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HEG v. ALLDREDGE

The Supreme Court of Washington.
Jun 22, 2006
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Heg v. Alldredge, Supreme Court of Washington — June 22, 2006 (Sanders, J.)

Factual and Procedural Background

Deborah Heg filed a quiet title action against Ralph and Claudia Alldredge to clarify her rights under a recorded easement created by Pope Talbot, Inc. in 1957 via a declaration that granted an easement "for ingress, egress, access and road purposes" and stated the easement vested in each owner of property abutting the described tracts. The easement area comprised two tracts (referred to as Pope Tracts 1 and 2, depicted as Parcels J and K).

Ms. Heg owns two adjoining parcels (Parcels A and B) connected to Smugglers Cove Road by a road across Parcel A. The Alldredges own Parcels C, D, and Parcel J. The Alldredges purchased Parcels C and D in 1989 and later acquired and quitclaimed portions of adjacent parcels. Ms. Heg purchased Parcels A and B in 1993, received a deed conveying the parcels "together with an easement for ingress, egress and utilities as described in [the declaration]," and later completed two boundary line adjustments (one that enlarged Parcel B and another in which she exchanged part of Parcel B for an equal-sized portion of the easement area plus payment).

In November 2001 Ms. Heg sued to quiet title to the easement and to require removal of improvements that interfered with her easement rights. The Alldredges answered and raised six affirmative defenses (including abandonment, estoppel, adverse possession/laches, unclean hands, and issues related to the boundary adjustment). In May 2002 Ms. Heg moved for summary judgment. The trial court granted summary judgment in October 2002, concluding (1) the declaration created an easement appurtenant to Parcels A and B; (2) Heg was not estopped from asserting her rights; (3) mere nonuse does not extinguish the easement; and (4) a balancing of hardships related to future specific uses, not to whether an easement exists. The Alldredges appealed.

On appeal, the Court of Appeals affirmed in part and reversed in part, holding summary judgment inappropriate because it found sufficient evidence could support a finding of abandonment (nonuse plus long-term use of an alternate route) and that equitable estoppel might bar enforcement. The Supreme Court granted review.

Legal Issues Presented

  1. Whether mere nonuse of a recorded easement, together with use of an alternate means of ingress and egress, is sufficient to establish abandonment of the easement.
  2. Whether the record contains evidence of the requisite intent to abandon the easement (express or implied intention to abandon) such that summary judgment was improper.
  3. Whether equitable estoppel bars Ms. Heg from enforcing her recorded easement rights based on alleged conduct of her predecessors or on other acts or statements.
  4. Whether the trial court properly granted summary judgment to Ms. Heg on quiet title and injunctive relief, or whether factual disputes precluded summary judgment.

Arguments of the Parties

Petitioner (Deborah Heg)

  • As an owner of property abutting the recorded easement, she is entitled to judgment quieting title to the easement and an injunction against interference with her easement rights.
  • Mere nonuse of an easement, and use of a private driveway on her property, are immaterial and do not constitute abandonment.
  • She contended (later in petition for review) that pedestrian use constituted use of the easement, but the Supreme Court declined to consider that argument because it was raised for the first time on appeal.
  • She argued she was not estopped from asserting easement rights; the acts alleged by the Alldredges (e.g., installation of a small drainage system, boundary adjustment) did not establish estoppel.

Respondents (Ralph and Claudia Alldredge)

  • Asserted multiple affirmative defenses: failure to name additional defendants; abandonment by Heg or predecessors through development of an alternate route; alleged that the easement was not meant to apply to Heg because a more direct road existed; claims of adverse possession, statute of limitations, and laches; unclean hands; and that Heg misled them in the boundary adjustment negotiations.
  • On appeal they argued the trial court erred in finding no material issues of fact as to abandonment and estoppel and in granting summary judgment; they relied on precedent (Barnhart and Curtis) to argue that nonuse of an unopened easement combined with long-term use of a substitute route can support abandonment.
  • Contended Heg (or her predecessors) engaged in conduct that induced the Alldredges to act (improvements, building site selection) in reliance, giving rise to equitable estoppel.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Heg v. Alldredge, 124 Wn. App. 297, 99 P.3d 914 (2004) (Ct. App.) Court of Appeals' holding that summary judgment was inappropriate because nonuse plus alternate access could support abandonment and that equitable estoppel might apply. The Supreme Court reviewed and reversed the Court of Appeals' decision, concluding the record contained no evidence of intent to abandon or of admissions/acts by Heg inconsistent with her claim, and held Heg entitled to summary judgment.
Barnhart v. Gold Run, Inc., 68 Wn. App. 417, 843 P.2d 545 (1993) Proposition that nonuse of a platted but never opened easement coupled with long-term use of a substitute way can support a finding of abandonment. The Court of Appeals relied on Barnhart; the Supreme Court distinguished Barnhart as inapplicable where the defendant seeks to exclude a recorded easement holder from using rights rather than merely shifting the location of use, and thus rejected Barnhart's applicability here.
Curtis v. Zuck, 65 Wn. App. 377, 829 P.2d 187 (1992) Authority for the principle that the effective location of a private easement may shift due to long period of use predating ownership. Cited by Barnhart and discussed by the Court; the Supreme Court referenced Curtis in explaining why Barnhart's facts (shifting location of use) differ from the instant case.
Burkhard v. Bowen, 32 Wn.2d 613, 203 P.2d 361 (1949) Upheld rights of owners of unopened easements against adverse possession challenges. Barnhart distinguished Burkhard; Supreme Court noted this distinction in explaining why Barnhart does not control here.
Van Buren v. Trumbull, 92 Wash. 691, 159 P. 891 (1916) Similar to Burkhard: protection of unopened easement rights against exclusion/adverse possession theories. Cited in Barnhart and discussed as part of the background; Supreme Court referenced the distinction drawn by Barnhart.
Northern Pacific Railway v. Tacoma Junk Co., 138 Wash. 1, 244 P. 117 (1926) Where an easement's own terms specified conditions for abandonment, erection of a barrier rendering use impossible could support finding of abandonment under those terms. The Court distinguished N. Pac. Ry. because its holding depended on specific abandonment terms in that easement; the Supreme Court declined to extend that holding where the easement lacked corresponding provisions.
Netherlands Am. Mortgage Bank v. E. Ry. Lumber Co., 142 Wash. 204 (1927) Statement that extinguishing an easement through abandonment requires more than nonuse; nonuse "must be accompanied with the express or implied intention of abandonment." The Court relied on this principle as a foundation for requiring evidence of intent (express or implied) beyond mere nonuse to extinguish an easement.
Neitzel v. Spokane Int'l Ry., 80 Wash. 30, 141 P. 186 (1914) Principle that lapse of time does not alone constitute abandonment and intention to abandon will not be presumed for property for which one has paid value. Quoted to support the proposition that nonuse and passage of time are insufficient without evidence of intent to abandon.
Winsten v. Prichard, 23 Wn. App. 428, 597 P.2d 415 (1979) Easement appurtenant runs with the land and passes to grantees without special mention. Quoted to explain the nature of an easement appurtenant and that such an easement "follows the land."
Ski Acres, Inc. v. Kittitas County, 118 Wn.2d 852, 827 P.2d 1000 (1992) Standard of review: appellate review of summary judgment is de novo, and appellate courts perform same inquiry as trial court. The Court cited Ski Acres to frame its de novo standard of review for summary judgment in the case.
Herron v. Tribune Publ'g Co., 108 Wn.2d 162, 736 P.2d 249 (1987) Supporting authorities for the summary judgment standard and de novo review. Cited as part of the standard of review framework relied upon by the Court.
Wilson v. Steinbach, 98 Wn.2d 434, 656 P.2d 1030 (1982) When evaluating summary judgment, courts consider facts and reasonable inferences in the light most favorable to the nonmoving party. The Court applied this principle in stating how it would evaluate the summary judgment record de novo.
Yakima Fruit Cold Storage Co. v. Cent. Heating Plumbing Co., 81 Wn.2d 528, 503 P.2d 108 (1972) Support for the rule described in Wilson regarding consideration of facts and inferences for summary judgment. Cited as supporting authority for summary judgment standards referenced by the Court.
Morris v. McNicol, 83 Wn.2d 491, 519 P.2d 7 (1974) Motion for summary judgment should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. Quoted to emphasize the standard for granting summary judgment.
Pub. Util. Dist. No. 1 of Klickitat County v. Walbrook Ins. Co., 115 Wn.2d 339, 797 P.2d 504 (1990) Elements of equitable estoppel: (1) admission/statement/act inconsistent with later claim; (2) reliance by other party; (3) injury if earlier position is contradicted. The Court applied Walbrook's articulated elements to assess the Alldredges' equitable estoppel claims and found no evidence that Heg made admissions, statements, or acts inconsistent with her later claim.
Humphrey v. Jenks, 61 Wn.2d 565, 379 P.2d 366 (1963) Conduct of predecessors in interest may in some circumstances bar enforcement of easement rights (as relied upon by the Court of Appeals). The Court of Appeals relied on Humphrey for the proposition that predecessors' conduct can bar enforcement; the Supreme Court explained that Humphrey did not resolve the reliance question in that case and found no evidence in the record here that Heg (the party to be estopped) acted inconsistently.
State v. McDonald, 138 Wn.2d 680, 981 P.2d 443 (1999) Appellate courts generally will not consider issues raised for the first time on appeal (citing RAP 2.5(a)). The Court invoked McDonald to decline consideration of Heg's argument (raised first on review) that pedestrian use constituted use of the easement.

Court's Reasoning and Analysis

The Court conducted a de novo review of the trial court's grant of summary judgment under the established summary judgment standards (citing Ski Acres, Herron, Wilson, Morris, and related authorities). The Court framed the primary legal inquiry as whether Ms. Heg or any predecessor intended to abandon the recorded easement. Relying on settled Washington law, the Court reiterated that abandonment of an easement requires more than mere nonuse — nonuse "must be accompanied with the express or implied intention of abandonment" (citing Netherlands Am. Mortgage Bank and Neitzel) — and that acts evidencing abandonment must be unequivocal and inconsistent with continued existence of the easement.

On the issue of nonuse, the Supreme Court explained that Heg first raised the pedestrian-use argument only in her petition for review and declined to address it because appellate courts generally do not consider issues raised for the first time on appeal (citing State v. McDonald). The Court therefore evaluated abandonment based on the record presented below.

The Court examined the Court of Appeals' reliance on Barnhart (and the related Curtis decision), which held in its facts that long-term use of a substitute way could lead to a finding that the effective location of an easement had shifted. The Supreme Court distinguished Barnhart and Curtis: in those cases the effective location of use had shifted (and the defendants did not attempt to exclude an easement holder from using recorded rights), whereas in the instant case the Alldredges sought to exclude the recorded easement holder from enjoying her recorded rights. The Court emphasized that Barnhart was inapplicable because it involved a shifting of the location of an easement rather than an attempt to extinguish or exclude a recorded right.

The Court also addressed the alleged physical barrier (a road cut) cited by the Court of Appeals and the appellants' reliance on Northern Pacific Railway. The Supreme Court distinguished Northern Pacific Railway because its holding turned on express abandonment provisions contained in that particular easement; the Court declined to extend Northern Pacific Railway's contract-based analysis to the present easement, which lacks parallel terms.

On equitable estoppel, the Court reiterated the three-element test from Walbrook for equitable estoppel. The Alldredges advanced three factual bases for estoppel (installation of a drainage system at Heg's request; improvements and incorporation of easement portions into the Alldredges' yard in reliance on alleged predecessor abandonment; and the boundary line adjustment settlement). The Court accepted the Court of Appeals' rejection of two of these bases but evaluated the remaining theory (reliance on predecessors' alleged abandonment) and concluded that equitable estoppel requires the party to be estopped to have made admissions, statements, or acts inconsistent with the later claim. Because the record contained no evidence of any such acts or statements by Heg (the party to be estopped), the Court found the estoppel theory without merit.

Summing up, the Court concluded that the record contains no evidence (beyond mere nonuse and existence of alternative routes) to establish an intent to abandon the easement, nor evidence of admissions/statements/acts by Heg inconsistent with her claim. Accordingly, the Court held Heg was entitled to summary judgment as a matter of law.

Holding and Implications

Holding: The Supreme Court reversed the Court of Appeals and held that Ms. Deborah Heg is entitled to summary judgment because the record contains no evidence that she or her predecessors intended to abandon the recorded easement and no evidence of admissions, statements, or acts by Heg inconsistent with her claim.

Implications:

  • Direct effect on the parties: The Supreme Court's decision reinstates the trial court's grant of summary judgment in favor of Heg, affirming her right to ingress, egress, and road use over the recorded easement and denying the Alldredges' claims of abandonment and equitable estoppel on the record presented.
  • Legal principle reinforced: Mere nonuse of a recorded easement and the existence of alternate routes, without additional evidence of intent to abandon or unequivocal acts inconsistent with easement rights, will not extinguish an easement. Equitable estoppel requires evidence that the party to be estopped made admissions, statements, or acts inconsistent with its later claim; absent such evidence, estoppel will not bar enforcement.
  • No new broad precedent was created beyond application of existing Washington precedents: the Court distinguished prior cases relied on by the Court of Appeals (e.g., Barnhart, Northern Pacific Railway) and applied established principles regarding abandonment and equitable estoppel to the facts of this case.

Disposition: Reverse the Court of Appeals; summary judgment for Petitioner Heg affirmed by the Supreme Court.

Show all summary ...

SANDERS, J.

¶1 Deborah Heg filed a quiet title action against Ralph and Claudia Alldredge to clarify her legal rights under a disputed easement over land owned by the Alldredges. The trial court granted Ms. Heg summary judgment and ruled she was entitled to ingress, egress, and road use over the easement and that the Alldredges' use of the easement could not unreasonably interfere with Ms. Heg's exercise of her easement rights. The Alldredges appealed. The Court of Appeals affirmed in part and reversed in part, holding summary judgment was inappropriate because sufficient evidence existed to support a finding Ms. Heg or one of her predecessors in interest abandoned the easement and that the Alldredges had presented a viable claim of equitable estoppel. Heg v. Alldredge, 124 Wn. App. 297, 99 P.3d 914 (2004).

¶2 We hold mere nonuse of a recorded easement coupled with the use of alternate routes of ingress and egress does not, by itself, support a finding of abandonment. Because the record contains no other evidence Ms. Heg or her predecessors in interest intended to abandon the easement, she is entitled to summary judgment. We also hold equitable estoppel does not bar Ms. Heg from enforcing her easement rights because the record contains no evidence of admissions, statements, or acts by Ms. Heg inconsistent with her present claim, and accordingly, we reverse the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶3 The easement at issue in this case was originally granted by Pope Talbot, Inc., in 1957 via a declaration of easement (declaration) which stated in relevant part:

Pope Talbot, Inc., entities and owners of certain parcels adjoining the easement were dismissed as defendants. No other defendants named in the suit have joined the Alldredges' appeal.

This easement shall be for ingress, egress, access and road purposes.
This easement shall vest in each owner of property which abuts upon the tracts of land hereinabove described and this easement shall be an easement running with the land both as to burden and benefit as to each such abutting tract.

Clerk's Papers (CP) at 338 (Decl. of Easement, filed Jan. 11, 1957).

¶4 The declaration described the two tracts of land over which the easement was created. One, referred to in the pleadings as Pope Tract 1, is a 60-foot-wide tract running from the northwest to the southeast. The other, Pope Tract 2, is a 40-foot-wide tract connecting Pope Tract 1 to Smugglers Cove Road. Pope Tracts 1 and 2, depicted as Parcels J and K in the clerk's papers (CP at 345, 340), collectively constitute the easement area.

¶5 Ms. Heg owns two adjoining parcels of land: Parcel A bordering Smugglers Cove Road, and Parcel B, a waterfront parcel. A road across Parcel A connects Parcel B, where Ms. Heg's house is located, to Smugglers Cove Road. The Alldredges own Parcels C and D, located to the south of Ms. Heg's property. Parcel C borders Smugglers Cove Road, and Parcel D is a waterfront parcel. Parcel J, also owned by the Alldredges, extends southeast from the border of Parcels A and B, between Parcels C and D. Parcel K, Smugglers Lagoon Lane, connects Parcel J to Smugglers Cove Road.

¶6 The Alldredges purchased Parcels C and D in 1989. Before the purchase, Alldredges became aware Parcel J was not merely an easement, but was in fact a separate parcel still owned by Pope Talbot, Inc. Alldredges completed the purchase of Parcel J in July 1989. Subsequently, between 1994 and 1998, Alldredges quitclaimed to the owners of Parcels G, H, and I, waterfront parcels adjoining Parcel J to the west, the adjacent portions of Parcel J.

¶7 Ms. Heg purchased Parcels A and B in March 1993. The statutory warranty deed executed between Heg and the seller, Donald Thomas, stated Mr. Thomas conveyed to Heg Parcels A and B, "together with an easement for ingress, egress and utilities as described in [the declaration]." Subsequent to the purchase, Ms. Heg completed two boundary line adjustments to her property. The first adjustment enlarged Parcel B at the expense of Parcel A. Following this adjustment, Parcels A and B both continued to abut the easement. The second adjustment involved an exchange between Ms. Heg and the Alldredges, with Ms. Heg swapping a portion of Parcel B in exchange for an equal-sized portion of the easement area along with a payment of $2,000. As with the earlier adjustment, Parcels A and B both continued to abut the easement.

CP at 389-90.

The Alldredges paid the additional $2,000 to compensate Heg for the lower assessed land value of the traded land.

¶8 When the instant litigation commenced Ms. Heg owned Parcels A and B; the Alldredges owned Parcels C, D, and J; and the owners of G, H, and I owned their extended parcels; and Pope and Talbot, Inc., continued to own Parcel K, consisting of Pope Tract 2 and the portion of Pope Tract 1 south of Parcel I.

Extended to include the portions of Parcel J quitclaimed to them by the Alldredges.

¶9 In November 2001 Ms. Heg filed a complaint to quiet title to easement, requesting judgment quieting her title and rights in the easement and an order requiring the Alldredges to remove all improvements from the easement area interfering with her easement rights. The Alldredges' answer raised six affirmative defenses: (1) Ms. Heg failed to name as defendants other owners of parcels abutting Parcel J; (2) Ms. Heg's predecessors in interest abandoned any rights to the easement by developing another route for ingress and egress, and she forfeited any of her rights by improving this access road on her property; (3) any easement rights granted in the declaration were not meant to apply to Ms. Heg's property because a more direct ingress/egress road existed, and those easement rights were meant solely to benefit landowners who did not have a more direct means of ingress and egress; (4) any easement rights benefiting Ms. Heg's property had lapsed and had been lost by virtue of adverse possession, applicable statute of limitations and/or the equitable doctrine of laches; (5) Ms. Heg's misconduct in asserting her easement rights constituted unclean hands, barring her from any equitable remedies; and (6) Ms. Heg misled the Alldredges about her intention to assert easement rights in order to secure the 1998 boundary line adjustment, barring her quiet title action.

¶10 In May 2002 Ms. Heg filed a motion for summary judgment. She argued that as an owner of property abutting the easement she was entitled to judgment in her favor quieting title to the easement, and requested the court to enjoin defendants from interfering with her rights under the easement. The trial court granted summary judgment in her favor in October 2002. The trial court ruled (1) the declaration created an easement appurtenant to Parcels A and B; (2) Ms. Heg was not estopped from asserting her easement rights; (3) Ms. Heg did not abandon the easement because mere nonuse of an easement does not extinguish it; and (4) the Alldredges' balancing of hardships argument relates to specific uses of an easement, but not to an enquiry of whether an easement exists. The Alldredges appealed.

¶11 On appeal, Alldredges asserted the trial court erred by failing to recognize material issues of fact existed about whether the easement had been abandoned, whether Ms. Heg was equitably estopped from enforcing the easement, and by failing to defer the determination of the scope of the rights under the easement granted Ms. Heg until the actual use of the easement is proposed. The Court of Appeals agreed and reversed the grant of summary judgment. Relying on Barnhart v. Gold Run, Inc., 68 Wn. App. 417, 843 P.2d 545 (1993), the Court of Appeals held that nonuse of an unopened easement coupled with long term use of an alternate means of ingress and egress can support a finding of abandonment, Heg, 124 Wn. App. at 308, and that sufficient evidence existed for a trier of fact to determine Ms. Heg or one of her predecessors in interest abandoned the easement. Id. at 309. Despite rejecting the Alldredges' claims the land swap transaction estopped Ms. Heg from enforcing her easement rights because they would not have agreed to it otherwise, the court held the Alldredges presented a viable estoppel claim alleging detrimental reliance on the acts of Ms. Heg's predecessors when they selected a building site for their house. Id. at 313. Finally, the Court of Appeals expressly preserved the issue of relative hardship determination for future review, if and when Ms. Heg elects to build a roadway on the easement. Subsequently we granted Ms. Heg's petition for review.

STANDARD OF REVIEW

¶12 When reviewing a summary judgment order we evaluate the matter de novo, performing the same inquiry as the trial court. Ski Acres, Inc. v. Kittitas County, 118 Wn.2d 852, 854, 827 P.2d 1000 (1992) (citing Herron v. Tribune Publ'g Co., 108 Wn.2d 162, 169, 736 P.2d 249 (1987)). Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c). We consider the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982) (citing Yakima Fruit Cold Storage Co. v. Cent. Heating Plumbing Co., 81 Wn.2d 528, 530, 503 P.2d 108 (1972)). The motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. Morris v. McNicol, 83 Wn.2d 491, 494-95, 519 P.2d 7 (1974).

ANALYSIS

I. ABANDONMENT

¶13 Extinguishing an easement through abandonment requires more than mere nonuse — the nonuse "`must be accompanied with the express or implied intention of abandonment.'" Netherlands Am. Mortgage Bank v. E. Ry. Lumber Co., 142 Wash. 204, 210, 252 916 (1927) (quoting CHRISTOPHER G. TIEDEMAN, AN ELEMENTARY TREATISE ON THE AMERICAN LAW OF REAL PROPERTY, § 605, at 574 (2d ed. 1892)). This court has previously held that "the lapse of time does not, of itself, constitute an abandonment, but is a circumstance for the jury to consider in arriving at the intention of the [owner of the dominant estate]" and that "an intention to abandon property for which one has paid value will not be presumed." Neitzel v. Spokane Int'l Ry., 80 Wash. 30, 41, 141 P. 186 (1914). An easement appurtenant which runs with the land "`is not a mere privilege to be enjoyed by the person to whom it is granted or by whom it is reserved. It passes by a deed of such person to his grantee and follows the land without any mention whatever.'" Winsten v. Prichard, 23 Wn. App. 428, 431, 597 P.2d 415 (1979) (quoting 2 GEORGE W. THOMPSON, Commentaries on the Modern Law of Real Property § 322, at 69 (John S. Grimes repl. 1961)). Acts evidencing abandonment of an easement must be unequivocal and decisive and inconsistent with the continued existence of the easement. 28A C.J.S. Easements § 125 (1996).

A. NONUSE

¶14 It is axiomatic that if Ms. Heg and her predecessors in interest had been using the easement, no reasonable finder of fact could find intent to abandon it. In the petition for review, Ms. Heg assigns error to the Court of Appeals decision for implicitly holding pedestrian use did not constitute "use" of the easement. It is true the Court of Appeals analysis of abandonment focuses exclusively on the issue of intent to abandon and does not analyze the question of nonuse. See Heg, 124 Wn. App. at 307-10. However, that is so because Ms. Heg raises this argument for the first time in her petition for review. The trial court disposed of the question of abandonment by simply concluding "[m]ere nonuse of an easement for no matter how long a period will not extinguish it" because Ms. Heg's summary judgment motion and the accompanying declaration and memorandum did not argue the easement was being used. Ms. Heg also failed to make this argument on appeal, arguing instead that her "non-use of the Easement and use of her own private driveway is immaterial." Ms. Heg now argues the easement has been in use for pedestrian purposes. We decline to address this issue because it is being raised for the first time on appeal. See State v. McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999) ("Under Rule 2.5(a) of the Rules of Appellate Procedure . . . appellate courts will generally not consider issues raised for the first time on appeal.").

CP at 13 (Order Granting Pl's. Mot. for Summ. J., at 8).

Br. of Resp't (Ct. of Appeals No. 51443-1-I, at 18).

B. INTENT TO ABANDON

¶15 The central question in this case is whether Ms. Heg or any of her predecessors in interest ever intended to abandon the disputed easement. Concluding the trier of fact could find Ms. Heg or her predecessors intended to abandon the easement, the Court of Appeals focused on two facts: the existence of a roadway providing both Parcels A and B with alternate means of access to Smugglers Cove Road, and the existence of a road-cut put in place by Thomas, which created a four- to six-foot barrier to automobile access between Ms. Heg's parcels and the easement area. Relying on Barnhart v. Gold Run, Inc., 68 Wn. App. 417, 843 P.2d 545 (1993) for the proposition that "[n]onuse of a platted but never opened easement coupled with long term use of a substitute way will also support a finding of abandonment," Heg, 124 Wn. App. at 308, the Court of Appeals reasoned Ms. Heg's continued use of alternative means of ingress and egress could support a finding of abandonment.

¶16 In Barnhart three neighboring lots shared a common platted 30-foot right of way for a private road adjacent to the northern perimeter of the tracts. In the 1940s, the three lots came into ownership of Mrs. Marie Harris, who built a "jeep road" north of the platted right of way, having already built a house encroaching on it. The Barnharts purchased the easternmost of the three lots, and after having it surveyed, commenced an action to determine their interest in the platted right of way. The trial court ruled the defendant had acquired title to the platted right of way through adverse possession.

¶17 The Barnharts appealed, and Division Three affirmed the trial court, holding that "[t]he undisputed evidence supports a finding the location of the platted road right of way shifted to the existing road, due to a long period of use which predated the parties' ownership." Barnhart, 68 Wn. App. at 420-21 (emphasis added). In Barnhart, Division Three relied on another case involving a roadway built outside of the platted location, Curtis v. Zuck, 65 Wn. App. 377, 829 P.2d 187 (1992).

¶18 In Curtis, a gravel road was built north of the platted street location. Plaintiffs bought property north of the platted street, defendants bought the property to the south. Defendants built a home encroaching on the platted street, having been advised the gravel road marked the northern boundary of their land. The trial court refused to eject the defendants from the platted street or to quiet the plaintiffs' title to the portion of their land encroached upon by the gravel road. The appellate court affirmed, accepting defendants' argument that "the private easement they share[d] with the [plaintiffs] ha[d] simply shifted due to a period of long use which predate[d] both parties' ownership." Curtis, 65 Wn. App. at 382.

¶19 Barnhart distinguished Burkhard v. Bowen, 32 Wn.2d 613, 203 P.2d 361 (1949) and Van Buren v. Trumbull, 92 Wash. 691, 159 P. 891 (1916) which upheld the rights of owners of unopened easements against adverse possession challenges, reasoning that whereas Burkhard and Van Buren "attempted to extinguish the private easements of adjoining landowners by affirmatively excluding them from their right to use the platted alley or street," in Curtis "there was no such attempt." Barnhart, 68 Wn. App. at 422.

¶20 Ms. Heg asserts the Court of Appeals misapplied Barnhart because the building of both her alternate access road and the road cut predate the creation of the easement. According to Ms. Heg, she and her predecessors did not elect to ignore an existing easement when building the alternate access road because the easement did not exist until 1957. Similarly, Ms. Heg argues the existence of the road cut does not constitute evidence of intent to abandon because when it was created the easement did not exist. The Alldredges counter the instant case is similar to Barnhart because "a court may find that abandonment of an easement has occurred if the original location of an easement was not used for its intended purpose, the easement area was used for other purposes," and because "a substitute easement was created in a different location."

Answer to Pet. for Review at 11.

¶21 The Alldredges' reliance on Barnhart is misplaced. Unlike the defendant in Barnhart, the Alldredges seek to exclude Ms. Heg from using her recorded easement rights, not merely alter the location where they exist. Attempted exclusion from enjoying easement rights is precisely why the Barnhart court distinguished both Burkhard and Van Buren, and why Barnhart is inapplicable in this case. Ms. Heg's driveway over Parcel A is unlike the "jeep road" in that case because it was not created as a result of confusion over the precise location of the easement, but rather as a separate accommodation which predates the creation of the easement.

¶22 The other asserted evidence of abandonment, the existence of a road cut between Parcel B and the easement, is similarly unavailing. The Court of Appeals cited Northern Pacific Railway v. Tacoma Junk Co., 138 Wash. 1, 244 P. 117 (1926) for the proposition the erection of a "barrier rendering use of a right of way impossible or impractical will support a finding of abandonment." Heg, 124 Wn. App. at 307. However Northern Pacific Railway is readily distinguishable from the instant case because its holding hinged on the conditions for abandonment specified in the easement, namely the cessation of use of the tract for railway purposes and the removal of the rails, and not on the common law governing abandonment of easements. N. Pac. Ry., 138 Wash. at 5. The court reasoned that because "[t]he easements . . . contained their own terms as to when and how abandonment should be effected" the authorities cited by appellants "[were] not in point, for they [did] not contain the same terms as those embodied in these easements." Id. The same analysis applies here, and we decline to extend the holding of Northern Pacific Railway where the easement at issue does not include corresponding provisions.

II. COLLATERAL ESTOPPEL

¶23 The Alldredges next contend that even if Ms. Heg has not abandoned her easement, she is nonetheless estopped from enforcing her rights. As we have explained,

equitable estoppel requires a showing that the party to be estopped (1) made an admission, statement or act which was inconsistent with his later claim; (2) that the other party relied thereon; and (3) that the other party would suffer injury if the party to be estopped were allowed to contradict or repudiate his earlier admission, statement or act.
Pub. Util. Dist. No. 1 of Klickitat County v. Walbrook Ins. Co., 115 Wn.2d 339, 347, 797 P.2d 504 (1990).

¶24 On appeal the Alldredges argued Ms. Heg was estopped from enforcing her easement rights because (1) at Ms. Heg's request the Alldredges had installed a drainage system on the downhill portion of the easement; (2) in reliance on Ms. Heg's predecessors' alleged abandonment of the easement, the Alldredges improved and incorporated into their yard portions of the easement abutting their parcel; and (3) the Alldredges agreed to the boundary line adjustment with Ms. Heg after she raised the possibility of taking legal action to enforce the easement, which the Alldredges interpreted to mean there would be no legal action if agreement was reached. The Court of Appeals found persuasive Ms. Heg's argument that the drainage system, being only 10 feet wide, did not interfere with simultaneous use of the 60-foot-wide easement for road access, and that her potential claims regarding the easement were not part of the boundary line adjustment bargain, and rejected the first and the third estoppel claims. Heg, 124 Wn. App. at 311-12. However, the court found the Alldredges presented a viable claim of equitable estoppel with respect to the second claim and remanded for trial. Id. at 313. In so holding, the court relied on Humphrey v. Jenks, 61 Wn.2d 565, 379 P.2d 366 (1963) for the proposition the conduct of a party's predecessors may bar the enforcement of easement rights.

The Alldredges do not challenge the Court of Appeals dismissal of these two claims, and we need not address them here.

¶25 Ms. Heg argues she cannot be estopped from enforcing her easement rights based on the alleged conduct of her predecessors in interest, and that the Alldredges did not allege "justifiable reliance" upon such conduct. The Alldredges assert the Court of Appeals correctly construed Humphrey because otherwise the estopped party could resurrect a barred claim by transferring title to a third party. In Humphrey we never reached that question because the party asserting estoppel did not establish reasonable reliance. Humphrey, 65 Wn.2d at 570. Alldredges' argument that Heg's predecessors' conduct bars her from enforcing estoppel rights cannot be squared with the language requiring "the party to be estopped" to have acted or made statements inconsistent with his or her later claim, Walbrook Ins. Co., 115 Wn.2d at 347. Because the record contains no evidence of any acts or statements by Heg inconsistent with her claim of easement rights, Alldredges' second estoppel claim is without merit.

CONCLUSION

¶26 We reverse the Court of Appeals. Because the record contains no evidence Ms. Heg or her predecessors in interest intended to abandon the easement or any evidence of admissions, statements, or actions inconsistent with her claim, Ms. Heg is entitled to summary judgment as a matter of law.

ALEXANDER, C.J., and C. JOHNSON, MADSEN, BRIDGE, CHAMBERS, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., concur.