(dissenting) - I respectfully dissent. The majority would allow a jury to extinguish the unused easement simply because Ms. Heg has another way out of
*317her property. It is not so easy to prove that a person holding record title to an easement has intentionally abandoned it. I would affirm the trial court’s judgment quieting Ms. Heg’s title to the unopened road easement.
¶42 Ms. Heg holds title to an access easement across the Alldredge property. The easement, Parcel J, has been of record since 1957. It is appurtenant to both of Ms. Heg’s parcels, Parcel A to the north and Parcel B to the southwest. Ms. Heg and her immediate predecessors — Wheeler and Thomas — have not needed to make use of the Parcel J easement because they have an existing road to the north, across Parcel A. That northern outlet presently serves as the driveway from Ms. Heg’s home on Parcel B out to the main road, Smugglers Cove Road. Ms. Heg has always maintained Parcels A and B as separate parcels, each with its own address, drainfield and electric transformer. She has established a two-party well system and attendant private water association.3
¶43 By virtue of a contract between Wheeler and Thomas, Parcel B has guaranteed access to Smugglers Cove Road by means of a permanent easement across Parcel A. This is the northern outlet that presently serves as the driveway to the Heg residence. Ms. Heg wants to retain the Parcel J easement in case she sells one of her parcels, so that each parcel can then have its own driveway.
¶44 South of the Heg property and west of the easement is a waterfront parcel owned by the Alldredges on which they have built a vacation cabin. They have incorporated the area of the easement into their landscaping. This they are entitled to do, so long as Ms. Heg or her successors do not choose to open a road through the easement. Steury v. Johnson, 90 Wn. App. 401, 406, 957 P.2d 772 (1988) (servient owner entitled to use easement area in ways that do not unreasonably interfere with the rights of the owner of the dominant estate).
*318¶45 The Alldredges would prefer that the easement never be opened as a road. They have persuaded the majority that evidence exists from which a jury could find that Ms. Heg or her predecessors abandoned the Parcel J easement.
¶46 The Alldredges summarize their theory as follows: “the fact that a benefited property has never used an access easement and has instead historically used another access route, constitutes evidence that the easement has been abandoned and the route actually used has been substituted when other evidence of abandonment, such as non-use, exists.” Br. of Appellant at 13.
¶47 Allredges’ “use it or lose it” argument fails in light of the well-established principle that mere nonuse of an easement, for no matter how long a period, will not extinguish the easement. Winsten v. Prichard, 23 Wn. App. 428, 431, 597 P.2d 415 (1979). 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 P. 916 (1927). The fact that Ms. Keg’s parcels already have one outlet going east, across the upper parcel, does not prove that she or her predecessors ever intended to abandon their right to develop a distinct and completely unrelated outlet going south from her lower parcel — any more than the building of a house on one corner of a parcel evinces an intent to abandon a right to build on the other corners.
¶48 The Alldredges inaccurately state the holding of the single case on which they rely, Barnhart v. Gold Run Inc., 68 Wn. App. 417, 843 P.2d 545 (1993). Barnhart is a case where a single right of way was found to have shifted its location. It is not a case like the present where the landowner possesses two distinct rights of way, and the court is asked to infer that she has abandoned one because she uses the other.
¶49 Barnhart involved three neighboring lots with a common platted 30-foot right of way running along their northern boundaries and providing access to a state high*319way to the west. Long before the Barnharts acquired the easternmost of the lots in question, Ms. Harris, a predecessor who owned all three lots, had built a house that encroached into the common right of way. She constructed a “jeep road” north of the platted right of way that she used instead of the platted route. The Barnharts wanted to quiet title to their right to use the platted right of way. The trial court held that Mrs. Harris had acquired title to the platted road right of way by adverse possession. Upon appeal by the Barnharts, the Court of Appeals affirmed. “The 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.
¶50 In so holding, the Barnhart court distinguished two cases which had upheld the continuing validity of unopened easements as against the adverse possession claims of neighbors, Burkhard v. Bowen, 32 Wn.2d 613, 623, 203 P.2d 361 (1949), and Van Buren v. Trumbull, 92 Wash. 691, 694, 159 P. 891 (1916). The court relied instead on another shifting easement case, Curtis v. Zuck, 65 Wn. App. 377, 829 P.2d 187 (1992). The plaintiffs in Burkhard and Van Burén lost on appeal because they had “attempted to extinguish the private easements of adjoining landowners by affirmatively excluding them from their right to use the platted alley or street.” Barnhart, 68 Wn. App. at 422. In Curtis, by contrast, when the plaintiffs attempted to enforce a private easement as platted, the defendants won on the theory that the private easement they shared with the plaintiffs had simply shifted due to a period of long use that predated both parties’ ownership. Barnhart, 68 Wn. App. at 422; Curtis, 65 Wn. App. at 382.
¶51 The Alldredges are not like the defendants in Barnhart and Curtis. They are not asserting that the Parcel J easement has shifted in location over time. Rather, they are like the plaintiffs in Burkhard and Van Burén, in that they are trying to exclude Ms. Heg from her right to use an easement to which she holds record title. Ms. Heg’s open *320driveway across Parcel A is not a “substitute way,” as the majority must characterize it in order to follow Barnhart. Majority, at 308. It did not come into existence through use as a substitute for the recorded location of Parcel J. Ms. Heg’s driveway is completely distinct from the Parcel J easement. The use of the upper driveway as the primary access route by Ms. Heg and her predecessors provides no evidence whatsoever of their intentions with regard to the unopened Parcel J easement.
¶52 Besides the existence of a second road, the majority relies on one other item of evidence — a deep road cut across Parcel B where it abuts the Parcel J easement. Majority at 302, 309. In the proceedings below, this road cut was not presented as evidence of an intent to abandon. It was mentioned by Alldredge only as evidence that Ms. Heg and her predecessors had not used the easement.4 Neither party mentions the road cut in their briefs on appeal. Because Ms. Heg has not had an opportunity to argue against the proposition that the road cut shows an intent to abandon the easement, it is not fair for this court to consider it sua sponte as a basis for defeating summary judgment. But in any event, the road cut does not support an inference of intention to abandon the easement. The road cut is simply evidence of nonuse. At most, it manifests a desire by the owner of Parcels A and B to keep others from using the easement as a back door route into Parcels A and B.
¶53 The majority attempts to bolster the significance of the road cut by stating, “Placement by the grantee of a barrier rendering use of a right of way impossible or impractical will support a finding of abandonment.” Majority at 307. However, there is no evidence in the record demonstrating that it would be impossible or impractical to fill the road cut at such time as Ms. Heg or her successors decided to open the easement. Neither is there any commonsense reason to assume that a road cut is a permanent and unalterable barrier. Nor is there any evidence that the road *321cut makes it impossible or impractical for Ms. Heg to use the easement for walking; indeed, it is undisputed that she does so use it. Furthermore, the majority’s proposition is not supported by the case the majority cites for it, Northern Pacific Railway v. Tacoma Junk Co., 138 Wash. 1, 244 P. 117 (1926). The railroad in that case had removed the rails from a small portion of the track; the court allowed that small portion to revert to the grantor only because the terms of the railroad franchise specifically provided for reversion if the railroad stopped using the track and removed the rails. N. Pac. Railway, 138 Wash. at 5. Because the issue in Northern Pacific Railway turned on the terms of a contract, its holding does not affect the common law as to abandonment of easements generally. Nothing in that case leads to the conclusion that an owner who places a road cut across an unopened easement thereby signals an intention never to open or use the easement as a road.
¶54 In summary, neither Ms. Heg’s use of the distinct northern access route nor her failure to remove the road cut at the southern edge of her property manifests an intent to abandon her record title to the Parcel J easement. And the record contains no evidence of conduct or statements by Ms. Heg or her predecessors that is inconsistent with her present claim to title in the easement. Therefore, the Allredges’ theory of equitable estoppel is unsupported.
155 By incorrectly interpreting Barnhart, the majority has adopted a theory that the owner of a parcel of real property may not benefit from a recorded but unused easement appurtenant if the parcel has an alternative means of ingress and egress. The adoption of this theory will undoubtedly invalidate a large number of easements recorded throughout the state of Washington. The trial court’s judgment appropriately enforces well-settled rules of the law of property. It should be affirmed.
Reconsideration denied January 20, 2005.
Review granted at 155 Wn.2d 1008 (2005).
Clerk’s Papers at 385.
Clerk’s Papers at 117, 134.