726353MAJ
~

                    Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       72635-3
Title of Case:       Sunnyside Valley Irrigation District V Dyke
                     Dickie and Jane Doe Dickie
File Date:           07/24/2003
Oral Argument Date:  12/03/2002


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court,
            County


                                    JUSTICES
                                    --------
Authored by Mary Fairhurst
Concurring: Faith Ireland
            Barbara a Madsen
            Bobbe J Bridge
            Charles W. Johnson
            Gerry L Alexander
            Richard B Sanders
            Susan Owens
            Tom Chambers


                                COUNSEL OF RECORD
                                -----------------
Counsel for Petitioner(s)
            John Strother Jr Moore
            Attorney at Law
            PO Box 22550
            Yakima, WA  98907-2550

Counsel for Respondent(s)
            Patrick Michael Andreotti
            Attorney at Law
            303 E D St Ste 1
            Yakima, WA  98901-2300

            Charles Camillus Flower
            Attorney at Law
            303 E D St Ste 1
            Yakima, WA  98901-2300


IN THE SUPREME COURT OF THE STATE OF WASHINGTON

SUNNYSIDE VALLEY IRRIGATION                      )
DISTRICT, a quasi-municipal corporation,         )
                                                 )
                    Respondent,                  ) No. 72635-3
                                                 )
v.                                               ) EN BANC
                                                 )
DYKE DICKIE and JANE DOE DICKIE,                 )
husband and wife,                                ) Filed July 24, 2003
                                                 )
                    Petitioners.                 )
                                                 )

FAIRHURST, J. - Sunnyside Valley Irrigation District (SVID) maintains
irrigation ditches, commonly referred to as laterals, in the Yakima County
region.  In general, adjacent landowners have granted express floating or
roving easements to SVID to enter land adjacent to the laterals and remove
any sediment and growth collected over time that obstructs the flow of
water.  This case involves easements for the Matheson 2.68 lateral
(lateral).  The issue is whether the parties intended widening of the
easement to accommodate increased irrigation demands and the use of more
efficient maintenance equipment.  SVID contends the express terms of the
easement permit widening and the original recording parties contemplated
this widening.  The current owners of the easement-encumbered property,
Dyke and Jane Doe Dickie (Dickie), dispute SVID's claim.  We agree with
SVID and affirm the Court of Appeals.
FACTS
Dickie owns two full tracts (Nos. 129 and 130) and part of a third tract
(No. 131) of agricultural land in Yakima County across which the lateral
flows.  The lateral was originally constructed sometime between 1905 and
1923, and serves a total of 1,353 acres, 65 acres of which are located
downstream from Dickie's property.  The lateral is part of the Sunnyside
Canal Division of the Yakima Reclamation Project.
Dickie's properties are subject to easements filed in 1908, 1912 and 1925,
granting the holder the right to access land adjacent to the lateral to
conduct maintenance.  The 1925 easement grants the following:
Sixth:  That the Purchaser . . . agrees to grant . . . the necessary right-
of-way for the . . . maintenance of all . . . laterals . . . of the United
States of America, or said Irrigation Company . . . with the right and
permission to enter upon said land for the . . . enlargement and repair of
said . . . laterals, . . . and to . . . maintain and repair the same by the
United States of America, or the Irrigation Company, or the owner or owners
of lower lands.
Pl's Ex. 43 (emphasis added).  Very similar language also appears in the
1908 and 1912 grants.
Initially, the United States maintained the lateral.  In 1945, SVID assumed
responsibility.  SVID then delegated the responsibility to 'maintenance
districts' comprised of local landowners.  In the late 1970s to early
1980s, SVID reassumed the maintenance responsibilities for several reasons
including better quality of service, lack of interest from the individual
landowners to continue performing the work, and increased costs and
liability associated with maintenance.
 Maintenance of the lateral is important because it removes sediments and
ensures the flow of water at its capacity. At least early on, maintenance
was accomplished by human labor, horses and slips (horse drawn scrapers).
Over time, the use of power equipment replaced manual labor.  Power
equipment requires more operational space than the earlier methods.
  SVID has used several types of power equipment to maintain the lateral.
Initially, SVID maintained the lateral with a backhoe.  The backhoe, while
faster than manual labor, was still time consuming because the backhoe
operator had to stop constantly to reposition the backhoe as it moved along
the lateral.
In about 1988, SVID replaced the backhoe with a more efficient sloper
machine (sloper).  The sloper has a blade that extends down into the
lateral and pulls sediment to the top of the lateral's bank.  As the
sediment is pulled to the top of the bank, another blade flattens the
sediment out.  The sediment is flattened, rather than kept in piles, to
prevent the blocking of airflow through the farmlands.  The track width
(width at the base) of the sloper is approximately 8 1/2 feet, not
including the length of the extendable blade.  The fully extended blade on
the sloper is approximately 16 to 20 feet in length.  The sloper is roughly
five times as efficient as the backhoe.  Unlike the backhoe, it does not
require constant repositioning and it can clean several miles of the
lateral in a day.  In addition, the sloper is much better than the backhoe
at maintaining constant slopes on the lateral walls. This is important to
effectively collect sediments and maintain an even flow of water.
In conjunction with the backhoe and/or sloper, SVID has used mowers to cut
down weeds and to repair leaks along the banks of the lateral during the
irrigation season.  The track width on the mower is approximately 8 feet,
not including the length of the mower arm extension.  The mower arm
extension can extend down into the lateral along its sloped walls.1
SVID requires about 20 feet from the lateral's center line to conduct its
maintenance operations using power equipment.  This 20 foot distance
includes a 2 to 3 foot setback from the lateral's edge that is required to
prevent the weight of the power equipment from collapsing the walls of the
lateral and imperiling the power equipment operator.
The Roza Division is part of the Yakima Reclamation Project and irrigates
agricultural property upstream from Dickie's land and drains into the
lateral.  Geological survey documents show that, as early as 1905, the
United States planned development of the Roza Division.  It was eventually
constructed in the mid 1940s to the early 1950s.  By design, a significant
portion of the return flow from the Roza Division ends up in the lateral.
The additional flow results in substantially more aquatic grass, weed
growth and sediment in and around the lateral.   Consequently, SVID has
enlarged and flattened the slope on the lateral to accommodate the
increased flow and to facilitate the increased maintenance.
On March 9, 2000, SVID initiated this lawsuit alleging that trees and
sprinklers on Dickie's land interfered with its maintenance of the lateral.
On the north side of the lateral, Dickie has old established cherry trees,
newly planted cherry trees and sprinklers within 20 feet of the lateral's
center line.  Dickie planted the new cherry trees and installed the new
sprinklers in 1998.  Before that time, SVID could work more easily around
obstructions on the land.
SVID contends that it requires 20 feet from the lateral's center line for
maintenance, and the easements on Dickie's tracts allow for this expansion.
Dickie argues that the easements do not allow expansion of the original
widths used in the early 1900s when maintenance was conducted by manual
labor.
  The trial court ruled in favor of SVID and ordered Dickie to remove any
trees and other property within 20 feet north of the lateral's center line.
The Court of Appeals affirmed.  Sunnyside Valley Irrigation Dist. v.
Dickie, 111 Wn. App. 209, 43 P.3d 1277 (2002).   We granted Dickie's
petition for review.  Sunnyside Valley Irrigation Dist. v. Dickie, 147
Wn.2d 1020 (2002).
ISSUE
Whether the easements on Dickie's tracts grant SVID the right to enlarge
its right-of-way over time based upon future demands for irrigation and
maintenance?
ANALYSIS
Findings of fact are reviewed under a substantial evidence standard,
defined as a quantum of evidence sufficient to persuade a rational fair-
minded person the premise is true.  Wenatchee Sportsmen Ass'n v. Chelan
County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000).  If the standard is
satisfied, a reviewing court will not substitute its judgment for that of
the trial court even though it may have resolved a factual dispute
differently.  Croton Chem. Corp. v. Birkenwald, Inc., 50 Wn.2d 684, 314
P.2d 622 (1957).  Questions of law and conclusions of law are reviewed de
novo.  See Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979).  The
interpretation of an easement is a mixed question of law and fact.  Id.
What the original parties intended is a question of fact and the legal
consequence of that intent is a question of law.  Id.
The intent of the original parties to an easement is determined from the
deed as a whole.  Zobrist v. Culp, 95 Wn.2d 556, 560, 627 P.2d 1308 (1981).
If the plain language is unambiguous, extrinsic evidence will not be
considered.  City of Seattle v. Nazarenus, 60 Wn.2d 657, 665, 374 P.2d 1014
(1962).  If ambiguity exists, extrinsic evidence is allowed to show the
intentions of the original parties, the circumstances of the property when
the easement was conveyed, and the practical interpretation given the
parties' prior conduct or admissions.  Id.
An easement defined in general terms, without a definite location or
description, is called a floating or roving easement (floating easement).
See Berg v. Ting, 125 Wn.2d 544, 552, 886 P.2d 564 (1995).  Generally, a
floating easement becomes fixed after construction and cannot thereafter be
changed.  Rhoades v. Barnes, 54 Wash. 145, 149, 102 P. 884 (1909).  If the
floating easement has an undefined width, it is bounded by the doctrine of
reasonable enjoyment.  Everett Water Co. v. Powers, 37 Wash. 143, 152, 79
P. 617 (1905).  Under the doctrine of reasonable enjoyment, the width is
restricted to that which is reasonably necessary and convenient to
effectuate the original purpose for granting the easement.  Id.
The issue of whether the scope of an easement can change over time to
accommodate anticipated, but not yet realized, future demands is a subject
of first impression in Washington.  Dickie argues that the width of the
easement became fixed when the lateral was first constructed between 1905
and 1923, when the maintenance area was considerably smaller and the
maintenance work was primarily done with manual labor.  Dickie contends
that allowing widening does not comport with Rhoades, which held that the
size and location of a floating easement becomes fixed upon its original
construction.  Rhoades, 54 Wash. at 149.
In Rhoades, a water company obtained a floating easement for a 4 1/2 inch
pipe across the grantor's land.  Id. at 146.  Needing additional water, the
water company received 'permission,' but not an easement, to move to
another location and lay an 8 inch pipe.  Id.  The water company then
granted a third party permission to use water from this 8 inch pipe.  Id.
The successor property owner objected to the third party's use.  Id. at
147.  The third party contended their property rights emanated from the
original grant for the 4 1/2 inch pipe.  Id.  Finding against the third
party, the Rhoades court held that the grant for the 4 1/2 inch pipe in one
location did not automatically create an identical right in the 8 inch pipe
at the other location.  Id. at 147-49.   It also held that the size and
location of a floating easement is established and fixed after its original
construction, and the grantee is not thereafter permitted to change the
scope at will.  Id. at 149;  see also McCue v. Bellingham Bay Water Co., 5
Wash. 156, 159, 31 P. 461 (1892) (holding that the grantee cannot relocate
a floating easement after already selecting and constructing a water
pipeline pursuant to the original grant even if the grantee only considered
the original location temporary);  Everett Water Co., 37 Wash. at 151
(holding that the location of a floating easement became fixed when the
grantee selected a location and dug a ditch on the grantor's land); Smith
v. King, 27 Wn. App. 869, 620 P.2d 542 (1980) (holding that a person cannot
relocate a floating easement if his or her predecessor already
constructively located it pursuant to a quitclaim deed).  Rhoades and its
progeny are not relevant here because they do not concern easements that
contain language contemplating future enlargement.
Dickie also contends that Mielke v. Yellowstone Pipeline Co., 73 Wn. App.
621, 624, 870 P.2d 1005 (1994), supports their position that a floating
easement can never change over time.  In Mielke, the grantee needed to
replace the pipeline, that was permitted by the floating easement.  Id. at
623.  The threshold issue concerned the 'replacement' language in the deed.
Id. at 624.  The grantee claimed the industry custom was to lay replacement
pipeline parallel to the existing line while the original line remained in
operation.  Id. at 623.  To construct the new pipeline safely, the grantee
said it needed to maintain a safe distance from the old pipeline.  Id.
After construction of the new pipeline, the old pipeline would be removed.
Id.  The grantee claimed that the only practicable location for the new
pipeline was 10 feet or more west of the old pipeline.  Id.  Although
conceding that the location of the right-of-way became fixed when the
original pipeline was installed, the grantee asserted that the width of its
easement under the doctrine of reasonable enjoyment permitted its proposed
replacement.  Id. at 624-25.
Without deciding the issue, the Mielke court found that a question of
material fact existed on the 'replacement' width and remanded the case
accordingly.  Id.  The court held that the location of the pipeline's
'replacement' was established by the scope of the original easement, and
the doctrine of reasonable enjoyment established the width.  Id.  The court
in Mielke merely followed the existing law established in Rhoades and
Everett Water Co.  Id.  In Mielke, unlike the easement on Dickie's land,
the plain language did not express intent to enlarge the scope of the
easement over time.  Id. at 622.
Several states have considered whether the scope of an easement can change
over time to accommodate future demands.  In the touchstone case from
Oregon, the plaintiffs sought to enjoin the defendant from widening a large
millrace (otherwise referred to as a canal) in the city of Eugene.
Patterson v. Chambers' Power Co., 81 Or. 328, 159 P. 568 (1916).  The
millrace channeled water from the Willamette River through the city of
Eugene to certain mills situated on 23 acres of mill property.  Id. at 330.
The plaintiffs owned valuable property along the banks of the millrace.
Id. at 331.  After more than 48 years, the defendant sought to widen the
millrace by 20 feet on each side, which would seriously impair the beauty
and value of the plaintiffs' property.  Id.  The plain language of the
easement granted the right to dig the millrace ''as wide and deep as may be
necessary'' for the mill operations.  Id. at 332 (quoting deed).  The
defendant claimed the easement granted a right to widen the millrace
indefinitely as the needs might require.  Id. at 331-32.  The plaintiffs
argued the easement was void for being indefinite.  See id. at 333-34.
Analyzing the easement as a contract, the Patterson court held the right-of-
way was not indefinite when the true intent of the parties could be
ascertained.  Id. at 334.  The court found the grantor did not want to
grant more than future development may require and not until that
requirement presented itself.  Id. at 335.  The grantor, therefore,
restricted the easement width to the growth of the manufacturing industries
supplied by the millrace.  Id.  The court analogized the grant to future
indefinite demands specified in contingent contracts that are routinely
enforced.  Id.  Also, relying on Everett Water Co., the Patterson court
indicated the grant was not indefinite because the grantor has just as much
of a right to convey part of his or her interest in the land as the right
to convey the whole.  Patterson, 81 Or. at 337.
In Collins v. Driscoll, another case relied on by the Patterson court, the
grantor permitted a grantee to dig a ditch as deep as desired.  Collins v.
Driscoll, 34 Conn. 43 (1867); Patterson, 81 Or. at 339-40.  The Collins
court held by implication that this included the foreseeable sloping of the
ditch walls to prevent the sides from collapsing even though the sloping
cut into the grantor's land.  Collins, 34 Conn. at 47-48.  The Patterson
court held that easements would be enforced if the express terms manifest a
clear intention by the original parties to modify the initial scope based
on future demands.  Patterson, 81 Or. at 340-41; see also Carroll Elec.
Coop. Corp. v. Benson, 312 Ark. 183, 188, 848 S.W.2d 413 (1993) (allowing
for the extension of power lines beyond the original placement because the
easement expressly granted future extensions); Utah Power & Light Co. v.
Bishop, 26 Utah 2d 60, 484 P.2d 1187 (1971) (granting the right to add
power lines where the express language in the deed permitted additional
lines into perpetuity);  Phillips Petroleum Co. v. Lovell, 392 S.W.2d 748,
750 (Tex. App. 1965) (permitting the grantee to lay additional pipelines
where the easement expressly granted the right to lay additional pipelines
based on future demands);  cf. Fisher v. Palo Verde Irrigation Dist., 157
Cal. App. 2d 105, 109-10, 320 P.2d 95 (1958) (barring the widening of an
irrigation canal because the deed contained no express provision to enlarge
even though the area rehabilitation plan indicated a potential future need
to widen).
We find Patterson and its progeny persuasive and hold that an easement can
be expanded over time if the express terms of the easement manifest a clear
intention by the original parties to modify the initial scope based on
future demands.  The face of the easement must manifest this clear intent.
The four corners rule ensures subsequent purchasers have clear actual or
constructive notice of the encumbrance based upon future demand.  See,
e.g., Patterson, 81 Or. at 333 (basing the holding in part on constructive
notice to the purchasers); Utah Power & Light Co., 26 Utah 2d at 61 (basing
the allowance to expand future power lines in part on the defendant
receiving actual or constructive notice).  The easements on Dickie's
properties grant 'the right and permission to enter upon said land for the
. . . enlargement and repair of said . . . laterals, . . . and to . . .
maintain and repair the same . . . .'   We find that this language
manifests a clear intent to enlarge the lateral and its maintenance area
based upon future demands.
Only when this intent is found should a court go to the next step of
determining whether the proposed expansion is necessitated by the future
demands contemplated by the original parties.  To do this, we must
determine the width of the easement under the doctrine of reasonable
enjoyment.  Under this doctrine, the grantee is entitled to a width
reasonably necessary to effectuate the original purpose of the easement.
Everett Water Co., 37 Wash. at 152.
The trial court found the original purpose of the lateral was to provide
irrigation to the farming properties upstream and downstream from Dickie's
properties and that the original parties likely anticipated expansion of
the lateral to accommodate the projected growth from the Roza Division.
The trial court's findings are supported by substantial evidence in the
record.  SVID showed that the lateral and the Roza Division were parts of
the overall irrigation scheme referred to as the Yakima Reclamation
Project, and that as early as 1905, the designers of it planned to develop
the Roza Division which, after development, would expand the water capacity
in the lateral.  SVID, therefore, has a right to increase the lateral width
to accommodate the increased demand of water and silt due to the upstream
Roza Division.  Like the court found in Collins, this right extends to
expanding the shape of the existing lateral to the extent reasonably
necessary to carry the additional flow from the Roza Division.
Dickie contends the easement language only grants SVID the right to enlarge
the lateral itself and not the width of the easement as a whole because the
easement language specifies '{the grantee has the} right and permission to
enter upon said land for the . . . enlargement and repair of said . . .
laterals . . . .'  Dickie fails to consider the subsequent conjunction and
adverbial phrase 'and to . . . maintain and repair the same . . . .'  This
plain language indicates a right to enter upon the land for the maintenance
and repair of the enlarged lateral.  SVID is entitled to a maintenance area
to accommodate the expansion of the lateral.
Dickie also contends that the increased capacity in the lateral does not
grant SVID the right to expand its maintenance area to accommodate the use
of slopers, backhoes and mowers.  This argument is also unpersuasive.  The
record is replete with evidence showing why power equipment is necessary
for the maintenance of the lateral.  First, chemicals are no longer allowed
to control weeds and other growth that inhibit water movement in the
lateral.  Second, the capacity of the lateral has increased over time.
Silt and other sediments must be efficiently removed from the bottom of the
lateral to maintain the existing capacity.  Third, farmland owners want
uninterrupted water delivery during the irrigation season.  Repairs of the
lateral interrupt the water delivery to upstream and downstream users
because it involves shutting down the lateral or modifying the current
delivery.  Fourth, farmland owners want to prevent sprinklers and drip
systems from clogging.2  Slopers are preferred because they minimize the
turbidity in the water, reducing the risk of clogging.  Fifth, in contrast
to other equipment, slopers are much more efficient.  They can clean
several miles of the lateral in one day.  In addition to efficiently
removing sediments, slopers flatten the sediments at the top of the
lateral's bank,  preventing the blocking of airflow through the farmlands.
Finally, obstructions within the lateral can cause problems of seepage that
occur when the water level rises to a point where it escapes through
permeable areas on the lateral walls and subbing that occurs when the water
level rises up to or above the root zone.  The use of slopers reduces the
risk of these problems.
Dickie did not provide evidence to show that equipment used by SVID was
unreasonable for performing maintenance operations on the lateral.  Dickie
also did not support the contention that the intent of the original
landowners was to continue with human labor, horses and slips as used in
the early years.  SVID showed that slopers are commonly used to perform
this type of work on the entire lateral system.  SVID satisfied its burden
of showing that the practical interpretation of the easements given the
prior conduct of the parties was to provide efficient maintenance along the
lateral system.  This includes providing the uninterrupted flow of water
during the irrigation season with minimal adverse impact to the local
agricultural operations.  The use of drip systems and sprinklers on the
farmlands necessitates the use of efficient machines to maintain a high
water quality to prevent clogging.  We hold that SVID is entitled to use
power equipment under the terms of its grants.
The final issue is whether SVID requires 20 feet from the lateral's center
line to conduct its maintenance.  Twenty feet from the lateral's center
line is equivalent to 15 feet from the top edge of the lateral's bank.  The
wheelbase on the equipment is roughly 8 to 8 1/2 feet and the machinery
must be setback 2 to 3 feet from the lateral's edge to ensure safe
operation.  This leaves the maintenance operator with only 4 to 5 feet to
operate the machine.  The trial judge extensively evaluated the area to
ensure SVID was using no more area than reasonably necessary to accomplish
its maintenance.  This evaluation included witness testimony, a visit to
the site and a survey of the property.  The trial court's finding that SVID
is entitled to 20 feet from the center line of the lateral is supported by
substantial evidence in the record.  It is also supported by the easement
language granting 'the necessary right-of-way for the . . . maintenance of
all . . . laterals.'
     Dickie also challenges nine of the trial court's findings of fact,
numbers 9, 20-21 and 23-28.  Dickie's challenges primarily assert that
floating easements can never change over time even for future demands.  In
light of our holding and the evidence in the record, these challenges are
without merit.
Finally, it is unnecessary to reach Dickie's permanent injunction and state
constitutional taking challenges because SVID was operating under the legal
authority granted by the easements.
CONCLUSION
     A floating easement can be expanded over time if the express terms
manifest clear intent by the original parties to modify the initial scope
based on future demands.  Unless otherwise indicated (parties have just as
much of a right to convey all of the interest in the land as the right to
convey some), the expansion is not unbridled and must be reasonably within
the anticipated expansion factors contemplated by the parties.  Here, SVID
met its burden by showing that the original parties anticipated future
expansion through the development of the Roza Division.  The lateral
capacity has increased over time because of the Roza Division.  SVID also
showed that original parties likely anticipated efficient maintenance
operations on the lateral to allow for uninterrupted delivery of water
during the irrigation season.  This is in the best interest of the users.
SVID is entitled to a reasonable area to conduct its maintenance
operations, which was carefully and systematically determined by the trial
court to be 20 feet from the lateral's center line.  Dickie did not
demonstrate that the use of backhoes, slopers and mowers was unreasonable
as compared with similar operations elsewhere.  We affirm the Court of
Appeals.

WE CONCUR:

     1 The record does not indicate the length of the mower arm extension.
     2About 60 percent of the farmers in the area use sprinklers and drip
systems.

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