartelsons (Five Acre)

0420224137 11305 58th St. Ct. E. Spice

0420224096 11319 58th St. CT E. Spice

Access disputes arose between the Bartelsons, 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 Bartelsons 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. 48075-1-II

3

water line that ran from the Bartelsons’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 orders 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 reciprocal easements for the purpose of maintaining 

the road at 58th St. Ct. E. and provided cost sharing provisions for such maintenance. The Water 

Line Order expressly addressed any claim by the Bartelsons for water service through Spice’s 

properties. In this appeal, the parties dispute whether the Bartelsons have a right to install and use 

a water line within the road easement. 

II. PRIOR LITIGATION ORDERS

A. ROAD EASEMENT

The Road Easement (58th St. Ct. E.) connects to 114th Ave. E. then travels west through 

the Bartelsons’s duplex properties, then across both of Spice’s parcels, and ends on the 

Bartelsons’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-of-way access by Spice to his 

property at 11305. The Road Easement includes the parties’ reciprocal easements. 

 

3 Exhibits E and G, respectively, of the Order Re Joint Easements for Road and Road Maintenance

(April 16, 2010). CP 298-301, 306-16. 

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. 48075-1-II

4

In the Road Easement, Spice conveyed to the Bartelsons “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, maintain, 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-of-way shall give and convey to [the Bartelsons] 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 easement 

over, across, and under [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 refers to the terms of the Road 

Maintenance Order. 

B. ROAD MAINTENANCE ORDER

Because the parties desired “to provide for the future maintenance and repair of [58th St. 

Ct. E.] and to share the cost of such maintenance and repair in a fair and equitable manner,” the

superior court entered a separate Road Maintenance Order for road maintenance and cost sharing. 

CP at 307. The Road Maintenance Order addresses paving improvements and maintenance, 

initiating and sharing costs for common work, initiating and paying for individual work, and 

maintaining the landscaped sides of the road. 

The 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 (emphasis added). On appeal, Spice and the Bartelsons

dispute the meaning of the phrase “common utilities.” 
No. 48075-1-II

5

In addition to the Road Easement and Road Maintenance Order, the superior court 

simultaneously ordered a release of claim of water service (Water Line Order) for Spice and 

against the Bartelsons. 

C. WATER LINE ORDER

The Water Line Order addresses two issues relevant to this appeal: (1) the water line that 

fed a spigot on the Bartelsons’s Five Acre parcel but attached to Spice’s water meter and (2) 

Spice’s desire to prevent the Bartelsons from using Spice’s properties for a water easement. 

The Water Line Order states, “[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, or water rights for the benefit of the 

Bartleson (sic) [Five Acre parcel].” CP at 191. Spice asserts that the superior court amended the 

Water Line Order to include a release of water claim by the Bartelsons to clarify the rights of the 

parties with respect to water use in the Road Easement. 

D. EVENTS LEADING TO LITIGATION

After entry of the superior court’s orders, Spice immediately capped the water line 

connecting the Bartelsons’s Five Acre parcel with Spice’s water meter. The Bartelsons 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 Bartelsons’s apparent 

water source. The parties agree that the water line now servicing the Bartelsons’s Five Acre parcel 
No. 48075-1-II

6

runs from the Bartelsons duplex at 11323-25, to and along 58th St. Ct. E., through Spice’s property,

and ends at the Bartelsons’s Five Acre parcel.

E. THE CURRENT WATER LINE

The parties disagree over who installed the Bartelsons’s current water line and when the 

installation occurred. 

Spice argues that the water line was installed after the prior litigation and thus the water 

line is subject to the superior court’s prior orders. Spice relies on (1) a work order installing a new 

line, valve, and meter at the 11323-25 duplex in 2008, but that did not include extending the line 

to the Five Acre parcel, (2) the fact that the water line’s construction is modern plastic and not 

galvanized steel like the original water lines on the properties, (3) the seller’s statement that the 

Five Acre parcel did not contain 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 parcel prior to the Bartelsons’s purchase;6however, 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 Bartelsons’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 they bought the property. 
No. 48075-1-II

7

The Bartelsons argue that they discovered an existing water line and began using it. After 

the water access was capped, the Bartelsons state that they investigated and found a spigot on the 

Five Acre parcel that produced water when they turned on a valve at their 11323-25 duplex. The 

Bartelsons further state that this spigot on the Five Acre parcel did not work when the Five Acre

parcel was receiving water from the line attached to Spice’s meter. The Bartelsons 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 Bartelsons state that the water line installed at the duplex in 2008 ran from 

the meter on 114th Ave. E. to the 11325 side of the duplex; yet the current water line at issue runs 

from the 11323 side of the duplex to the Five Acre parcel. Spice refutes the Bartelsons’s account 

stating that there was no valve for the Bartelsons to turn on at the duplex because the duplex’s

water control valves were always turned on in order to provide water service to the tenants. 

The Bartelsons assert that after discovering the water line, they traced the line and found 

that it followed the road easement. The Bartelsons extended the water line past the road easement

to better serve the Five Acre parcel. During a road 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. SPICE’S LAWSUIT, SUMMARY JUDGMENT MOTIONS, AND THE COURT’S RULING

In 2014, Spice sued the Bartelsons, claiming that the Bartelsons’s installation and use of 

the water line constitutes an intentional and continuing trespass on Spice’s property. The 

Bartelsons 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 the water line(s) 

were installed. 2. Costs of removing water line(s). Amounts are being determined by an appraiser, 
No. 48075-1-II

8

and this answer will be supplemented when the report is received.” CP at 523. In response to the 

Bartelsons’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 Bartelsons’s request for production to provide copies of 

bills paid as a result of the trespass, Spice provided a water locator service invoice for $360. Spice 

did not supplement his responses to the interrogatories. 

During Spice’s deposition, the Bartelsons 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 Bartelsons 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 arguing that the Bartelsons did not have an 

easement for water use through Spice’s property under the Road Easement and Road Maintenance 

Order, or the Water Line Order. The Bartelsons responded and filed a cross motion for summary
No. 48075-1-II

9

judgment, arguing that their actions are permitted under the Road Easement and Road Maintenance 

Order. Spice moved to continue the summary judgment hearing to provide additional evidence on 

his damages. The Bartelsons 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 Bartelsons and ruled that the Road Maintenance Order provides for the right to install 

“common utilities” within the road easement, and 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 Bartelsons 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. The 

superior court granted summary judgment to the Bartelsons, dismissed Spice’s claim with 

prejudice, and denied summary judgment to Spice. The superior court also awarded the Bartelsons

$320 in statutory costs.7 

Spice filed a motion for reconsideration and also filed three documents supporting his 

request for damages: An 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 Bartelsons objected that the damages evidence is not newly 

discovered evidence under CR 59(a)(4) and should not be considered, and that the receipts did 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 authority in its order. 
No. 48075-1-II

10

ANALYSIS

I. STANDARD OF REVIEW

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). Summary 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 facts in the light most favorable to the nonmoving party. Club Envy, 184 Wn. App. at 599. 

II. LEGAL PRINCIPLES

The owner of an easement trespasses8if he misuses or deviates from an existing easement. 

Olympic Pipe Line Co. v. Thoeny, 124 Wn. App. 381, 393, 101 P.3d 430 (2004). “Damages for a 

temporary . . . trespass are the cost of restoration and the loss of use. Nominal 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 Bartelsons based on the plain language of the Road 

Easement, the Road Maintenance Order, and the Water Line Order entered by the superior court, 

we do not discuss each element of trespass.
No. 48075-1-II

11

A. INTERPRETATION OF THE SUPERIOR COURT’S ORDERS 

Spice argues that the superior court erred in ruling that the term “utilities” includes the 

Bartelsons’sinstallation and use of a water line that crosses through Spice’s property at the location 

of the road easement. The Bartelsons argue that the superior court correctly interpreted the term 

“utilities” to include their right to access water through Spice’s property. We read the Road 

Easement and Road Maintenance Order together with the Water Line Order because the superior

court entered these orders on the same day. Sunnyside Valley Irrigation 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 

Easement 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 to the Bartelsons, reverse the court’s award of statutory costs to the 

Bartelsons, 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 Bartelsons, 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 Bartelsons 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, maintain, 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-of-way shall give and convey to [the Bartelsons] the right of 

ingress and egress . . . for the purpose of constructing, maintaining and repairing the above 
No. 48075-1-II

12

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 58th St. Ct. E. 

2. The Road Maintenance Order

The language of the Road Maintenance Order describes the terms of maintenance of the 

road and the responsibilities of the parties to address future road maintenance, nothing more. The 

Road Maintenance Order expressly provides “for the future maintenance 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 Easement. 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 subject to 

any claim for easement for water, or water rights for the benefit of the Bartleson (sic) property.”

CP at 191. The plain language of the Water Line Order does not allow the Bartelsons to subject 

Spice’s property to an easement for water to benefit the Bartelsons. 

As analyzed above, the 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 

unambiguous. Thus, we hold that the Bartelsons do not have a claim for water service over Spice’s 

properties. 
No. 48075-1-II

13

B. SUMMARY JUDGMENT ORDERS

The superior court found that Spice failed to prove exclusive possession9of the road at 

58th St. Ct. E., “[T]he [c]ourt finds that there was no invasion by [the Bartelsons 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 

Bartelsons do not have a claim for water service over Spice’s properties. 

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 Bartelsons’s motion for summary judgment, we view the evidence in a light most favorable 

to Spice. As analyzed above, because we hold that the Bartelsons do not have a claim for water 

service through Spice’s properties, we hold that the superior court erred in granting summary 

judgment to the Bartelsons and erred in denying Spice’s motion to reconsider. 

As to Spice’s motion for summary judgment, we view the evidence in a light most

favorable to the Bartelsons. The Bartelsons’s use of the water line was a misuse of the road 

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 foreseeability that the act would disturb the plaintiff’s possessory interest, or actual and 

substantial damages. See Wallace, 134 Wn. App. at 15. 
No. 48075-1-II

14

ATTORNEY FEES AND COSTS

Both parties claim attorney fees and costs on appeal under RCW 4.24.630(1)10 and under

the Road Maintenance Order.

11

 

Because we reverse the superior court’s order granting summary judgment to the 

Bartelsons and award of statutory costs to them, we also deny the Bartelsons’s attorney fees and 

costs and award attorney 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 Bartelsons and Spice has established trespass 

through misuse of the easement. We also hold that the superior court erred in granting summary 

judgment to the Bartelsons, awarding statutory costs, and in denying Spice’s motion to reconsider. 

Thus, we reverse the superior court’s order granting summary judgment to the Bartelsons, the 

court’s award of statutory costs to the Bartelsons, 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 party’s reasonable costs, including but not limited to investigative costs and 

reasonable attorneys’ fees and other litigation-related costs.”

11 The relevant part of the 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. 48075-1-II

15

judgment to Spice. We also grant summary judgment to Spice on his trespass claim against the 

Bartelsons and remand to the superior court to determine 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 ordered.

SUTTON, J.

We concur:

BJORGEN, C.J.

WORSWICK, J.