Pensco Trust Company, Appellant V. J.g. Johnson And Janet Johnson, Et Al, Respondents

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
PENSCO TRUST COMPANY, TRUSTEE
FOR ED WAITE IRA,
No. 53757-5-II
Appellant,
v.
UNPUBLISHED OPINION
J.G. JOHNSON and JANET JOHNSON, a
Married Couple; DOES 1 through 10,
Respondents.
SUTTON, A.C.J. — This appeal arises over an implied easement for a water line installed
by the original property owner. Ed Waite1 appeals the superior court’s orders granting J.G. and
Janet Johnson’s motions to quiet title and for partial summary judgment relating to an implied
easement for a water line across Waite’s property, dismissing Waite’s claims of nuisance and
trespass with prejudice, and awarding the Johnsons reasonable attorney fees and costs as sanctions
against Waite.
We dismiss this appeal and remand this case to the superior court because this case is not
ripe for review, and we deny discretionary review.
1 Pensco Trust Company purchased the property at issue as trustee for Waite’s individual
retirement account (IRA). Pensco Trust Company and Ed Waite will be referred to collectively as
“Waite.”
Filed
Washington State
Court of Appeals
Division Two
December 1, 2020

No. 53757-5-II
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FACTS
Wendi and Morall Olson were the principals of M.J. Olson Enterprises. The Olsons, either
in their personal capacity or as principals of M.J. Olson Enterprises, owned all the property along
Spencer Creek Road between 625 Nectarine Drive and the nearest usable public water supply.
In 2006, the Olsons sold raw land at 625 Nectarine Drive (the dominant estate) to Richard
and Lisa Wise. The Olsons, either in their personal capacity or as principals for their corporation,
continued to own the remaining land along Spencer Creek (the servient estate). As part of the
development agreement, Wise contracted with M.J. Olson Enterprises to build a house for Wise
on the dominant estate. There was no usable water supply in any public right of way to which the
dominant estate had access, so in 2008, Olson received authority from the City of Kalama to hook
up a new water line to the City’s water line for the purpose of serving the dominant estate. Olson
contracted with Dennis Wood to excavate and install a water line, which connected the City’s
water line and travelled across the servient estate to Wise’s property to serve the dominant estate.
Pensco Trust Company, as trustee for Ed Waite’s IRA, subsequently purchased the servient
estate in 2011. Waite bought it for “the sole purpose of subdividing and developing the property.”
Clerk’s Papers (CP) at 110.
J.G. and Janet Johnson purchased the dominant estate on July 7, 2011, at a foreclosure sale.
At the time the Johnsons purchased the dominant estate, “[n]othing in [their] title report or
otherwise put [them] on notice that there was any irregularity about [their] water supply or the
location of the water piping to [their] home.” CP at 48. Similarly, Waite did not know about the
water line when he purchased the servient estate.

No. 53757-5-II
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In early 2015, Waite discovered the water line and the water meter on the south end of his
property. He sent the Johnsons a letter informing them of this and requesting the Johnsons relocate
the water line. The Johnsons did not agree to relocate the water line, but they did offer to cooperate
with Waite in coming up with a solution to the issue. The parties communicated back and forth
for a period of about five months.
On June 12, 2015, the parties met with City of Kalama staff to discuss the water line and
“possibilities for development of the property.” CP at 42. The parties attempted to, but did not,
reach an agreement whereby the Johnsons could use the existing water line for one year while the
parties worked to relocate the water line.
Waite filed a complaint and summons on August 3, 2015, against the Johnsons, alleging
trespass and nuisance, and seeking an injunction and an order quieting title. The Johnsons
answered and filed a counterclaim for quiet title. The Johnsons moved for partial summary
judgment on September 17, 2018, seeking dismissal of the trespass and nuisance claims and
Waite’s request for injunctive relief.2 The Johnsons also sought to quiet title for an easement
across Waite’s property for the water line. The superior court granted the Johnsons’ motion
regarding the easement and quieted title, but declined to dismiss Waite’s trespass and nuisance
claims.
The Johnsons subsequently moved to dismiss Waite’s claims with prejudice and for CR 11
sanctions. The superior court granted the Johnsons’ motion. However, “[t]he court note[d] that
although by previous order, it ha[d] quieted title in an easement ‘where is and as is,’ such easement
2 The Johnsons did not move to dismiss Waite’s quiet title claim against them.

No. 53757-5-II
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has not been legally described and shall not be perfected until surveyed and legally described for
the record.” CP at 271.
The superior court dismissed Waite’s trespass, nuisance, and injunction claims with
prejudice. The court also awarded the Johnsons reasonable attorney fees and costs as CR 11
sanctions against Waite.
The superior court stated the following in its oral ruling,
[Waite’s attorney] is correct in one respect and that is we don’t have an
easement of record until we’ve got a legal description of the easement. It’s not just
where this guy says he put it seven years ago as best as he recalls. Whatever steps
have to be taken in order to get a legal description of the easement still need to be
taken. . . . We can’t complete the case until we’ve got either a ruling on here’s the
correct legal description or an agreement on here’s the correct legal description.
Verbatim Report of Proceedings (VRP) (March 27, 2019) at 20.
Waite appeals the order granting partial summary judgment and quieting title to an implied
easement for a water line, the judgment and order dismissing his claims with prejudice and for
sanctions, and the amended judgment on CR 11 sanctions.
ANALYSIS
A final judgment is appealable as a matter of right. RAP 2.2(a)(1). We may grant
discretionary review of a matter not appealable as a matter of right under the following
circumstances:
(1) The superior court has committed an obvious error which would render further
proceedings useless;
(2) The superior court has committed probable error and the decision of the
superior court substantially alters the status quo or substantially limits the freedom
of a party to act;

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(3) The superior court has so far departed from the accepted and usual course of
judicial proceedings, or so far sanctioned such a departure by an inferior court or
administrative agency, as to call for review by the appellate court; or
4) The superior court has certified, or all the parties to the litigation have stipulated,
that the order involves a controlling question of law as to whether there is
substantial ground for a difference of opinion and that immediate review of the
order may materially advance the ultimate termination of the litigation.
RAP 2.3(b).
RCW 7.28.120 provides that:
[t]he plaintiff in [a quiet title] action shall set forth in his or her complaint
the nature of his or her estate, claim, or title to the property, and the defendant may
set up a legal or equitable defense to plaintiff’s claims; and the superior title,
whether legal or equitable, shall prevail. The property shall be described with such
certainty as to enable the possession thereof to be delivered if a recovery be had.
Here, the statutory requirements have not been met; describing the property at issue as “where is
and as is” is not sufficient to meet the requirements of RCW 7.28.120. As the superior court stated,
the judgment will not be final until there is a legal description of the easement. Absent a final
judgment, Waite has not identified any basis for appeal as a matter of right under RAP 2.2. Thus,
we hold that this case is not ripe for review. Furthermore, we have considered the factors under
RAP 2.3(b) for discretionary review and decline to accept discretionary review.

No. 53757-5-II
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CONCLUSION
We dismiss this appeal and remand to the superior court for further proceedings.
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:
LEE, C.J.
GLASGOW, J.