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Exhibit4_ChopsticksIvarsLetter.pdfGARYW. BRANDSTETTER Attorie,,j at Law May 14, 2010 'ferry Woo 23025 100"' Avenue West Edmonds, Washington 98020 425,334.4366 360.568.2344 Fax. 360.568,1344 Marks Building, Suite 103 1024 First Street Snohomish, WA 98290-2960 Email: gary�algwbrandstetterlawxom www.gwbrandstetterlaw.com Re: Chopsticks Access and Parking Dispute with Wars Restaurant Dear N -1r. Woo: You have asked for my legal opinion about whether or not Jerri Eilert may grant you an easement over Ivars' land and whether, by making such a grant, Ms. Eilert and you would be committing an overburdening, misuse and/or trespass to Ms. Eilert's existing easement over Ivars' property. The question arises not only from access and parking disputes between the Ivars, Eilert and Chopsticks' proper -ties, but also based on the assertions of Ivars' attorney, NlarK Demaray, that Chopsticks' use - or rather use by Chopsticks' customers - is an unlawful Overburdening of the easement. First, Mr. Dernaray's comments are correct in the vast majority of cases which involve similar issues. The scope of an easement is generally determined by the facts which led to its creation, which disclose the intent of the original parties. Here the Wester(i Washington Corporation of Seventh-Day Adventists (SDA) owned both the Ivars and Eilert's properties - as one parcel - in 1968 just before the easement was created. Based on Exhibit B to Ivars' 2005 deed from Andersons, Mr. Demaray would be able to conclude that, when SDA deeded the Ivars property to Graham and Davidson in 1968, it reserved an easement over the Ivars property in favor of the Eilert property. Therefore, the appearance is that the easement was "appurtenant" to (intended to serve and benefit) the Eilert property and only the Eilert property. In other words, based on the easement described in Exhibit B of Ivars' 2005 deed, the "benefit" of the easement would appear to have been intended only for the Eilert property and the "burden" of the easement on the Ivars property would appear to be intended to come only from the Filert property . In most cases, use by any other property of the easement would create a heavier "burden" on the Ivars property than the original parties intended. Such an extra burden, even when it, is only "technical," is a "misuse," "overburdening" and "trespass" to the easernent, Brown v. lvlay 14, 2010 Paye 2 Foss, 105 Wn2d 366, 371-2, 715 P.2d 514 (1986) and Synder v. Haynes, 152 Wn App 774, 779, 217 P.3d 787 (2009). The remedy is usually an injunction against such overuse. But if the misuse is only technical a court may opt to awari damages instead. Bromi V. Voss, 105 Wn2d at 373 and Strang, 15 GEo. MASON L.RFv. 933 (2008). The terrn "non-exclusive" used in the original 1968 SDA to Graham and Davidson deed to describe the "scope" of the easement might, however, lead to further questions. For example, the term might appear to suggest that the access rigl-rt could extend to other properties. If so, it might suggest. that Ms. Eilert has the right to grant m or sub -grant — her easement rights to others. An analysis of whether- the burden would actually increase in this case might also suggest it. would not. Thus, one might argue that Chopsticks' use of Ms. Eilert's parking lot should be allowed because the parking lot establishes the number of cars that can access to and from the lot which, therefore, establishes the authorized burden. This probably would not be an analysis accepted in the vast majority of cases, however, for at least two reasons. First, the parking lot is not the only traffic which could use the easement over Ivars' property. Because there is parking in front of Chopsticks which can "drive through" the parking lot as it comes or goes, cars beyond the capacity of the parking lot could use the Ivars' easement.. Second, as the owner of the property over which the easement runs, the power to grant additional parties and properties the right to use the easement is usually in the owner of the property - Ivars -- not the party or property which has easement rights. For this reason, landowners who have land burdened by easements generally have the ability to control traffic with gates and cattle guards and, in some cases, speed bumps. Rupert v. Gunter, 31 Wn Ap1.� 27, 32, 640 P.2d 36 (1982), Green v. Lupo, 32 Wn App 318, 329, 647 P.2d 51 (1982), Steury v. Johnson, 90 Wn App 40.1, 406-7, 957 P.2d 772 (1998), Lowe v. Double L Properties, Inc., 105 Wn App 888, 894-895, 209 P.3d 500 (2001), .Snyder v, Haynes, supra, 152 Wn App at 7j:0 and K.orngold, PRIVATE LAND I.1sE ARRANGEMENTS §4.06 p.147 (Juris Zed. 2004). In short, in the vast majority of cases, Mr. Demaray's overburdening analysis would bQ correct and his assertion of Ivars' position has, therefore, been well -researched and is sound. Nevertheless, I conclude for the reasons which follow that the well-established rules relied upon by Mr. Demaray are not applicable here for reasons which can only be described as being not immediately apparent. I conclude that Ms. Eilert does have power and authority to grant right,. to Chopsticks and other adjoining parties over the easement crossing Ivars' property. In my opinion, however, this information should be used to find a "win-win" circulation plan for everyone rather than to become adversarial. Since traffic counts suggest that 60% of Ivars' customers go through Chopsticks' property in order to reach 100`' Avenue, which thev cannot directly reach from Edmonds Way because of left turn difficulties/limitations, Ivars will May 14, 2010 Page 3 not benefit from blocking access to and from Chopsticks' property. There is incentive, therefore, for all parties - including Herfy's -- to work out a solution most favorable to all. To return to the reasons for my conclusions, however, the Ivars' 2005 deed from Andersons has three easement references. Each easement reference describes its location as the east 20 feet of the vest 40 feet of the Ivars' legal description. Therefore, all three references are to the same location. All three deeds also include this Iocation in their legal description as a "subject to". Although it apparently was not immediately clear to the title company insuring the Anderson to Ivars transaction, all three references are to the sarne easement. The three deed references are the 1968 deed from SDA to Graham and Davidson, the 1968 deed from Graham and Davidson to Burger Chef Systems, Inc. and the 1982 deed from Burger Chef Systems, Inc. to Totem House Enterprises, Inc. All are references to the same easement. Moreover, even if deeds between the Totem and Anderson ownerships did riot include reference to the easement, it makes no difference. Once an easement is of record in a chain of title, it continues to "run with the land" whether or not mentioned in a deed. Ileg v. Alldredge, 157 Wn2d 154, 161, 137 P.3d 9 (2006). As law professors like to explain, the easement follows the benefitted land without mention, just like when you refer to a dog, the clog's tail is included even though you don't say "the dog and its tail." Nevertheless, only by looking at all three deeds does it become apparent that the easenle,it which all three deeds reference was created by reservation. That is because the 1982 deed frol'a Burger Chef to Totem references a "grantor" as does the 1968 deed from Graham and Davidst,ri to Burger Chef. It is not until one goes back to the 1968 deed from SDA to Graham and Davidson that the chain of title states that the easement is "non-exclusive" and, more importantly, that the easement was "being reserved for the seller, its successors, grantees and assigns." As it happens, creation by reservation, rather than by grant makes a significant difference. When an easement is created by grant, the grantor still owns the underlying property over which the easement is crossing. Accordingly, the grantor's chief concern is going to be how traffic over the easement is going to affect his or her property. The concern is going to be to limit the "burden" on the grantor's property. In contrast, however, when an easement is created by reservation, the reserver is going to own other adjoining property "benefitted" by the easement. The more traffic over the easement the more "benefit" the reservation has. Therefore, the "burden" on the other party's property is not the chief concern, if it is a concern at all. What it also means is that "non-exclusive" puts the Dower to determine who else may use the easement over Ivars property in the Iilert property. This conclusion is made dispositive by referring back to the real estate contract (REK) between SDA and Grahain and Davidson. That REK was recorded one document before the SDA to Graham and Davidson deed. It is a May l4, 2010 Page 4 document which explains better than any of the deeds exactly what was going on. The alost applicable language reads as follows: It is agreed as part of the consideration for this contract that at the time of closing, seller will deliver to purchasers a partial warranty fulfillment deed to a portion of the above described tract (approx. °%z thereof), designated ".Parcel A" as more ftilly described in said deed of even date herewith, subject to reservation therein by the grantor of a perpetual non --exclusive easement for ingress and egress and utilities to be placed underground for the use and benefit of the seller, its successors and assigns, and all parties owning property adjoining the portion of the above described premises (Parcel "B") not included in said partial fulfillment deed, to whom a similar easement shall have been granted by either of the parties hereto or their successors or assigns. The language, in context, establishes that: 1. SDA owned both the Ivars' property and the Eilert property; 21 SDA sold both properties to Graham and Davidson in the sarne REK; 3. The REK called for the north one-half of the property to be the subject of a deed release so the Ivars' property (Parcel A) would be owned immediately; 4. Because the SDA would hold the Eilert property as security, it wanted to reserve access for the Eilert property (Parcel B) o-�°er the Ivars property (Parcel A); 5. The reservation was of a "non-exclusive" easement; 6. The easement was to be for the benefit not only of the Eilert property, but also for "all parties owning property adjoining ... [Parcel B] to whom a similar easement shall have been granted by either of the parties hereto or their successors or assigns 7. The REIN was signed in October of 1968 and called for the easement to be included in a partial warranty fulfillment deed [recorded two months later in December 1968] so the contract terms were to be carried forward based upon the language of the deed; 8. The language of the deed is shorter, and different in two specific ways thar► the contract language; May 14, 2010 Page 5 a. The utilities were to be underground in the REK but only "if required by" Graham and Davidson in the deed; b. The REK described the reserved easement as being for "the seller, its successors and assigns, and all parties owning property adjoining ... to whore a similar easement shall have been granted ..." which description was shortened to "the seller, its successors, grantees and assigns" in the deed. (Emphasis supplied.) In short, the fact that the easement was created based upon reservation, coupled with the languageof the REK which conclusively establishes the intent of the original patties which is the ultimate goal of interpreting any easement (Snyder v. Haynes, supra, 152 W)z App at 779) -- turns the rules relied upon by Mr. Demaray, which are applicable in the vast majority of cases, on their head. And this is not Mr. Demaray's fault. The title company did not even list the RFK, even though it was recorded in December of 1968 in one, two, three order along with the deeds from SDA to Graham. and Davidson and from Graham and Davidson to Burge( Chef. In conclusion, for the above reasons, I conclude - and it is my legal opinion - that Ms. Eilert may grant Chopsticks an easement, or any other lesser access right, over the easement across Ivars' property. Further, Ms. Eilert's abililty to do so was within the contemplation of the original parties. This means that such use cannot, legally speaking, be a misuse, overburdening or trespass to the easement. Thank you for this opportunity to investigate this very interesting and challenging set of facts and circumstances. If I can be of further assistant;, please do not hesitate to write or call. Yours very truly, Crazy W. I3 rdstetter GWF c: Jeff Sax, Realtor