The Court of Appeals of Washington, Division Two, recently affirmed the dismissal of a homeowner's prescriptive easement and nuisance claims, finding that there was an implied easement that allowed both the homeowner and an adjoining property owner to share use of a septic drainfield system.  See Conklin v Bentz, 2021 WL 2229818 (Wash. Ct. App. June 2, 2021).  In the case, adjoining property owners purchased their respective properties from the same owner. The properties shared the same septic drainfield system that was installed by the prior owners and located on the defendant's property.  Pursuant to a "Drainfield Easement Agreement" recorded by the prior owners in 2001, the drainfield was placed on the defendant's lot, but the easement was over three properties, including the plaintiff's.  The agreement also provided that there was a "non-exclusive perpetual easement" across the three properties.  In 2013, a blockage in the drainfield caused severe damage to the defendant's property.  Although the plaintiff's property sustained no damage, the plaintiff demanded that the defendant disconnect her property from the drainfield. After the defendant refused, the plaintiff brought an action for: (1) quiet title and exclusive access and use of the drainfield; (2) nuisance and trespass; (3) a prescriptive easement; and (4) a declaration that the plaintiff had exclusive use of the drainage system.  The defendant counterclaimed for adverse possession to all land and improvements on her side of the fence between the properties and challenged the plaintiff's use of the septic system.  The trial court, finding that the drainfield was necessary to the use of the parties' respective properties and that the plaintiff's use and enjoyment of his property had not been in any way affected by the shared drainfield system, dismissed the plaintiff's prescriptive easement and nuisance claims, denied the plaintiff's requested injunctive relief, and found an implied easement based on prior use.  The trial court also granted summary judgment in favor of the defendant on the adverse possession claim.  Lastly, the trial court awarded attorney's fees to the defendant "as the prevailing party on both the adverse possession and prescriptive easement claims."

On appeal, the Court affirmed the trial court's judgment on the merits, but remanded with regard to the trial court's award of attorney's fees.  First, the Court found that the trial court's finding of an implied easement did not circumvent a valid written, express easement.  Here, the Drainfield Easement Agreement listed the previous owners as both the grantors and grantees.  Moreover, the agreement was recorded while the previous owners owned all three properties.  As a result, no valid easement was created.  In so finding, the Court noted that "[a] person cannot have the same rights twice in the form of ownership interest and a separate possessory interest through an easement."  Next, the Court held that the trial court did not err in dismissing the plaintiff's nuisance claim because the plaintiff failed to show that the defendant's connection to the drainfield substantially and unreasonably interfered with his ability to use and enjoy his property.  Lastly, the Court found that the trial court properly awarded the defendant attorney's fees for her adverse possession claim.  However, because the defendant was not entitled to attorney's fees for defending the plaintiff's prescriptive easement claim and the trial court made no findings regarding how it determined the amount of fees awarded, the Court remanded for entry of findings regarding the number of hours spent on the adverse possession claim, reasonableness of the time spent, and what fees it found were equitable and just.

For a copy of the decision, please contact Michael O'Donnell at, Michael Crowley at, Desiree McDonald at, or Kevin Hakansson at

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