Green v. Lupo

Washington Court of Appeals · 1982 · Property

647 P.2d 51 (1982)

Updated July 23, 2026

PropertyEasementsParol Evidenceeasementappurtenanteasement in grosspersonal easementambiguity

Facts

Plaintiffs sold defendants the northern parcel of a formerly unified tract but retained acreage to the south. In exchange for releasing a small section of the north tract before defendants received title, plaintiffs obtained a written promise of an easement along the southern 30 feet of defendants' land, described as being for ingress and egress for road and utilities purposes. After defendants obtained title, they refused to formally grant the easement and placed logs to restrict access. At trial, defendants argued the easement was intended only for plaintiffs' personal use in reaching a cabin on plaintiffs' land, not for the benefit of the entire retained tract.

Issue

When a written easement agreement grants named grantees an easement for ingress and egress for road and utilities purposes but does not expressly state whether it is personal or appurtenant, may parol evidence be admitted to construe the easement, and if so, should the easement be treated as personal or appurtenant?

Rule

The court must ascertain the parties' intent from the instrument creating the easement. If the language is unambiguous, other evidence may not be considered; if ambiguous, the court may consider the situation of the property and parties, surrounding circumstances at execution, and the parties' practical construction. A written instrument is ambiguous when its terms are uncertain or capable of more than one meaning. Washington strongly presumes easements are appurtenant rather than personal, and an easement is not in gross when the deed or the situation of the property indicates it was intended to benefit retained or conveyed land. Appurtenant easements become part of the benefited realty and, unless limited by their terms, pass with the dominant estate, including after subdivision.

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In Spokane, Nina Patel sold the front portion of a tract to Owen Mercer and kept the rear acreage. Their signed easement agreement promised "Nina Patel" a 25-foot strip across Owen's parcel "for ingress, egress, and utility lines," but it did not say whether the right was personal or attached to Nina's retained land. After a dispute arose, Owen objected when the court considered testimony about the parties' circumstances when they signed.

Should the court consider that extrinsic testimony?

Explanation. The court first determines intent from the instrument. If the language is unambiguous, extrinsic evidence is not considered. But if the instrument is uncertain or reasonably susceptible to more than one meaning, parol evidence may be used to explain the ambiguity. Here, naming an individual points toward a personal easement, while granting ingress, egress, and utilities for adjacent land points toward an appurtenant easement, so the court may consider surrounding circumstances.