Court hears appeal over whether rural bridge can be replaced within its footprint and if easement grants access

At an appellate oral argument, counsel and the court debated whether property owners may replace a deteriorating bridge across Whipple Creek within the bridge’s existing footprint and whether an easement or easement-by-necessity allows access across neighboring parcels.

Appellant counsel Mr. Erickson told the court that Henry and Mary White and Harold and Mary Fitzgibbons purchased a 40-acre tract in 1941 and that, when the property was split in 1956, Fitzgibbons conveyed an express easement to the Whites “for ingress and egress” and to permit electric poles, recorded in later surveys. He said Clark County granted a shoreline exemption in October 2022 to NCNG, a sister company to FYPS, after FYPS was cited for doing unpermitted grading and replacing deck material on a farm bridge.

“Scott Nysith of Stonewood Structural Engineers opined that damage to the superstructure ... warrants immediate restriction of bridge access,” Mr. Erickson told the court, and he quoted a wetland scientist, Stacy Reed of AKS Engineering, who said the Army Corps would require justification for alternatives that avoid impacts to Whipple Creek. Mr. Erickson argued the existing wooden superstructure is rotted and that placing a new deck on top would transfer weight to the defective structure, which “will all fall straight down,” making replacement within the precise approved footprint infeasible.

Responding for the respondents, attorney Brad Anderson said the record contains statements and county staff materials indicating the applicant represented it could “replace an existing bridge within the same footprint,” and he emphasized that the county exemption addresses footprint and minor disturbance rather than structural engineering review. “They said replace within the same footprint,” Anderson said. “Absent evidence on that point, the trial judge got it right.” He argued plaintiffs’ declarations did not directly contest the record evidence showing a feasible replacement method and criticized plaintiffs for producing only a high-cost alternative that would put the bridge far outside the existing footprint.

The parties disputed the applicable legal test. Anderson invoked the Brown precedent to argue courts should not consider a change in future use (for example, building a single-family house) when measuring necessity for an implied easement, while Mr. Erickson said the record includes later transfers (a 1960 sale of 13 acres) that require careful timing of the implied-easement inquiry. Anderson also noted that because a 1956 express easement exists (granted to the Whites and “their heirs and assigns”), the court need not reach implied-easement analysis for some parcels.

Both sides pointed to expert evidence. Anderson said respondents’ engineers and planners provided declarations showing a replacement could be installed within the footprint without disturbing the creek; Mr. Erickson countered that the field observations (including Nysith’s note of excessive deflection under a 200-pound man) and the rot of the superstructure make relying on the old structure unsafe.

Counsel also debated whether the county ordinance (cited in the record as CCC 4462.30(b)(2) and (b)(5)) and the county staff report support an exemption for a like-for-like replacement. Mr. Erickson urged the court to read the permit and ordinance to require strict adherence to the original footprint and warned that any alteration that transfers load to a defective superstructure or extends beyond the ordinary high-water mark would violate the exemption.

The judge questioned counsel about why the issue had arisen again after an earlier proceeding and asked whether the trial court had properly characterized plaintiffs’ experts as equivocal. Anderson said the earlier record and the declarations addressed the precise issue for summary judgment and asked the court to affirm and award appellate attorney fees. Mr. Erickson reiterated that replacement within the same footprint is structurally impossible and that the record does not support the respondents’ view.

The court took the remainder of its docket without further oral argument and adjourned; no decision on the appeal was announced at the hearing.

The dispute centers on three concrete matters the court emphasized: (1) the recorded 1956 express easement’s language and who it benefits; (2) whether replacement is structurally feasible within the previously approved footprint without disturbing wetland areas; and (3) whether plaintiffs met the necessity element for an implied easement where later transfers of part of the property occurred. The court did not issue a ruling at the session.

What happens next: the court has the record and argument; it may issue a written opinion addressing whether summary judgment was proper, whether an implied easement exists for any parcel at issue, and whether the county exemption permits the replacement as proposed.