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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON R. LANCE HADDON and CAROL A. PUTNAM, husband and wife, Appellants,

JOOST R. CLAEYS and AMY K. PREZBINDOWSKI, husband and wife; and SHELDON HAY, an individual of unknown marital status, Respondents. DIVISION ONE No. 70454-1-1 (consol. with No. 70550-4-1)

UNPUBLISHED OPINION

FILED: October 13, 2014 Dwyer, J. —We are presented with the question ofwhether a grantor who conveyed title to real property "subject to" an invalid easement, in doing so, exhibited the requisite intent to create a valid easement inthe statutory warranty deed. Inthis case, we conclude that the grantor did not intend to create an easement but, rather, intended to exclude that which she mistakenly believed to 

### be a valid easementfrom the warranty against encumbrances. Because the trial court, in granting partial summaryjudgment, ruled that a valid easement came 

### into existence by virtue ofthe conveyance made "subjectto" the invalid 

### easement, the grant of partial summaryjudgment is reversed and this matter is remanded to the trial court for further proceedings.

### No. 70454-1-1 (consol. with No. 70550-4-l)/2

I 

### In 1981, a short plat of a property in Carnation, Washington created four separate lots. Lots 1 and 2 are bordered by a county road. Lots 3 and 4 are 

### located behind Lots 1 and 2. However, Lots 3 and 4 are provided legal access to the public road abutting Lots 1 and 2 by "TractX"—atract that traverses Lots 1 and 2. In2005, Dorothy Church, a non-party, acquired title to Lots 1, 3, and 4. Lot 1 contained an on-site sewage system (OSS). Certain obligations with regard to the OSS were imposed upon the owner of Lot 1, including an obligation to "Protect the OSS area including the reserve area from: (a) Cover by structures
or impervious material; (b) Surface Drainage; (c) Soil compaction, for example, by vehiculartraffic or livestock; (d) Damage by soil removal and grade change." On August 14, 2006, Church purported to grant to herselfan easement
across Lot 1 for the benefit of Lots 3 and 4. This easement, as granted, ran directly over a portion ofthe septic drain field that was located on Lot 1. Church's attemptto create an access easement is recreated, in pertinent part, below:
ACCESS and UTILITY EASEMENT and JOINT MAINTENANCE AGREEMENT The Grantor, Dorothy Church, as owner ofthe Lot 1 ofKing County Short Plat No. 980005R, Recording No. 8106190609, in King County, Washington, tax parcel no. 272505-9049, does hereby grant to Dorothy Church, her heirs, successors and assigns,No. 70454-1-1 (consol. with No. 70550-4-l)/3



### an easementfor ingress, egress and utilities over, under, and across the following described property: The West thirty (30) feet ofsaid Lot 1. for the use and benefit ofthe following described property and/or 

### any portion thereof: Lots 3 and 4 ofsaid King County Short Plat No. 980005R, Recording No. 8106190609, tax parcel nos. 272505-9050 and 272605-9051. 

### Six months later, Church conveyed Lot 1 to R. Lance Haddon and Carol Putnam (collectively "appellants") by statutory warranty deed. The conveyance 

### was made subject to "ATTACHED EXHIBIT 'A.'" Exhibit "A" made reference, among other things, to the easementthat Church had purported to create on August 14, 2006. Exhibit "A" Subject to: Easement and the terms and conditions thereof: Grantee: Dorothy Church 

### Purpose: Access, utility, andjoint maintenance Area affected: the west 30 feet of Lot 1 Recorded: August 21, 2006 

### Recording No.: 20060821000487 

### On December2, 2010, Joost Claeys and Amy Prezbindowski tooktitle to 

### Lots 3 and 4 by quit claim deedin lieu offoreclosure. Thequitclaim deedmade

no mention of Church's easement. 

### Thereafter, the appellants filed a complaintagainst Claeys, 

### Prezbindowski, and Sheldon Hay(collectively "respondents") in King County 

### SuperiorCourt. The appellants contended thatthe easementthat Church had recorded overLot 1 was invalid and they requested that thetrial courtdeclare the

### No. 70454-1-1 (consol. with No. 70550-4-l)/4
easementto be void and to quiet title in them. They also sought an award of 

### damages and a permanent injunction prohibiting the respondents from using the

easement. The respondents counterclaimed in an effort to have the easement enforced. Subsequently, both parties moved for partial summaryjudgment. On February 6, 2012, the trial court denied the appellants' motion, granted the respondents' motion, and ruled that the easement was valid. In doing so, the trial court held, in pertinent part, that although Church had failed initially in her attempt to create a valid easement, the easement had become valid when Church conveyed Lot 1 "subject to" the invalid easement. [T]he Court concludes that the Access and Utility and Joint Maintenance Agreement executed by Dorothy Church and recorded August 21, 2006 under King County recording number 20060821000487 (The Easement) is valid. Although the easement 

### was not valid when recorded inAugust 2006 because Ms. Church owned both Lot 1 and Lot 3, the easement became valid when Ms. Church conveyed Lot 1 to the Plaintiffs "subject to" the easement. This act constituted a valid reservation of rights in the easement to Ms. Church, who then owned Lot 3. 

### The matterthen proceeded to trial where issues regarding the scope of the easement were resolved. Inentering finaljudgment, the trial court made 

### findings of fact and drew conclusions of law. Several of its findings are relevant to the resolution ofthis appeal. 

### The first pertinentfindingwas that Lots 3 and 4 were provided with legal
access to a public road when the original property was subdivided in 1981. Short Plat 980005 was recorded in 1981
.... It created 4 Lots; LotsNo. 70454-1-1 (consol. with No. 70550-4-l)/5
1 and 2 fronting the public road and Lots 3 and 4 behind. Legal access to Lots 3 and 4 was provided through "Tract X" identified on the plat map, 30 feet in width and running between Lots 1 and 2 to the intersection with Lots 3 and 4. Lots 3 and 4 are delineated on the plat as "Nonbuilding Lots." Findings of Fact 2. The second pertinentfinding was that the easement that Church had attempted to create had never been used as such. 

### There was no apparent use ofthe Easement area at the time itwas 

### granted or at any time since. Novehiculartraffic has ever crossed the Easement area. Findings of Fact 12. 

### The appellants appeal from the trial court's grant of partial summary 

### judgment and from entry of itsfinal order and judgment. On appeal, however, the central issue is whetherthe trial court, ingranting partial summaryjudgment, 

### erred byruling that a valid easementemerged from the conveyance made "subjectto" the invalid easement. II 

### While the trial court concluded that Church's conveyance of Lot 1 "subject to" the invalid easement resulted in a valid easement, it explicitly rejected the 

### respondents' position that Church's initial attemptto record an easementwas successful. Nevertheless, on appeal, the respondents contend that the trial 

### court's grant ofpartial summaryjudgment may be affirmed byholding, contraryto the trial court's conclusion, that Church's initial attemptto create an easement
was successful. We disagree. 

### We review an order ofpartial summary judgment de novo and engage in
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the same inquiry as the trial court. Woo v. Fireman's Fund Ins. Co., 161 Wn.2d 43, 52, 164 P.3d 454 (2007). Summaryjudgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). As a general rule, "[o]ne cannot have an easement in his own property." Coast Storage Co. v. Schwartz, 55 Wn.2d 848, 853, 351 P.2d 520 (1960). Nevertheless, the respondents argue that a valid easement comes into existence 

### when granted over separate lots incommon ownership, so long as the easement 

### is granted "in anticipation of sale" of one of the lots. The respondents invoke the doctrine of merger, along with its well-established exceptions, in an effort to supporttheir novel theory. However, the doctrine ofmerger is inapt. The doctrine ofmerger directs that when a dominant and a servient estate
come into common ownership any easements affecting the estates are 

### extinguished. Radovich v. Nuzhat, 104Wn. App. 800, 805, 16 P.3d 687 (2001) (citing Restatement(First) ofProperty § 497 cmt. a (1944)). As explainedin the Restatement, in orderfor the doctrine ofmergerto be implicated, there must 

### be two tracts of land inseparate ownership that subsequently come into common ownership. To assume the existence of an easement appurtenant to land there 

### must be presupposedtwo tracts of landin separate ownerships, a dominant and a servient tenement. Ifthe two tracts come into 

### common ownershipthey cannot continue to be dominant and servient, and the easement appurtenant ceases to exist because, 

### though the privileges of use once authorized by itstill exist, they are no longerincidental to the ownership of the dominant tenement but have become incidents ofthe ownership ofwhat was formerly the 

### servient tenement. By virtue of such ownership, the uses whichNo. 70454-1-1 (consol. with No. 70550-4-l)/7

were authorized by the easement may still be made, butthe easement, as such, is extinguished. Restatement (First) ofProperty § 497 cmt. a (emphasis added). However, because the doctrine ofmerger is disfavored, exceptions to its application have been created. Radovich, 104 Wn. App. at 805. These include the following: 

### "[T]he courts will not compel a merger ofestates where the party in whom the two interests are vested does not intend such a merger 

### to take place, or where it would be inimical to the interest ofthe party in whom the several estates have united, nor will they 

### recognize a claim ofmergerwhere to do so would prejudice the rights ofinnocentthird persons." 

### Radovich, 104 Wn. App. at 805 (quoting Moblev v. Harkins, 14 Wn.2d 276, 282, 128 P.2d 289 (1942)). 

### Radovich, as well as the authorities upon which it relies, recognizes an 

### order ofevents. Twotracts of land inseparate ownership—one burdened and 

### one benefited by an easement—are united in common ownership. Those facts are not present here. Instead, two tracts in common ownership were decoupled. Consequently, the doctrine ofmerger—including the exceptions to its 

### application—is inapposite and, hence, we decline toaffirm thetrial court's grant ofpartial summary judgment on the basis of the respondents' novel theory.
Ill 

### Turning to the appellants' first and only contention on appeal, they contend that the trial court erred byconcluding that Church reserved to herself a valid easement in the deed by whichshe conveyed Lot1. This is so, they assert, because Church's conveyance made "subject to" her invalid easementwas an
-7-No. 70454-1-1 (consol. with No. 70550-4-l)/8 attempt to exclude that which she mistakenly believed to be a valid easement from the warranty against encumbrances. We agree. "Generally, when construing a deed, the intent ofthe parties is of paramount importance and courts must ascertain and enforce such intent." Wash. State Grange v. Brandt, 136 Wn. App. 138, 145, 148 P.3d 1069 (2006). "[A]ny words which clearly show the intention to give an easement... are 

### sufficient to effect that purpose, providing the language is sufficiently definite and certain in its terms." Beebe v. Swerda, 58 Wn. App. 375, 379, 793 P.2d 442 

### (1990). Agrantor may create an express easement by including in the statutory 

### warrantydeed what is known as a "reservation" ofrights: "'A reservation is the creation in behalf of the grantor of a new rightissuing out of the thing granted, 

### something which didnot exist as anindependentrightbefore thegrant.'" Duusv. Town of Ephrata, 14 Wn.2d 426, 430, 128 P.2d 510, 134 P.2d 722 (1942) 

### (emphasis added) (quoting 16Am. Jur. Deeds § 298, at 607 (1938)). Usually, the words "subjectto" are includedin a deed to denote restrictions of record that the grantor intends to exclude from warranty oftitle. See 7 Thompson on Real Property § 60.03(a)(7) (2d Thomas ed. 2006); see also von Meding v. Strahl, 319 Mich. 598, 609, 30 N.W. 2d 363 (1948) ("subject 

### to all easements" in a conveyance means "subject to all valideasements"). But 

### see Beebe, 58Wn. App. at 379-82 (holding that the words "subjectto," when 

### accompanied by additional relevant language andcircumstances, may indicate an intent to create an express easement inthe deed). 

### As part of a conveyance ofreal property bystatutory warranty deed, a
-8-No. 70454-1-1 (consol. with No. 70550-4-l)/9 grantor must covenantthat, among otherthings, title is free ofencumbrances. Mastro v. Kumakichi Corp., 90 Wn. App. 157, 162,951 P.2d 817 (1998); cf. Hebb
v. Severson, 32 Wn.2d 159, 167, 201 P.2d 156 (1948) (identifying an easement
as a type ofencumbrance on real property). 

### The language ofthe deed and the circumstances surrounding the 

### conveyance of Lot 1 disclose that Church intended to exclude that which she mistakenly believed to be a valideasementfrom the warranty against encumbrances. Church conveyed Lot 1 "subjectto" an easementthat carried the


### same recording number, date, and description as the invalid easement recorded by Church in August 2006. This alone is potentevidence of Church's intent. Additionally, the respondents fail to identify any surrounding circumstancessuch as evidence that Church was aware that her initial attempt to grant to 

### herselfan easement over her own property was ineffectual—that would suggest 

### an intentbyChurch—contraryto the language ofthe deed—to reserve toherself
an easement inthe deed. Considered inconcert, the language ofthe deed and 

### the circumstances surrounding the conveyance indicate that Church was 

### attempting toexclude thatwhich she mistakenly believed to be a valid easement from the warranty against encumbrances—not that she was attempting to create 

### a "new right" in the parcel. Cf, Duus, 14Wn.2d at431. Thetrial courterredby ruling otherwise. IV 

### Notwithstanding thetrial court'serror, the respondents next contend that 

### we may affirm thetrial court's grantofpartial summaryjudgmenton thebasis of
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there being established respondents' right to an "implied easement" overthe
area in dispute. Where, as here—according to the respondents—there was unity of title, a subsequent separation, and a reasonable degree ofnecessity for the easement after the separation, an implied easement should be found. We disagree. 

### "Easements by implication arise by intent of the parties, which is shown by facts and circumstances surrounding the conveyance." Roberts v. Smith, 41 Wn. 

### App. 861, 864, 707 P.2d 143 (1985). The factors relevant to establishing an 

### implied easement are (1) formerunity oftitle and subsequent separation, (2)prior apparent and continuous quasi easementfor the benefit of one part of the estate to the detriment ofanother, and (3) a certain degree ofnecessity forthe continuation ofthe easement. Adams v. Cullen, 44 Wn.2d 502, 505, 268 P.2d 451 (1954): MacMeekin v. Low Income Hous. Inst., Inc., 111 Wn. App. 188, 195, 

### 45 P.3d570 (2002). Unity oftitle and subsequent separation is the only absolute 

### requirement. Roberts. 41 Wn. App. at 865. The othertwo factors are "aids in 

### determining intentto create animplied easement." Roberts, 41 Wn. App. at865. Here, there was unity of title and a subsequent separation. Hence, the first factor is satisfied. However, analysis of the second and third factors militate against the respondents' contention. 

### With regard to the secondfactor, therespondents donoteven assert that 

### a "quasi easement" exists. A"quasi easement" refers to thesituation "which may arise betweentwo pieces of land owned by the same person, when the 

### enjoymentby one piece of a right in the otherwould be a legal easement, were
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the pieces owned by different persons." Adams, 44 Wn.2d at 504. Even had the respondents asserted the existence of a "quasi easement," however, the trial court's factual finding that "[tjhere was no apparent use ofthe Easement area at 

### the time itwas granted or at any time since,"1 forecloses a conclusion in favor of the respondents on this question. 

### With regard to the third factor, the respondents contend that a certain 

### degree ofnecessity exists for the easement. This is so, they maintain, because Lots 3 and 4 are landlocked. To the contrary, the trial court's finding that "Tract 

### X" provides Lots 3 and 4 with legal access to a public road forecloses adoption of the respondents' position. In view of the trialcourt's factual finding, the 

### respondents have failed to establish the requisite necessity for an additional easement.2 

### Considering that the invalid easement had never been used and that Lots 3 and 4 had been granted legalaccess to a public road, we reject the suggestion 

### that the parties intended for an easementto be created byimplication and decline to affirm the trial court's grant of partialsummaryjudgment on this basis. 

### The grant ofpartial summaryjudgment is reversed and this matter is remanded to the trial court. On remand, a determination with regard to the 

### appropriate relief, including damages (ifany), to be granted to the appellants
should be made.

1 Findings of Fact 12. 2Moreover, thethird factorcalls foran evaluation of the necessity forthe continuation of the easement. This plainly refersto acontinuation oftheuseofthe easement. Here, where no such use ever took place, the "use" could not be "continued."
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### No. 70454-1-1 (consol. with No. 70550-4-l)/12

Reversed.

* ) i-^lsiS), We concur: 

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