Pelly v. Panasyuk

413 P.3d 619

Cameron PELLY and Amy Pelly, husband and wife, Respondents,

v.Anatoliy PANASYUK and Sharon C.W. Tseng, husband and wife, Appellants.

No. 75517-0-I

Court of Appeals of Washington, Division 1.

FILED: March 19, 2018

Rhys Matthew Farren, Robert Edward Miller, Davis Wright Tremaine LLP, 777 108th Ave. Ne Ste. 2300, Bellevue, WA, 98004-5149, for Appellants.

Charles A. Klinge, Stephens & Klinge LLP, 10900 Ne 8th St. Ste. 1325, Bellevue, WA, 98004-4748, for Respondents.

PUBLISHED OPINION

Schindler, J.

¶ 1 In this appeal, we review the trial court decision interpreting a 1970 grant of easement and quitclaim deed executed and recorded by adjoining property owners Russ and Jean Kelleran and George and Virginia Fey to resolve their dispute over rights to what is referred to as the "Waterfront Strip." In 2015, Anatoliy Panasyuk and Sharon Tseng, the successors in interest to Fey, applied for permits to install a dock and boatlift. Amy and Cameron Pelly, the successors in interest to Kelleran, sought a declaratory judgment and injunctive relief. Pelly alleged the dock, boatlift, and certain landscaping and fencing violated the rights established by the 1970 documents. Panasyuk and Tseng filed a counterclaim asserting title to the Waterfront Strip or alternatively, a declaratory judgment on the scope of the rights under the 1970 "Grant of Easement" and "Quit Claim Deed." Following trial, the court issued a 25-page decision and extensive findings of fact and conclusions of law. The court found the parties clearly intended the Grant of Easement and Quit Claim Deed be given effect. The court interpreted the Grant of Easement and Quit Claim Deed together and ruled the dock, boatlift, some fencing, and portions of the hedge and potted shrubs violated the right to prohibit permanent structures on the Waterfront Strip and materially interfered with the easement rights. The court issued an injunction prohibiting Panasyuk and Tseng from interfering with the right to ingress and egress to the Waterfront Strip for foot traffic and hand-carried boat access. On appeal, Panasyuk and Tseng argue the court erred in admitting extrinsic evidence to determine the intent of the original parties in executing and recording the Grant of Easement and Quit Claim Deed. Panasyuk and Tseng contend the language of the Quit Claim Deed eliminated all rights to ingress and egress. We hold the court did not err in considering extrinsic evidence to determine the intent of the original parties and whether the recorded Grant of Easement and Quit Claim Deed were part of the same transaction and interpreting the two documents together to give effect to the right to ingress and egress, and affirm.

Grant of Easement and Quit Claim Deed

¶ 2 The unchallenged findings establish the following facts. In 1953, C.R. (Russ) and Jean Kelleran (Kelleran) purchased Lake Sammamish waterfront property in Bellevue. George and Virginia Fey (Fey) owned the adjacent property to the east of the Kelleran property.

¶ 3 On March 20, 1969, Fey filed a lawsuit to quiet title to a 30-feet-wide by approximately 300-feet-long strip of land that runs north to the lakeshore, the Waterfront Strip. Kelleran filed a counterclaim asserting title to the Waterfront Strip. The following exhibit shows the location of the Kelleran and Fey property and the Waterfront Strip:

¶ 4 The parties agreed to resolve the lawsuit by executing a Grant of Easement and a Quit Claim Deed. On November

23, 1970, Fey executed an easement granting Kelleran the right to "ingress and egress, for foot traffic and boat access purposes only," and the right to prohibit placing any "permanent structure of any kind" on the Waterfront Strip. The Grant of Easement states the 30-foot Waterfront Strip includes "the Lake Sammamish Shore lands adjacent."

¶ 5 The Grant of Easement recorded on December 29, 1970 provides, in pertinent part:

THE GRANTORS, GEORGE C. FEY and VIRGINIA L. FEY, husband and wife, for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, hereby give, grant and convey to C. R. KELLERAN and JEAN B. KELLERAN, husband and wife, as grantees, and to their heirs, successors and assigns forever, a right of way for purposes of ingress and egress, for foot traffic and boat access purposes only, over and upon the following described real estate situate in King County, Washington ...:

A strip of land 30 feet in width, being a portion of Government Lot 2 in Section 13, Township 24 North, Range 5 E.W.M., King County, Washington ... [.]

... TOGETHER WITH the Lake Sammamish Shore lands adjacent....

TOGETHER with the right to prohibit the placing of any road or other permanent structure of any kind upon the aforedescribed property, except that such right shall not apply to existing structures. This right shall be interpreted as and is intended to be a covenant running with the land for the benefit of the property of the grantees which lies adjacent to and westerly of the property described in this instrument and as a burden upon that portion of the property described in this instrument which said right touches and concerns.

¶ 6 On December 23, 1970, Kelleran executed the Quit Claim Deed that conveyed to Fey any interest to the Waterfront Strip, "including any interest therein which grantors may thereafter acquire," subject to "the right to prohibit the placing of any road or other structure of any kind" on the Waterfront Strip. The Quit Claim Deed was recorded on December 31, 1970 and provides, in pertinent part:

THE GRANTORS, C. R. KELLERAN and JEAN B. KELLERAN, husband and wife; DONALD E. CHANDLER, a single man; and ELIZABETH A. JOHNSON, individually and as executrix of the Estate of Howard B. Johnson, deceased, for and in consideration of One Dollar ($1.00) and other valuable consideration, convey and quit claim to GEORGE C. FEY and VIRGINIA L. FEY, husband and wife, the following described real estate, situated in the County of King, State of Washington, including any interest therein which grantors may hereafter acquire:

A strip of land 30 feet in width, being a portion of Government Lot 2 in Section 13, Township 24 North, Range 5 E.W.M., King County, Washington ... [.]

... TOGETHER WITH the Lake Sammamish shore lands adjacent.

RESERVING TO THE GRANTORS, HOWEVER, And to their heirs, successors and assigns forever, the right to prohibit the placing of any road or other structure of any kind upon that portion of the aforedescribed property which lies northerly of a line which is the extension of the northern boundary of lots 21 and 8, Block 3, of the unrecorded plat of Strandvik, a corporation, except that such right shall not apply to existing structures. This right shall be interpreted as and is intended to be a covenant running with the land for the benefit of the property of the grantors which lies adjacent to and westerly of the property conveyed by this instrument, and as a burden upon that portion of the property conveyed by this instrument which said right touches and concerns.

¶ 7 The undisputed evidence shows that after executing the two documents, Kelleran used the Waterfront Strip for ingress and egress and boat access. In 1999, Bruce and Rebecca Kelleran built an "auxiliary dwelling unit" on the property for Russ and Jean. In 2000, Bruce and Rebecca demolished the summer cabin and built a 5,000-square-foot house.

¶ 8 In 2005, Anatoliy Panasyuk and Sharon C.W. Tseng purchased the Fey property.

The "Statutory Warranty Deed" expressly conveys title to Panasyuk and Tseng "SUBJECT TO: RIGHTS, RESERVATIONS, COVENANTS, CONDITIONS, RESTRICTIONS, AGREEMENTS AND EASEMENTS PRESENTLY OF RECORD AND AS SET OUT ON EXHIBIT 'A' ATTACHED."¹ Exhibit A identifies the 1970 Grant of Easement and Quit Claim Deed. The Statutory Warranty Deed states the Grant of Easement gives the adjacent property owner the right to "[i]ngress and egress, for foot traffic and boat access purposes only," to the 30-foot Waterfront Strip.

EASEMENT AND CONDITIONS CONTAINED THEREIN, AS GRANTED/RESERVED/DISCLOSED/CONTAINED BY INSTRUMENT:

Recorded: December 29, 1970

Recording No.: 6727744

Purpose: Ingress and egress, for foot traffic and boat access purposes only

Affects: The East 30 feet of said Government Lot 2, except that portion lying South of a line which is the extension of the Northerly line of Lots 21 and 8, Block 3, of the unrecorded Plat of Standvick [sic] Addition, a corporation.

¶ 9 The Statutory Warranty Deed states the Quit Claim Deed prohibits "the placing of any road or other structure of any kin[d] upon" the Waterfront Strip.

RESERVATIONS AND/OR EXCEPTIONS CONTAINED IN INSTRUMENT:

From: C.R. Kelleran and Jean B. Kelleran, his wife, Donald E. Chandler, a single man, Elizabeth A. Johnson, individually and as executrix of the estate of Howard B. Johnson, deceased

Recorded: December 31, 1970

Recording No.: 6728558

As Follows: Reserving to the Grantor's [sic] and to the heirs, successors and assigns forever, the

right to prohibit the placing of any road or other structure of any king [sic] upon that portion of the East 30 feet of said Government Lot 2, which lies Northerly of a line which is the extension of the Northern Boundary of Lots 21 and 8, Block 3, of the unrecorded Plat of Strandvik, a corporation, except that such right shall not apply to existing structures.

¶ 10 On May 25, 2005, an attorney representing Panasyuk and Tseng sent a letter to Kelleran. The letter acknowledges the easement rights to ingress and egress and that consistent with those rights, Panasyuk and Tseng plan to landscape and install a fence on the boundary line. The letter states, in pertinent part:

As you know, the Panasyuk & Tseng property abuts yours to the east. In addition, you have an easement across a portion of the northern panhandle of my clients' property. Such easement was granted and conveyed in the Grant of Easement recorded on December 29, 1970 and modified in the Quit Claim Deed recorded on December 31, 1970.

The scope of the

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