Date: 04-23-2015

Case Style: Neil Donner And Kiyomi Donner v. James M. Blue

Case Number: 71441-4

Judge: Linda Lau

Court: Washington Court of Appeals, Division I on appeal from the Superior Court, King County

Plaintiff's Attorney: Mike Daudt

Defendant's Attorney: Pam Okano, Tom Heller, Marilee Erickson, Bill Gibbs, Mick Jaeger, Emmelyn Hart, Gary Trabolsi, Gordon Hauschild

Description: Homeowners Neil and Kiyomi Donner appeal an order for summary
judgment dismissing their breach of easement, negligence, nuisance, and trespass
claims against neighboring homeowners for damages to their residence resulting from a
clogged private sewer line shared by the parties. They argue the trial court erred when
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it dismissed their claims because respondent James Blue is liable as the owner of the
tree that obstructed the sewer line and because the remaining respondents failed to
fulfill an affirmative duty to maintain the sewer line. Because no controlling authority
imposes an affirmative duty to inspect the shared sewer line, we affirm the order
dismissing the Donners' claims on summary judgment. We affirm the trial court's order
allocating repair costs to the uphill respondents.
FACTS
The material facts are undisputed. Respondents John Spring, James and Jane
Hawkanson, Shane and Dana Kim, and John Rieke and Gene Robertson are all uphill
neighbors to the Donner home.1 These uphill respondents' homes are situated on a
steep slope, east to west, toward Lake Washington. Downhill from the uphill
respondents and adjacent to the Donners' home is unimproved property owned by
James Blue, as trustee for the Northwest Neurological Trust. The Blue property fronts
on West Mercer Way on Mercer Island. There are no structures on the property, only
natural trees and foliage. A common private sewer line serves all the parties to the
litigation except for the Blue property.2 The sewer line runs under Blue's property and
connects to the public sewer line under West Mercer Way. Unlike the other parties,
Blue's property makes no use of the sewer line since it is undeveloped.
During the week of July 30, 2012, tree roots on the Blue property blocked the
sewer and the Donners—who were out of town that week—came home and discovered
1We refer to these uphill neighbors as the "uphill respondents" where necessary
for clarity.
2The common sewer line runs along a utility easement created through various
instruments not at issue in this case.
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sewage had filled their basement. None of the parties had ever experienced a blockage
of the sewer line. The sewage originated from the uphill respondents' homes. The
Donners filed a complaint on May 22, 2013, against Blue and the uphill respondents to
recover damages from the sewage. The Donners argued the uphill respondents were
liable under several theories, including negligence, trespass, nuisance, strict liability,
and breach of easement. In November 2013, all respondents moved for summary
judgment to dismiss the Donners' claims. The trial court granted the respondents'
motions for summary judgment but directed the uphill respondents to pay an equal
share (along with the Donners) to repair the sewer line.3 The court awarded no
consequential damages related to the damage to the Donners' home. The Donners
appeal.
ANALYSIS
Standard of Review
This court reviews summary judgment de novo, engaging in the same inquiry as
the trial court, and views the facts and the reasonable inferences from those facts in the
light most favorable to the nonmoving party. Michak v. Transnation Title Ins. Co., 148
Wn.2d 788, 794-95, 64 P.3d 22 (2003). A trial court properly grants summary judgment
where "there is no genuine issue as to any material fact and ... the moving party is
entitled to a judgment as a matter of law." CR 56(c).
The parties do not dispute that the main issue here is whether the respondents
owe an affirmative duty to inspect the common sewer line.
3Blue was not ordered to pay anything to repair the sewer. Because the parcel
was undeveloped, Blue did not use or benefit from the sewer line.
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Blue's Liability
The Donners argue that Blue is liable under two theories. First, they argue that
Blue is liable under Forbus v. Knight, 24 Wn.2d 297, 163 P.2d 822 (1945) because he
owned the offending agency (the tree) causing the damage. Second, they argue that
under Sunnvside Valley Irr. Dist. v. Dickie, 111 Wn. App. 209, 43 P.3d 1277 (2002),
aff'd, 149 Wn.2d 873, 73 P.3d 369 (2003), Blue owed a duty as the property owner
burdened by the easement to remove obstacles which could interfere with the Donners'
right to use the sewer line easement. Both Forbus and Sunnvside are distinguishable
from this case.
The Donners claim that Blue is liable under Forbus because he owned the tree
that clogged the sewer line. Forbus involved two adjacent property owners. There,
roots from a tree on the defendant's property invaded the plaintiff's property and
clogged a sewer line, causing water and waste to flood the plaintiff's basement. Forbus,
24 Wn.2d at 298-302. The court reasoned that the owner of the offending agency owes
a duty to restrain the encroachment:
It is not the law that the owner of premises is to be charged with
negligence if he fails to take steps to make his property secure against invasion
or injury by an adjoining landowner. It is the duty of the one who is the owner of
the offending agency to restrain its encroachment upon the property of another,
not the duty of the victim to defend or protect himself against such encroachment
and its consequent injury.
Forbus, 24 Wn.2d at 313. Based on this rationale, the Donners contend Blue is liable
for the damage caused by his tree because he owed a duty to restrain its
encroachment.
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Unlike Forbus. the dispute here implicates the rights and obligations under a
private sewer easement. In Forbus, the tree invaded the plaintiff's property, clogging
the plaintiff's sewer pipe. Forbus. 24 Wn.2d at 304. Here, the tree roots did not invade
the Donners' property but, instead, clogged the sewer line underneath Blue's property.
Like all the uphill respondents, the Donners use the common side sewer easement to
transfer sewage from their properties. Blue is not connected to the sewer line. He
therefore derives no benefit from or use of the sewer line.
Blue's property is burdened by the easement and the Donners receive the benefit
of the easement. Under easement law, Blue's estate is the "servient" estate and the
Donners' estate is the "dominant" estate. 17 William B. Stoebuck &John W. Weaver,
Washington Practice: Real Estate: Property Law § 2.1, at 80 (2d ed. 2004).
Generally, responsibility for the maintenance and repair of an easement to keep it in
proper condition lies with the owner of the easement—the dominant estate. 1 Wash.
State Bar Ass'n, Washington Real Property Deskbook § 10.4(2)(c) (3d ed. 1997).
And according to a leading treatise on real property easements, servient owners
ordinarily owe no duty to the dominant owner to repair or maintain the easement unless
an agreement varies these duties:4
Servient owners, according to the New Restatement, have no duty to the
dominant owner to "repair or maintain the servient estate or the facilities used in
the enjoyment of the easement or profit." Because the duty to maintain an
easement ordinarily rests on the easement owner, servient owners had no duty
to construct stairs to the beach for the benefit of a dominant estate owner.
4The parties agree no agreements govern the alleged affirmative repairmaintenance
obligations.
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7 Thompson on Real Property: The Law of Easements § 60.05(a) (David A. Thomas
ed., 2d ed. 2006) (footnote omitted) (quoting Restatement (Third) of Prop.:
Servitudes § 4.13(3) (2000)). There is scant Washington case law on point. Blue cites
several cases from other states discussing in general the lack of any duty on the
servient estate owner to remove or cut back vegetation that encroached onto an
easement. Smith v. Muellner, 283 Conn. 510, 932 A.2d 382 (2007); Schwartz v.
Murphy, 74 Conn. App. 286, 812 A.2d 87 (2002); Suitts v. McMurtrev, 97 Idaho 416,
546 P.2d 62 (1976). The Donners properly concede that easement owners owe a duty
to maintain the easement benefitting their dominant estates. Appellants' Reply Br. at 1.
Nevertheless, the Donners argue with no citation to authority that Forbus controls over
easement law. We are unaware of any case that extends the rule in Forbus to the
easement interest context. We decline to do so here.
Next, the Donners cite Sunnvside, arguing that "as the servient estate owner,
[Blue owed] a duty to remove obstacles which could interfere with the Donners' right to
use the sewer line." Br. of Appellant at 8. Sunnvside does not support this argument.
In Sunnyside, we concluded that the servient estate owner needed to remove several
trees so that the plaintiff could enlarge irrigation laterals running across the defendant's
property. Sunnvside, 149 Wn.2d at 878-88. We did not hold that the trees interfered
with the plaintiff's right to use the easement laterals. Rather, the easement agreement's
express language granted the easement owner the right to enlarge the laterals: "We
hold the easement granted to the United States by the Dickies' predecessor gave the
specific right to enlarge the lateral as deep and wide as necessary . . . ." Sunnvside,
111 Wn. App. at 218. Our Supreme Court affirmed, relying on the same rationale: "[A]n
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easement can be expanded over time if the express terms of the easement manifest a
clear intention by the original parties to modify the initial scope based on future
demands." Sunnvside. 149 Wn.2d at 884. The specific easement at issue in Sunnvside
provided the easement owner "'the right and permission to enter upon said land for the
. . . enlargement and repair of said . . . laterals . . . .'" Sunnvside, 149 Wn.2d at 884
(alterations in original). Unlike in Sunnvside, the easement here contained no express
language that requires Blue to remove his trees or prevent them from encroaching on
the Donners' easement.
Because the Donners cite no controlling authority imposing a duty on Blue under
the facts presented here, we conclude the trial court properly granted summary
judgment dismissing the claims against Blue.
Uphill Respondents' Liability
The Donners argue that the uphill respondents are liable under the duties
imposed by their respective easements.5 Spring's easement differs from that of the
other uphill respondents' and is discussed separately below.
1. Spring's Easement
The Donners contend that the hold harmless and indemnity provision (indemnity)
in Spring's easement requires him to pay the damage caused by the clogged sewer
pipe. The easement contains an indemnity clause requiring Spring to pay for any
damages arising from his use. The Donners fail to identify any overt act or omission on
5While there appears to be some dispute as to whether certain easement
agreements apply to certain parties, we need not resolve that issue.
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the part of Spring that caused the damage. Spring's property benefits from an
easement recorded in 1973. That easement provides:
IT IS AGREED that the grantors of the easement described herein shall
fully use and enjoy their premises, except as to the rights herein granted; and the
grantee of such easement described herein does agree to hold and save his
easement grantor harmless from and against any and all damage arising from his
use of the right, easement and right of way herein granted and agrees to pay any
damage or damages which may arise to the property, premises or rights of the
easement grantor through easement grantee's use, occupation and possession
of the rights herein granted.
(Emphasis added.) Under this indemnity clause, Spring's liability depends on whether
the damage "arose" from his use of the easement. The Donners argue that Spring must
pay for the damage "arising from" his use of the easement because his continued use of
the easement after the sewer pipe became blocked contributed to the damage to their
home. Br. of Appellant at 9.
But the Donners' broad and literal reading of this indemnity clause is not
supported under well-settled indemnity law. Our Supreme Court interpreted a similar
clause in Jones v. Strom Constr. Co., Inc., 84 Wn.2d 518, 527 P.2d 1115(1974). Like
other contractual provisions, indemnity provisions are governed by the general rules of
contract construction and the parties' intent controls. Jones, 84 Wn.2d at 520.
Moreover, and specifically with respect to indemnity provisions, it is to be
noted that: (a) clauses which purport to exculpate an indemnitee from liability for
losses flowing solely from his own acts or omissions are not favored and are to
be clearly drawn and strictly construed, with any doubts therein to be settled in
favor of the indemnitor; (b) such clauses are to be viewed realistically,
recognizing the intent of the parties to allocate as between them the cost or
expense of the risk of losses or damages arising out of performance of the
contract; and (c) causation of loss is the touchstone of liability under a
construction contract indemnity clause, rather than negligence, although
negligence may be incidental to the cause.
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Jones, 84 Wn.2d at 520-21 (emphasis added). With these principles in mind, the court
found an indemnity provision similar to the one at issue here6 inapplicable because the
plaintiff's injury, although occurring while he was performing the subcontract, did not
"arise out of that performance:
Thus, it is clear that unless an overt act or omission on the part of Belden in its
performance of the subcontract in some way caused or concurred in causing the
loss involved, indemnification would not arise. Belden's mere presence on the
jobsite inculpably performing its specified contractual obligations, standing alone,
would not constitute a cause or participating cause.
Jones. 84 Wn.2d at 521-22 (emphasis added). Consistent with Jones's rationale,
Spring's normal use of the sewer line standing alone does not constitute a cause or
participating cause triggering a duty of indemnity. In Jones, the court rejected a "broad
and sweeping" interpretation of the indemnity clause and instead acknowledged that
such clauses must to be "strictly construed." Jones, 84 Wn.2d at 520-21. The
Donners' concession that the sole cause of their damage was the tree roots on Blue's
property defeats their claim of indemnification.7 That condition was neither created by
nor under Spring's control. We conclude that Spring is not liable under the easement's
indemnity clause.
6The provision in Jones provided:
"To indemnify and save harmless the CONTRACTOR from and against any and
all suits, claims, actions, losses, costs, penalties, and damages, of whatsoever kind or
nature, including attorney's fees, arising out of, in connection with, or incident to the
SUBCONTRACTOR'S performance of this SUBCONTRACT.'" Jones, 84 Wn.2d at 521
(emphasis added).
7Nor do the Donners point to any competent evidence of their intent, i.e., that
Spring agreed to indemnify the Donners for damages regardless of the cause.
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All Uphill Respondents
Next, the Donners argue that the uphill respondents are liable because they
breached their duty to maintain the easement. While they cast the obligation as a mere
duty to maintain, in fact, the Donners seek to impose on the uphill respondents an
affirmative duty to inspect and periodically clear the sewer line. As the trial court
correctly observed:
The crux of the case, I think, does come down to the question that I asked
Mr. Daudt [plaintiffs' counsel], whether there was such a thing as a duty to
maintain that was separate and distinct from a duty to inspect. The response [by
plaintiffs' counsel] suggested that a duty to maintain involved a duty to
periodically run cutters through the sewer line as it ran beneath someone else's
property. To me, that's the same as a duty to inspect. I don't understand that
proposition at all.
In this case, I think there was a duty to maintain, a duty to repair, but there
was no knowledge on the part of anyone as to any problem calling for action
consistent with that duty.
There is no indication from Mr. Daudt or anyone else that a standard of
care would have involved some sort of an inspection, that the maintenance
requirement placed on these parties either by common law or by the easement
that that encompassed a duty to inspect for hidden unknown dangers.
Report of Proceeding (Dec. 13, 2013) (RP) at 43. The Donners contend that because
the uphill respondents failed in this duty, the uphill respondents are liable for the
damages the Donners incurred. The Donners do not contend that the blockage was
visible to any of the parties. The Donners cite to no controlling authority imposing such
an affirmative duty on the uphill respondents. Indeed, at oral argument on summary
judgment, the Donners' attorney candidly acknowledged, "there is no authority
addressing the inspection issue at all." RP at 33. "'Where no authorities are cited in
support of a proposition, the court is not required to search out authorities, but may
assume that counsel, after diligent search, has found none.'" State v. Logan, 102 Wn.
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App. 907, 911, 10 P.3d 504 (2000) (quoting DeHeer v. Seattle Post-Intelligencer. 60
Wn.2d 122, 126, 372 P.2d 193 (1962)).
Both parties urge us to rely on different sections of the Restatement (Third) of
Property to determine the extent of any duty owed by the uphill respondents. The
Donners claim that § 4.13(1) imposes on the uphill respondents an affirmative duty to
maintain the sewer line. See Restatement (Third) of Prop.: Servitudes § 4.13(1)
(2000). The uphill respondents respond that under section 4.13(4), there is no
affirmative duty to maintain, but common easement users must share the cost to
maintain and repair the shared easement. See Restatement (Third) of Prop.
§ 4.13(4). No Washington court has yet adopted the sections of the Restatement urged
by the parties. In any event, no court has relied on the Restatement to impose the
affirmative duty to maintain proposed by the Donners.
The Donners also rely on Buck Mountain Owners' Ass'n v. Prestwich, 174 Wn.
App. 702, 718, 308 P.3d 644 (2013) ("[l]n the absence of an agreement, joint use of an
easement creates an obligation to share costs."). Buck Mountain does not support the
Donners' duty argument. There, we held that servient and dominant estate owners
must share the cost to maintain and repair a shared easement when they regularly use
the easement and the agreement creating the easement is silent as to apportioning
those costs. Buck Mountain, 174 Wn. App. at 717-20. That case involved no question
regarding an affirmative duty to inspect and repair by joint users of a common
easement—the precise question presented here.
In their reply brief, the Donners cite several cases from other jurisdictions to
support their argument that the uphill defendants owed some affirmative duty to
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maintain and repair the sewer line. These cases are distinguishable. First, the Donners
cite Powers v. Grenier Constr., Inc., 10 Conn. App. 556, 560, 524 A.2d 667 (1987) ("The
duty of maintaining an easement so that it can perform its intended function rests on the
owner of the easement absent any contrary agreement. The owner must maintain the
easement so as to prevent injury to the servient estate."). (Citation omitted.) Powers
differs from this case in two important ways. First, the dispute in Powers involved one
dominant estate and one servient estate. Here, several dominant estates, including the
Donners', hold easements on a common servient estate. Second, at issue in that case
was the cost to repair the damaged drain system. Powers, 10 Conn. App. at 556. The
uphill respondents here all agree that they are obligated to contribute to the cost of
repairs. Further, the court noted that the action was "based on a breach of the duty to
repair. .. ." Powers, 10 Conn. App. at 560. The court did not suggest that the
dominant estate owner was required to take some affirmative action to inspect the
drainage system. Next, the Donners cite Murtha v. O'Heron, 178 III. App. 347, 354 (III.
App. Ct. 1913):
The authorities show that in the case of a dominant and servient estate in
the matter of a drain and of sewage, it is the duty of the owner of the dominant
estate and easement at his own risk and without regard to his actual negligence
or to his knowledge of any defect in the sewer or drain, to keep it in repair and
... to keep the sewage from passing from his own premises to the plaintiffs
premises otherwise than along the accustomed channel.
Murtha, 178 III. App. at 354. As in Powers, Murtha only involved a sole dominant estate
owner and a sole servient estate owner. Murtha. 178 III. App. at 354. The Donners also
cite Schilson v. Weinberg, 24 III. App. 3d 967, 322 N.E.2d 201 (1975), for the
proposition that an easement owner has an affirmative duty to keep the easement in
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repair. Like Murtha, Schilson does not involve multiple dominant estate owners utilizing
a common easement. Further, the Schilson court found only a duty to repair and
imposed damages for the cost to repair the easement. Schilson, 24 III. App. 3d at 971—
72. It did not recognize an affirmative duty to maintain or inspect.
In Borgel v. Hoffman, 219 Pa. Super. Ct. 260, 280 A.2d 608 (1971), the court
declined to impose an affirmative duty to maintain an easement when multiple
beneficiaries share that easement. Borgel involved a driveway easement shared by
several estates:
The question presented to us can be stated as follows: Where the
defendants own an easement over a driveway, a portion of which abuts or is
located on their property, and a user contends negligence in their maintenance
and repair of that portion of the driveway, are the other owners of properties
abutting the driveway, who also enjoy an easement therein, responsible, either
solely or jointly with the defendants, in the absence of any express covenant, for
the repair and maintenance of that portion of the driveway so abutting or located
on defendants' property?
Borgel. 280 A.2d at 609. The court noted the unique difficulty of the question, like the
one at issue here, where "each owner of properties abutting the [easement] is an
easement owner or a dominant tenant [and] an easement grantee or servient tenant
. . . ." Borgel, 280 A.2d at 609. The court declined to impose on the easement owners
an affirmative duty to maintain or repair other parts of the easement and, instead, found
each owner "to be responsible for the maintenance and repair of only that portion of the
driveway abutting or located on his own land." Borgel, 280 A.2d at 610.
On this point, Thompson on Real Property explains:
[J]oint use by separate easements of the same facility or portion of the servient
tenement gives rise to a duty of contribution to the reasonable costs of
maintenance and repair. These duties of maintenance and repair or of
contribution may be varied by agreement. . . . Where multiple parties, in this case
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the lot owners in a subdivision, share in the use of roadway easements, they
must also share in the cost of maintenance and repair. The rule governing
proportional responsibility for maintenance arising from use of an easement by
multiple parties in some jurisdictions has been made statutory.
7 Thompson on Real Property § 60.05(a) (footnotes omitted). As dominant estate
owners sharing a common easement, the uphill respondents are required to share the
cost to maintain and repair the sewer line. The trial court properly apportioned the
repair costs among those parties. Because the Donners cite no controlling authority to
support their claim that the uphill respondents owed them an affirmative duty to inspect
and repair the common sewer line, we affirm summary judgment dismissing their claims
against all uphill respondents.
Negligence, Nuisance, Trespass, and Injunctive Relief8
Finally, the Donners argue the uphill respondents are liable under claims for
negligence, nuisance, and trespass. They also request injunctive relief. Because they
have failed to show the uphill respondents owed them a duty, these claims fail.
The elements of negligence are duty, breach, injury, and proximate cause.
Hostetler v. Ward, 41 Wn. App. 343, 349, 704 P.2d 1193 (1985). Nuisance and
trespass are related claims focusing on the invasion of a property interest. Gaines v.
Pierce County, 66 Wn. App. 715, 719, 834 P.2d 631 (1992). The Donners do not allege
any intentional tort. To prove negligent nuisance or negligent trespass, a plaintiff must
prove the elements of negligence. Gaines, 66 Wn. App. at 719-20. Accordingly, the
Donners' claims for negligence, nuisance, and trespass all require a showing that the
respondents owed the Donners an affirmative duty to inspect or maintain the sewer
8The Donners do not challenge dismissal of their claim for strict liability.
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pipe. As explained above, because the Donners failed to demonstrate the respondents
owed such a duty, these claims fail.
The Donners devote two sentences to their injunctive relief claim. Br. of Appellant
at 15. "We will not consider an inadequately briefed argument." Norcon Builders. LLC
v. GMP Homes VG. LLC. 161 Wn. App. 474, 486, 254 P.3d 835 (2011). We decline to
consider their injunctive relief claim.

Outcome: For the reasons discussed above, we affirm summary judgment of dismissal in
favor of all the respondents. Under the circumstances here, the respondents owed no
affirmative duty to maintain by inspecting the shared sewer line. The Donners cite no
controlling authority imposing such a duty. We affirm the court's order requiring the
uphill respondents to share in the sewer line repair costs.

Plaintiff's Experts:

Defendant's Experts:

Comments: