(dissenting) — The issue presented is whether the express written conveyance of an easement to Walter and Pauline Barnhart, in 1984, is affected by events prior to 1983. I do not believe that it is and, therefore, respectfully dissent.
Facts
In 1983 Gold Run, Inc., sold the Barnharts lot 31 and an "easement for roadway for ingress to and egress . .. over and across the platted roadway, appearing in the plat of Anderson's Summer Home Tracts . . .". The Barnharts now seek to enforce their right to this easement. They paid the contract balance in 1984 and Gold Run delivered a deed to lot 31. The deed expressly granted the easement referenced in the 1983 contract. Documents transferring title to Lillian Van Der Wei (lot 30 in 1988) and Gale and Barbara Karspeck (lot 29 in 1988), across which the platted roadway ran, also con*425veyed title subject to rights of way or easements shown on the plat.
Easement by Reference to Map
"Where a conveyance of land ... refers to a map on which spaces for streets . . . are shown, . . . the conveyee . . . acquires an easement with respect to the street . . .". 3 R. Powell, Real Property ¶ 409, at 34-55 through 34-57 (1990). See also 1 Washington State Bar Ass'n, Real Property Deskbook § 15-27, at 15-17 (2d ed. 1986).
Standard of Review
Because these issues involve questions of law, the standard of review is de novo. Womble v. Local Union 73, Int'l Bhd. of Elec. Workers, 64 Wn. App. 698, 700, 826 P.2d 224, review denied, 119 Wn.2d 1018 (1992).
Adverse Possession
The majority affirms the trial court, relying primarily on Curtis v. Zuck, 65 Wn. App. 377, 829 P.2d 187 (1992). Curtis was decided, essentially, on the basis of adverse possession. Curtis, at 383-84.
Curtis is not controlling authority here. Adverse possession is not a correct basis for Gold Run's claim. Marie Harris, Gold Run's predecessor in interest, was the owner of both the servient and dominant estates. If the same person becomes the owner of both the benefited and the burdened properties, the easement is terminated by merger. Coast Storage Co. v. Schwartz, 55 Wn.2d 848, 351 P.2d 520 (1960). The easement does not reappear upon severance of the estates after merger, unless recreated by the grant of a new express easement. Real Property Deskbook § 15.44, at 15-25. Thus, the doctrine of merger, rather than that of adverse possession, explains the extinguishment of the easement. Notwithstanding its prior extinguishment, this easement was recreated by Gold Run's 1984 deed to the Barnharts.
Abandonment
Mrs. Harris built her home and related improvements on the right of way. The majority concludes that Mrs. Harris *426evidenced an intent to abandon the platted roadway when she constructed these improvements and built an alternative roadway, in 1949 and 1955. Majority, at 422. This is true and would be fatal to the Barnharts' claim were it not for the fact that their right to the easement stems from Gold Run's written grant, almost 30 years later (in 1984); Gold Run relinquished any claim of abandonment by its 1984 deed.
Furthermore, the new equitable remedy of the "shifting easement", majority at 420-21, is unnecessary and unwise. Unnecessary because there is adequate authority for the court to fashion equitable remedies, and unwise because it creates uncertainty in the transfer of real property. Further, the roadway here did not simply "shift", it is a new and different roadway.
Authority To Fashion Equitable Remedy
The trial court used principles of law to fashion an equitable result. The court, however, has ample authority to consider hardship, balance equities and fashion a practical, equitable solution. See Arnold v. Melani, 75 Wn.2d 143, 152, 437 P.2d 908, 449 P.2d 800, 450 P.2d 815 (1968). A court sitting in equity has always had the right to step in and prevent the enforcement of a legal right whenever enforcement would be inequitable. Arnold, at 152 (citing Thisius v. Sealander, 26 Wn.2d 810, 818, 175 P.2d 619 (1946)). The equitable relief sought (and denied) in Arnold was a mandatory injunction; the equitable relief sought here is specific performance. The Arnold court refused to order a mandatory injunction after evaluating a number of considerations. The considerations set out in Arnold, while not precisely applicable, are adequate guideposts for the trial court to balance the competing interests of the parties here:
(1) The encroacher did not simply take a calculated risk, act in bad faith, or negligently, willfully or indifferently locate the encroaching structure; (2) the damage to the landowner was slight and the benefit of removal equally small; (3) there was ample remaining room for a structure suitable for the area and no real limitation on the property's future use; (4) it is imprac*427tical to move the structure as built; and (5) there is an enormous disparity in resulting hardships.
Arnold, at 152.
In sum, the trial court bases its decision on its conclusion that Gold Run acquired title to portions of the dedicated roadway by adverse possession. The majority, while not specifically discussing adverse possession, concludes that a platted road right of way can shift because of long usage, citing Curtis v. Zuck, supra. I disagree. I would, therefore, reverse and remand to afford the trial court the opportunity to take further testimony and to fashion an equitable remedy based on the competing interests of these parties.