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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

PETER LITTLEFAIR,                                                No.  41448-1-II

                             Appellant,                     PUBLISHED OPINION

       v.

DAVID SCHULZE and JANE DOE 
SCHULZE, husband and wife,

                             Respondents.

       Armstrong, J.  --  Peter Littlefair and David Schulze own property in Foster's Addition,

which they access by a 40-foot-wide easement road.  The actual road varies in width, but is 

generally a one-lane roadway.  In 2007, Schulze constructed a fence on his property, which lies 

within the 40-foot wide reserved area.  Littlefair sued Schulze, essentially asking the court to 

order Schulze to remove the fence.  The trial court denied Littlefair relief, finding that Schulze's 

fence did not interfere with Littlefair's use of the road and that the fence was not a nuisance based 

on its violation of a Skamania County zoning ordinance.  We reverse.

                                            FACTS

       Littlefair bought lots 10 and 11 in Foster's Addition (Fosters) at the end of the private 

road in 1983 and 1984.  Schulze bought lots 8 and 9 on the north side of the private road in 1980 

and 1987.  Fosters  was established in 1977, and all lots are subject to the Declaration of 

Conditions and Restrictions of Foster's Subdivision  The Fosters' plat map designates a 40-foot-

wide strip of land as "Gordon Road (private)."    Gordon Road leaves the county road, Foster 

Road, enters Fosters, and ends with a cul-de-sac in front of Littlefair's property.  

       Gordon Road was constructed before anyone bought property in Fosters.            Littlefair  

No.  41448-1-II

testified that the road was "graded 40 feet wide" in 1977.  Report of Proceedings (RP) at 74.  

Schulze testified that Gordon Road never spanned the entire easement area on the plat map, and it 

was never paved.  

       In 2007, Schulze erected a fence that runs parallel to Gordon Road on the north side.  On 

the south side of Gordon Road, Schulze has kept several pieces of personal property, including 

log decks,1 trailers, and vehicles.  Schulze has plowed Gordon Road during the winter, more 

recently using a tractor that, according to Littlefair, pulled up substantial amounts of the rock 

covering the road.    

       In August 2009, Littlefair sued Schulze seeking, among other things:  (1) to remove 

Schulze's fence from the easement on the basis of ejectment under former RCW 7.28.010 (1911)2

and nuisance per se because it violates a county zoning ordinance; (2) to recover the reasonable 

rental value of Schulze's improper use of the easement; and (3) for damages for obstructing the 

road easement.  

       The trial judge found the following: the 40-foot wide easement was created to give access 

1 Log decks are contraptions that hold large logs above ground until the logs are put to use.  
Wood-Mizer Products, Inc.
http://www.woodmizer.com/us/IndustrialEquipment/MaterialHandling/LogDeck.aspx (last visited 
May 9, 2012). 

2 Former RCW 7.28.010 reads in pertinent part:
       Any person having a valid subsisting interest in real property, and a right to the 
       possession thereof, may recover the same by action . . . to be brought against the 
       tenant in possession; if there is no such tenant, then against the person claiming the 
       title or some interest therein, and may have judgment in such action quieting or 
       removing a cloud from plaintiff's title.  
In 2011, the legislature updated this statute to be gender neutral.

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No.  41448-1-II

to Littlefair's lots and to allow utility lines; historically, the parties have used only a 12 to 14-foot

wide one-lane road with "enough room to comfortably pull a vehicle off to the side to let another 

car pass"; Schulze's fence runs parallel to the roadway, does not project into the roadway, and 

allows use of the roadway consistent with its historical use; and Schulze's log decks and other 

personal property on the south side of Gordon Road create a "cow chute" on the roadway that 

does inhibit the historical use of Gordon Road by reducing the space for cars to pass.   Clerk's 

Papers (CP) at 61-62.

       The trial court concluded that it could not order Schulze to remove the fence because he

was entitled to use his servient estate in any reasonable manner consistent with the easement's 

purpose.  But the court enjoined Schulze from keeping log decks or other personal property on 

the south side of Gordon Road.  Finally, the court refused to enforce a Skamania zoning 

ordinance that prohibits building structures in an easement because (1) the "[z]oning laws are in 

derogation of common law," which clearly allows structures to be erected within easements under 

appropriate circumstances; (2) "Skamania County is laced with easements that have structures on 

them"; and (3) enforcing this zoning ordinance would "wreak havoc on the county's ability to 

have any reasonable land use proceedings whatsoever." CP at 64.   

                                          ANALYSIS

                                     I. Standard of review

       We review findings of fact for substantial supporting evidence.  Evidence is substantial if it 

allows a rational fair-minded person to find the disputed fact.  Wenatchee Sportsmen Ass'n v. 

Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000).  We consider unchallenged findings to 

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No.  41448-1-II

be verities on appeal.  In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999).  We 

review questions of law and conclusions of law de novo.  Sunnyside Valley Irrigation Dist. v. 

Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).  Conclusions of law must flow from the 

findings of fact.  Ruse v. Dep't of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999).  

                                     II. Scope of Easement

       Littlefair argues that the trial court erred in finding that Gordon Road was intended to be a 

one-way roadway of 12 to 14 feet in width because (1) historical use is not the correct standard to 

determine the width of the roadway, and (2) the evidence does not support the finding.  Schulze 

responds that (1) as the servient estate owner, he has the right to use the easement as long as he 

does not interfere with the easement's purpose, and (2) substantial evidence supports the trial 

court's finding that the roadway has always been 12 to 14 feet wide.  

       We interpret an easement as a mixed question of law and fact.  Dickie, 149 Wn.2d at 880.  

The intent of the party who created the easement is a question of fact, whereas "the legal 

consequence of that intent is a question of law."  Dickie, 149 Wn.2d at 880.  To determine the 

parties' original intent, we look to the conveying instrument as a whole.  Dickie, 149 Wn.2d at 

880.  If the plain language of the conveyance is unambiguous, we will not look beyond that 

language.  Dickie, 149 Wn.2d at 880.  

       Here, the plat map for Fosters  clearly denotes a 40-foot area labeled "Gordon Road 

(private)." Ex. 1.  The deeds for both Littlefair's and Schulze's properties explicitly refer to the 

road and require the owners to comply with the plat map.  Thus, substantial evidence supports the 

trial court's finding that the easement's language unambiguously reserves a 40-foot right-of-way 

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No.  41448-1-II

for ingress, egress, and utilities.

       A servient estate owner may use his property in any reasonable manner that does not 

interfere with the original purpose of the easement.  Thompson v. Smith, 59 Wn.2d 397, 407, 367 

P.2d 798 (1962).  A court determines reasonable use from the facts as to the "mode of use of the 

particular easement."   Thompson, 59 Wn.2d at 408 (citing  City of Pasadena v. California-

Michigan Land & Water Co., 17 Cal.2d 576, 110 P.2d 983 (1941)).  The rights of both dominant 

and servient estate owners are not absolute and "'must be construed to permit a due and 

reasonable enjoyment of both interests so long as that is possible.'"  Cole v. Laverty, 112 Wn. 

App. 180, 185, 49 P.3d 924 (2002) (quoting Thompson, 59 Wn.2d at 409).  

       Although the law disfavors termination of easements, "[a]n easement can be extinguished 

through adverse use by the owner of the servient estate."  City of Edmonds v. Williams, 54 Wn. 

App. 632, 634, 636, 774 P.2d 1241 (1989).  A servient estate owner may have difficulty proving 

an adverse possession claim because most uses are not hostile.  Cole, 112 Wn. App. at 184.  And 

mere nonuse of the easement by the dominant estate does not extinguish the easement owner's 

right to the easement.  Thompson, 59 Wn.2d at 407.  For example, where an easement is not 

being used, the servient owner may build a fence in the easement and that use is not adverse until:

"(1) the need for the right of way [exists], (2) the owner of the dominant estate demands that the 

easement be opened, and (3) the owner of the servient estate refuses to do so."  Cole, 112 Wn. 

App. at 185 (citing City of Edmonds, 54 Wn. App. at 636-37).  But where the servient estate 

owner creates an obstruction that "clearly interferes with the proper enjoyment of the easement,"

such use may lead to an adverse possession claim by the servient owner if the dominant estate 

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No.  41448-1-II

owner currently uses the easement.  Cole, 112 Wn. App. at 185.  Thus, where a servient owner 

constructs a permanent fence and concrete patio within a used common area easement in a 

subdivision, such construction can meet the elements of an adverse possession claim.  See 

generally Timberlane Homeowners Ass'n, Inc. v. Brame, 79 Wn. App. 303, 311, 901 P.2d 1074 

(1995).  

       Schulze, as the servient owner, is entitled to enjoy the full use of his property, but he 

cannot build structures that, although arguably not interfering with current easement use, would

by adverse possession principles deny the easement owners their right to the future expanded 

easement use. Cole, 112 Wn. App. at 185 ("During the period of nonuse, the servient estate may 

use the land subject to the easement in any way that does not permanently interfere with the 

easement's future use.") (citing Thompson, 59 Wn.2d at 407).  It follows that a dominant estate 

owner has the right to protect his rights in the easement by requiring the servient estate owner to 

remove any structure that could deny the easement owner his full easement rights.  See generally

Brame, 79 Wn. App. at 311 (recognizing that the right to use an easement can be lost by a 

successful adverse possession claim); see also Cole, 112 Wn. App. at 184-85.  

       In  Thompson, 59 Wn.2d at 399-403,  our Supreme Court considered an easement for 

ingress and egress that lay partially on property of both the south and north landowners of a 

subdivision.  The existing road was constructed fully outside the easement area and fully within 

the servient owner's property, north of the easement.  Thompson, 59 Wn.2d at 403.  The 

designated easement area had never been used as a road.  Thompson, 59 Wn.2d at 402.  The 

servient owner laid a concrete slab south of the existing road, but the slab intruded on the 

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No.  41448-1-II

dedicated and unused easement area.  Thompson, 59 Wn.2d at 403.  The Supreme Court held that 

it would be improper to require the servient owner to remove the concrete slab because there was 

no evidence that the area where the slab crossed into the easement had ever been used as a road 

or that there was a future plan to use the easement area for a road.  Thompson, 59 Wn.2d at 409.  

The court noted, however, that if an easement owner sought to use the easement for a road in the 

future, the servient estate owner would have to remove the concrete slab.  Thompson, 59 Wn.2d 

at 409.  

       Schulze relies on Thompson in arguing that, as the servient owner, he is entitled to fence 

his property.  But in Thompson, 59 Wn.2d at 409, no easement owner was currently using the 

road and there was no evidence of any planned future use.  In contrast, the easement here is 

regularly used for ingress, egress, and utilities, and Schulze's fence appears to be a permanent 

structure that could establish an adverse possession claim by Schulze; if so, Littlefair is entitled to 

have it removed to prevent loss of a major portion of the 40-foot easement.   

       Also, the trial court's findings do not support its conclusions because the trial court failed 

to consider or account for the ancillary uses of the easement, such as maintenance of the road, 

which are expressly included in the conveyance language.  See Brown v. Voss, 105 Wn.2d 366, 

371, 715 P.2d 514 (1986) (where the language of an express easement is unambiguous, courts 

look to the original grant to determine the easement's permitted uses); see also 810 Props. v. 

Jump, 141 Wn. App. 688, 699, 170 P.3d 1209 (2007) (An easement's scope generally does "not 

contract merely because the holder fails to use the entire easement area.").  Here, Fosters plat 

map clearly established a 40-foot easement for ingress and egress.  And the Foster declaration 

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No.  41448-1-II

explicitly reserves  5 feet of the easement for "installation and maintenance of utilities and 

drainage facilities." Ex. 4 (emphasis added).

       Littlefair testified that Schulze's fence prevented any maintenance of a drainage ditch 

along the road next to the fence.  Although Schulze disputed Littlefair's characterization of the 

area as a drainage ditch, he did not dispute that there is no longer a drainage ditch on the fenced 

side of the road.  Littlefair also testified that the fence prevented the road users from pushing 

snow off the road on the fence side as they did on other parts of the road; Schulze did not dispute 

this testimony.  Finally, Littlefair testified that the fence prevented him from driving around 

potholes in the road.  Schulze admitted that he built the fence, in part, to prevent drivers from 

driving around the potholes in the existing roadway.  Although the evidence supports the trial 

court's finding that historically the parties had driven on only 12-14 feet of the easement, the 

Foster declaration grants Littlefair an additional 5 feet for utilities.  And Littlefair is also entitled 

to reasonable use of the land on either side of the 12 to 14 feet for ditching and snow removal.  

See Cole, 112 Wn. App. at 185 (the easement should be construed to allow for reasonable use of 

both dominant and servient estate owners); see also Dickie, 149 Wn.2d at 880 (if the easement 

instrument is unambiguous, we do not look beyond that language).

       The trial court erred by failing to address the possibility that Schulze's fence could support 

an adverse possession claim for a major part of the easement.  And the trial court's findings do 

not support its conclusions because the court failed to consider the ancillary uses of the road 

expressly granted in the easement, which Schulze did not contest.  But we need not remand for 

the trial court to address these issues because the county ordinance discussed below compels the 

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No.  41448-1-II

conclusion that the court should have ordered Schulze to remove his fence.  

                                      III. Nuisance Per Se

       Littlefair also assigns error to the trial court's conclusion that the fence is legal,3 and thus 

3 We review this mislabeled finding of fact, that the fence is not inherently illegal, as a conclusion 
of law.  See State v. Niedergang, 43 Wn. App. 656, 658-59, 719 P.2d 576 (1986) (stating that 
conclusions of law are "determination[s] . . . made by a process of legal reasoning from facts in 
evidence.").

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No.  41448-1-II

does not constitute a nuisance per se based on a county ordinance that prohibits building 

structures in an easement.  He argues, in part, that the fence is illegal because it does not comply 

with Skamania County zoning codes.  We agree. 

       Several conclusions of law relate to this argument.  Finding 12 states that there is nothing 

inherently illegal about the fence.  Conclusion 11 states that the zoning laws are in derogation of 

common law and allow fences under the circumstances of this case.  Conclusion 12 states that the

Skamania zoning code does allow structures within easements as seen throughout the county, 

thus the negligence per se action fails.  Conclusion 13 states that the enforcement of the zoning 

code prohibiting structures in easements would "wreak havoc on the county's ability to have any 

reasonable land use proceedings . . . ." CP at 64  

       "A nuisance per se is an act, thing, omission, or use of property which of itself is a 

nuisance, and hence is not permissible or excusable under any circumstance."  Tiegs v. Watts, 135 

Wn.2d 1, 13, 954 P.2d 877 (1998) (citing Hardin v. Olympic Portland Cement Co., 89 Wash. 

320, 154 P. 450 (1916)).  Violation of a zoning ordinance can be a nuisance per se.  See generally 

Morin v. Johnson, 49 Wn.2d 275, 278-79, 300 P.2d 569 (1956).  

       Where a zoning ordinance is unambiguous, we must construe it to achieve its plain 

purpose and intent.  Dev. Servs. of Am., Inc. v. City of Seattle, 138 Wn.2d 107, 117, 979 P.2d 

387 (1999) (citing State ex. rel. Standard Mining & Dev. Corp. v. City of Auburn, 82 Wn.2d 321, 

326, 510 P.2d 647 (1973)).  We are mindful, though, that zoning ordinances "are in derogation of 

the common-law right to use property so as to realize its highest utility and should not be 

extended by implication to cases not clearly within the scope . . . manifest in their language."  

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No.  41448-1-II

Dev. Servs. of Am. Inc., 138 Wn.2d at 117 (citing City of Auburn, 82 Wn.2d at 326).  If a zoning 

ordinance is ambiguous, we construe it in favor of the property owner.  Mall, Inc. v. City of 

Seattle, 108 Wn.2d 369, 378, 739 P.2d 668 (1987).

       The applicable county ordinances for R-2 zone classification in Skamania County state 

that "[n]o building or structure may be located within any easement."  Skamania County Code

(SCC)  § 21.32.050(D)(3).  Structures are defined by the code as "[a]nything constructed or 

erected with a fixed location on the ground . . . including . . . fences." SCC § 21.08.010(84).4  

The Skamania Code is clear:    property owners cannot construct fences within easements.  The 

ordinance applies to the property here because the subdivision is zoned R-2.  Thus, the fence fits 

with the unambiguous scope of the ordinance.  Under the Skamania Code, the fence constitutes a 

nuisance per se.

       The trial court reasoned, however, that Skamania County was "laced with easements that 

have structures on them" and that enforcing the zoning ordinance would "wreak havoc on the 

county's ability to have any reasonable land use proceedings whatsoever."    CP at 64.   But the 

ordinance is clear, leaving no room for an interpretation that strays from such plain meaning.  

Dev. Servs. of Am., Inc., 138 Wn.2d at 117.  And absent some constitutional problem with the 

ordinance, courts have no power to nullify it.  See generally Duckworth v. City of Bonney Lake, 

91 Wn.2d 19, 26-27, 586 P.2d 860 (1978).  Whether the county will encounter problems 

enforcing the ordinance is an issue for the county commissioners to resolve.  The trial court erred 

in concluding that the fence was not inherently illegal and, therefore, not a nuisance per se.  

4 The published version and the version passed by the county commissioners are not formatted in 
the same way, but substantively there is no difference.  We cite the official version as passed by 
the county commissioners.
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No.  41448-1-II

       In conclusion, Schulze's fence appears to be a sufficiently permanent structure that could 

support an adverse possession claim thereby interfering with Littlefair's use of the easement.  

Littlefair has the right to protect against such interference.  But we need not remand to the trial 

court to address that issue because the fence violates the county ordinance prohibiting such 

structures in an easement.  Accordingly, we reverse and remand for the trial court to enter an 

order requiring Schulze to remove the fence and other remaining obstructions to the road 

easement.  

                                                 Armstrong, J.
We concur:

Van Deren, J.

Worswick, A.C.J.

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