JUSTICE BOWMAN

delivered the opinion of the court:

Defendants and third-party plaintiffs, Jose and Lisa Hernandez, appeal an order granting plaintiffs, Wayne and Katherine Emanuel, summary judgment (735 ILCS 5/2 — 1005(c) (West 1998)) on one count of a complaint for declaratory judgment. The trial court ruled that plaintiffs have an easement by implication over defendants’ property. Defendants argue that the judgment cannot stand because plaintiffs failed to prove all the elements of either an easement by necessity or an easement by prior existing use. We agree with defendants and reverse.

Plaintiffs own the property at 920 Pearl Street in Belvidere and defendants own the property immediately north of them at 914 Pearl Street. Pearl Street is on the west side of the properties. Other residential property is to the east. The property line bisects a driveway, but most of the driveway is on defendants’ land. Plaintiffs’ two-count complaint alleged in part that defendants had blocked the driveway *194with railroad ties and had begun constructing a fence on the property line so that plaintiffs could not use the driveway. Count I of the complaint sought an easement by prescription over the driveway. Count II sought an easement by implication over the driveway.

As pertinent specifically to count II, the complaint alleged the following. Plaintiffs had owned the property at 920 Pearl since December 1965. Defendants had recently acquired the property at 914 Pearl. Originally, one person owned both properties. Before title was separated, the use of the driveway to gain access to the garage was so long continued, open, and obvious as to show that it was intended to be permanent. The use of the driveway is essential to the enjoyment of the property at 920 Pearl, as the driveway is the only way a car can get to the garage.

Defendants answered and filed a third-party complaint against Kit E. and Carol L. Scheidenhelm, who sold them the property at-914 Pearl. Plaintiffs moved for summary judgment on count II, attaching affidavits from Wayne Emanuel, Ruth Garrigan, and John H. Maville. Wayne Emanuel’s affidavit stated the following. When plaintiffs took possession of the property in 1965, there was a driveway on the north side of the property. The driveway served both 920 Pearl and 914 Pearl and an attached garage at the rear of his property. The garage could be reached only via the driveway. Since moving in, plaintiffs had several times shared the costs of improving or repairing the driveway with their neighbors at 914 Pearl Street. Emanuel no longer lived at 920 Pearl, but his tenants continued to use the driveway to get to the garage until early 1996, when defendants started to block the driveway. Whoever lived at 920 Pearl could not get to the garage without using the driveway and, for much of the year, could not park on Pearl Street itself. Therefore, without the use of the driveway, the property could not be used without disproportionate expense or effort. Emanuel’s affidavit attached photographs of the properties and ¿ copy of the deed from the Garrigans to the Emanuels.

Ruth Garrigan’s affidavit stated that she and her husband purchased the property at 920 Pearl Street in 1953. At that time, at the rear of the house was an attached garage that could be reached via the driveway. The Garrigans used the driveway the whole time they lived at 920 Pearl, and they shared upkeep costs with the occupants of 914 Pearl.

John H. Maville, plaintiffs’ lawyer, filed an affidavit describing a variety of attached exhibits, primarily deeds showing the chains of title to the two properties. As pertinent here, these deeds show that title to the properties was severed in 1890, when Benjamin Brock, who owned the west eight rods of lots 1, 2, and 3 in block 5 of Allen’s Addi*195tion, conveyed the west eight rods of block 3 — what is now plaintiffs’ property — to Arthur E. Bassett. (Defendants’ property is the west eight rods of block 2.) The affidavit also included a 1922 map prepared by the Belvidere public works department showing the locations of residences and garages on what are now plaintiffs’ and defendants’ properties.

In seeking summary judgment on count II, plaintiffs asserted that the undisputed facts demonstrated that they had an “easement by implication.” Relying on Deem v. Cheeseman, 113 Ill. App. 3d 876 (1983), plaintiffs argued that all they had to prove to establish such an easement was that (1) title to the properties had been severed at some point; and (2) at the present time, the easement was necessary so that plaintiffs’ property could be used without disproportionate effort or expense. Defendants countered that plaintiffs could not prevail because they had not shown a third element of such an easement — that, at the time of the severance of title, there was an existing use of the property that was of such a character that it would have survived as an easement by implication.

Plaintiffs disagreed. They did not claim they had proved that, before title was severed, there had been a use of the property akin to the easement they now sought. However, they maintained that, under Deem, no such proof of prior use was required if the easement was reasonably necessary to the beneficial enjoyment of plaintiffs’ land.

The trial court agreed with plaintiffs and held that, under Deem, it was not fatal to the claim of an easement that plaintiffs had not shown either that their property was landlocked or “that the easement was created prior to the severance of the common ownership.” The court considered it sufficient that there had been a severance of title and that, at present, the easement was highly beneficial because, without it, plaintiffs could not use their garage. Later, the trial court severed defendants’ third-party action from this suit and added language making the grant of summary judgment in this case immediately appealable (see 155 Ill. 2d R. 304(a)). Defendants timely appealed.

On appeal, defendants argue that plaintiffs were not entitled to summary judgment on count II of their complaint because plaintiffs failed to introduce evidence from which the court could find they had an easement by implication. Defendants assert that there are two types of easement by implication — easements by prior use and easements by necessity — and that plaintiffs did not prove all the elements of either one. We agree.

Summary judgment is proper when the pleadings, depositions, and other matters of record establish that there is no genuine issue of ma*196terial fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 — 1005(c) (West 1998). Our review is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

An easement may be implied when the owner of property conveys or otherwise surrenders title to part of the property. There are two types of implied easement — the easement by necessity and the easement implied from a preexisting use. Granite Properties Ltd. Partnership v. Manns, 117 Ill. 2d 425, 435 (1987). An easement by necessity arises when the owner of land conveys or retains an inner portion of the land thereof which is entirely surrounded by the rest of the property or by the property of strangers. Manns, 117 Ill. 2d at 435-36; Finn v. Williams, 376 Ill. 95, 99 (1941). An easement from a prior existing use will be implied when the owner of a tract or of two parcels conveys part of the property after having used the land so that one part of the parcel derives from another a benefit that is apparent, continuous, and permanent. Manns, 117 Ill. 2d at 436; Sheehan v. Sagona, 13 Ill. 2d 341, 345 (1958); Canali v. Satre, 293 Ill. App. 3d 407, 411 (1997).

It is crucial to recognize that an implied easement is the product of the intention of the parties to the conveyance. Manns, 117 Ill. 2d at 437; Canali, 293 Ill. App. 3d at 410; Restatement of Property § 476, Comment a, at 2978 (1944). The easement is “implied” in that courts attempt to ascribe an intention to parties who themselves did not put any such intention into words at the time of the conveyance. Manns, 117 Ill. 2d at 437; Canali, 293 Ill. App. 3d at 410. Because the intention of the parties to the conveyance that severs title is the crucial consideration, whether an easement exists depends wholly on the circumstances at the time of the severance of title. Manns, 117 Ill. 2d at 437; Walker v. Witt, 4 Ill. 2d 16, 20 (1954); Seiber v. Lee, 158 Ill. App. 3d 361, 369 (1987). Thus, if an easement by implication does not arise at the moment of severance, a change in circumstances since the severance, no matter how great, cannot create any such easement. Rexroat v. Thorell, 89 Ill. 2d 221, 230 (1982); Van Patten v. Loof, 349 Ill. 483, 487 (1932).

Applying these principles here, we conclude that plaintiffs did not prove an implied easement, either by necessity or by preexisting use. Plaintiffs do not claim an easement by necessity, and the evidence clearly would refute any such claim. Nothing in the record even suggests that, when title was severed in 1890, the Bassett property became landlocked. Rather, it retained access to Pearl Street, a public road. Thus, the necessity element is lacking, as the conveyance did not leave the Bassett property (now plaintiffs’ property) wholly surrounded by the property of others.

*197We also conclude that the evidence does not support plaintiffs’ claim of an easement by preexisting use. The elements of this easement are (1) common ownership of the dominant and servient parcels and a conveyance or other transfer separating that ownership; (2) before the conveyance or transfer severing the unity of title, the common owner used part of the united parcel for the benefit of another part, and this use was apparent and obvious, continuous, and permanent; and (3) the claimed easement is necessary and beneficial to the enjoyment of the parcel conveyed or retained by the grantor or transferor. Manns, 117 Ill. 2d at 437; La Salle National Bank v. 850 De Witt Place Condominium Ass’n, 257 Ill. App. 3d 540, 547 (1994). Here, plaintiffs plainly failed to establish, either by direct evidence or by inference, the second of these elements — the preexisting use.

Plaintiffs introduced no evidence that the driveway or anything comparable even existed when Brock conveyed the property in 1890 or that Brock ever used what is now the driveway. A fortiori, plaintiffs did not prove that, before the conveyance, Brock made an apparent, obvious, and continuous use of the part of the property he retained for the benefit of the part that he conveyed. Indeed, insofar as the historical evidence tells us anything, it tends to refute any claim of a preexisting use. Plaintiffs assert that the driveway is necessary for access to the garage, yet they concede that there is no evidence that the garage even existed before the 1920s. It is a reasonably safe guess that, in 1890, no easement was necessary for automobile travel to and from what is now plaintiffs’ property. In short, there is simply nothing to suggest that, when Brock divided his property in 1890, he intended to give Bassett an easement across what remained of Brock’s land.

With no evidence to prove that the parties to the 1890 conveyance intended an easement, there is clearly no basis to award one to plaintiffs, even if present-day circumstances may make it desirable. Plaintiffs failed to prove at least one element of an easement by preexisting use — the preexisting use.

However, plaintiffs maintain, and the trial court apparently agreed, that they did not need to prove a preexisting use as long as they proved that, as of the time of the suit, the claimed easement was reasonably necessary to the enjoyment of their property. Apparently, the trial court concluded that plaintiffs needed only to prove (1) a severance of the unity of title and (2) some degree of present-day necessity for the claimed easement. This conclusion is simply erroneous and cannot be squared with the long-standing law that an easement by preexisting use requires the proof of three elements — severance, use prior to severance, and necessity. The trial court’s decision is also irreconcilable with the logic behind these requirements: that an ease*198ment by implication depends on the intent of the parties at the time of the severance, and the claimant’s proof must therefore relate to the circumstances at that time.

The trial court’s error appears to have resulted from its reliance on Deem v. Cheeseman, 113 Ill. App. 3d 876 (1983), which does seem to lend support to plaintiffs’ recasting of the established requirements for an easement by implication. We hold that, insofar as Deem supports plaintiffs’ position, Deem is unsound and should not be followed.

In Deem, the plaintiffs claimed an easement over the defendants’ land. The original owner of both parcels severed the title in 1854, long before the parties’ dispute arose. The appellate court first discussed whether plaintiffs had proved an easement by preexisting use. Deem, 113 Ill. App. 3d at 882-84. The court next considered, under Finn v. Williams, 376 Ill. 95 (1941), whether the plaintiffs had proved they had an easement by necessity. Deem, 113 Ill. App. 3d at 884-86. We are concerned mainly with the first of these discussions.

In determining whether the trial court rightly denied the plaintiffs an “easement by implication” — by which the Deem court meant an easement by preexisting use — the court first appeared to follow the established rules we have recognized here. The court observed that the easement requires the proof of three elements — severance of title, a use predating the severance of title, and necessity — and that the existence of the easement depends on the conditions at the time of the severance of title. Deem, 113 Ill. App. 3d at 882. The court concluded that the plaintiffs had failed to prove, either directly or by inference, that before 1854 there had been any use that would support the claim of an easement. This should have ended the analysis of whether plaintiffs were entitled to an easement by preexisting use. Under settled case law, they were not.

Yet the Deem court then took what appears to be a misconceived detour. After establishing that the plaintiffs failed to show a preexisting use, the Deem court stated:

“However, proof of prior use is not required when the land presently could not be used, absent the easement, or could not be used without disproportionate effort and expense. (Miller v. Schmitz (1980), 80 Ill. App. 3d 911, 914.) This requires a determination of the third condition [necessity].” (Emphasis added.) Deem, 113 Ill. App. 3d at 883.

The court eventually concluded that the plaintiffs had not proved an easement because there was sufficient evidence that, at the time of the trial, the plaintiffs had a “viable alternative” to the claimed easement. Deem, 113 Ill. App. 3d at 884. Without explaining itself further, the court added that the plaintiffs had also failed to show that the element of necessity existed in 1854. Deem, 113 Ill. App. 3d at 884.

*199Apparently, the Deem court simply dropped one element out of the three-part test for an easement by preexisting use. This element was the preexisting use itself. (Whether Deem correctly applied the third element, necessity, is a question we need not decide.) In so doing, the court ignored established case law and improperly removed its focus from the intention of the parties to the conveyance as shown by the circumstances at the time of the conveyance. The court’s apparent willingness to create an implied easement based on only the first and third elements of an easement by preexisting use was inconsistent with long-standing law.

The analysis in the first half of Deem would make more sense could we read it to state only that a preexisting use need not be proved where the plaintiff can establish an easement by necessity. This holding would simply recognize that an implied easement may arise from either a preexisting use or necessity and that, if the severance would otherwise make the claimant’s property landlocked and thus unfit to use, that fact alone would prove that the parties intended an easement. See Manns, 117 Ill. 2d at 438. However, this reading of Deem is difficult to square with the court’s emphasis on the present-day need for the easement or with its separate and extended discussion of whether the plaintiffs had shown an easement by necessity. We read Deem as allowing an easement by preexisting use without any need to show a preexisting use. This complete elision of a crucial element cannot be reconciled with the case law preceding and following Deem.

Deem relied on Miller v. Schmitz, 80 Ill. App. 3d 911 (1980). In Miller, the trial court held that the plaintiff was entitled to an easement across defendant’s land because there was no other reasonable access to her property and this means of access had been used by the common grantor. Miller, 80 Ill. App. 3d at 913. The appellate court affirmed. After setting out the three-part test for an easement by preexisting use — which it referred to as an “easement by implication” — the court concluded that the first element, severance of common title, was undisputed and that the second element, a preexisting use by the common owner, could be inferred from the circumstances before the severance. Miller, 80 Ill. App. 3d at 913-14. These conclusions are wholly consistent with long-standing precedent. However, in language that the Deem court apparently seized on, perhaps out of context, Miller added:

“Although prior use by the grantor is a relevant factor indicating necessity for the easement, the Restatement of Property recognizes that proof of prior use is not required when the land presently could not be used, absent the easement. Moreover, ‘[i]f land can be used without an easement, but cannot be used without dispropor*200tionate effort and'expense, an easement may still be implied *** on the basis of necessity alone without reference to prior use.’ Restatement of Property § 476, [C]omment g, at 2983 (1944).” Miller, 80 Ill. App. 3d at 914.

The Miller court next analyzed the necessity for the easement, both as it tended to prove that the conditions at the time of the severance created an easement by necessity (Miller, 80 Ill. App. 3d at 914, relying on Walker v. Witt, 4 Ill. 2d 16 (1954)) and as it tended to satisfy the necessity element of an easement by preexisting use (Miller, 80 Ill. App. 3d at 914, relying in part on Sheehan v. Sagona, 13 Ill. 2d 341, 347 (1958)). Apparently, the Miller court, which did not distinguish neatly between easements by preexisting use and easements by necessity, in essence concluded that the plaintiffs had proved the elements of either type. Although this conclusion appears sound on the facts, several caveats about Miller and about Deem’s use of Miller are in order.

First, it is doubtful if Miller supports Deem’s conclusion that an easement may arise solely by virtue of a severance of title and some degree of necessity. In Miller, unlike in Deem, the claimant proved that, when title had been severed, there had been a preexisting use that would demonstrate the intent to create an easement. Thus, the Miller court concluded that all three aspects of the test for an easement by preexisting use had been satisfied. It appears that any statement in Miller that a claimant may dispense with the proof of one element is dictum.

Second, if Miller can be read to allow an easement based on nothing more than the severance of title plus some degree of necessity short of or different from that required for an easement by necessity, it too is inconsistent with case law before and after it and ought not be followed. At one point, Miller itself recognizes that an easement “is created, if at all, at the time of severance of title.” Miller, 80 Ill. App. 3d at 913. Insofar as Miller departs from this requirement, it misstates the law.

Finally, the Restatement of Property, on which Deem and Miller appear to rely, does not support making the requirements for an easement by implication less extensive or strict than those set out in Manns and numerous other cases. The Restatement recognizes clearly that the severance of the ownership of land may create an easement “by implication from the circumstances under which the conveyance was made, alone.” (Emphasis added.) Restatement of Property § 474, at 2972 (1944). Section 476 of the Restatement details the factors a court must consider “[i]n determining whether the circumstances under which a conveyance of land is made imply an easement.” (Emphasis *201added.) Restatement of Property § 476, at 2977 (1944). This provides the context for the later comment that, “If land can be used without an easement, but cannot be used without disproportionate effort and expense, an easement may still be implied in favor of either the conveyor or the conveyee on the basis of necessity alone without reference to prior use.” (Emphasis added.) Restatement of Property § 476, Comment g, at 2983 (1944).

Comment g to section 476 of the Restatement says no more than that an easement by necessity may be implied from the circumstances of the conveyance even when those circumstances do not imply an easement by preexisting use. From the context of sections 474 .and 476 of the Restatement and from comment g’s reference to the “conveyor or the conveyee,” it is plain that comment g does not disturb the settled rule that the circumstances at the time of the conveyance (or whatever act separates title) determine whether a claimant has proved there is an easement.

Thus, insofar as Miller and, by implication, Deem, rely on comment g to hold that present-day necessity may create an easement by implication even where none arises at the time of the severance of title, these opinions misinterpret the Restatement. Any “present necessity” to which comment g refers is the necessity that arises at the moment that the unity of title is severed. Nothing in that comment or elsewhere in the Restatement allows a party to claim an easement based solely on the fact of severance combined with present-day necessity without regard to the conditions at the time of the severance. Under the Restatement, as well as under Illinois law, a party who cannot satisfy the three-part test for an easement by preexisting use may prove an easement by implication only by satisfying the prerequisites to an easement by necessity — viz., a severance of title plus strong necessity (i.e., the need to prevent property from being rendered landlocked) at the time of the severance. See Manns, 117 Ill. 2d at 440-41.

In view of these conclusions, we give no weight to plaintiffs’ discussion of how the factors set out in section 476 support the trial court’s finding that they have an easement by implication over the defendants’ portion of the driveway. Plaintiffs’ entire discussion is based on the circumstances as they existed at or near the time of their lawsuit, not on the circumstances in 1890, when the severance of title occurred. Plaintiffs adduced insufficient evidence that the parties to the 1890 conveyance intended to create the easement that plaintiffs now claim. Therefore, the trial court erred in granting them summary judgment on count II of their complaint for declaratory relief.

*202The judgment of the circuit court of Boone County is reversed. The case is remanded to the trial court for further proceedings.

Reversed and remanded.

COLWELL and GALASSO, JJ., concur.

*599KETCHUM, Justice:

Two-and-a-half centuries ago, in the days of Thomas Fairfax and John Savage, the doctrine of prescriptive easements took root in our common law. When estates were so large that the boundaries were unknown, and vast tracts were owned by individuals who never set foot on the land, it was reasonable and economical for the law to reward a diligent user of the land with an easement by prescription at the expense of the absentee owner.

In 1719, Lord Fairfax inherited a grant of 5.28 million acres of land in what is now northern Virginia and eastern West Virginia (including what is now Jefferson county). However, Lord Fairfax never set foot on his land until around 1735, and — since the territory had never been mapped when the grant by the British Crown was made — the western boundary was not established until 1746. In 1772, Captain Savage received a grant from the British Crown of 28,600 acres of land along the Ohio and Big Sandy Rivers (for himself and some of his soldiers, in what is now Cabell and Wayne counties); Captain Savage never set foot on the property. “Squatters” and trespassers on both grants were common. The litigation over the use and ownership of the land contained within these two grants was extensive and, in some cases, legendary.1

But in today’s world, our law on the doctrine of prescriptive easements is a tangled mass of weeds. The doctrine essentially rewards a trespasser, and grants the trespasser the right to use another’s land without compensation. Such a significant imposition on the rights of modern landowners discourages neighborly conduct, and does not square with the modern ideal that we live in a congested but sophisticated, peaceful society.

In this appeal from the Circuit Court of Jefferson County, we are asked to examine a jury’s verdict finding that a plaintiff had acquired a prescriptive easement to use a gravel lane. The jury’s verdict also awarded the plaintiff damages against his neighbors, largely on the finding that the neighbors had indecorously interfered with the plaintiffs prescriptive easement. The circuit court entered judgment on the jury’s verdict in favor of the plaintiff.

After careful consideration of our morass of case law, we now take this opportunity to clarify the common law doctrine of prescriptive easements. We endeavor to eliminate archaic and contradictory terms, and establish terms and definitions that are understandable to the modern factfinder. We also seek to indelibly imprint in our common law a fundamental policy consideration: easements by prescription are absolutely not to be favored.

After a thorough examination of the record, we believe that the plaintiff wholly failed to establish that he had a prescriptive easement, and failed to prove his other causes of action seeking damages. Accordingly, we reverse the circuit court’s order entering judgment for the plaintiff on the jury’s verdict.

I.

Facts and Background

In 2006, plaintiff (and appellee) Michael J. O’Dell bought land and a home on the Old Leetown Pike — now Route 15 — in Jefferson County, West Virginia. The plaintiffs home was originally built and used as the German Baptist Brethren Church starting sometime around 1898, and was converted into a residence sometime after 1999. The plaintiffs lot abuts the Leetown Pike/Route 15, and the plaintiff has a driveway that connects directly to this public road.

*600Directly behind and adjacent to the plaintiffs property, defendants (and appellants) Robert and Virginia Stegall own land and a home. The defendants’ property is “landlocked” and surrounded on all sides by land owned by other individuals.

This ease concerns a private, 25-foot-wide gravel lane that borders on the northern edges of both the defendants’ property and the plaintiffs property. The defendants do not own the gravel lane, but it is their only access to a public highway (the Leetown Pike/Route 15).

The central question is whether the plaintiff has a legal right to use the gravel lane for ingress to and egress from the north side of his home. The plaintiff already has access to the Leetown Pike/Route 15 by way of his own driveway across his property on the south side of his home. The plaintiff does not know who owns the land beneath the gravel lane, but he insists that he has a prescriptive easement to use the lane as an additional access to his property from the Leetown Pike. The defendants retort that the plaintiff does not have a prescriptive easement, and assert that the plaintiffs use will cause wear and tear to the gravel lane which the defendants are contractually obligated to repair.

At the outset, we note that we have struggled to understand the parties’ rights to access and use the gravel lane. This ease demonstrates that there is nothing more vicious than a fight over a piece of land between two neighbors. The parties’ briefs and the record from the trial court reveal more ridiculing than reasoning, more finger-pointing than fact-finding. For instance, the plaintiff has repeatedly asserted that he has a prescriptive easement to use the gravel lane, yet the plaintiffs own expert testified at trial that the plaintiff did not have a prescriptive easement. Likewise, the defendants have repeatedly asserted that they have an express easement to use the gravel lane, yet all the documentation in the record undermines that assertion. And throughout the case, neither party seems to have made any effort to identify the actual owner of the real estate upon which the gravel lane sits.

Setting aside the parties’ vigorous assertions, as best we can ascertain, this is the historical underpinning of the parties’ rights to access the gravel lane.

A. History of the Gravel Lane

In 1890, Isaac Strider acquired a 23-acre tract of land along the Leetown Pike. Beginning in 1893, Mr. Strider divided parts of the tract into numerous smaller residential lots for sale. Four of these lots, which now border the gravel lane at issue, were created between 1893 and 1911. Mr. Strider kept the remainder of the 23-aere tract, which also borders on the gravel lane.

The four lots created by Mr. Strider are related to one another in a roughly square pattern: two lots (one of which is now the plaintiffs) border the Leetown Pike/Route 15, a public highway; the other two lots (one of which is now the defendants’) are situated behind the first two, and — but for the 25-foob-wide gravel lane at issue in this case— would be landlocked. The gravel lane at issue extends eastward from the Pike and separates the two northern lots from the two southern lots. The plaintiff owns the southern lot bordering the Leetown Pike; the defendants own the southern lot that is landlocked. As best we can discern from the record, Mr. Strider retained all of the land to the east of the four lots, and he used the gravel lane as one way to access the remainder of his 23-acre tract from the Leetown Pike. (See Figure 1.) [ATTACHED IN SEPARATE DOCUMENT]

*601

The first of the four lots, conveyed in 1893, is about Vj¿ acres in size, borders the Lee-town Pike and now borders the north side of the gravel lane. The 1893 deed from Mr. Strider makes no mention of the gravel lane. The current owners of the lot, Clifford E. and Mary Belle Starliper, have lived on the lot for over 50 years and claim no ownership interest or other right in the gravel lane.

The second of the four lots (about % acre in size) was conveyed by Mr. Strider in 1898, borders the Leetown Pike/Route 15, and borders the south side of the gravel lane. The 1898 deed makes no mention of the gravel lane. Although the lot is now owned by plaintiff O’Dell, as previously mentioned the lot was originally used by the German Baptist Brethren Church.2 The trial testimony suggested that in the decades before 1999, churchgoers used the gravel lane at least twice a week to access a parking lot at the rear of the church. This testimony did not reveal if the use was with the permission of the owner of the gravel lane, or whether the churchgoers were trespassing.

The gravel lane at issue is first mentioned in an 1899 deed by Mr. Strider conveying the *602third of the four lots. The third lot (about & acre in size) is located on the north edge of the gravel lane, and is landlocked behind the lot owned by the Starlipers. The third lot is now owned by Sidney Seibert. The plat in the 1899 deed shows a 25-foot-wide way marked as a “road” or “driveway” owned by “I.H. Strider” extending eastward from the Leetown Pike, passing adjacent to the first and third lots, and extending beyond to a tract of land marked as being owned by “I.H. Strider.” In the deed, Mr. Strider conveyed to the buyer of the third lot and “her heirs and assigns forever” “the right to use the road for ingress and egress 25 ft. wide running from the said lot through the land of I.H. Strider to the Leetown & Charles Town road[.]”

Mr. Strider conveyed the fourth lot — the southern landlocked lot which is now owned by the defendants — in 1911. The plat with the 1911 deed shows that the fourth lot (about % acre in size) borders on the gravel lane, which is labeled in the plat as a “lane to public road.” While the deed apparently contains no wording creating an explicit right for the owner of the lot to use the gravel lane,3 it appears that since 1911 all of the owners of the defendants’ lot have used the gravel lane to access the Leetown Pike.

In 1988, three parties with property bordering the gravel lane (the prior owners of the defendants’ landlocked lot; the prior owners of Ms. Seibert’s landlocked lot; and the owners of the remainder of the 23-acre tract formerly owned by Mr. Strider) signed a “road maintenance agreement” that was recorded with the county clerk. The plaintiffs predecessor, the German Baptist Brethren Church, did not sign the 1988 agreement. The road maintenance agreement notes that the three parties were the owners of “parcels of real estate that are made accessible to [the Leetown Pike/]Route 15 by a right of way 25 feet in width[.j” The parties agreed, “for themselves, their heirs and assigns,” that they would “maintain the road surface of the 25 foot wide road and right of way in its present state of repair by sharing equally the cost of maintenance and repairs.” As the current owners of one of the landlocked lots, the defendants agree that they are bound by the 1988 road maintenance agreement.

Donald and Patricia Walker (who appear to now own the remainder of the 23 acres formerly owned by Mr. Strider) admit that over the years, they used the gravel lane as a means of access to their land from the Lee-town Pike with construction equipment and vehicles. At some point in 2006, the Walkers subdivided the remainder of the 23-acre tract, constructed another road for access, and represented to the county planning commission that they would no longer allow access to their land by way of the gravel lane.4 After the instant lawsuit was filed in 2008, the Walkers stopped using the gravel lane.

B. The Lawsuit to Establish a Prescriptive Easement

In 2008, numerous disagreements arose between plaintiff O’Dell and the defendant Stegalls. Essentially, the plaintiff claimed that he had the right to use the gravel lane to access a horseshoe-shaped driveway on the northern edge of his land. This horseshoe-shaped driveway appears to have been partially constructed and connected to the gravel lane sometime after 1999. The defendants objected to the plaintiffs use of the gravel lane to access the horseshoe-shaped driveway, called the police two times, and threatened to have the plaintiff prosecuted for trespassing. The defendants also took several photographs of the plaintiff driving on the gravel lane, and tape-recorded a conversation that they had with the plaintiff *603about his use of the lane, while the plaintiff and one of the defendants were standing on the lane.

In response to the defendants’ objections, plaintiff Michael O’Dell filed the instant lawsuit in September 2008 against all of his neighbors who border the gravel lane. In counter-clockwise fashion as their properties related to the plaintiffs home, the plaintiff brought suit: (1) against the defendants, Robert and Virginia Stegall, who own the landlocked parcel behind plaintiff O’Dell’s home; (2) against Donald and Patricia Walker, the owners of what appears to be the remainder of Isaac Strider’s 23-acre tract that is at the end of the gravel lane; (3) against Sidney Seibert, the owner of the 1898 outparcel that is landlocked behind the Starlipers’ lot, and the only person who has an express easement to use the gravel lane; and (4) against Clifford and Mary Belle Starliper, the owners of the 1893 outparcel that borders the Leetown Pike.

The primary count in the plaintiffs complaint sought to “quiet title by way of a prescriptive easement” allowing the plaintiff to use the gravel lane. The plaintiff claimed that the gravel lane had, “by its nature and duration of its open, continuous, notorious and adverse use, as to any owner of the parcel” become a “community driveway servicing as an ingress and egress easement” to the plaintiffs property.

However, the plaintiffs complaint also sought damages from defendants Donald and Virginia Stegall for “intentionally, deliberately and maliciously” interfering with the plaintiffs alleged prescriptive easement. Two other counts in the complaint sought compensatory and punitive damages for abuse of process and the tort of outrage, largely because the defendants had called the police on two occasions and alleged that the plaintiff was trespassing by using the gravel lane. Finally, an amended complaint by the plaintiff alleged that the defendant Stegalls should be liable for compensatory and punitive damages because they had civilly conspired to take pictures of the plaintiff when he used the gravel lane, and to tape record a conversation between one of the defendants and the plaintiff while standing on the gravel lane.

Before trial, the plaintiff settled his claims against the Walkers, Ms. Seibert, and the Starlipers. The Walkers entered into a settlement agreement on April 23, 2009 with the plaintiff, in which the Walkers claimed that they had “no interest in the unnamed lane referred to in Plaintiffs Complaint.”5 Ms. Seibert settled and gave the plaintiff a purported “quitclaim deed of easement” in which she waived any objection to the plaintiffs use of the gravel lane, and agreed that the plaintiff would have an “easement and right-of-way over and across” the portion of the gravel lane that bordered the plaintiffs property, “for purposes of ingress to and egress from [plaintiffs] real estate and the public road[.]”6 Ms. Seibert’s quitclaim deed did not convey title to any land or to the lane, or convey her express easement. Finally, the Starlipers said that they had no interest *604whatsoever in the lane, and the plaintiff consented to their dismissal from the lawsuit. The circuit court dismissed all of the plaintiffs claims against the Walkers, Ms. Seibert, and the Starlipers with prejudice, and those parties are not part of the instant appeal.

A jury trial against the defendant Stegalls was held in June 2009, wherein the plaintiff asserted that he had a prescriptive easement to use the gravel lane. To support this assertion, he introduced the testimony of several individuals who stated that there used to be a parking lot behind the church that now serves as the plaintiffs home. These individuals said that, for several decades prior to 1999, visitors to the church had continuously used the gravel lane to access the parking lot.

The plaintiff also offered the expert testimony of Fred Gates, a land surveyor, to help establish the plaintiffs legal right to use the gravel lane. When asked about what facts established a prescriptive easement, Mr. Gates said, “I am not sure this is a prescriptive easement.” Instead, Mr. Gates speculated that the plaintiff had a right to use the gravel lane merely because “[i]t appears that back in the 1890s Mr. Strider created a series of lots around a right of way that [was] intended to serve them.”

After a three-day trial, on June 11, 2009, the jury concluded that the plaintiff had established a prescriptive easement to use the gravel lane as an “ordinary access to his residence.” The jury also awarded the plaintiff $5,300.00 in compensatory damages and $4,700.00 in punitive damages against the defendant Stegalls for: (1) intentionally interfering with the plaintiffs right of ingress and egress; (2) committing the intentional tort of outrage “by virtue of threats of trespass prosecution and calls to law enforcement ... and/or recording [plaintiff] O’Dell’s conversations;” (3) civil conspiracy; and (4) invasion of privacy. The jury ruled in favor of the defendants on one count, finding that they had not engaged in abuse of process.

The circuit court denied the defendants’ numerous motions for post-trial relief. The defendants now appeal the circuit court’s judgment entered on the jury’s verdict, and refusal to set aside the judgment.

II.

Standard of Review

We are asked to review the circuit court’s order denying a post-verdict motion for judgment as a matter of law. The appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law after trial is de novo. Syllabus Point 1, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009). Our standard for reviewing such an order was stated in Syllabus Point 2 of Fredeking v. Tyler, where we said:

When this Court reviews a trial court’s order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party.

This Court has historically favored supporting jury verdicts and will affirm a verdict, unless there clearly is insufficient evidence to support the verdict. For instance, in Syllabus Point 5 of Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983) we said that:

In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.

We now turn to the arguments of the parties.

*605III.

Discussion

The defendants, Robert and Virginia Ste-gall, assert on appeal that the jury’s verdict is wrong for a host of different reasons, but their central argument boils down to this: the plaintiff failed to prove he had a prescriptive easement to use the gravel lane to access his property. They therefore assert that the jury had no basis to award damages against the defendants. After carefully reviewing the trial record, we agree.

To understand why, we begin with a primer to clear up the morass that is our case law on the doctrine of prescriptive easements.

A.

The Law of Prescriptive Easements

“An easement is a right that one person has to use the land of another person, for a specific purpose.” Cobb v. Daugherty, 225 W.Va. 435, 441, 693 S.E.2d 800, 806 (2010). “The land benefitting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate.” Newman v. Michel, 224 W.Va. 735, 740-41, 688 S.E.2d 610, 615-16 (2009).

The general rule (with several exceptions not important to the instant case) is that an easement can be created in three ways: by prescription — the easement equivalent of adverse possession; by an express grant or reservation; or ... by implication from the particular set of facts and circumstances.

Cobb, 225 W.Va. at 441, 693 S.E.2d at 806 (quotations and footnotes omitted).

A prescriptive easement arises through the adverse use of another person’s land. “There is a similarity between the elements which must be shown to establish a prescriptive easement and those necessary for adverse possession.” Veach v. Day, 172 W.Va. 276, 278, 304 S.E.2d 860, 863 (1983) (per curiam). The main distinction between adverse possession and a prescriptive easement “is that an adverse possession claimant occupies or possesses the disputed land, whereas one seeking a prescriptive easement makes some easement-like limited use of the disputed land.” Newman v. Michel, 224 W.Va. at 743, 688 S.E.2d at 618.7

“Prescriptive easements are based on the notion that if one uses the property of another for a certain period without permission and the owner fails to prevent such use, the prolonged usage should be treated as conclusive evidence that the use is by right.” Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land, § 5:1 (2010).

Prescription doctrine rewards the longtime user of property and penalizes the property owner who sleeps on his or her rights. In its positive aspect, the rationale for prescription is that it rewards the person who has made productive use of the land, it fulfills expectations fostered by long use, and it conforms titles to actual use of the property. The doctrine protects the expectations of purchasers and creditors who act on the basis of the apparent ownerships suggested by the actual uses of the land.

Restatement (Third) of Property (Servitudes), § 2.17, cmt. c. “[I]ts underlying philosophy is basically that land use has historically been favored over disuse, and that therefore he who uses land is preferred in the law to he who does not, even though the latter is the rightful owner.” Finley v. Yuba County Water Dist., 99 Cal.App.3d 691, 696, 160 Cal.Rptr. 423, 427 (3d.Dist.1979). The doctrine of prescriptive easements “reflects] the philosophy that established patterns of land possession and use should be protected and that a diligent occupant should be re*606warded at the expense of a careless owner.” Bruce & Ely, The Law of Easements and Licenses in Land, § 5.1.8

In West Virginia, the case that firmly established the fundamental elements of the prescriptive easement doctrine is Town of Paden City v. Felton, 136 W.Va. 127, 66 S.E.2d 280 (1951).9 In Syllabus Point 1 of *607Town of Paden City, we stated the following rule:

To establish an easement by prescription there must be continued and uninterrupted use or enjoyment for at least ten years, identity of the thing enjoyed, and a claim of right adverse to the owner of the land, known to and acquiesced in by him; but if the use is by permission of the owner, an easement is not created by such use.

Stated another way,

As to an easement by prescription, the requisites for its acquisition are continued and uninterrupted, open and visible, use of a definite right in the land of another which is identical to that claimed as an easement and has a relation to the use of, and a direct and apparent connection with, the dominant tenement under an adverse claim of right, for the prescriptive period of time.

Town of Paden City, 136 W.Va. at 137, 66 S.E.2d at 286. In West Virginia, the prescriptive period of time — ten years — derives from the statute of limitation for property disputes, W.Va.Code, 55-2-1 [1923] (“No person shall make an entry on, or bring an action to recover, any land, but within ten years next after the time at which the right to make such entry or to bring such action shall have first accrued to himself or to some person through whom he claims.”).

Professors Brace and Ely state the prescriptive easement doctrine this way:

[Generally a person claiming [a prescriptive] easement must show the following: adverse, open and notorious, continuous and uninteirapted use of another’s land for the period of prescription.

The Law of Easements and Licenses in Land, § 5.2 (footnotes omitted). See also, Restatement (First) of Property, § 457 (“An easement is created by such use of land, for the period of prescription, as would be privileged if an easement existed, provided the use is (a) adverse, and (b) for the period of prescription, continuous and uninterrupted.”).10

Our examination of our prior cases applying the doctrine of prescriptive easements reveals a lack of any clear enunciation of the meanings of the concepts underlying the doctrine. “The range and redundancy of terms and requirements reflect the diversity of theories that have contributed to the making of American prescription doctrine.” Restatement (Third) of Property (Servitudes), § 2.17, cmt. g. Justice Miller once said that while it seems it is a “mere truism” to say that the “doctrine of adverse possession is firmly established in our law,” in fact “when one attempts an orderly assessment of the doctrine through the eases, it is at best an arduous task.” Somon v. Murphy Fabrication & Erection Co., 160 W.Va. 84, 89, 232 S.E.2d 524, 528 (1977). In Somon, Justice Miller attempted to refine and clearly establish the meaning of the concepts underlying the doctrine of adverse possession.

Like the Court in Somon, we will now attempt to set out definitions of the elements necessary to establish a prescriptive easement, definitions intended to guide a finder of fact. We recognize, however, that these definitions “are at best fragile guidelines to outline in a general way the elements of [prescriptive easements], which in the main cannot be naturally compartmentalized in a *608given case. They serve only as a beginning point[.]” 160 W.Va. at 92, 232 S.E.2d at 529.

(1) Elements of the Prescriptive Easement Doctrine

To begin, after carefully considering the doctrine of prescriptive easements, we believe that the better expression of the doctrine is this: a person claiming a prescriptive easement must prove each of the following elements: (1) the adverse use of another’s land; (2) that the adverse use was continuous and uninterrupted for at least ten years; (3) that the adverse use was actually known to the owner of the land, or so open, notorious and visible that a reasonable owner of the land would have noticed the use; and (4) the reasonably identified starting point, ending point, line, and width of the land that was adversely used, and the manner or purpose for which the land was adversely used.

(2) Burden of Proof

The degree of proof necessary to establish a prescriptive easement is clear and convincing evidence. As we said in Syllabus Point 2 of Beckley Nat. Exchange Bank v. Lilly, 116 W.Va. 608, 182 S.E. 767 (1935):

In order to establish a right of way by prescription, all of the elements of prescriptive use, including the fact that the use relied upon is adverse, must appear by clear and convincing proof.

See also, Syllabus Point 1 of Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976) (“The burden of proving an easement rests on the party claiming such right and must be established by clear and convincing proof.”); Syllabus Point 1, Fanti v. Welsh, 152 W.Va. 233, 161 S.E.2d 501 (1968) (“A landowner who asserts the right to an easement by prescription over the land of another must establish such right by clear and convincing proof.”); Ely & Bruce, The Law of Easements and Licenses in Land, § 5:3 (“[T]he burden of proving the existence of a prescriptive easement rests on the claimant, and doubt will be resolved in favor of the landowner.”). “‘[C]lear and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be established.” Brown v. Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996), citing Wheeling Dollar Sav. & Trust Co. v. Singer, 162 W.Va. 502, 510, 250 S.E.2d 369, 374 (1978). “ ‘Clear and convincing evidence’ or ‘clear, cogent and convincing evidence’ is the highest possible standard of civil proof[.] ... It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.” Cramer v. West Virginia Dept. of Highways, 180 W.Va. 97, 99 n. 1, 375 S.E.2d 568, 570 n. 1 (1988) (per curiam ).11

Prescriptive easements are not *609favored in the law.12 “It is axiomatic that easements by prescription are not favored in law because they necessarily work losses or forfeitures of the rights of others.” Zimmerman v. Newport, 416 P.2d 622, 629 (Okl. 1966). “In this important matter, of subjecting, without pay, one man’s land for the use of another, we must remember that the claimant carries the burden of proof, and he must show a use as of right, a hostile, adversary use, clearly show it.” Crosier v. Brown, 66 W.Va. at 277, 66 S.E. at 328. “Each ... element[ ] ... must be established as a necessary, independent, ultimate fact, the burden of showing which is on the party asserting the prescriptive title, and the failure to find any one of such elements [is] fatal ..., for such failure to find is construed as a finding against it.” Carnahan v. Moriah Property Owners Ass’n, Inc., 716 N.E.2d 437, 441-42 (Ind.1999), quoting Monarch Real Estate Co. v. Frye, 77 Ind.App. 119, 124-25, 133 N.E. 156, 158 (1921). “The absence of any one or all of such requisites will defeat a claim of a right to an easement by prescription.” Fanti v. Welsh, 152 W.Va. at 236, 161 S.E.2d at 503.

Accordingly, we hold that a person claiming a prescriptive easement must establish each element of prescriptive use as a necessary and independent fact by clear and convincing evidence, and the failure to establish any one element is fatal to the claim.

We now turn to the definitions of the four elements that a person claiming a prescriptive easement is required to establish.

(3) “Adverse Use” of Another’s Land Defined

A person claiming a prescriptive easement must first show that his or her use of the servient estate was “adverse” to the rights of the true owner. Without the requirement of adversity, “licenses would grow into grants of the fee, and permissive occupations of land become conveyances of it. ‘It would shock that sense of right,’ Chief Justice Marshall said ... ‘if a possession which was permissive and entirely consistent with the title of another should silently bar that title.’ ” District of Columbia v. Robinson, 180 U.S. 92, 100, 21 S.Ct. 283, 45 L.Ed. 440 (1901), quoting Kirk v. Smith ex dem Penn, 22 U.S. 241, 9 Wheat. 241, 288, 6 L.Ed. 81 (1824).

But what does “adverse” truly mean? “ ‘Adverse use’ is a complex concept[.]”13 Our cases discussing prescriptive easements have lobbed around the words “adverse” and “hostile,” but have never attempted to posit a forthright definition to guide a finder of fact.14 Many of oar early cases are tarnished with a “residue of terminology that often *610confuses modern analysis.” Fisher, “A Survey of the Law of Easements in West Virginia,” 112 W.Va.L.Rev. at 675.15 This problem is not unique to West Virginia. As a Utah court said over six decades ago, “[t]he courts are not in accord as to the exact meaning of ‘adverse use’ when applied to prescriptive easements,” and great confusion “exists as a result of the courts’ unfortunate choice of words in characterizing the use necessary to initiate a prescriptive right.” Zollinger v. Frank, 110 Utah 514, 516-17, 175 P.2d 714, 715 (1946).16

Moreover, instead of defining “adverse use,” in many of our early cases this Court simply presumed that a claimant’s use of another’s property was adverse, if the claimant had otherwise proven the remaining elements of the prescriptive easement doctrine. In doing so, the Court shifted the burden of proof from the claimant to the landowner, who had to prove that the servient estate had not been used adversely {e.g., the land had been used with permission).17 Stated another way, while this Court has said the burden of proof is upon the claimant of a preserip*611tive easement to prove adverse use of another’s land for ten years (by clear and convincing evidence, no less), at the same time we have also said that it is the landowner who bears the burden of proving that the claimant’s use was not adverse,18 if the claimant merely showed ten years of continuous use of the land. This Court has never — until this case — addressed or attempted to explain this incongruity in our law.

The term “adverse use” does not imply that the person claiming a prescriptive easement has animosity, personal hostility, or ill will toward the landowner; the uncommunieated mental state of the person is irrelevant. Instead, adverse use is measured by the observable actions and statements of the person claiming a prescriptive easement and the owner of the land.19 Kellison v. McIsaac, 131 N.H. 675, 680, 559 A.2d 834, 837 (1989) (subjective intent of adverse claimant does not determine validity of prescriptive claim); Dunbar v. Heinrich, 95 Wash.2d 20, 27, 622 P.2d 812, 816 (1980) (“[A]dversity is to be measured by an objective standard; that is, by the objectively observable acts of the user and the rightful owner.”); Bills v. Nunno, 4 Mass.App.Ct. 279, 284 346 N.E.2d 718, 723 (1976) (“‘Adverseness’ is found in the actual use made of the way by the claimant of the easement; the claimant’s uncommunicated mental state is immaterial.”).

“Adverse use” generally means the “use of property as the owner himself would exercise, entirely disregarding the claims of others, asking permission from no one[.]” Malnati v. Ramstead, 50 Wash.2d 105, 108, 309 P.2d 754 (1957). Use of a servient estate is adverse “when a party ... has received no permission from the owner of the soil, and uses the way as the owner would *612use it, disregarding his claims entirely, using it as though he owned the property himself.” Blanchard v. Moulton, 63 Me. 434, 437 (1873).

Our examination of authoritative texts, treatises, Dean Fisher’s authoritative article on easements in West Virginia20, and cases from other jurisdictions indicates that an “adverse use” of land is, at its root, one that is against the rights of the landowner as distinguished from one that is under the rights of the landowner. “Hostile use of real property by an occupant or user ... imports that the claimant is possessing or using it as owner, in contradistinction to possessing or using the real property in recognition of or subordinate to the title of the true owner.” Malnati v. Ramstead, 50 Wash.2d at 108, 309 P.2d at 756. A claimant is adversely using another’s land when he “assert[s] an independent and individual right in himself to use the way and ... the right to do so did not depend upon a similar right to such use in other persons.” Town of Paden City v. Felton, 136 W.Va. at 140, 66 S.E.2d at 288.21

The Restatement offers the following definition of the term “adverse”:

An “adverse” use ... is a use made without the consent of the landowner, or holder of the property interest used, and without other authorization. Adverse uses create causes of action in tort for interference with property rights. The causes of action are usually actions for trespass, nuisance, or waste.

Restatement (Third) of Property (Servitudes), § 2.16, cmt. b. The Restatement goes on to say:

To be adverse ... a use must create a cause of action for interference with an interest in property like trespass, nuisance, or interference with a servitude benefit. To be adverse, the use must be made without authority and without permission of the property owner. Thus, uses made pursuant to licenses are not adverse, nor are uses made pursuant to servitudes created expressly, by implication, or by necessity.

Id., cmt. f.22

Professors Bruce and Ely give a comparable definition of adverse use:

Adversity does not imply animosity or personal hostility, but simply requires that the use of another’s land be wrongful and without regard to the rights of the owner—

*613A use is adverse if it gives rise to a cause of action. No prescriptive easement may be created unless the landowner is able to prevent the wrongful use by resort to law.

Bruce & Ely, The Law of Easements and Licenses in Land, § 5:8.

Our case law has made it clear that if the claimant made use of the servient estate with the owner’s permission, then the use was not adverse. See, e.g., Syllabus Point 1, Town of Paden City v. Felton, supra (“if the use is by permission of the owner, an easement [by prescription] is not created by such use.”); Syllabus Point 2, Crosier v. Brown, supra (“If the use is by his permission ... title to the easement does not come by such use.”).

When a property owner gives another person permission to use his or her property, the law implies that a license was intended. Restatement (Third) of Property (Servitudes), emt. f. Unless additional facts suggest otherwise, it is assumed that the parties intended that the property owner retain the right to revoke the license at any time. Boyd v. Woolwine, 40 W.Va. 282, 286, 21 S.E. 1020, 1021 (1895) (“[T]he mere permission by the owner of the land to the public to pass over the road is, without more, to be regarded as a license revocable at his pleasure.”).23 See also, Linger v. Watson, 108 W.Va. 180, 183-84, 150 S.E. 525, 527 (1929) (When the plaintiff demanded removal of telephone lines across plaintiffs land, the defendant sought to establish the lines had created a prescriptive easement. The Court concluded the defendant failed to establish adverse use because the plaintifPs “understanding was that the line was to remain on the premises just so long as the property owners consented thereto, and no longer.”). Permission may be inferred “from the neighborly relation of the parties, or from other circumstances.” 4 Powell on Real Estate, § 34.10[2][a].24

A use that began as permissive will not become adverse unless the license (created by the granting of permission) is repudiated. As we held in Syllabus Point 2 of Faulkner v. Thorn, 122 W.Va. 323, 9 S.E.2d 140 (1940) (footnote added):

*614The use of a way over the land of another, permissive in its inception, will not create an easement by prescription no matter how long the use may be continued, unless the licensee, to the knowledge of the licensor, renounces the permission and claims the use as his own right,25 and thereafter uses the way under his adverse claim openly, continuously and uninterruptedly, for the prescriptive period.

In accord, Bruce and Ely, § 5:9 (“When use of a servient estate is initially permissive, the use will confer a prescriptive right only if the user subsequently makes a direct assertion of a claim hostile to the owner.”); Town of Paden City v. Felton, 136 W.Va. at 137-38, 66 S.E.2d at 287 (“An easement over land will not arise by prescription simply from permission of the owner of the servient estate, no matter how long the permissive use may continue; and when a use by permission has begun, in the absence of some decisive act by the claimant of the easement, which indicates an adverse and hostile claim, the use will continue to be regarded as permissive, and this is especially so when the use of the land is in common with its use by others.”).

The Restatement goes one step further, and suggests that even if the property owner has not given explicit permission, any use “made in subordination to the property owner” is not adverse. “Subordination” means that the user is acting with authorization, express or implied, from the landowner, or acting under a right that is derivative from the landowner’s title. The reason that a use made in subordination to the property owner is not adverse

... is that the property owner is not put on notice of the need to take steps to protect against the establishment of prescriptive rights. To express the idea that an adverse use cannot be in subordination to the rights of the owner, it is frequently said that the use must be made under claim of right. This does not mean that the user must claim entitlement to a servitude or show color of title, as sometimes mistakenly asserted, but merely that the user must not act in such a way as to lead the owner to believe that no adverse claim is asserted. Use under claim of right may also mean that the user acts as the owner of a servitude would act, as opposed to the way a casual trespasser would act.

Restatement (Third) of Property (Servitudes), § 2.16, cmt. f. Uses “made in subordination to the property owner” include uses by someone closely related by blood,26 a co-tenant, a licensee, or holder of some other type of easement or servitude. Because these uses are essentially authorized by the property owner, the use is not adverse.

We hold that in the context of prescriptive easements, an “adverse use” of land is a wrongful use, made without the express or implied permission of the owner of the land. An “adverse use” is one that creates a cause of action by the owner against the person claiming the prescriptive easement; no prescriptive easement may be created unless the person claiming the easement proves that the owner could have prevented the wrongful use by resorting to the law. A use of another’s land that began as permissive will not become adverse unless the license (created by the granting of permission) is repudiated.

We now turn to the incongruity with our prior case law, namely that our cases allow a finder of fact to conclusively presume that a use was adverse if the other elements of the prescriptive easement doctrine are established. See footnote 17, supra.

Easements by prescription are not favored in the law, because they essentially reward a *615trespasser and allow the taking of another’s property without compensation. In this modern age, it does little to encourage civility between neighbors to have a rule whereby a landowner, who allows his neighbor to use some part of his land, runs the risk that the use may transmogrify into a legally-binding prescriptive use merely by the passage of time. Such a rule, as this case demonstrates, encourages expensive litigation between neighbors to either obtain some legal injunction to stop the use of the land, or obtain a legal ruling definitively establishing an easement. Worse, such a rule might impel neighbors to resort to aggressive, extra-legal acts in defense of their property.27

We therefore hold that the burden of proving adverse use is upon the party who is claiming a prescriptive easement against the interests of the true owner of the land. To the extent our prior cases suggest that proof of adverse use is not required, or that the continuous and uninterrupted use of another’s land for ten years is presumed to be adverse, they are hereby overruled.28 The landowner has no burden of proof. It is the person claiming the prescriptive easement who must prove, by clear and convincing evidence, that the use of the land was adverse to the true owner of the land.

(If) “Continuous and Uninterrupted” Defined

The second element of the prescriptive easement doctrine requires that the person claiming a prescriptive easement show that the adverse use of the servient estate was continuous and uninterrupted for at least ten years. The ten-year period is the statute of limitation for property disputes. See W.Va.Code, 55-2-1, supra.

We have consistently defined the terms “continuous” and “uninterrupted,” but only in the context of adverse possession. *616The term “continuous” means that an adverse possession has not been abandoned by the claimant during the ten-year period; “uninterrupted” means that no other party, unrelated to the party claiming adverse possession, has broken the chain of possession. For instance, in part of Syllabus Point 6 of State v. Davis, 140 W.Va. 153, 83 S.E.2d 114 (1954), we said:

In the law of adverse possession, continuous possession means possession which has not been abandoned by him who claims such possession and uninterrupted possession means possession which has not been effectually broken by the possession of another person.29

In the context of prescriptive easements, “[f]or a use to be continuous, it is critical that there be no break in the attitude of mind of the claimant or the claimant’s predecessor which would amount to a recognition of subordination to the servient owner’s consent or an abandonment of the use in response to the servient owner’s demand.” Wehde v. Regional Transp. Authority, 237 Ill.App.3d 664, 680-81, 178 Ill.Dec. 190, 604 N.E.2d 446, 458 (1992). A claimant’s use of another’s land need not be regular, constant, or daily in order to be “continuous.” “[T]he evidence need not show a constant use in order to establish continuity; rather, continuity is established if the evidence shows a settled course of conduct indicating an attitude of mind on the part of the user or users that the use is the exercise of a property right.” Keefer v. Jones, 467 Pa. 544, 548, 359 A.2d 735, 737 (1976). “All that is necessary is that the use be as often as required by the nature of the use and the needs of the claimant.” Richards v. Pines Ranch, Inc., 559 P.2d 948, 949 (Utah 1977).

The existence of gaps in time between the claimant’s use of another’s land will not necessarily destroy the continuity of use.

Easements that are seasonal or periodical may be acquired by prescription. For example, one may obtain a prescriptive easement by driving cattle to and from a summer range, by using a beach or a driveway only during the summer, by traveling a roadway in the haying season, or by making seasonal use of a path. Likewise, intermittent but recurring use of a rural roadway for hauling wood and other purposes constitutes the required continuity. Further, in an unusual ease, ... a country club acquired a prescriptive easement to use adjacent land as a rough when several poorly hit golf balls landed on the servient estate each day. In an equally unusual circumstance, the continuity requirement was satisfied by the existence and infrequent use of a fire escape between two buildings. It has also been held that infrequent use of a roadway to visit lots purchased for eventual retirement living was continuous. Moreover, in assessing the continuity requirement courts will consider use by visitors, service providers, and family members attributable to the claimant.

*617Bruce & Ely, The Law of Easements and Licenses in Land, § 5:15 (footnotes omitted).

However, to establish a prescriptive easement, the continuity element requires “more than occasional or sporadic use of the right of way.” Newman v. Michel, 224 W.Va. 735, 744, 688 S.E.2d 610, 619 (2009).30 “[OJccasional acts of trespass do not satisfy the requirement of continuity.” Bruce & Ely, supra, § 5:15. “Intermittent use may be continuous for purposes of establishing a prescriptive easement if it is consistent with the normal use that an owner of the property would make and is sufficiently open and notorious to give notice to the owner of the servient estate that the user is asserting an easement.” Great Northern Paper Co., Inc. v. Eldredge, 686 A.2d 1075, 1077 (Me.1996).

The establishment of a prescriptive easement also requires that the claimant’s adverse use of another’s property must be “uninterrupted” for ten years. A use can only be interrupted by the landowner “asserting ownership before the prescriptive period has expired.” Bruce & Ely, supra, § 5:15. “Actions by a third person do not interrupt an adverse usage because they do not represent an assertion of dominion by the owner.31 Moreover, brief interruptions caused by natural forces or construction projects do not negate continuity of usage.” Id. (Footnote added). A claimant’s adverse use may be interrupted by the owner of the servient estate physically blocking the way during the prescriptive period,32 or by the owner instituting successful legal proceedings. “Numerous courts have held when the potential servient owner, by either threats or physical barriers, succeeds in causing a discontinuance of the use, no matter how brief, the running of the prescriptive period is stopped.” Pittman v. Lowther, 363 S.C. 47, 50, 610 S.E.2d 479, 480 (2005). “[A] barrier established for the purpose of, and in fact, *618interrupting an adverse claimant’s use is effective even if it is ultimately removed by the adverse claimant.” Trask v. Nozisko, 134 P.3d 544, 553 (Colo.App.2006).

However, mere unheeded requests, protests, objections, or threats of prosecution or litigation by a landowner that the claimant stop are insufficient to interrupt an adverse usage. These actions must result in the interruption of the use, no matter how brief. “Indeed, complaints may strengthen the conclusion that the claimant’s use was hostile.” Bruce & Ely, supra, 5:16.

We therefore conclude that for an adverse use to be “continuous,” the person claiming a prescriptive easement must show that there was no abandonment of the adverse use during the ten-year prescriptive period, or recognition by the person that he or she was using the land with the owner’s permission. Additionally, the adverse use need not have been regular, constant or daily to be “continuous,” but it must have been more than occasional or sporadic. All that is necessary is that the person prove that the land was used as often as required by the nature of the easement sought, and with enough regularity to give the owner notice that the person was a wrongdoer asserting an easement.

Furthermore, we hold that for an adverse use to be “uninterrupted,” the person claiming a prescriptive easement must show that the owner of the land did not overtly assert ownership of the land during the ten-year prescriptive period. Mere unheeded requests, protests, objections, or threats of prosecution or litigation by the landowner that the person stop are insufficient to interrupt an adverse usage. If any act by the landowner succeeded in causing the person to discontinue the adverse use, no matter how brief the discontinuance, then the adverse use was interrupted.

(5) "Known” or "Notorious and Visible” Adverse Use Defined

To create a prescriptive easement, the claimant’s adverse use must either be actually known to the rightful owner of the servient estate, or be open and notorious so that a reasonable owner would have been on notice of the adverse use. “If a right of way is claimed by prescription, the claimant should allege and prove that over the prescriptive period, without interruption, he (or a predecessor in title) used the way with such open frequency as to notify its owner of the purpose to subject his land to the use.” Syllabus Point 1, in part, Nutter v. Kerby, 120 W.Va. 532, 199 S.E. 455 (1938). See also, Syllabus Point 5, Core v. Faupel, 24 W.Va. 238 (1884) (“Adverse possession in any case, in order to effect an ouster of the owner, must in its nature possess such notoriety, that the owner may be presumed to have notice of it and of its extent. It must be open, visible and exclusive.”).

“Of course, where the landowner has actual knowledge of the adverse claim, the use need not be open and notorious.” Bruce & Ely, supra, § 5:13. See, e.g., Conley v. Conley, 168 W.Va. 500, 502, 285 S.E.2d 140, 142 (1981) (per curiam) (claimant had established a prescriptive easement to use a gas line across the servient estate because the use of the line was “obvious to all parties involved”). “Black’s Law Dictionary defines ‘actual knowledge’ as ‘direct and clear knowledge, as distinguished from constructive knowledge,’ Black’s Law Dictionary at 888 (8th Ed.2004)[.]” Mace v. Ford Motor Co., 221 W.Va. 198, 204, 653 S.E.2d 660, 666 (2007).

The “open and notorious” element is “designed to insure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement.” Zimmer v. Dykstra, 39 Cal.App.3d 422, 431, 114 Cal.Rptr. 380, 386 (1974). “In other words, the usage must be of such a nature as to charge the landowner with constructive notice.” Bruce & Ely, supra, § 5:13. The Restatement offers the following reasoning:

The purpose of the requirement that the use be open or notorious is to give the owner of the servient estate ample opportunity to protect against the establishment of prescriptive rights. To satisfy this requirement, the adverse use must be made *619in such a way that a reasonably diligent owner would learn of its existence, nature, and extent. “Open” generally means that the use is not made in secret or stealthily. It may also mean that it is visible or apparent. “Notorious” generally means that the use is actually known to the owner, or is widely known in the neighborhood. Although the terms are often stated conjunctively, the requirements are disjunctive. A use that is actually known to the owner of the servient estate satisfies the requirement even though it is not open. An openly visible and apparent use satisfies the requirement even if the neighbors have no actual knowledge of it. A use that is not open but is so widely known in the community that the owner should be aware of it also satisfies the requirement....

To meet the open-or-notorious requirement, a use must generally be substantial and reasonably definite so that the landowner should be aware that an adverse use is being made. Sporadic and casual uses are generally not open or notorious.... To be open a use must be made with sufficient frequency that the owner of the servient estate has a reasonable opportunity to become aware of it. Seasonal or intermittent use may be sufficient if consistent with the character or use of the dominant and servient estates or with the normal use that would be made of a servitude of the type claimed.

Restatement (Third) of Property (Servitudes), § 2.17

We hold that the “open and notorious” or “actually known” requirement is designed to give the owner of the land ample opportunity to protect against another person’s actions to establish a prescriptive easement. To establish that an adverse use was “open and notorious,” the person claiming a prescriptive easement must show that the wrongful use was visible and apparent, was not made stealthily or in secret, and was so conspicuous and obvious that a reasonable, prudent owner of land would have noticed. However, where the owner of the land had actual knowledge of the adverse use, the person claiming a prescriptive easement need not show that the use was open and notorious.

(6) Identifying the line, width, starting and ending points, and use of the easement

Our law is clear that “[a] right of way acquired by prescription for one purpose cannot be broadened or diverted, and its character and extent are determined by the use made of it during the period of prescription.” Syllabus Point 3, Monk v. Gillenwater, 141 W.Va. 27, 87 S.E.2d 537 (1955). “When an easement has been acquired by prescription, the extent of the right so acquired is measured and determined by the extent of the user out of which it originated.” Syllabus Point 4, Foreman v. Greenburg, 88 W.Va. 376, 106 S.E. 876 (1921). “The precise location of an easement sought to be established should be described either by metes and bounds or in some other definite way.” Syllabus Point 1, in part, Nutter v. Kerby, 120 W.Va. 532, 199 S.E. 455 (1938).33

In other words, “[t]he use of the land defines the parameters of the easement.” Wheeling Stamping v. Warwood Land, 186 W.Va. 255, 258, 412 S.E.2d 253, 256 (1991). The scope of the right acquired by prescription “will be commensurate with and measured by the use” that originally gave rise to the easement. Shock v. Holt Lumber Co., 107 W.Va. 259, 262, 148 S.E. 73, 74 (1929).

For example, in Crane v. Hayes, 187 W.Va. 198, 417 S.E.2d 117 (1992) (per curiam), a roadway was built across the defendants’ land in the 1920s as a logging road. It was occasionally used by the plaintiffs (and their *620predecessors) for agricultural purposes after the 1930s, and to occasionally gather firewood or to check fences. In 1980, the plaintiffs began clearing and upgrading the road on the defendants’ land, and used the road as an access to build two houses on their property. When the defendants realized the plaintiff intended to use the road across their land as an access for the new houses, the defendants blocked the road. We concluded that the plaintiffs had a prescriptive easement, but only for agricultural uses, gathering of firewood, and checking fences. The plaintiffs were “not entitled to increase the burden on the land to encompass travel for residential purposes.” 187 W.Va. at 201, 417 S.E.2d at 120.

The manner in which a prescriptive easement may be used is defined by the manner in which the easement was used historically.34 “The character and purpose of the easement acquired by prescription are determined by the use made of it during the prescriptive period.” Syllabus Point 3, Burns v. Goff 164 W.Va. 301, 262 S.E.2d 772 (1980) (per curiam). The entire history of the claimant’s usage of the way over which an easement is sought must be evaluated to determine the character and scope of the prescriptive easement. See Clain-Stefanelli v. Thompson, 199 W.Va. 590, 595, 486 S.E.2d 330, 335 (1997).

We hold that a person claiming a prescriptive easement must prove the reasonably precise location of the starting and ending points of the land that was used adversely, the line that the use followed across the land, and the width of the land that was adversely used. Furthermore, the manner or purpose in which the person adversely used the land must be established. This is because a right of way acquired by a prescriptive easement cannot be broadened, diverted or moved; its purpose and location are determined solely by the adverse use made of the land during the ten-year prescriptive period.

B.

The Lack of Evidence at Trial of a Prescriptive Easement

We now turn to the assertion by the defendants, Robert and Virginia Stegall, that plaintiff Michael O’Dell failed to establish a prescriptive easement.

As we have previously related, the plaintiff introduced the testimony of several individuals who stated that the front part of the gravel lane had, for many decades prior to 1999, been regularly used by churchgoers approximately twice a week to access a parking lot at the rear of the church. The plaintiffs expert said that he did not think the plaintiff had a prescriptive easement. Instead, the expert said it was his opinion that when Isaac Strider deeded the four lots bordering the gravel lane to others, between 1893 and 1911, Mr. Strider must have intended for the owners of the four lots to have a right to use the gravel road for ingress and egress. This was pure speculation. Yet, on the basis of this testimony, the jury concluded that the plaintiff had a prescriptive easement.

The plaintiff bore the burden of proving, by clear and convincing evidence, that he (or his predecessors in title) (1) adversely used the gravel lane against the interests of its owner; (2) that the adverse use was continuous and uninterrupted for at least ten years; (3) that the adverse use was known to the owner, or open, notorious and visible; and (4), the precise line, width, starting and ending points, and use for which the easement was sought. After carefully scrutinizing the evidence and testimony, produced at trial, we think it is clear that there is insufficient evidence to support the jury’s verdict.

*621First and foremost, the plaintiff failed to show that his use of the gravel lane was adverse, that is, that it was wrongful and made without the express or implied permission of the rightful owner of the land. In part, this is because the plaintiff wholly failed to show that the defendants owned the land upon which the gravel lane rests. “The essence of an adverse use is that such use be made of the land of another.” Keller v. Hartman, 175 W.Va. 418, 424, 333 S.E.2d 89, 95 (1985). Without question, the owner of the alleged servient estate is an indispensable party to a lawsuit to establish an easement across that estate.

The 1899 deed of the third lot (now owned by Ms. Seibert) clearly identifies the gravel lane as being owned by “I.H. Strider,” and the deed conveyed a right to use the gravel lane “for ingress and egress 25 ft. wide running from the said lot through the land of I.H. Strider[.]” At no point did the plaintiff ever identify for the jury the current successor to Mr. Strider, or otherwise suggest who the current owner of the gravel lane might be. When plaintiffs counsel was asked at oral argument before this Court, he conceded that none of the parties knows who owns the gravel roadway.35 We therefore believe that the plaintiff failed to prove any use of the gravel lane was adverse to the owner of the servient estate over which the alleged prescriptive easement crosses.

Furthermore, the plaintiff failed to show that the prior use of the gravel lane, by himself and his predecessors, was in any way wrongful toward, or without the express or implied permission of, the owner of the servient estate. The plaintiff was required to prove that his actions (and the actions of his predecessors) amounted to trespassing, and that the owner — whoever it might be — would have wanted to prevent the plaintiff’s use, or the churchgoers’ use, by resorting to the law. We can conceive that when Mr. Strider deeded the plaintiff’s lot to the German Baptist Brethren Church in 1898, he gave implicit or explicit permission for churchgoers to use the lane. Nothing in the record suggests that the churchgoers’ use of the gravel lane was anything more than a neighborly accommodation by the owner of the gravel lane.36

Second, the plaintiff was required to establish that the adverse use was continuous and uninterrupted for at least ten years. The record supports the plaintiffs claim that he and his predecessor’s use of the gravel lane was uninterrupted for a ten year period, in the sense that there is no evidence to indicate that the owner of the gravel lane ever asserted control of the lane or that the use of the lane was discontinued. However, again, there is no evidence to support the plaintiffs claim that use was continuous, because there was no evidence that the churchgoers’ use of the lane was adverse for a ten-year period, and no evidence that they believed they were using the gravel lane without the owner’s permission (or otherwise in subordination to the owner). Nevertheless, if the owner of *622the servient estate is not identified at trial, then the adverse use cannot be proven.

Third, the plaintiff was required to establish that the adverse use was actually known to the owner, or so open, notorious and visible that a reasonable owner would have recognized the adverse use. The plaintiff could not establish actual knowledge of the owner without first identifying the owner. And while the plaintiff may have established a use that was so open, notorious and visible that any reasonable owner of the land would have had ample opportunity to protect against the creation of a prescriptive easement, because the plaintiff never established that the use was adverse, his claim must fail.

Fourth and finally, we cannot say that the plaintiff introduced clear evidence of the precise location of the land that was adversely used. The plaintiff also did not introduce clear evidence that the use for which he sought the easement was similar to the alleged adverse use during the prescriptive period. The plaintiff introduced evidence that churchgoers used the gravel lane approximately twice a week to access a parking lot at the rear of the building — a parking lot that apparently no longer exists. The plaintiff sought a prescriptive easement to use the gravel lane daily to access the side of the building. The plaintiff bore the burden of proving how his proposed daily use of the gravel lane was reasonably similar to the churchgoers’ twice-a-week use of the lane. Likewise, the plaintiff bore the burden of showing how his proposed access to the side of the building was reasonably similar to the churchgoers’ use of the lane to access the parking lot that used to be at the rear of the building. The plaintiff would only have been entitled to use the gravel lane for the purposes encompassed within the original ten-year prescriptive period; he was not entitled to increase the burden on the servient estate.

In sum, we conclude that the plaintiff failed to establish, by clear and convincing evidence, that a prescriptive easement was created to use the gravel lane to access a horseshoe driveway at the north side of his home for routine ingress and egress.

C.

Remaining Claims against the Defendants

At trial, a jury awarded the plaintiff damages against the defendants in the amounts of $5,300 in compensatory damages, and $4,700 in punitive damages. These damages were based on: (1) the jury’s determination that the defendants had intentionally interfered with the plaintiffs prescriptive easement; (2) for the tort of outrage and invasion of the plaintiffs right of privacy, because the defendants had photographed the plaintiff using the gravel lane and tape recorded a conversation between the plaintiff and one of the defendants; and (3) civil conspiracy.

After careful examination of the record, we find no evidence proving the legal elements of these causes of action.

First, the jury concluded that the defendants had intentionally interfered with the plaintiffs prescriptive easement allowing his ingress and egress on the gravel lane. As we just established, the plaintiff has no legal right of ingress and egress.37 Accordingly, to the extent the jury’s award is based on this claim by the plaintiff, it must be vacated.

Second, the jury concluded that the defendants had engaged in outrageous conduct, and had invaded the plaintiffs pri*623vacy. We set forth the elements of a cause of action for the tort of outrage — more often referred to as the intentional or reckless infliction of emotional distress — in Syllabus Point 3 of Travis v. Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998), where we stated:

In order for a plaintiff to prevail on a claim for intentional or reckless infliction of emotional distress, four elements must be established. It must be shown: (1) that the defendant’s conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency; (2) that the defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his conduct; (3) that the actions of the defendant caused the plaintiff to suffer emotional distress; and, (4) that the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.

We stated in Travis that trial courts should first examine the proof presented by the plaintiff to determine if the defendant’s conduct may legally be considered “extreme and outrageous.” We held, in Syllabus Point 4 of Travis:

In evaluating a defendant’s conduct in an intentional or reckless infliction of emotional distress claim, the role of the trial court is to first determine whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to constitute the intentional or reckless infliction of emotional distress. Whether conduct may reasonably be considered outrageous is a legal question, and whether conduct is in fact outrageous is a question for jury determination.

We first recognized a “right of privacy” in Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958). We stated, in Syllabus Point 1 of Roach:

The right of privacy, including the right of an individual to be let alone and to keep secret his private communications, conversations and affairs, is a right the unwarranted invasion or violation of which gives rise to a common law right of action for damages.

We have said that there are at least four ways that the right to privacy may be invaded:

An “invasion of privacy” includes (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another’s name or likeness; (3) unreasonable publicity given to another’s private life; and (4) publicity that unreasonably places another in a false light before the public.

Syllabus Point 8, Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70 (1984). The plaintiff appears to assert that the defendants unreasonably intruded upon his seclusion, by the defendants (a) taking his photograph as he drove on the gravel lane, and (b) surreptitiously tape recording a conversation one of the defendants had with the plaintiff while standing on the lane.

After careful examination of the record, we see no evidence of emotional distress by the plaintiff that “was so severe no reasonable person could be expected to endure it.” Syllabus Point 3, Travis, supra. We find no evidence to support the conclusion that the defendants’ actions, as a matter of law, were so extreme and outrageous as to constitute intentional infliction of emotional distress.

Likewise, we see no evidence that the plaintiffs right “to be let alone and to keep secret his private communications” was in any way breached by the defendants. The plaintiff had no right to privacy — that is, no right to not have his car photographed— while driving in a public place. Further, the defendants did not record a secret, private communication; they recorded a public communication, between the plaintiff and one of the defendants, held in an open place.38

*624The defendants’ actions, while perhaps indignant and annoying, were not undertaken or expected to cause severe emotional distress to the plaintiff. The plaintiffs evidence does not show that the defendants’ actions intentionally or recklessly inflicted emotional distress on the plaintiff.

Instead, the defendants were correct in their belief that the plaintiff did not have a legal right to use the gravel lane. While the defendants do not own the gravel lane, the evidence presented demonstrates that the defendants have an easement to use the lane to access the Leetown Pike/Route 15 that is implied, either by necessity or by prior use of the lane. In Cobb v. Daugherty, 225 W.Va. 435, 693 S.E.2d 800 (2010), we defined an easement implied by necessity in Syllabus Point 4:

To establish an easement implied by necessity (which in West Virginia is called a “way of necessity”), a party must prove four elements: (1) prior common ownership of the dominant and servient estates; (2) severance (that is, a conveyance of the dominant and/or servient estates to another); (3) at the time of the severance, the easement was strictly necessary for the benefit of either the parcel transferred or the parcel retained; and (4) a continuing necessity for an easement.

In Syllabus Point 6 of Cobb, we defined an easement implied by a prior.use of the land:

To establish an easement implied by a prior use of the land, a party must prove four elements: (1) prior common ownership of the dominant and servient estates; (2) severance (that is, a conveyance of the dominant and/or servient estates to another); (3) the use giving rise to the asserted easement was in existence at the time of the conveyance dividing the property, and the use has been so long continued and so obvious as to show that the parties to the conveyance intended and meant for the use to be permanent; and (4) the easement was necessary at the time of the severance for the proper and reasonable enjoyment of the dominant estate.

The record establishes a prior common ownership of the defendants’ lot and Mr. Strider’s 23-acre tract, as well as a severance in 1911. On the one hand, at the time the defendants’ lot was created, it was strictly necessary, and continues to be necessary, for the defendants to be able to use the gravel lane to access a public highway. Hence, the defendants have an easement implied by necessity. On the other hand, in 1911, the gravel lane had clearly and obviously been in existence (as was evidenced by the 1899 deed of the third lot that gave the owner an express easement), the 1911 deed referred to the lane as a “lane to public road,” and the lane was necessary in 1911 for the reasonable enjoyment of the defendants’ lot. Hence, the defendants can also establish an easement implied by a prior use of the gravel lane to access their lot.

The defendants were apparently acting out of their sincere belief that the plaintiff was wrongfully using the gravel lane, and that the plaintiffs use of the lane would cause wear and tear that the defendants would be contractually obligated to repair. On this record, we believe that the trial court should, as a matter of law, have entered judgment for the defendants on the counts of outrage and invasion of privacy.

The final count alleged by the plaintiff is that the defendants were engaged in a civil conspiracy. We recently set forth the definition of a civil conspiracy in Syllabus Points 8 and 9 of Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009):

8. A civil conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose or to accomplish some purpose, not in itself unlawful, by unlawful means. The cause of action is not created by the conspiracy but by the wrongful acts done by the defendants to the injury of the plaintiff.

9. A civil conspiracy is not a per se, stand-alone cause of action; it is instead a legal doctrine under which liability for a tort may be imposed on people who did not *625actually commit a tort themselves but who shared a common plan for its commission with the actual perpetrator(s).

We made clear in Dunn v. Rockwell that a civil conspiracy must be based on some underlying tort or wrong. As we have discussed above, for all of the torts or wrongs alleged by the plaintiff (interference with the plaintiff’s prescriptive easement, outrage, and invasion of privacy) there is insufficient evidence to support the jury’s verdict. Accordingly, we find that there is also insufficient evidence to support the jury’s finding that the defendants engaged in a civil conspiracy to commit any of those alleged torts or wrongs.

IV.

Conclusion

After careful consideration of the record and the arguments of the parties, we find that the plaintiff failed to establish a right to an easement by prescription to use the gravel lane, and failed to prove the necessary elements of the other causes of action. Thus, we believe that the circuit court should have granted judgment to the defendants.

Accordingly, the jury’s verdict must be reversed, and the case remanded for entry of judgment in favor of the defendants.

Reversed and remanded.

Singer, Presiding Judge.

{¶ 1} This is an appeal from a summary judgment issued by the Wood County Court of Common Pleas in a property dispute. Because we conclude that a property owner’s reasonable reliance on an adjacent owner’s permission for use ripened into an easement by estoppel, we reverse in part and affirm in part.

{¶ 2} Jo An Van Duyne, formerly known as Smart, and Ruth Bauer were friends and neighbors on adjoining property on West River Road in Perrysburg. In 1981, following construction of a public sewer line along West River Road, both Van Duyne and Bauer were required by law to connect to the public system.

{¶ 3} For Bauer, a direct connection to the River Road sewer line meant that her driveway would have to be excavated, at substantial cost and inconvenience. The two women talked and reached an accommodation. They agreed that Bauer would install her sewer through a 96-fooL-long trench from her home to Van Duyne’s property, where it would share a 207-foot trench with Van Duyne’s connector line to the street. Because of the hilly topography of the area, the pipes were buried at a depth of five and one-half feet. Each party bore her own tap and assessment fees. It is not clear from the record as to whether there was any sharing of excavation or installation costs for the sewer line.

{¶ 4} In 1982, Jo An Van Duyne’s daughter and son-in-law, Susan S. and David W. Kienzle, moved into her River Road property. In 1987, appellee, Susan S. Kienzle Trust, acquired the property. In 1989, appellants, Michael P. and Joan Myers, acquired the Bauer property.

*81{¶ 5} On November 5, 2003, counsel for the Kienzles sent a letter to appellants advising them that the Kienzles had “decided to terminate the revocable license” by which appellants’ sewer pipe crossed the Kienzle property. The letter directed appellants to “make other arrangements” within 30 days. Subsequent letters from David Kienzle threatened to “cap” the sewer line absent certain concessions.

{¶ 6} On March 26, 2004, appellee sued appellants, seeking to quiet title with respect to appellants’ “encroachment” across appellee’s property and to enjoin further trespass, as well as damages. Appellants answered, denying an encroachment on appellee’s property, maintaining that they possessed an easement, an easement by estoppel, or a prescriptive easement for the sewer line. Appellants also filed a counterclaim, seeking a declaration of easement, an injunction barring appellee from interfering with the sewer line, and damages from the Kienzles for cutting vegetation on appellants’ property.

{¶ 7} Following discovery, appellee was granted partial summary judgment. The trial court rejected appellants’ assertion that their use of appellee’s property was by easement. The matter then proceeded to a trial on the issue of appellants’ counterclaim and for damages.

{¶ 8} Following trial, the court awarded appellee $14,000 for the “cost of capping the sewer line” and rejected appellants’ counterclaim. Appellants now bring this appeal. Appellants set forth the following six assignments of error:

{¶ 9} “Assignment of Error Number One. The trial court erred in granting summary judgment in favor of the plaintiff.

{¶ 10} “Assignment of Error Number Two. The trial court erred as a matter of law to dismiss the plaintiffs case after the plaintiff failed to produce evidence using the correct measure and proof of damages.

{¶ 11} “Assignment of Error Number Three. The trial court failed to use the correct measure and proof of damages in its award of damages to the plaintiff.

{¶ 12} “Assignment of Error Number Four. The trial court abused its discretion by barring the testimony of the defendants’ expert witness.

{¶ 13} “Assignment of Error Number Five. The trial court erred in failing to strike the testimony of plaintiffs expert witness.

{¶ 14} “Assignment of Error Number Six. The trial court abused its discretion in dismissing the counterclaim of the defendants.”

I. Summary Judgment

{¶ 15} Civ.R. 56(C) provides that summary judgment may be granted only if (1) no genuine issue of material fact remains to be litigated, (2) it appears from *82the evidence that reasonable minds can reach but one conclusion and that conclusion is adverse to the nonmoving party, and (3) the moving party is entitled to summary judgment as a matter of law. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267. In deciding whether a genuine issue of material fact precludes the grant of summary judgment, a court must adhere to Civ.R. 56(C) and view the evidence in a light most favorable to the nonmoving party. Turner v. Turner (1993), 67 Ohio St.3d 337, 341, 617 N.E.2d 1123.

{¶ 16} On review, an appeals court considers the question of whether to grant summary judgment de novo, applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129, 572 N.E.2d 198. In this matter, the trial court ruled that as a matter of law appellants had failed to establish an easement across appellee’s property.

{¶ 17} Easements may be created by express grant, by implication, by prescription, or by estoppel. Schmiehausen v. Zimmerman, 6th Dist. No. OT-03-027, 2004-Ohio-3148, 2004 WL 1367278, at ¶ 20. An express easement must be part of a deed or lease or other conveyance and must be recorded in conformity with R.C. 5301.01. Id., citing Kamenar RR. Salvage, Inc. v. Ohio Edison Co. (1992), 79 Ohio App.3d 685, 689, 607 N.E.2d 1108. An easement by implication needs a unity, then severance, of ownership of an estate. Id. A prescriptive easement may arise if use is open, notorious, continuous, and adverse under a claim of right for 21 years. Schmiehausen, 2004 WL 1367278 at ¶ 27, citing Shanks v. Floom (1955), 162 Ohio St. 479, 55 O.O. 385, 124 N.E.2d 416, syllabus. A permissive use can never ripen into a prescriptive easement. Id. at ¶ 29.

{¶ 18} Here, there is no conveyance or statutory compliance. There is also no unity, then severance, of estates. Consequently, there can be no express or implied easement. Moreover, the unrefuted affidavit of appellee’s predecessor in interest, Jo An Van Duyne, states that she gave appellants’ predecessor, Ruth Bauer, permission to share the sewer trench at issue. Thus, there can be no prescriptive easement.

{¶ 19} Concerning an easement by estoppel, we have stated:

{¶ 20} “An easement by estoppel may be found when an owner of property misleads or causes another in any way to change the other’s position to his or her prejudice. Monroe Bowling Lanes v. Woodsfield Livestock Sales (1969), 17 Ohio App.2d 146 [46 O.O.2d 208], 244 N.E.2d 762. ‘Where an owner of land, without objection, permits another to expend money in reliance upon a supposed easement, when in justice and equity the former ought to have disclaimed his conflicting rights, he is estopped to deny the easement.’ Id. at 151 [46 O.O.2d 208], 244 N.E.2d 762.

*83{¶ 21} “A more modern, and slightly broader, statement of the doctrine is contained in Section 2.10(1) of the Restatement of Property:

{¶ 22} “ ‘If injustice can be avoided only by establishment of a servitude, the owner or occupier of land is estopped to deny the existence of a servitude burdening the land when:

{¶ 23} “ ‘(1) the owner or occupier permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, and the user did substantially change position in reasonable reliance on that belief * * Restatement of the Law, Property 3d (2000), 143.

{¶ 24} “According to the commentary accompanying Section 2.10(1), the rule, ‘ * * * covers the situation where a land owner or occupier gives permission to another to use the land, but does not characterize the permission as an easement or profit, and does not expressly state the duration of the permission.

{¶ 25} “ ‘A servitude is established if the permission is given under such circumstances that the person who gives it should reasonably foresee that the recipient will substantially change position on the basis of that permission, believing that the permission is not revocable.’ Id. at 145 [46 O.O.2d 208], 244 N.E.2d 762.” Schmiehausen, 2004 WL 1367278 at ¶ 21-26.

{¶ 26} In Schmiehausen, a couple purchased a 28-acre parcel with the intention to subdivide. After the purchase, the couple discovered that the land was diagonally bisected by a 900-foot long, 12-inch diameter drainage pipe belonging to a neighboring farmer. Discovery of the pipe resulted in the need to redesign the site plan at some expense. The couple sued the seller, asserting a violation of general warranty covenants.

{¶ 27} There was evidence in the trial court that the neighboring farmer and the seller’s predecessor in interest reached a gentleman’s agreement for installation of the pipe. The farmer then hired a contractor to install it. The trial court found an easement and awarded damages on the breach of warranty. We affirmed, noting that installation of a 12-inch diameter pipe, 900-feet long, involved a substantial cost by the farmer in reliance on the predecessor in interest’s agreement to permit its installation. We concluded that “[a]pplying either Restatement Section 2.10(1) or Ohio case law, an easement by estoppel was created by the transaction between [the farmer] and [the sellers’] predecessor in interest.” Schmiehausen, 2004 WL 1367278 at ¶ 54.

{¶ 28} In this matter, the trial court distinguished Schmiehausen as follows:

{¶ 29} “The Court agrees with Plaintiff. The facts in Schmiehausen are distinguishable. The easement claimant in Schmiehausen expended a substantial cost. In this case, Bauer’s expenditure was meager and would have been much *84larger if she had to destroy and reconstruct her driveway to bury the sewer pipe on her own property.

{¶ 30} “The Court also finds that Defendants cannot establish all the elements necessary to prove estoppel either under common law or the broader Restatement standard. Under common law, an easement claimant must establish reasonable reliance upon a representation, resulting in actual prejudice. In this case, it is undisputed that the construction of the sewer pipe was with Van Duyne’s permission. There is no evidence of misrepresentation. There is also no evidence of prejudice. Bauer actually received a benefit by not having to destroy her driveway. Defendants produced evidence showing that Bauer secured permits and spent money for the construction of the sewer pipe. The Court does not find actual prejudice from such facts. Bauer would have made those expenditures, regardless of the location of the sewer line.

{¶ 31} “The Court also finds that Defendants cannot establish easement by estoppel under the Restatement standard. The rule under the Restatement is prefaced by the phrase ‘[i]f injustice can be avoided only by establishment of a servitude.’ It is apparent to the Court that the broader Restatement approach was crafted to cover fact situations where otherwise justice cannot be accomplished. The Court believes that this phrase was particularly applied in Schmiehausen. The easement claimant in Schmiehausen was the original party that expended the substantial cost of buying a 900 foot long drainage on the neighbor’s property. Moreover, Schmiehausen was not only a quiet title action. There were issues of breach of warranty covenant and concealment of a material fact in a transaction. The facts in this case are inapposite. The parties are not the original actors in the transaction that created the alleged easement. There is no allegation of concealment or personal substantial expenditure related to the creation of the easement. Therefore, the facts in the present case are not sufficient to fulfill the particular requirement that injustice can be avoided only by establishment of easement by estoppel.”

{¶ 32} We disagree with the trial court’s analysis. There is no requirement for an easement by estoppel in the common law that a property owner must mislead or misrepresent. The rule simply states that if an owner misleads or causes another in any way to change his or her position to that party’s prejudice, the owner is estopped from denying the existence of an easement. Schmiehausen, 2004 WL 1367278 at ¶ 21, citing Monroe Bowling Lanes, 17 Ohio App.2d at 149, 46 O.O.2d 208, 244 N.E.2d 762. While permissive use may prevent an easement by prescription from arising, in another context an owner’s grant of permission for land use may act as an inducement for another to act, especially when the permission granted is for an act not easily undone.

*85{¶ 33} In Schmiehausen, for example, it was permission from the original property owner that induced the neighboring farmer to install 900 feet of large-diameter drainage tile. Moreover, from the scope of the act for which permission was granted it may be reasonably inferred that neither party expected the project to be transient or temporary. Thus, when the farmer expended money to complete the project, the owner was estopped from denying existence of an easement.

{¶ 34} In the present matter, Jo An Van Duyne gave Ruth Bauer permission to install her sewer line in the same trench as Van Duyne’s. There was testimony in the damage phase that plastic sewer lines have a 50-year expected lifespan. It can be reasonably inferred that neither party anticipated that burying a sewer pipe in a five and one-half foot deep trench would be a transient or temporary event. Thus, Van Duyne’s permission reasonably induced appellants’ predecessor in interest to change her position.

{¶ 35} The trial court also refused to find prejudice in that Bauer would have had to pay for the construction of the sewer pipe even had she located it on her own property. Again, we disagree with this analysis. “Prejudice,” in this context, is used as a synonym for “detriment.” That is, Bauer relied upon Van Duyne’s permission to her prejudice or detriment. This may be shown not only by the expenditures of funds but by the forbearance of some right to which one might otherwise be entitled. G.M. Sader Excavating & Paving, Inc. v. R.G. Zachrich Constr., Inc. (Dec. 12, 1980), 6th Dist. No. WD-80-37, 1980 WL 351645.

{¶ 36} While it is true that, in any event, Bauer would have had to spend money to connect to the public sewer, it is also true that but for Van Duyne’s acquiescence to Bauer’s use of her property, Bauer would have linked to the sewer wholly on her own property. Thus, Bauer’s decision to cross Van Duyne’s land constituted a change in position which placed her access to the public sewer out of her control. As the present lawsuit suggests, this decision disadvantaged Bauer.

{¶ 37} With respect to the Restatement formulation, which is nothing more than a reformulated recitation of the executed parol license doctrine, Restatement, supra, at 145, which has long been accepted in Ohio, see Wilson v. Chalfant (1846), 15 Ohio 248, 1846 WL 98, syllabus, we find the trial court’s attempt to distinguish unpersuasive. It would seem that the equities would favor not disturbing a 25-year-old arrangement which seems to have only recently concerned anyone.

{¶ 38} Neither do the trial court’s attempts to distinguish Schmiehausen resonate. The core of that case was the question of whether an easement by *86estoppel was created. There, in circumstances nearly identical to those before us, we concluded that it had. Schmiehausen, 2004 WL 1367278 at ¶ 54.

{¶ 39} Accordingly, appellants’ first assignment of error is well taken.

II. Damages

{¶ 40} Because we have found as a matter of law that an easement by estoppel was created in this matter, appellants’ assignments of error two through five, which related to the damages hearing, are moot.

III. Counterclaim

{¶ 41} In a counterclaim, appellants alleged that Susan Kienzle, her agent, or those acting on her behalf entered appellants’ property and intentionally destroyed vegetation growing there. The counterclaim was tried concurrently with appellee’s damages on the trespass hearing. At the conclusion, the court concluded that appellants had failed to submit sufficient evidence to establish intentional destruction of property and had wholly failed to show that appellee authorized cutting appellants’ bushes. Appellants’ motion for reconsideration was denied.

{¶ 42} In their sixth assignment of error, appellants argue that dismissal of their claim was an abuse of discretion.

{¶ 43} The trial court’s decision on the counterclaim was a finding on the merits, subject to a manifest-weight rather than an abuse-of-discretion standard. The decision of the trial court will not be disturbed as against the manifest weight of the evidence as long as it is supported by some competent, credible evidence. C.E. Morris v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, syllabus. A party who has the burden of proof “has little leave to complain if the finder of fact chooses not to believe some or all of his proofs.” In re Scott (1996), 111 Ohio App.3d 273, 276, 675 N.E.2d 1350.

{¶ 44} At trial, appellant Michael Myers testified that he saw appellee’s husband cutting bushes on his property with a handsaw. Appellant Joan Myers confirmed her husband’s report in her own testimony and added that David Kienzle told her that his wife wanted the bushes cut down. Appellee later denied cutting any vegetation other than on her own property and denied directing her husband to do so.

{¶ 45} On this testimony, we cannot say that the court’s finding that appellants failed to prove their claim was erroneous. Accordingly, appellants’ sixth assignment of error is not well taken.

{¶ 46} On consideration whereof, the judgment of the Wood County Court of Common Pleas is affirmed in part and reversed in part. This matter is remanded *87to that court for further proceedings consistent with this decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk’s expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Wood County.

Judgment affirmed in part and reversed in part, and cause remanded.

Peitrykowski and Parish, JJ., concur.

*699Justice O’NEILL

delivered the opinion of the Court, in which Chief Justice

PHILLIPS, Justice ENOCH, Justice OWEN, Justice HANKINSON, Justice JEFFERSON, Justice RODRIGUEZ, and Justice SCHNEIDER joined.

In this case, we must decide whether an easement that permits its holder to use private property for the purpose of constructing and maintaining “an electric transmission or distribution line or system” allows the easement to be used for cable-television lines. We hold that it does not. We further hold that section 181.102 of the Texas Utilities Code, which grants cable companies the right to install lines on a “utility easement,” does not apply to private easements like the one at issue here. Accordingly, we affirm the court of appeals’ judgment reversing summary judgment in the cable company’s favor. 43 S.W.3d 577.

I. Background

This case centers around the scope of a property interest granted over sixty years ago. In 1939, Alan and Myrna Krohn’s predecessors in interest granted to the Hill County Electric Cooperative an easement that allows the cooperative to use their property for the purpose of constructing and maintaining “an electric transmission or distribution line or system.” The easement further granted the right to remove trees and vegetation “to the extent necessary to keep them clear of said electric line or system.”

In 1991, Hill County Electric entered into a “Joint Use Agreement” with a cable-television provider, which later assigned its rights under the agreement to Marcus Cable Associates, L.P. Under the agreement, Marcus Cable obtained permission from Hill County Electric to attach its cable lines to the cooperative’s poles. The agreement permitted Marcus Cable to “furnish television antenna service” to area residents, and allowed the cable wires to be attached only “to the extent [the cooperative] may lawfully do so.” The agreement further provided that the electric cooperative did not warrant or assure any “right-of-way privileges or easements,” and that Marcus Cable “shall be responsible for obtaining its own easements and rights-of-way.”

Seven years later, the Krohns sued Marcus Cable, alleging that the company did not have a valid easement and had placed its wires over their property without their knowledge or consent. The Krohns asserted a trespass claim, and alleged that Marcus Cable was negligent in failing to obtain their consent before installing the cable lines. The Krohns sought an injunction ordering the cable wires’ removal, as well as actual and exemplary damages. In defense, Marcus Cable asserted a right to use Hill County Electric’s poles under the cooperative’s easement and under Texas statutory law.

Both parties filed motions for summary judgment. The Krohns moved for partial summary judgment, arguing that Marcus Cable’s wires constituted a trespass. The Krohns requested the court to order the wires’ removal and to set for trial the determination of damages. Marcus Cable filed a response and its own summary-judgment motion, arguing that both the Hill County Electric easement and section 181.102 of the Texas Utilities Code gave it the legal right to place its wires on the Krohns’ property.

The trial court granted summary judgment in Marcus Cable’s favor. The court of appeals reversed and remanded, holding that neither section 181,102 nor the easement allowed Marcus Cable’s use. 43 S.W.3d at 579. We granted review to consider whether the cooperative’s easement or section 181.102 permit Marcus *700Cable to attach cable-television lines to Hill County Electric’s utility poles without the Krohns’ consent.

II. Common Law

A property owner’s right to exclude others from his or her property is recognized as “ ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’ ” Dolan v. City of Tigard, 512 U.S. 374, 384,114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979))); see also II W. BlÁCKSTONE, BLACKSTONE’S COMMENTARIES 139 (Tucker ed. 1803). A landowner iriay choose to relinquish a portion of the right to exclude by granting an easement, but such a relinquishment is limited in nature. Cf. San Jacinto Sand Co. v. Southwestern Bell Tel. Co., 426 S.W.2d 338, 345 (Tex.Civ.App.-Houston [14th Dist.] 1968, writ ref'd n.r.e.); see generally II GeoRGe, W. Thompson, Thompson on PropERTY §§ 315-16, 319, at 6-7, 14-16, 32-34. Unlike a possessory interest in land, an easement is a nonpossessory. interest that authorizes its holder to use the property for only particular purposes. See Restatement (Third) of Property (Servitudes) § 1.2 cmt. d.

Marcus Cable claims rights under Hill County Electric’s express easement, that is, an easement conveyed by an express grant. See DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex.1999). While the common law recognizes that certain easements may be assigned or apportioned to a third party, the third party’s use cannot exceed the rights expressly conveyed to the original easement holder. See Cantu v. Cent Power & Light Co., 38 S.W.2d 876, 877 (Tex.Civ. App.-San Antonio 1931, writ ref'd); Keokuk Junction Ry. Co. v. IES Indus., Inc., 618 N.W.2d 352, 356, 362 (Iowa 2000); Buhl v. U.S. Sprint Communications Co., 840 S.W.2d 904, 910 (Tenn.1992); cf. Carrithers v. Terramar Beach Cmty. Improvement Assoc., 645 S.W.2d 772, 774 (Tex. 1983) (“[A]n easement may not create a right or interest in a grantee’s favor which the grantor himself did not possess.”). Marcus Cable’s rights, therefore, turn on whether the cooperative’s easement permits the Krohns’ property to be used for the purpose of installing cable-television lines.

Marcus Cable raises three arguments to support its contention that the original easement encompasses cable-television use. First, it argues that easements must be interpreted to anticipate and encompass future technological developments that may not have existed when the easement was originally granted. Second, Marcus Cable contends that courts should give strong deference to the public policy behind expanding the provision of cable-television services. Third, Marcus Cable argues that its use is permitted because adding cable-television wires does not increase the burden on the servient estate. These arguments, however, ignore fundamental principles that govern interpreting easements conveyed by express grant. Those principles lead us to conclude that the original easement does not encompass Marcus Cable’s use.

A. Express Easements

We apply basic principles of contract construction and interpretation when considering an express easement’s terms. DeWitt County, 1 S.W.3d at 100; Armstrong v. Skelly Oil, Co., 81 S.W.2d 735, 736 (Tex.Civ.App.-Amarillo 1935, writ ref'd). The contracting parties’ intentions, as expressed in the grant, determine the *701scope of the conveyed interest. See De-Witt County, 1 S.W.3d at 103 (stating that “the scope of the easement holder’s rights must be determined by the terms of the grant”); see also Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 664-65 (Tex.1964) (holding that parties’ intentions are determined by interpreting the real-property grant’s language); Garrett v. Dils Co., 157 Tex. 92, 299 S.W.2d 904, 906 (1957) (same); City of Dallas v. Etheridge, 152 Tex. 9, 253 S.W.2d 640, 642 (1952) (same); Restatement (THIRD) OF PROPERTY (SERVITUDES) § 4.1 (providing that an easement “should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding the creation of the servitude, and to carry out the purpose for which it was created”).

When the grant’s terms are not specifically defined, they should be given their plain, ordinary, and generally accepted meaning. DeWitt, 1 S.W.3d at 101; see also Restatement (ThiRd) of PropeRty (SeRvitudes) § 4.1 cmt. d (“[Easement] language should be interpreted to accord with the meaning an ordinary purchaser would ascribe to it....”); Restatement (Second) of Contracts § 202(3)(a) (“Unless a different intention is manifested, where language has a generally prevailing meaning, it is interpreted in accordance with that meaning.”). An easement’s express terms, interpreted according to their generally accepted meaning, therefore delineate the purposes for which the easement holder may use the property. See DeWitt, 1 S.W.3d at 100, 103; see also Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974); Vahlsing v. Harrell, 178 F.2d 622, 624 (5th Cir.1949) (applying Texas law). Nothing passes by implication “except what is reasonably necessary” to fairly enjoy the rights expressly granted. Coleman, 514 S.W.2d at 903; Bland Lake Fishing & Hunting Club v. Fisher, 311 S.W.2d 710, 715-16 (Tex.Civ.App.-Beaumont 1958, no writ). Thus, if a particular purpose is not provided for in the grant, a use pursuing that purpose is not allowed. See Coleman, 514 S.W.2d at 903; Kearney & Son v. Fancher, 401 S.W.2d 897, 904-05 (Tex.Civ.App.-Fort Worth 1966, writ ref'd n.r.e.); cf. Bickler v. Bickler, 403 S.W.2d 354, 359 (Tex.1966). If the rule were otherwise,

then the typical power line or pipeline easement, granted for the purpose of constructing and maintaining a power line or pipeline across specified property, could be used for any other purpose, unless the grantor by specific language negated all other purposes.

Kearney & Son, 401 S.W.2d at 904-05 (citing Lange, 4 Texas Practice, Land Titles § 384, at 173); see also City of Pasadena v. Califomia-Michigan Land & Water Co., 17 Cal.2d 576, 110 P.2d 983, 985 (1941) (“It is not necessary for [the easement grantor] to make any reservation to protect his interests in the land, for what he does not convey, he still retains.”).

The common law does allow some flexibility in determining an easement holder’s rights. In particular, the manner, frequency, and intensity of an easement’s use may change over time to accommodate technological development. Restatement (Third) of Property (Servi-tudes) § 4.10. But such changes must fall within the purposes for which the easement was created, as determined by the grant’s terms. See id. § 1.2 cmt. d (“The holder of the easement ... is entitled to make only the uses reasonably necessary for the specified purpose.”); § 4.10 & cmt. a (noting that manner, frequency, and intensity of easement may change to take advantage of technological advances, but only for purposes for which easement was created); see, e.g., Edgcomb v. Lower Val*702ley Power & Light, Inc., 922 P.2d 850, 854-55, 858 (Wyo.1996) (holding that, under easement granted for an electric or telephone line, the easement holder could increase the electricity-carrying capacity and replace the static-telephone line with fiber-optics line as a matter of “normal development of the respective rights and use”); City Pub. Sen. Bd. of San Antonio v. Karp, 585 S.W.2d 838, 841-42 (Tex.Civ.App.-San Antonio 1979, no writ) (holding that a “transformer easement” permitted its holder to replace a malfunctioning underground transformer with an above-ground one as “a matter of normal development”); Lower Colo. River Auth. v. Ashby, 530 S.W.2d 628, 629, 632-33 (Tex.Civ.App.-Austin 1975, writ ref'd n.r.e.) (holding that, under the electric-transmission easement at issue, the easement holder could replace wooden towers with new steel towers and could increase the electricity-carrying capacity); Restatement (Third) of PROPERTY (Servitudes) § 4.10 illus. 13 (stating that, under a 1940s telephone easement, easement holder could mount transmitters on its poles for cellular-telephone transmissions unless doing so would unreasonably interfere with enjoyment of the servient estate). Thus, contrary to Marcus Cable’s argument, an express easement encompasses only those technological developments that further the particular purpose for which the easement was granted. See Restatement (Third) of Property (Servitudes) §§ 1.2 cmt. d., 4.2 cmt. a, 4.10 & cmt. a. Otherwise, easements would effectively become possessory, rather than nonpossessory, land interests. See id. § 1.2 cmt. d (distinguishing between an easement that permits its owner to use land for only specified purposes, and a possessory land interest that permits its owner to make any use of the property).

The emphasis our law places upon an easement’s express terms serves important public policies by promoting certainty in land transactions. In order to evaluate the burdens placed upon real property, a potential purchaser must be able to safely rely upon granting language. See Restatement (Third) of Property (Servi-tudes) § 4.1 cmt. d. Similarly, those who grant easements should be assured that their conveyances will not be construed to undermine private-property rights — like the rights to “exclude others” or to “obtain a profit” — any more than what was intended in the grant. See Loretto, 458 U.S. at 436, 102 S.Ct. 3164.

Marcus Cable suggests that we should give greater weight to the public benefit that results from the wide distribution of cable-television services, arguing that technological advancement in Texas will be substantially impeded if the cooperative’s easement is not read to encompass cable-television use.1 But even if that were so, we may not circumvent the contracting parties’ intent by disregarding the easement’s express terms and the specific purpose for which it was granted. See Restatement (Third) of Property (Servi-tudes) § 4.1 & cmt. d (indicating that a court may not adopt an easement interpretation based on public policy unless that interpretation is supported by the grant’s terms). Adhering to basic easement principles, we must decide not what is most convenient to the public or profitable to Marcus Cable, but what purpose the contracting parties intended the easement to serve. See Dauenhauer v. Devine, 51 Tex. *703480, 489-90 (1879). Hill County Electric could only permit Marcus Cable to use its easement “so long as that use is devoted exclusively to the purposes of the grant.” Cantu, 38 S.W.2d at 877.

Finally, Marcus Cable contends that its use should be allowed because attaching cable-television wires to Hill County Electric’s utility poles does not materially increase the burden to the ser-vient estate. But again, if a use does not serve the easement’s express purpose, it becomes an unauthorized presence on the land whether or not it results in any noticeable burden to the servient estate. See McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex.Civ.App.-Beaumont 1934, writ ref'd) (“[E]very unauthorized entry upon land of another is a trespass even if no damage is done or the injury is slight .... ”); see also Rio Costilla Co-op. Livestock Ass’n v. W.& Ranch Co., 81 N.M. 353, 467 P.2d 19, 25 (1970); Beckwith v. Rossi, 157 Me. 532, 175 A.2d 732, 735-36 (1961). Thus, the threshold inquiry is not whether the proposed use results in a material burden, but whether the grant’s terms authorize the proposed use. With these principles in mind, we turn to the easement at issue in this case.

B. Hill County Electric’s Easement

Both parties urge us to determine Marcus Cable’s easement rights as a matter of law. When an easement is susceptible to only one reasonable, definite interpretation after applying established rules of contract construction, we are obligated to construe it as a matter of law even if the parties offer different interpretations of the easement’s terms. DeWitt, 1 S.W.3d at 100. Because the easement here can be given a definite meaning, we interpret it as a matter of law.

The easement granted Hill County Electric the right to use the Krohns’ property for the purpose of constructing and maintaining an “electric transmission or distribution line or system.” The terms “electric transmission” and “electric distribution” are commonly and ordinarily associated with power companies conveying electricity to the public. See, e.g., Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524, 526-27, 530 (1958); Resendez v. Lyntegar Elec. Coop., Inc., 511 S.W.2d 350, 352-53 (Tex.Civ.App.Amarillo 1974, no writ); Upshur-Rural Elec. Coop. Corp. v. State, 381 S.W.2d 418, 424 (Tex.CivApp.-Austin 1964, writ dism’d) (using terms electric transmission and/or distribution to describe equipment used by power companies to convey electricity); see also Restatement (Third) of PropeRty (Servitudes) § 4.10 illus. 3 & 12 (using “electric-transmission fines” to designate lines operated by power companies); Tex. Util.Code § 39.157(a), (d)(3) (providing that Public Utility Commission shall regulate market-power abuses in the sale of electricity by utilities “providing electric transmission or distribution services”). Texas cases decided around the time the cooperative’s easement was granted strongly suggest that this was the commonly understood meaning of those terms. See, e.g., City of Bryan v. A & M Consol. Indep. Sch. Dist., 179 S.W.2d 987, 988 (Tex.Civ.App.-Waco 1944), aff'd, 143 Tex. 348, 184 S.W.2d 914 (1945); Texas-New Mexico Utils. Co. v. City of Teague, 174 S.W.2d 57, 59 (Tex.Civ.App.-Fort Worth 1943, writ ref'd w.o.m.); Arcola Sugar Mills Co. v. Houston Lighting & Power Co., 153 S.W.2d 628, 629-30 (Tex.Civ.App.-Galveston 1941, writ ref'd w.o.m.); McCulloch County Elec. Co-op., Inc. v. Hall, 131 S.W.2d 1019, 1020, 1022 (Tex.Civ.App.-Austin 1939, writ dism’d); Willacy County v. Central Power & Light Co., 73 S.W.2d 1060, 1061 (Tex.Civ.App.-San Antonio 1934, writ dism’d) (using term electric *704transmission to describe equipment used by power companies to convey electricity). Accordingly, we construe the easement’s terms to allow use of the property for facilities to transmit electricity.

Marcus Cable does not argue that the generally prevailing meaning of the easement’s grant encompasses cable-television services. Instead, it claims that, for reasons of public policy, we should construe the easement to embrace modern developments, without regard to the easement’s language. In support of that position, Marcus Cable cites a number of decisions in other jurisdictions that have allowed the use of easements predating cable technology to allow installation of cable transmission lines.

The cases Marcus Cable cites, however, involve different granting language and do not support the proposition that we may disregard the parties’ expressed intentions or expand the purposes for which an easement may be used. To the contrary, those cases involve easements containing much broader granting language than the easement before us. Most of them involved easements granted for communications media, such as telegraph and telephone, in addition to electric utility easements. In concluding that the easements were broad enough to encompass cable, the reviewing courts examined the purpose for which the easement was granted and essentially concluded that the questioned use was a more technologically advanced means of accomplishing the same communicative purpose.

For example, in Salvaty v. Falcon Cable Television, the 1926 easement permitted its holder to maintain both electric wires and telephone wires. 165 Cal.App.3d 798, 212 Cal.Rptr. 31, 32, 35 (1985). The court held that cable-television lines were within the easement’s scope, observing that cable television is “part of the natural evolution of communications technology.” Id. at 34-35 (emphasis added); accord Witteman v. Jack Barry Cable TV, 228 Cal.Rptr. 584, 589 (Cal.Ct.App.1986) (same). Similarly, the Fourth Circuit held that an easement allowing its holder to use the land for the purpose of maintaining pole lines for “electrical and telephone service” was sufficiently broad to encompass cable-television lines. C/R TV, Inc. v. Shannondale, Inc., 27 F.3d 104, 106, 109-10 (4th Cir.1994) (applying West Virginia law). In reaching its conclusion, the court relied on the similar communicative aspects of both “telephone services” and cable-television services. Id. at 109-10. Other cases Marcus Cable cites also involved easements granted for communications-transmission purposes. See, e.g., Cousins v. Alabama Power Co., 597 So.2d 683, 686-87 (Ala.1992) (involving easements — granted for the purpose of maintaining “electric transmission lines and all telegraph and telephone lines” — that the landowners conceded included the right to maintain fiber-optics telecommunications lines); Jolliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 55 O.O.2d 203, 269 N.E.2d 588, 591 (1971) (concluding that cable-television wires were a burden “contemplated at the time of the grants [to the power company], as evidenced by the specific reference to telegraph and telephone wires” in the 1940 easement); Am. Tel. & Tel. Co. of Mass. v. McDonald, 273 Mass. 324, 173 N.E. 502, 502-03 (1930) (concluding that easement granted for the purpose of maintaining “lines of telephone and telegraph” could be apportioned by the easement holder to a telephone company seeking to install a telephone cable, and that “[nothing granted to the [company] enables it to do anything which the original grantee could not have done”); Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825, 827, 829 (Mo.Ct.App.1985) (concluding that cable television fell within the 1922 easement grantors’ ex*705pressed intention to provide “electric power and telephonic communications” to subdivision residents); Hoffman v. Capitol Cablevision Sys., Inc., 52 A.D.2d 313, 383 N.Y.S.2d 674, 676, 677 (N.Y.App.Div.1976) (involving easements for the “distribution of electricity and messages,” and concluding that cable-television wires were no greater burden “than that contemplated by the original easements”).

We express no opinion about whether the cases Marcus Cable relies upon were correctly decided. But, unlike the cases Marcus Cable cites, Hill County Electric’s easement does not convey the right to use the property for purposes of transmitting communications. While cable television may utilize electrical impulses to transmit communications, as Marcus Cable claims,2 television transmission is not a more technologically advanced method of delivering electricity. Thus, the above-referenced eases do not support Marcus Cable’s argument that the easement here encompasses the additional purpose of transmitting television content to the public.

Marcus Cable cites only two cases involving easements whose grants did not include telephone or telegraph services, and neither supports its position. In Centel Cable Television, Inc. v. Cook, the court interpreted easement language that permitted its holder to maintain “a line for the transmission and/or distribution of electric energy thereover, for any and all purposes for which electric energy is now, or may hereafter be used.” 58 Ohio St.3d 8, 567 N.E.2d 1010, 1014 (1991) (emphasis added). Observing that cable-television broadcasting “utilizefs] ... ‘electric energy,”’ the court concluded that the grant language was broad enough to encompass cable television. Id. (emphasis added). And Rise v. BARC Electric Cooperative, 254 Va. 341, 492 S.E.2d 154, 158 (1997), involved a right-of-way easement by prescription that had been used for cable-television lines during the prescriptive period and that was later widened through eminent domain. It did not involve a privately-negotiated, express easement. See, e.g., Nishanian v. Sirohi, 243 Va. 337, 414 S.E.2d 604, 606 (1992) (“The use of an [express] easement must be restricted to the terms and purposes on which the grant was based.” (citing Robertson v. Bertha Mineral Co., 128 Va. 93, 104 S.E. 832, 834 (1920))). The easements in Marcus Cable’s cited cases are simply not comparable to the more limited, express easement presented here.

Finally, Marcus Cable cites San Antonio & Aransas Pass Railway v. Southwestern Telegraph & Telephone Co., 93 Tex. 313, 55 S.W. 117 (1900), for the proposition that an easement must be interpreted to embrace technological change. But that case does not support the idea that a court may ignore the contracting parties’ intent as reflected in their written language. There, we were called upon to determine whether a statute granting condemnation power to “telegraph” companies applied equally to “telephone” companies. Id. Relying upon later statutory enactments that reflected the Legislature’s intent to treat both the same, and recognizing that telegraph and telephone are two different means of accomplishing the same communicative purpose, we held that the statute *706at issue applied to telephone companies. Id. at 118-19.

The dissenting Justice would hold that the easement could properly be read to encompass cable because electricity is used in the transmission of cable television signals. Under such a reading, however, the easement could also be used for telegraph or telephone lines. Obviously, the Krohns’ predecessors could have granted an easement for those purposes. But the easement’s specific terms cannot be read so broadly.

In sum, the easement language here, properly construed, does not permit cable-television lines to be strung across the Krohns’ land without their consent. However laudable the goal of extending cable service might be, we cannot disregard the easement’s express terms to enlarge its purposes beyond those intended by the contracting parties. To the extent the trial court granted Marcus Cable summary judgment on this basis, it erred, and the court of appeals correctly reversed.

III. Section 181.102

Marcus Cable contends that, even if Hill County Electric’s easement does not permit it to string cable-television wires across the Krohns’ property, section 181.102 of the Texas Utilities Code does. That section, which allows cable-television service providers to utilize certain properties, provides:

(a) In an unincorporated area, a person in the business of providing community antenna or cable television service to the public may install and maintain equipment through, under, along, across, or over a utility easement, a public road, an alley, or a body of public water in accordance with this subchapter.

(b) The installation and maintenance of the equipment must be done in a way that does not unduly inconvenience the public using the affected property.

Tex. Util.Code § 181.102.

Marcus Cable argues that the statute’s plain language encompasses private easements like the one at issue here. Specifically, Marcus Cable contends that the term “utility easement” is not qualified by the term “public,” as are other properties listed in the statute, and therefore the Legislature must have intended to cover private-easement grants to utility companies. The Krohns, on the other hand, argue that the statute’s language, purpose, and legislative history support a distinction between general-use, public-utility easements and limited private-easement grants. We agree with the Krohns.

Our purpose in construing a statute is to determine the Legislature’s intent. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001). As a starting point, we construe statutes as written and, if possible, ascertain intent from the statutory language. Id. (citing Morrison v. Chan, 699 S.W.2d 205, 208 (Tex.1985)). We may also consider other factors, including the object the statute seeks to obtain, legislative history, and the consequences of a particular construction. Id.; see also Tex. Gov’t Code § 311.023. Moreover, we must always consider a statute as a whole and attempt to harmonize its various provisions. Helena Chem., 47 S.W.3d at 493; see also Tex. Gov’t Code § 311.021. We must also, if possible, construe statutes to avoid constitutional infirmities. In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex.1998); Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex.1996); see also Tex. Gov’t Code § 311.021(1).

Applying these principles, we hold that section 181.102 does not encompass *707private easements granted to utilities. The term “utility easement” appears in a list of properties — public roads, alleys, and public waterways — that are generally dedicated to public use. Subsection (b) goes on to prohibit cable companies from “unduly inconvenienc[ing] the public using the affected property,” indicating that the Legislature presumed public access to the property interests listed in subsection (a). Tex. Util.Code § 181.102(b) (emphasis added). Thus, consistent with the nature of the other specified properties, and harmonizing the statute’s subsections, “utility easement” can reasonably be read to cover only public easements, that is, those easements dedicated to the public’s use. See, e.g., Clark v. El Paso Cablevision, Inc., 475 S.W.2d 575, 577 (Tex.Civ.App.-El Paso 1971, no writ).

The limited legislative history that is available supports this interpretation. Statements were repeatedly made in hearings indicating that section 181.102 was intended to encompass only public easements. Hearings on S.B. 643 Before the House Comm. on Urban Affairs, 68th Leg., R.S. (April 28, 1983). Finally, construing the statute to cover only public easements avoids constitutional infirmities. In Loretto, the United States Supreme Court analyzed a New York statute that granted cable-television companies the right to place their equipment on apartment buildings, and held that applying the statute to private property would effect a “taking” in violation of the Fifth Amendment. Loretto, 458 U.S. at 421, 102 S.Ct. 3164. The Court reasoned that “a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve,” and that “permanent occupations of land by such installations as telegraph and telephone lines ... or wires are takings even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner’s use of the rest of his land.” Id. at 426, 430, 102 S.Ct. 3164. We also note that a number of federal courts, construing the Cable Communications Policy Act, have recognized the constitutional concerns that would arise from requiring private parties to grant property access to uninvited cable companies whenever a private easement has been granted to other specific service providers. See, e.g., Cable Ariz. Corp. v. CoxCom, Inc., 261 F.3d 871, 876 (9th Cir. 2001); TCI of N.D., Inc. v. Schriock Holding Co., 11 F.3d 812, 815 (8th Cir.1993); Cable Holdings of Ga., Inc. v. McNeil Real Estate Fund VI, Ltd., 953 F.2d 600, 604-05 (11th Cir.), cert. denied, 506 U.S. 862, 113 S.Ct. 182, 121 L.Ed.2d 127 (1992); Cable Invs., Inc. v. Woolley, 867 F.2d 151, 159-60 (3d Cir.1989). Thus, construing section 181.102 to cover private property could have significant constitutional implications.

In sum, we hold that section 181.102 does not cover private-easement grants, like the one at issue here, that are negotiated between owners of private property and individual utility companies.3

IV. Conclusion

We hold that Hill County Electric’s easement does not convey the right to string cable-television wires over the Krohns’ private property. Nor does section 181.021 confer such a right upon Marcus Cable, because the statute covers only utility easements that are dedicated to *708public use. Accordingly, we affirm the court of appeals’ judgment reversing and remanding this case to the trial court for further proceedings.

Justice HECHT filed a dissenting opinion.

Justice HECHT,

dissenting.

The electric television (not its short-lived electro-mechanical predecessor) was conceived in 1921 by fourteen-year-old Philo Farnsworth, who made a working model in 1927,1 twelve years before RCA’s National Broadcasting Company first began regular telecasts from the World’s Fair in New York City, and H.W. and Ruth Curtis granted Hill County Electric Cooperative an easement on their land north of Sardis, Texas, “to place, construct, operate, repair, maintain, relocate and replace ... an electric transmission and distribution line or system”. After 1939, television took off. Cable television is said to have originated in 1948 when John Walson of Mahanoy City, Pennsylvania, used a twin-lead wire to transmit an electric signal from a remote antenna to his store to demonstrate to his customers how reception could be improved and thereby increase his sales of the newfangled television sets.2 The Cur-tises no doubt intended that by granting the Co-op an easement, wires strung on poles erected on their property would be used to transmit electric current to power lights and appliances. They probably did not envision that one such appliance in the Sardis area would be a television set. And they could not possibly have imagined that televisions powered by the electric current carried by lines over their easement would have better reception if supplied with an electric signal transmitted over another look-alike line hung on the same poles, even if the Curtises had been as precocious as Philo Farnsworth himself.

So if the question is, what were the Curtises thinking in 1939 when they gave the Co-op an easement for “an electric transmission and distribution line or system”, the answer is easy: they were thinking about electric power, not an electric cable television signal, even though both are electric. But that’s not the question because, as the Court correctly holds, the scope of an easement is measured by the parties’ intent as expressed in the words used,3 broadened by changes in the manner, frequency, and intensity of the intended use that are due to technological advances and do not unreasonably burden the servient estate.4 An easement need not accommodate unintended uses merely because they present no additional burden, nor can an easement be enlarged merely because additional uses would benefit the public. But a use that is within the language of an easement as it has come to be understood with changes in technology is not prohibited simply because it was not part of the parties’ original thinking. So *709the question in this case is whether a cable carrying an electric television signal to various users is “an electric transmission and distribution line or system” as we have come to understand more of what those words entail.

Now if one were to stick just to the words, the answer would clearly be yes. A television cable is a “line”. A television signal is “electric”, assuming, as the Court does, that the cable is not fiber optic (although even if the cable were fiber optic, the signal would still start out electric at the transmitter and end up electric at the receiver).5 Sending the signal is “an electric transmission”. Transmitting it among a number of users is “an electric distribution”. Thus, a television cable is “an electric transmission and distribution fine”. Looking at a pole carrying lines transmitting electric power and a line transmitting television signals, a person unfamiliar with differences in the physics of the transmissions could not tell which was which.

But the Court answers the question no. Here is its analysis:

(1)“The terms ‘electric transmission’ and ‘electric distribution’ are commonly and ordinarily associated with power companies conveying electricity to the public.”6

(2) “Texas cases decided around the time the cooperative’s easement was granted strongly suggest that this was the commonly understood meaning of those terms.”7

(3) “While cable television may utilize electrical impulses to transmit communications, as Marcus Cable claims, television is not a more technologically advanced method of delivering electricity.”8

(4) Although easements for electric transmission have been held to include cable television signal transmission in all seven cases that have considered the matter in other jurisdictions,9 the language of the easements in all those cases was broader.10

While each of these elements in the Court’s reasoning is irrefutable, they prove nothing. The fact (1) that the words “electric transmission and distribution” are often used in reference to electric power does not mean that they therefore cannot be used in reference to any other electric transmission, like a cable television signal. In fact, the words have a broader reference. For example, a statute regulating telecommunications refers to “any type of system in which electric ... signals are *710used to transmit information, including a system transmitting information by ... wire or cable”11 — in other words, an electric transmission system for information by line or cable. Of course, (2) the words could not have referred to a cable television signal in 1939, but only because no such thing existed, not because of the case-law of the era. Our understanding of what “electric” means has changed immensely over time. Before Michael Faraday, Benjamin Franklin, and others discovered electric currents, “electric” referred to the static, magnetic condition of certain materials, like amber rubbed with a cloth.12 Indeed, the word “electric” derives from the Latin, electrum, meaning “amber”. The meaning of “electric”, as we have come to understand better the phenomenon to which it refers, can no more be confined to electric current than it could to static electricity or cloth-rubbed amber. Caselaw reflecting the understanding of “electric” in 1939 does not dictate all that the word means.

As the Court says (3), television is certainly not a more technologically advanced method of delivering electric current, but that simplistic observation begs the issue. Are the technological changes relevant to understanding the scope of the easement those in “electric transmission and distribution” of whatever nature, or only those in the transmission and distribution of electric current? The answer is the former, if we are to be faithful to the language of the easement. Is transmission of a cable television signal a more technologically advanced “electric transmission”? Clearly, yes.

The Court is correct (4) that in six of the seven cases from other jurisdictions that have considered whether an easement for electric transmission can be shared by cable television, the easements expressly permitted telephone lines.13 Because the telephone is used for communication, the Court reasons, the easements in those cases were broader and could include — the Court will not say could properly include — • cable television. Since the easement in the present case does not expressly allow for telephone lines, the Court concludes that it does not permit any use for pur*711poses of communication. But electric power is used for communication in the very important sense that neither a television nor a telephone will operate without it. Indeed, a television without a cable signal still has limited reception, while a television without electric power is nothing but a big doorstop, whether it is hooked up to cable or not. It is just not true that an easement for telephone wires contemplates the use of communication devices and an easement for electric current does not. It makes no sense to say, as the Court does, that because an easement for electric lines can be used to supply power to a television receiver, the easement excludes an electric line used to supply a signal to that receiver. It is not surprising, then, that the courts in the six cases do not draw this distinction; that is, none says that if an easement referred only to electric transmission and not telephone transmission, cable television transmission over the easement would be prohibited.

In fact, Marcus Cable asserts that no case in the country has ever barred cable television from an easement for electric transmissions, and neither the Krohns nor the Court has found one. Today’s decision stands alone in the nation athwart the path to providing cable television and related services to rural areas. It directly conflicts with one of the seven cases that did not involve an easement that referred to telephone transmissions. There, the Supreme Court of Ohio held that an easement “for a line for the transmission and/or distribution of electric energy thereover, for any and all purposes for which electric energy is now, or may hereafter be used” allowed for a cable television line.14 But the easement in that case only provided expressly what the law implies in the easement before us: that “elec-trie transmission and distribution” includes all purposes for which electric transmissions are now or may hereafter be used, uses made possible only by subsequent technological developments. The legal effect of the language in both easements should be the same.

I would hold that the easement in the present case can be shared with a cable television provider if the servient estate is not additionally burdened. The Krohns argue that there would be an additional burden for three reasons. First, the Krohns suggest that “the placement of the cable line decreases the clearance which we have through one of our entrances”. Assuming that this is so, as we must in reviewing a summary judgment, there is no evidence that a cable line is or could be lower than lines already on the poles. The height of lines on electric poles is governed by statute.15 If the clearance at an entrance is decreased, it is only because the decrease is permitted by law regardless of whether the easement is used for cable television or other electric transmission. Second, the Krohns argue that if the Co-op lets one cable television provider share the easement, federal law requires that it let all such providers do so on a nondiscriminatory basis, and if more providers are allowed to hang then wires on the poles, the burden to the servient estate will be increased as workers and equipment enter the property to construct and maintain the lines. Obviously, the Krohns’ concern is somewhat iffy, but even if it were to begin to materialize, their easement would not be required to accommodate uses that presented an additional burden, and thus the number of users would be limited. Finally, the Krohns argue that to allow a cable television line on the Co-op’s poles clouds *712their title. But the Krohns do not explain how their title is more affected by Marcus Cable’s use of the easement than by the Co-op’s use. Thus, I would conclude that the Krohns have failed to show that Marcus Cable’s use of the easement poses any greater burden to their estate.

Two amici curiae in support of the Krohns’ position16 urgently warn that to allow Marcus Cable to share the Co-op’s easement will profoundly impact the property rights of all Texas landowners. Other amici concur in less dramatic terms.17 The threat they perceive is inconsistent with experience. The Texas Cable and Telecommunications Association, as amicus curiae for Marcus Cable, advises that cable television providers already share electric poles on easements covering thousands of miles in Texas. The Association states, and the United States Supreme Court confirms,18 that this has been going on for decades all over the country. Although every case to consider the issue until today has allowed cable television lines to be hung on electric power and telephone poles, private land ownership has survived.

The Association, on the other hand, warns that this case “will significantly affect the future of the cable and telecommunications industries in Texas,” especially in rural areas. The gravity of this threat cannot be evaluated without knowing how many of the thousands of other easements that are being used are like the one in this case, and whether the Court would construe other language differently. One can reasonably expect, however, that there will be ample litigation over the matter, thereby increasing the costs of providing telecommunications services without affording any benefit.

I would hold that the Krohns’ easement to the Co-op for electric transmission and distribution lines can be apportioned or divided with Marcus Cable, based on the development of cable television since the easement was granted in 1939. Accordingly, I respectfully dissent.

Sweeney, J.

¶1 This suit follows a dispute between a developer and a restaurant owner. The restaurant owner’s predecessor in interest granted the developer a right-of-way in exchange for money and the developer’s promise to restrict the height of houses in the development so as not to impair the view of Lake Chelan from the restaurant building. The trial court concluded that the developer ultimately breached that agreement and that the development’s homeowners association and its president tortiously interfered with the agreement. The court awarded the restaurant owner damages and attorney fees. We conclude that the restaurant owner was entitled to enforce the height restriction covenant as one that runs with the land. We also uphold the tort liability of the homeowners association president and the association. We remand for the court to revisit the attorney fees and for entry of necessary findings and conclusions to support any award of attorney fees and costs.

FACTS

¶2 History. Cindy Smith and Robert Ahlquist (Ahlquist) are siblings. They owned and operated the Cosina del Lago Restaurant overlooking Lake Chelan in Washington State. The dining room was on the second floor of the building and the lounge was on the first floor. The land between the *239restaurant building and the lake was a mature apple orchard.

¶3 Jack Johnson is the sole shareholder and president of Key Development Corporation. David Milne was president of Fairway Resources, Ltd. They wanted to develop the property between the restaurant and the lake for single family housing. But any development required access over Ahlquist’s property. Toward that end, Mr. Johnson presented Ahlquist with a signed easement that included a provision that “[a] restrictive covenant shall be placed on the face of the plat to be developed by Fairway stating the [sic] no building will be constructed that will obscure the view from Cosina del Lago Restaurant.” Ex. 37; Clerk’s Papers (CP) at 639 (I Finding of Fact1 II(FF) 1.18). The proposed easement covered only the upper floor (the restaurant) view and so Ahlquist refused to sign.

¶4 Ahlquist referred the matter to their attorney who drafted an easement agreement and included protection for the view from the lounge:

The Corporation warrants and covenants that it shall establish and monitor compliance with all necessary building covenants in its development so as to not affect the sight or views from Cosina del Lago restaurant to the lake. There shall not be any homes or structures in the development that interfere with the view of the lake from the restaurant or its lounge.

Ex. 2; CP at 640 (I FF 1.20). The new document was entitled “Do Not Record Agreement” but amounted to an easement across Ahlquist’s property. Ahlquist’s attorney titled the document “Do Not Record Agreement” because he was “concerned about the character of the individuals we were dealing with” and wanted to ensure that all compensation and consideration for the right to the easement was received *240before recording. Report of Proceedings (RP) at 49. Ahlquist, Mr. Johnson, and Mr. Milne all signed the agreement.

¶5 The city of Chelan rejected the easement. It required a dedicated right-of-way before it would approve the development. Mr. Johnson drafted a right-of-way and presented it to Ahlquist. But he again left off the words “or its lounge” when addressing protection for the view from the restaurant building. CP at 640 (I FF 1.23); Ex. 40, ¶ 8. Ahlquist refused to sign the document, in part because of Mr. Johnson’s failure to provide protection of the view from the downstairs lounge. Ahlquist added back in the “or its lounge” language and the parties then signed the right-of-way agreement on October 23, 1995. The right-of-way agreement incorporated all of the previous terms of the easement agreement. Mr. Johnson signed the agreement granting the right-of-way both individually and in his capacity as president of Key Development.

¶6 Key Development then purchased the orchard property on March 2, 1996. The right-of-way was deeded to Key Development on April 23,1996. The parties understood that the right-of-way agreement was to be recorded with the plat, but it never was. The preamble to the right-of-way agreement provided that a homeowners association would protect Ahlquist’s rights: “The Corporation shall require the establishment of a Homeowners Association which shall be responsible for all obligations owed to the Owners [Ahlquist] as set forth herein, except for the continuing obligations (joint and several) of JACK A. JOHNSON.” Ex. 3, at 1-2; CP at 643 (I FF 1.43). Mr. Johnson then incorporated the Key Bay Homeowners Association (Association or Homeowners Association) and appointed himself president. He remained president and head of the Association’s architectural control committee from 1996 until at least Memorial Day 2002.

¶7 Mr. Johnson had hired John Walcker to develop the property. He directed Mr. Walcker to draft restrictive covenants for the Homeowners Association. But Mr. Johnson *241did not give Mr. Walcker a copy of either the easement agreement or the right-of-way agreement. Mr. Walcker prepared covenants in late 1995. He hired landscape architect Mike Gottschalk to establish maximum roof elevations for the homes in the Key Bay development. Mr. Walcker instructed Mr. Gottschalk that the maximum elevations could be drafted to protect only the views from the upper level of the restaurant and need not protect the views from the lower level lounge. So Mr. Walcker thought that the view from upstairs was all he had to worry about based on Mr. Johnson’s instructions.

¶8 The “Key Bay Declaration of Restrictive Covenants” and the “Key Bay Architectural Control Committee Rules, Regulations and Procedures” were recorded in September 1996. Paragraph 11 of the committee rules limited all buildings in the development to a single story and a maximum height of 16 feet above the top of the foundation. Mr. Gottschalk, however, established higher maximum roof elevations of up to 26 feet “from elevation point” (from median curb elevation). This is reflected in exhibit A to the covenants — a document drafted by Mr. Gottschalk in 1996. CP at 645 (I FF 1.56); RP at 632.

¶9 But exhibit A was not recorded until September 19, 2000, when Mr. Johnson again recorded the covenants. He was then president of the Homeowners Association and still head of the architectural control committee. Mr. Johnson blamed the title company for not recording exhibit A in 1996. He claimed the title company must have misplaced the document. He said he did not realize the problem until 2000. Mr. Johnson recorded covenants a third time on October 2, 2000, raising the maximum height restriction to 35 feet. But he again recorded covenants in March 2002 that returned the maximum height to 26 feet.

¶10 Meanwhile, Robert and Roberta Kenagy purchased the restaurant from Ahlquist in 1998. Mr. Kenagy was aware of the right-of-way agreement at the time he purchased the property. Mr. Kenagy was not aware of exhibit A to the covenants because it was not included with any *242documents he received when he purchased the restaurant. He received only the preliminary title report and copies of the easement and right-of-way agreements.

¶11 Mr. Kenagy leased the building to his business, Deep Water Brewing, LLC. Deep Water operated the restaurant and lounge as a brew pub from spring 1999 until shortly before he sold the property on September 30, 2005. Sometime before July 2001, Mr. Kenagy learned that property owners in the Key Bay development would be allowed to build multistory homes. He then sent letters to Mr. Johnson and other lot owners warning that he would enforce the height restrictions set out in the right-of-way agreement.

¶12 Michael and Patricia Taylor purchased lot 5 in the development on April 20, 2002. They were told that the elevation of their house could not exceed 1,164 feet above sea level as stated in exhibit A, which was attached to the covenants they received. They were also given a “Seller’s Property Conditions Report Vacant Land.” It represented that there were no disagreements, disputes, or legal actions concerning the property. No one told the Taylors about the Kenagys’ claims regarding height restrictions or about the agreements. Ed Ferguson was a real estate broker hired by Mr. Johnson to sell Key Bay lots. Mr. Ferguson told the Taylors that a 26-foot height restriction applied. Mr. Johnson never apprised Mr. Ferguson of the easement and right-of-way agreements.

¶13 Proceedings. Deep Water (the Kenagys) sued Fairway Resources, Ltd.; Key Development Corporation; the Homeowners Association; and Jack Johnson on September 10, 2002, for declaratory judgment and injunctive relief to enforce the provisions in the agreements (easement and right-of-way agreements) that protected their view and to enjoin the defendants from interfering with the restaurant and lounge views. The complaint was later amended to include the Kenagys as plaintiffs and to add claims for damages and attorney fees.

¶14 The Taylors submitted building plans for a two-story house to the Homeowners Association’s architectural con*243trol committee. The committee approved their plans on March 17, 2004. The Taylors broke ground in July 2004, after the Kenagys added them as defendants in a second amended complaint for declaratory judgment, injunctive relief, and damages filed on July 14, 2004. The Kenagys filed a third amended complaint in December 2004, adding a claim that Jack Johnson was the alter ego of Key Development Corporation. The court dismissed on summary judgment all contract claims against Mr. Johnson personally. And the Kenagys later abandoned their alter ego claim against Mr. Johnson.

¶15 In a fourth amended complaint, the Kenagys claimed breach of contract and entitlement to contractual attorney fees against only Fairway Resources and Key Development, equitable indemnity against only Key Development, and entitlement to damages from all defendants— Fairway Resources, Key Development, the Homeowners Association, and the Taylors.

¶16 Liability Phase. The court bifurcated the case into a liability and a damages phase. The liability phase began in March 2006. The Taylors had completed their home and the Kenagys had sold the restaurant before trial. The case was tried to the court sitting without a jury. At the close of the testimony in the liability phase, the court granted the Kenagys’ motion to amend their complaint to add a tortious interference with contract cause of action against the Homeowners Association and Mr. Johnson personally.

¶17 Several exhibits admitted during the liability trial show a view toward the lake from the downstairs lounge, before and after the Taylors built their house. Numerous witnesses testified that, despite the fact that there was an orchard there, there was a view of the lake from the downstairs lounge before the Taylors built their house. Carolyn Hamshaw worked as a bartender for both Cosina del Lago and Deep Water. She testified that there was a view of the lake from the downstairs lounge and that the Taylors’ home blocked part of that view. Patricia Taylor admitted that her house interfered with the view to the lake *244from the lounge. She testified that she had been in the downstairs lounge, that you can see her house from the lounge, that you cannot see through her house to the lake from the lounge, and that you can see the lake from both floors of her house. The trial judge also visited the site.

¶ 18 Trial Court Holding — Liability. The court found that the Taylors’ house interferes with a view of the lake from the downstairs lounge.

¶19 The court concluded that there was a valid and enforceable contractual relationship between the Kenagys as Ahlquist’s successor in interest and as third party beneficiaries of the easement and right-of-way agreements. The court concluded that Key Development breached the agreements; that Mr. Johnson tortiously interfered with the agreements; and, that because Mr. Johnson acted as the Homeowners Association’s agent when doing so, the Association was vicariously liable to the Kenagys. And the court ultimately concluded that Mr. Johnson, the Homeowners Association, and Key Development were jointly and severally liable to the Kenagys. The court also ruled the Taylors were bona fide purchasers without notice and were therefore not liable to the Kenagys.

¶20 Damages Phase. The damages phase of the trial started in July 2007. The Kenagys’ expert witness, Dennis Johnson, is a certified real estate appraiser with some 40 years’ experience in sales and appraisal of commercial real estate in the Chelan area. The Kenagys gave his report to opposing parties Jack Johnson, Key Development, and the Homeowners Association on May 10, 2007. Those parties moved to exclude Dennis Johnson’s testimony because the property values he used were based on the work of another appraiser, Thomas Walters. They argued, from this, that his expert opinion was then based on hearsay. They also argued that Dennis Johnson could not base his opinion on the work of another appraiser by the rules of professional appraisers. The judge denied their motion.

¶21 Dennis Johnson testified that the value of the restaurant had been diminished because its view corridor to *245the lake was impaired by the Key Bay development. He first enlisted the aid of a licensed professional land surveyor to conduct a view corridor analysis from the downstairs lounge to the lake. The surveyor, Norman Nelson, confirmed that the Taylors’ home interferes with the lake view from the lounge based on elevations of the restaurant building’s first floor windowsill and the top of the Taylors’ home. Dennis Johnson concluded that the value of the restaurant building before the view was obstructed was $1.57 million, and the value after was the Kenagys $1,325 million sales price. The $245,000 difference was then the diminution in value caused by the impairment of the view.

¶22 Key Development, Jack Johnson, and the Homeowners Association retained certified appraiser Scot Auble shortly before trial and then moved for a continuance to develop their case on damages. The court denied the motion. Mr. Auble criticized Dennis Johnson’s methodology as invalid and in violation of the Uniform Standards of Professional Appraisal Practice.2

¶23 Trial Court Holding — Damages. The court accepted Dennis Johnson’s conclusions and awarded the Kenagys a judgment of $245,000 jointly and severally against Jack Johnson, Key Development, and the Homeowners Association.

¶24 Attorney Fees. The court concluded that the attorney fees and costs provisions of the easement and right-of-way agreements were expansive enough to include all parties to the case, including the Kenagys as third party beneficiaries. The court also concluded that the central issue in the dispute was the nature and extent of the view protected by the easement and right-of-way agreements and the damages that followed the breach of those agreements. The court entered findings of fact and conclusions of law awarding the Kenagys attorney fees of $243,000 and costs of $35,000 jointly and severally against Key Development, Jack Johnson, and the *246Homeowners Association based upon contract (the agreements) and as prevailing party under RCW 4.84.330 (prevailing party entitled to attorney fees if contract provides for fees for either party). The court also concluded that Mr. Johnson and therefore the Homeowners Association were jointly and severally liable for the Kenagys’ fees and costs under the doctrine of equitable indemnity because Mr. Johnson’s conduct was the only reason the Kenagys sued any of the defendants. The court denied the Taylors’ request for contract-based fees as prevailing party against the Kenagys.

¶25 Jack Johnson, Key Development, and the Homeowners Association all appeal the liability determination, the damages, and the attorney fees and costs award. The Taylors also appeal the court’s denial of their attorney fees award against the Kenagys.

I

LIABILITY

¶26 Issue One. Did the trial court err in concluding that the agreements were mutually negotiated?

¶27 Key Development, Jack Johnson, and the Homeowners Association first contend that the trial court erred when it concluded that the easement and right-of-way agreements were mutually negotiated. They urge that Ahlquist’s counsel drafted both agreements and therefore any inconsistencies or ambiguities must be construed against the Kenagys.

¶28 Mr. Milne (Fairway Resources) approached Ahlquist first to secure an easement across Ahlquist’s property. Mr. Johnson drafted and presented Ahlquist with an easement agreement that Mr. Johnson had signed in early May 1994. Ahlquist refused to sign. Ahlquist then directed their attorney to insert language that would protect the view for the upstairs restaurant and downstairs lounge. Their attorney did so.

*247¶29 The city of Chelan required a dedicated right-of-way. Jack Johnson then prepared a draft agreement that contained all of paragraph 11 from the easement agreement, except for the final three words, “or its lounge.” CP at 640 (I FF 1.23); Ex. 40, ¶ 8. Ahlquist faxed the document to his attorney. The attorney caught Jack Johnson’s omission of the downstairs lounge from the agreement. He added protection for the view back into the agreement. CP at 640 (I FF 1.25); RP at 135-36. Ahlquist’s attorney drafted the right-of-way agreement executed on October 23,1995. RP at 49; Ex. 3.

¶30 Appellants Key Development, Jack Johnson, and the Homeowners Association challenge several of the court’s findings of fact to the effect that the agreements were mutually negotiated (I FF 1.24, 1.27, 1.38, and 1.39). First, the findings are easily supported by this record. And other unchallenged findings and evidence show that each party had the opportunity to negotiate the documents and make changes to material terms (particularly that language that assured preservation of the view) before signing the final documents. The court’s conclusion that the agreements were the result of mutual negotiation is supported by the findings. And the necessary findings are supported by the record.

¶31 Issue Two. Did the court err when it concluded that there was a breach of the agreements to protect the view from the lower level lounge of the restaurant building?

¶32 Key Development, Jack Johnson, and the Homeowners Association next assign error to the trial court’s conclusion that Key Development impeded the traditional view from the restaurant. They note that neither Ahlquist nor their attorney specified or quantified the exact view to be protected. And this, they argue, is particularly troublesome because the parties knew that the orchard would be leveled and homes would be built. They challenge the trial court’s conclusion that the agreements contemplated the same view both pre- and postdevelopment as both unreasonable and impractical.

*248¶33 Our object here is to determine the intent of the parties. To do so, we first read those provisions protecting the view together with the contract as a whole and in the light of all the circumstances surrounding the contract. Henry v. Lind, 76 Wn.2d 199, 455 P.2d 927 (1969). We, like the trial court, consider both the subject matter and the objective of the agreement, the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of their respective interpretations. See Berg v. Hudesman, 115 Wn.2d 657, 667-69, 801 P.2d 222 (1990); Stender v. Twin City Foods, Inc., 82 Wn.2d 250, 254, 510 P.2d 221 (1973).

¶34 For Ahlquist, including the lounge view protection was an essential term of any agreement — a “deal breaker.” RP at 135. Mr. Johnson tried to avoid protecting the view from the lounge. But the right-of-way agreement ultimately includes language that does protect the view from the lounge. It also required Key Development to “establish! ] a Homeowners Association which shall be responsible for all obligations owed to the Owners [Ahlquist] as set forth herein.” Ex. 3, at 1-2; CP at 643 (I FF 1.43).

¶35 Mr. Johnson incorporated the Homeowners Association. He then directed Mr. Walcker to draft restrictive covenants. Mr. Walcker prepared the covenants that limited all buildings in the subdivision to a single story, 16-foot height. The covenants were recorded in September 1996. Mr. Gottschalk, however, set higher maximum roof elevations (up to 26 feet “from elevation point” from median curb elevation). This is reflected in exhibit A to the covenants — a document drafted by Mr. Gottschalk. CP at 645 (I FF 1.56); RP at 632. The 16-foot height restriction satisfied the limitations set out in the easement and right-of-way agreements; the heights permitted by exhibit A do not.

¶36 The agreements’ description of exactly what views were to be protected is not a model of clarity. But the conduct of the parties following the agreements is consistent with an intent to limit building heights in the Key Bay development to 16 feet so as not to interfere with any view *249of the lake from the restaurant or the lounge. A 16-foot elevation standard was ascertainable and a reasonable measure to protect the views from both floors of the restaurant and that is what was first specified in the development covenants.

¶37 Appellants Key Development, Jack Johnson, and the Homeowners Association point to testimony by Mr. Ahlquist that he saw no construction in the Key Bay development that he would have considered a breach of the agreements. But Mr. Ahlquist by his own admission was “never down there to notice it” because he met with Mr. Kenagy in an office that had no windows. RP at 167. These appellants also point to Jack Johnson’s testimony that before the 1994 easement agreement, Ahlquist saw proposed building elevations for the Key Bay development in two documents (exhibits 51 and 52) that were essentially the same as exhibit A to the covenants, and Ahlquist voiced no objection. But Mr. Ahlquist explained he was relying on Mr. Johnson’s word that the height restrictions shown would not affect the view from the lounge. Mr. Ahlquist’s intent all along was that the downstairs view be protected and he believed that is what Mr. Johnson and Key Development promised to do. He considered “maintaining the views” to be “gospel.” RP at 171. Exhibits 51 and 52 set out elevations expressed in terms above sea level. They would have permitted buildings in the development that would have interfered with views from the lounge. RP at 171. But no one suggested incorporating those exhibits into the agreements.

¶38 Appellants Key Development, Jack Johnson, and the Homeowners Association also rely on their own actions after the 1996 covenants were recorded to show the agreements lacked ascertainable view protection standards consistent with a 16-foot height. Br. of Appellants (Key Development and Jack Johnson) at 12-13; Br. of Appellant (Homeowners Association and the Taylors) at 15. But, for us, these actions show a breach of the agreements, not confusion over the intent of these parties. Berg, 115 Wn.2d at 667-69; Stender, 82 Wn.2d at 254.

*250¶39 Mr. Walcker prepared the first recorded covenants. He then hired Mr. Gottschalk, the landscape architect, to establish maximum roof elevations for the homes in the development. Mr. Walcker instructed him that the maximum elevations were to protect only the views of Lake Chelan from the upstairs of the restaurant building. This was consistent with Mr. Johnson’s instructions to Mr. Walcker that the view from the upstairs restaurant was all he had to worry about. Mr. Gottschalk then set maximum roof elevations of 26 feet (exhibit A to the covenants).

¶40 Exhibit A was not recorded, however, until September 19, 2000, when Mr. Johnson (still president of the Homeowners Association and head of its architectural control committee) again recorded the covenants. Mr. Johnson insisted that exhibit A was part of the covenants all along and that he never realized until 2000 that it had not been recorded in 1996. He blamed this on title company error. He also said he believed the Homeowners Association had complied with all of the terms of the agreements. But the court did not find him credible, and the record supports the court’s finding.

¶41 The question before us is whether the trial judge’s findings are supported by the evidence; not whether the trial judge could have made other findings suggested by Key Development, Jack Johnson, and the Homeowners Association. In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002). Ultimately, we agree with the trial court’s reading of the agreements. These parties intended to protect the view of the lake from both the restaurant and the lounge. The homes in Key Bay development that exceeded 16 feet interfered with that view. Berg, 115 Wn.2d at 667-69; Stender, 82 Wn.2d at 254.

¶42 Issue Three. Whether substantial evidence supports the court’s findings that the lake view from the lounge protected by the agreements (and 1996 covenants) was obstructed by the Taylors’ house.

¶43 In a related issue, Key Development, Jack Johnson, and the Homeowners Association argue that the court’s *251finding that the view is impeded by the Taylors’ house is not supported by the record. Our reading of this record suggests otherwise. There is ample evidence that there was a view of the lake from the downstairs lounge before the Taylors’ house, despite the orchard. The view changed with the seasons depending on whether the apple trees were leafed out. There was, nonetheless, some view year round. Ms. Hamshaw worked as a bartender for both Cosina del Lago and Deep Water. She confirmed that there was a view to the lake from the downstairs lounge and that the Taylors’ home blocked part of that view. Patricia Taylor admitted that her house interfered with the view to the lake from the lounge. She testified that she had been in the downstairs lounge, that you can see her house from the lounge, that you cannot see through her house to the lake from the lounge, and that you can see the lake from both floors of her house.

¶44 Surveyor Norman Nelson’s opinion on the view corridor also supports the court’s finding that the Taylors’ house impedes the view. He obtained elevations of various structures, including the Taylors’ rooftop and the windowsill on the first floor of the restaurant building. He concluded that the Taylors’ roof impedes the lower floor view corridor and, in fact, even obstructs the view from the second floor.

¶45 In sum, both the photographs admitted at trial and the testimony support the court’s findings that the Taylors’ house interferes with a view of the lake from the downstairs lounge.

¶46 Issue Four. Were the covenants, memorialized in the easement and right-of-way agreements, extinguished by merger into either the recorded deed to the Kenagys or the right-of-way?

¶47 The Homeowners Association next argues that any covenant rights merged with the deed and cannot now be enforced by the Kenagys. Black v. Evergreen Land Developers, Inc., 75 Wn.2d 241, 450 P.2d 470 (1969). The court therefore erred in concluding that the Kenagys acquired any rights to the agreements, and in concluding that there *252was no merger when the right-of-way deed was recorded. The Homeowners Association also notes that the Kenagys introduced no evidence that any “rights” were assigned to them. And the Homeowners Association argues there is no showing that the parties to these agreements intended to either provide for assignments/transfers of the rights or bind successors and assigns. And it then urges that the court also erred in concluding that the Kenagys were third party beneficiaries to the agreements. The Homeowners Association’s position, then, is it can have no liability for tortiously interfering with a contract that the Kenagys could not have enforced in the first place.

¶48 The general rule is that provisions of a real estate purchase and sale agreement merge into the deed. Id. at 248; Barber v. Peringer, 75 Wn. App. 248, 251-52, 877 P.2d 223 (1994). There are, however, exceptions. Collateral contract requirements not contained in or performed by execution and delivery of the deed and not inconsistent with the deed are independent obligations that do not merge. Barber, 75 Wn. App. at 251-52. Whether the terms of a purchase and sale agreement merge depends again on the intent of the parties: “where the intent of the parties is not clearly expressed in the deed, courts may consider parol evidence. In order to determine the intent of the parties, extrinsic evidence is admissible as to the entire circumstances under which a contract is made.” Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 742, 844 P.2d 1006 (1993) (footnote omitted); Failes v. Lichten, 109 Wn. App. 550, 554, 37 P.3d 301 (2001).

¶49 The Homeowners Association assigns error to the court’s I Conclusion of Law 2.12:

[T]he merger doctrine does not preclude this action since the deed from Smith and Ahlquist to Key Development was only for the roadway and not the land that should have been encumbered by covenants running with the land and it does not apply in [the] transaction between Smith and Ahlquist and Kenagy because Key Development and Johnson are not parties to that transaction.

CP at 653.

*253¶50 The Kenagys argue that the Homeowners Association has no standing to assert the merger doctrine because it was not a party to the purchase and sale agreement. They rely on a statement in Brown v. Johnson reiterating the basic principle that merger, in this context, recognizes the right to change the terms of a contract at any time prior to performance. Brown v. Johnson, 109 Wn. App. 56, 59, 34 P.3d 1233 (2001). Brown does not stand for the proposition that parties not privy to a contract but who later become embroiled in a dispute stemming from the contract cannot assert merger. And the Kenagys cite no case law for this proposition. We reject their argument.

¶51 In any event, the Kenagys primarily rely on the oral covenant exception to merger discussed in Black:

We do not find that the oral covenant not to impair the view of the east channel is inconsistent with the deed; nor do we find that there was any intention on the part of either party to surrender this covenant by merger — the evidence is entirely to the contrary. Both the admissions and the actions of the defendants demonstrate that the oral covenant did in fact exist, was an inducement to enter the contract, and was foremost in the minds of all the parties subsequent to the execution of the deed of conveyance.

Black, 75 Wn.2d at 249.

¶52 The deed to the Kenagys says nothing about protecting the views of the lake. But the real estate purchase and sale agreement, quoted in the court’s I FF 1.8, provides that

[a]ll representations, warranties and covenants of Seller contained herein shall survive the Closing and shall inure to the benefit of Buyer and its legal representatives, heirs, successors or assigns.

CP at 638; Ex. 29, at 4. And exhibit A attached to the purchase and sale agreement, also quoted in I FF 1.8, provides that “[a] 11 rights of the sellers or running with the *254land with respect to the Key Bay Development adjacent to the premises shall be included.” Ex. 29, at 9; CP at 638.

¶53 Whether these agreements to preserve the view from the restaurant and lounge merged with the deed or instead survived is a mixed question of fact and law. It depends on the intent of the parties to the agreement. Failes, 109 Wn. App. at 554.

¶54 Ahlquist absolutely believed that the Kenagys would have the same lounge view protections that were set forth in the agreements. Mr. Kenagy knew of the agreements and that the building height restrictions were one of the conditions for purchasing the property. And Mr. Kenagy later attempted to enforce the height restrictions despite Jack Johnson’s assertions they benefited only Cosina del Lago and were null and void after the building was sold to the Kenagys.

¶55 This uncontroverted evidence establishes that the parties intended that the Kenagys’ right to the view would survive any merger of the real estate contract and deed. And this is reflected in the court’s I FF 1.8:

Exhibit A to the Purchase and Sale Agreement contains a provision that: “Other: All rights of the sellers or running with the land with respect to the Key Bay Development adjacent to the premises shall be included.” In addition, Paragraph 12.1(F) of the Purchase and Sale Agreement (Trial Exhibit 10) states: . . . All . . . covenants of Seller contained herein shall survive the Closing and shall inure to the benefit of Buyer and its legal representatives, heirs, successors, or assigns.

CP at 638 (emphasis omitted). This finding supports our legal conclusion that the covenants assuring preservation of a view from the restaurant and lounge survived the deed conveying the property to the Kenagys. Black, 75 Wn.2d at 249.

¶56 The Homeowners Association also asserts that the court should have found there was a merger when the right-of-way deed was recorded on April 22, 1996, because “there was no language relating to or reserving the so-*255called view rights.” Br. of Appellant (Homeowners Association) at 17. But the Homeowners Association does not develop this argument. We then decline to further address this issue.

¶57 Issue Five. Are the Kenagys third party beneficiaries or otherwise entitled to the benefit of the covenants set out in the agreements, as successors to Ahlquist’s interests?

¶58 The Homeowners Association next challenges the trial court’s I Conclusion of Law 2.2 that Kenagys are third party beneficiaries to the agreements. The Homeowners Association argues first that nothing in these agreements expresses any intent that some third party benefit from the covenants guaranteeing a view of the lake. It argues that a third party beneficiary must be expressly identified by the contracting parties and that was not done here. And, second, it argues that the agreements do not show any intent to bind successors or to create covenants that would run with the land. Again, under these theories, the Kenagys could not prevail on the claim for tortious interference with a contract they cannot enforce.

¶59 Here is part of the court’s oral ruling on this:

The Court also concludes the agreements, themselves, the Right-of-Way Agreement and the Easement Agreement, are not covenants running with the land. Rather, Key Development breached its promise to provide those covenants running with the land, which the Kenagys and Deep Water [Brewing] were third-party beneficiaries of that contract.

RP (June 23, 2006) at 8.

Third Party Beneficiary

¶60 The creation of a third party beneficiary agreement requires that the parties intend, at the time they enter into the agreement, that the promisor assume a direct obligation to the beneficiary. Lonsdale v. Chesterfield, 99 Wn.2d 353, 361, 662 P.2d 385 (1983). “ Tf the terms of the contract necessarily require the promisor to confer a benefit upon a third person, then the contract, and hence the *256parties thereto, contemplate a benefit to the third person.’ ” Id. (emphasis omitted) (quoting Vikingstad v. Baggott, 46 Wn.2d 494, 496, 282 P.2d 824 (1955)). The test for intent is an objective one — whether performance under the contract would necessarily and directly benefit that party. Id. “The contracting parties’ intent is determined by construing the terms of the contract as a whole, in light of the circumstances under which it is made.” Postlewait Constr., Inc. v. Great Am. Ins. Cos., 106 Wn.2d 96, 99-100, 720 P.2d 805 (1986).

¶61 There is, of course, no mention of benefiting the Kenagys or any other third party, for that matter, in either the easement or the right-of-way agreement. The Kenagys are not third party beneficiaries to these agreements. Indeed, we find no attempt to assign the benefits of these agreements to the Kenagys. Exhibit 11, which purports to assign the rights under the agreements to Deep Water Brewing, was never offered or admitted into evidence.

¶62 The Kenagys are not third party beneficiaries as defined in Lonsdale to either the easement or the right-of-way agreements. Lonsdale, 99 Wn.2d at 361.

Running Real Covenants

¶63 The question whether these agreements were to run with the land — running real covenants — is more difficult. The trial court’s theory appears to be that the 1996 recorded covenants, those that complied with the agreements, would be “running covenants” had Key Development and Jack Johnson not breached by recording noncomplying covenants (exhibit A) in 2000. This, according to the trial court, conferred the status of third party beneficiaries on the Kenagys, as Ahlquist’s successor. The parties argued in the trial court over whether these agreements created running covenants that were enforceable by the Kenagys. CP at 862-69, 891-93, 957-65. The gist of the Kenagys’ argument was that there is no reason why they should not have the enforcement status of third party beneficiaries since the running covenant intent was present. CP at 965. *257The court’s oral ruling reflects this reasoning. RP (June 23, 2006) at 8. The written conclusions do not, however, address the elements of running covenants.

¶64 We nevertheless can and will decide the case on any legal theory established by the pleadings and supported by the proof, regardless of the theory applied below. Barber, 75 Wn. App. at 254. Whether the evidence and findings here support the elements necessary to establish a running real covenant is a question of law that we will decide de novo. See, e.g., Stokes v. Rummer, 85 Wn. App. 682, 689-90, 936 P.2d 4 (1997).

¶65 The elements of a running real covenant are

(1) the covenants must have been enforceable between the original parties, such enforceability being a question of contract law except insofar as the covenant must satisfy the statute of frauds; (2) the covenant must “touch and concern” both the land to be benefitted and the land to be burdened; (3) the covenanting parties must have intended to bind their successors in interest; (4) there must be vertical privity of estate, i.e., privity between the original parties to the covenant and the present disputants; and (5) there must be horizontal privity of estate, or privity between the original parties.

Leighton v. Leonard, 22 Wn. App. 136, 139, 589 P.2d 279 (1978) (footnote omitted) (citing William B. Stoebuck, Running Covenants: An Analytical Primer, 52 Wash. L. Rev. 861 (1977)).

¶66 Professor Stoebuck explains in Washington Practice: Real Estate: Property Law:

Enforcement between the original parties is a matter of the law of contract.... But the doctrine with which we are concerned here is the doctrine, generally regarded as part of the law of real property, under which the covenant by the original parties may be enforced by or against persons who succeed to interests they held in the burdened or benefited land. The doctrine of “running” is analogous to the contract doctrines of assignment of rights and delegation of duties; it is a doctrine whereby remote parties are bound or benefited by contractual covenants made by the original parties. However, while a party must *258consensually undertake assignment or delegation, the law of running covenants imposes a duty or confers a benefit upon remote parties, not because they consensually agree, but because the covenant bore a certain relationship to parcels of land and because they stepped into a certain relationship with the same parcels. The essence of the law of running covenants has to do with what these relationships must be for the remote parties to be bound or benefited.

17 William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate: Property Law § 3.2, at 126 (2d ed. 2004) (emphasis added).

¶67 Here, the first Leighton element is met. The agreements between Ahlquist, Key Development, and Jack Johnson required protection of a view by covenants restricting heights. It was a condition of the right-of-way being granted. And Key Development acknowledged as much and met that obligation when it first recorded covenants that restricted the height of buildings in its development to 16 feet.

¶68 The trial judge also concluded that the parties knew what land was benefited by and what land was burdened with the restriction despite the absence of a formal legal description. The street address of the restaurant building was included in the easement agreement. That conclusion is not challenged here on appeal.

¶69 The second element required by Leighton requires a showing that the burden touches and concerns the land, or more accurately the benefit and burden must “touch and concern” estates in the land with which they run. 17 Stoebuck & Weaver, supra, § 3.3, at 131. A covenant touches and concerns the land if it is connected with the use and enjoyment of the land. Rodruck v. Sand Point Maint. Comm’n, 48 Wn.2d 565, 574-76, 295 P.2d 714 (1956) (promise to pay assessment for maintenance was a running covenant). The covenant must be so related to the land as to enhance its value and confer a benefit upon it. Id. at 575; see also City of Seattle v. Fender, 42 Wn.2d 213, 218, 254 P.2d 470 (1953). A covenant touches and concerns the land when, *259by restricting the use of one parcel, it enhances the value of another. Mountain Park Homeowners Ass’n v. Tydings, 72 Wn. App. 139, 145, 864 P.2d 392 (1993), aff’d, 125 Wn.2d 337, 883 P.2d 1383 (1994); see also 17 Stoebuck & Weaver, supra, § 3.3, at 136. A promise to do or refrain from doing a physical act upon the land, such as restricting the height, size, or location of structures is an example of a covenant that touches and concerns the land. See 17 Stoebuck & Weaver, supra, § 3.3, at 132 (citing Leighton, 22 Wn. App. 136).

¶70 Here, the 16-foot height restriction in the 1996 covenants would have made Key Development lots, such as the Taylors and others, less desirable. And the height restrictions would have enhanced the value of the restaurant and lounge by protecting the view. The view was critical to the restaurant owners. RP at 58, 134-35, 168-70, 301, 440-41. We conclude, then, that the restriction here touched and concerned land. Rodruck, 48 Wn.2d at 575; Tydings, 72 Wn. App. at 145.

¶71 The third Leighton element is intent to bind successors in interest. And generally that would require some expression of intent to assign or bind successors but

[n]o American decision has been found in which a court has held that the word “assigns” must be used. The most that can be said, from the little American authority on the point, is that, in some general way, there must be an intent that a running covenant bind successors. Intent may be drawn from all the language, including the nature of the covenant. In fact, it seems if a covenant is found to touch and concern, this alone may often be enough to show an intent that it should bind successors. When that is the case, of course, intent is subsumed in touch and concern and loses significance as an independent element.

17 Stoebuck & Weaver, supra, § 3.4, at 137; see also I Wash. State Bar Ass’n, Washington Real Property Deskbook § 14.2(2)(d) at 14-14 (3d ed. 1997).

¶72 The covenant here touched and concerned land, and we conclude it therefore reached beyond those obligations *260that are generally limited to the contracting parties only. To conclude otherwise would mean that the parties to these agreements intended that the view of the lake was to be preserved only so long as Ahlquist owned the building. The import of the agreements is otherwise. Indeed, the right-of-way agreement required Key Development to establish the Homeowners Association to implement the agreements and through that Association to assure compliance with the negotiated height restrictions. This included creating covenants to ensure compliance with those provisions of the agreements that there “shall not be any homes or structures in the development that interfere with the view of the lake from the restaurant or its lounge.” Ex. 2, ¶ 11; Ex. 3, ¶ 11. Key Development through its Homeowners Association recorded complying covenants in 1996 and thereby gave notice to the world of the contents of the covenants. Strong v. Clark, 56 Wn.2d 230, 232, 352 P.2d 183 (1960). The evidence then supports I FF 1.29 that the parties “intended to require that there shall not be any homes or structures in the Key Bay Development that interfere or affect the sight or views of Lake Chelan from any portion of either the upstairs or the downstairs of the Premises.” CP at 641.

¶73 Moreover, the very existence of the Key Bay development is due, in part, to Ahlquist’s grant of a right-of-way subject to view protections that would burden Key Bay lots with the height restrictions. The intent then to confer a benefit to one property and impose a burden on another is clear. We conclude that both parties to the original agreements intended for the covenants to benefit and bind successors in interest.

¶74 Finally, requirements for both vertical and horizontal privity are met here. Vertical privity requires that the original parties’ successors be in privity with them. The Kenagys purchased from Ahlquist. And Key Development was an original party to both the agreements. Horizontal privity requires “the transfer of some interest in land, other than the covenant itself, between covenantor and covenantee in connection with the making of the covenant.” *26117 Stoebuck & Weaver, supra, § 3.6, at 138; see Bremmeyer Excavating, Inc. v. McKenna, 44 Wn. App. 267, 721 P.2d 567 (1986) (disputed contract to provide fill material did not pass in conjunction with estate in land); Feider v. Feider, 40 Wn. App. 589, 593, 699 P.2d 801 (1985) (no horizontal privity because personal right of first refusal did not pass with estate in land). Here, the height restriction was made as a requirement of the agreements and ultimately in the right-of-way deeded to Key Development and for Key Development’s benefit.

¶75 In sum, Key Development recorded a covenant in 1996 to restrict the heights of structures to 16 feet. This was intended as a running covenant — to benefit successor estate-in-land holders like the Kenagys. And it would have done so but for Key Development’s breach of those agreements by later recording noncomplying covenants that allowed lot owners to build multistory buildings. Ahlquist could have enforced the original covenants. We conclude, then, that the Kenagys can also enforce the 1996 height restriction covenant.

¶76 Our analysis here comports with I Conclusions of Law 2.6 and 2.12 that Key Development breached its promise to provide restrictive covenants that would run with the land for the Kenagys’ benefit and that Key Development’s land should have been so encumbered. All of the elements necessary for a running covenant have been satisfied here.

¶77 Issue Six. Did the trial court err in ruling that Jack Johnson is personally liable for tortious interference with the agreements?

¶78 Tortious interference with contractual relations or business expectancy requires a showing of

“1. The existence of a valid contractual relationship or business expectancy;

“2. That defendants had knowledge of that relationship;

“3. An intentional interference inducing or causing a breach or termination of the relationship or expectancy;

*262“4. That defendants interfered for an improper purpose or used improper means; and

“5. Resultant damages.”

Commodore v. Univ. Mech. Contractors, Inc., 120 Wn.2d 120, 137, 839 P.2d 314 (1992) (quoting Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 28, 829 P.2d 765 (1992)). “Once these elements are established, the defendant bears the burden of justifying the interference or showing that the actions were privileged.” Id.; Pleas v. City of Seattle, 112 Wn.2d 794, 800, 804, 774 P.2d 1158 (1989).

¶79 Jack Johnson contends that the trial court could not have concluded that he tortiously interfered with a contract (the easement and right-of-way agreements) by the court’s own findings of fact. The trial court found that Mr. Johnson’s misrepresentations to Ahlquist that resulted in the breach were done to benefit Key Development and not purely for his personal benefit. He was a corporate officer. Mr. Johnson then argues, on authority of Olympic Fish, that his actions were by definition in good faith. Olympic Fish Prods., Inc. v. Lloyd, 93 Wn.2d 596, 599, 611 P.2d 737 (1980) (actions done on behalf of a corporate principal are actions done in good faith).

¶80 Mechanical application of the Olympic Fish case is complicated by the fact that Mr. Johnson was Key Development. There was no difference, no separation of interests. No matter what Mr. Johnson’s motives or conduct, he benefited by the enhanced value of the lots he was trying to sell. And the Kenagys so argue. Br. of Resp’t’s (Robert and Roberta Kenagy) at 41.

¶81 Olympic Fish sets out specific standards for imposing liability on a corporate officer for tortious interference with his corporation’s contractual relations. There, the court begins with the statement that a party to the contract cannot be liable in tort for inducing its own breach — it is a logical inconsistency. Olympic Fish, 93 Wn.2d at 598. But the privilege for an agent acting on behalf of a corporation is not absolute, and corporate officer *263status does not shield the actor as a matter of law from liability for the tort. Id. at 599. To avoid personal liability the corporate officer must have acted in good faith, which “in this context means nothing more than an intent to benefit the corporation” as we have noted. Id. The court explained:

Although corporate officers may benefit from a breach of contract, they need not curtail any advice as long as it is given with the intention to serve the best interests of the corporation. The good faith test merely prevents corporate officers from pursuing purely personal goals with no intent to benefit the corporation. In discussing the term “good faith” in this context, the Oregon Supreme Court observed:

So long as the officer or employee acts within the general range of his authority intending to benefit the corporation, the law identifies his actions with the corporation. In such a situation the officer is not liable for interfering with a contract of the corporation any more than the corporation could be liable in tort for interfering with it. The words “good faith” should not be employed to render a corporate officer or employee liable for engaging in morally questionable activities upon behalf of his principal that nevertheless would not be tortious if he were acting for himself as the party to the contract.

Id. at 600 (quoting Wampler v. Palmerton, 250 Or. 65, 76-77, 439 P.2d 601 (1968)).

¶82 Washington case law applying these principles is sparse. The issue does appear to be treated as a matter of privilege or justification to be raised as an affirmative defense by the defendant. See Pleas, 112 Wn.2d at 804. Washington’s pattern jury instruction and the related commentary are helpful. The pertinent instruction reads:

(Name of defendant) asserts that [he] acted to protect a legal right.

If you find that (name of defendant) has proved that [he] acted in good faith to protect, by proper means, a legal right of (name of defendant) , such as (name of defendant’s) [property] [contractual] [ (describe other) ] interest, then *264(name of defendant’s) conduct in inducing the breach of contract between (name of plaintiff) and (name of breaching party) was proper.

If you find, however, that (name of defendant) acted merely in pursuit of a potential future advantage, not yet realized, then the interference was improper.

6A Washington Practice: Washington Pattern Jury Instructions: Civil 352.04 (5th ed. 2005) (WPI) (emphasis added) (alterations in original). The comment to the instruction suggests that the corporate officer’s intent is important:

With respect to the interests of the defendant, see Restatement (Second) of Torts § 767, comments d and f (1979), and 45 Am. Jur. 2d, “Interference,” § 30 (1969). According to Prosser and Keeton on Torts:

The defendant is . . . permitted to interfere with another’s contractual relations to protect his own present existing economic interests, such as the ownership or condition of property, or a prior contract of his own, or a financial interest in the affairs of the person persuaded. He is not free, under this rule, to induce a contract breach merely to obtain customers or other prospective economic advantage; but he may do so to protect what he perceives to be existing interests ....

W. [Page] Keeton [et al.], Prosser and Keeton on [the Law of] Torts, § 129, at 986 (5th ed. [1984]).

Id. 352.04 cmt. at 436 (emphasis added) (alterations in original). The comment further states:

Washington courts concur that “one who in good faith asserts a legally protected interest of his own that he believes may be impaired by the performance of a contract between others is not guilty of tortious interference.” Roy v. Cunningham, 46 Wn. App. 409, 416, 731 P.2d 526 (1986). See also Olympic Fish Products, Inc. v. Lloyd, 93 Wn.2d 596, 611 P.2d 737 (1980) (corporate officer, acting in good faith, i.e., with intent to benefit the corporation, not liable for inducing corporation to violate contract).

Id. 352.04 cmt. at 437 (emphasis added); see also Lincor Contractors, Ltd. v. Hyskell, 39 Wn. App. 317, 323, 692 P.2d *265903 (1984) (interference justified as a matter of law only when one interfering exercises absolute right equal or superior to right invaded).

¶83 Yes, here the court found that Mr. Johnson acted to benefit Key Development. But it does not follow that he acted in “good faith.” And the court certainly did not find that he acted in good faith. Indeed, the court’s findings suggest that it concluded that Mr. Johnson did not act in good faith, as that term is traditionally understood. Tyler v. Grange Ins. Ass’n, 3 Wn. App. 167, 173, 473 P.2d 193 (1970) (“When courts speak of liability for bad faith or the duty to use good faith, they are usually referring to the same obligation. Generally speaking in the context of these cases, good faith means being faithful to one’s duty or obligation; bad faith means being recreant thereto.”); Ross v. Ticor Title Ins. Co., 135 Wn. App. 182, 190, 143 P.3d 885 (2006) (“Every contract carries with it an implied covenant of good faith and fair dealing that obligates the parties to cooperate with one another so that each may obtain the full benefit of performance.”), aff’d sub nom. Ross v. Kirner, 162 Wn.2d 493, 172 P3d 701 (2007).

¶84 Jack Johnson ignored those provisions of the easement and right-of-way agreements whether individually or while acting in his capacity as the Homeowners Association president and head of its architectural control committee. Recording covenants was a responsibility of the Homeowners Association. As a nonparty to the agreements, it could be an intermeddler subject to liability for tortious interference. See Calbom v. Knudtzon, 65 Wn.2d 157, 162, 396 P.2d 148 (1964) (party generally cannot tortiously interfere with its own contract but intermeddling third party can commit tortious interference). And it was in his capacity as a Homeowners Association agent (and not as a Key Development or personal signatory to the agreements) that Mr. Johnson recorded noncomplying covenants to make the lots he wanted to sell more valuable (and to also improve his own fortunes). That advantage (letting lot owners build multistory homes) was not part of the agreements.

*266¶85 The trial judge did not believe Mr. Johnson’s claim that exhibit A was meant to be included all along and was not recorded in 1996 due only to title company error. Indeed, Mr. Taylor said he likely would not have purchased his lot under the original 16-foot height restriction. Another Key Bay lot owner, Stuart Fox, also would not have purchased his lot if he could not build a two-story home. We agree then with the court’s conclusions that Mr. Johnson acted unreasonably, if not dishonestly, by knowingly and deliberately ignoring the height restriction provisions in the agreements. We conclude further that this is not good faith and moves Mr. Johnson’s conduct outside of the protections provided by the definition of good faith set out in Olympic Fish, 93 Wn.2d at 599.

¶86 Mr. Johnson, while acting in his Homeowners Association capacity, was not protecting the legitimate interest of his corporation, Key Development. The interests asserted instead reflected a direct breach of the agreements that made those corporate interests possible in the first place, i.e., Key Bay Development’s very existence was dependent upon the grant of the right-of-way. The conduct here does not meet the good faith test of Olympic Fish because (under the court’s findings) Mr. Johnson knew he was not protecting an existing corporate interest. This absence of good faith places his conduct within the general principle that a corporate officer who knowingly participates in or directs that the acts be done is not shielded from personal liability for a tort committed within the scope of his official duties to the corporation — here, the Homeowners Association. Johnson v. Harrigan-Peach Land Dev. Co., 79 Wn.2d 745, 752-53, 489 P.2d 923 (1971); see also Schwarzmann v. Ass’n of Apartment Owners of Bridgehaven, 33 Wn. App. 397, 403, 655 P.2d 1177 (1982) (piercing corporate veil only appropriate when officer or director commits or condones a wrongful act in carrying out his duties and a lack of good faith can be shown). We note, again, that Mr. Johnson’s personal liability is limited strictly to tort arising from the agreements and only Key Development is liable for breach of contract.

*267¶87 The court’s findings support its several conclusions of law that Mr. Johnson is not insulated from personal liability for his tort committed while acting as president of the Homeowners Association and head of its architectural control committee. CP at 654-55 (I Conclusion of Law (CL) 2.15-2.22).

¶88 Issue Seven. Did the court err in ruling that the Homeowners Association is jointly and severally liable for Mr. Johnson’s tortious interference with the agreements?

¶89 The Homeowners Association notes that neither the easement agreement nor the right-of-way agreement refer to or impose any responsibility on the Association to do anything. And the Homeowners Association argues that the court improperly imposed an obligation by imputing Mr. Johnson’s knowledge to the Association. It argues that, even assuming interference by Mr. Johnson or his company, Key Development, there is no showing that any of it was performed on behalf of or at the behest of the Association. Accordingly, the Homeowners Association urges us to conclude that the court erred by imposing liability against it.

¶90 The preamble to the right-of-way agreement is that “[t]he Corporation shall require the establishment of a Homeowners Association which shall be responsible for all obligations owed to the Owners [Ahlquist] as set forth herein, except for the continuing obligations (joint and several) of JACK A. JOHNSON.” Ex. 3, at 1-2. And paragraph 11 of the earlier easement agreement remained in effect:

The Corporation warrants and covenants that it shall establish and monitor compliance with all necessary building covenants in its development so as to not affect the sight or views from Cosina del Lago restaurant to the lake. There shall not be any homes or structures in the development that interfere with the view of the lake from the restaurant or its lounge.

Exs. 2, 3.

¶91 Mr. Johnson incorporated the Homeowners Association. In 1996, it, in turn, issued and recorded the covenants *268restricting homes to a single-story, 16-foot height. These actions reflect a reasonable interpretation of the agreements that the Homeowners Association was obligated to prevent homes in the development from interfering with the view of the lake from the lounge. See Santos v. Dean, 96 Wn. App. 849, 854, 982 P.2d 632 (1999) (we impute to a person an intention corresponding to the reasonable meaning of his words and acts). The court concluded that “[h]ad the obligation stated in Paragraph 11 of the First Recorded Covenants been honored, the obligations stated in the Right of Way Agreement and Easement Agreement relative to views would have likewise been met.” CP at 645-46 (I FF 1.62).

¶92 The question is whether Jack Johnson’s tortious actions were properly imputed to the Homeowners Association.

¶93 An agency relationship exists, either expressly or impliedly, when one party acts under the direction and control of another. Hewson Constr., Inc. v. Reintree Corp., 101 Wn.2d 819, 823, 685 P.2d 1062 (1984). The burden of establishing an agency relationship rests with the party asserting its existence. Id. Mr. Johnson was a party to both agreements. He formed the Homeowners Association that the agreements required. He appointed himself the Association president and head of the architectural control committee. He was then an agent of the Association. And he was, of course, well aware of the obligations imposed by the agreements.

¶94 Generally, a principal is chargeable with notice of facts known to its agent. This follows the duty of an agent to communicate his knowledge to the principal. Hendricks v. Lake, 12 Wn. App. 15, 22, 528 P.2d 491 (1974); see Kelsey Lane Homeowners Ass’n v. Kelsey Lane Co., 125 Wn. App. 227, 235, 103 P.3d 1256 (2005). Thus, a principal may be vicariously liable for the unauthorized conduct of an agent who is acting on the principal’s behalf. McGrane v. Cline, 94 Wn. App. 925, 929, 973 P.2d 1092 (1999). But that rule does not apply when the corporate officer’s knowledge or notice is *269acquired outside the scope of his powers or duties, or when he is not acting for or on behalf of the corporation. Hendricks, 12 Wn. App. at 22. The same exception applies when the corporate officer/agent deals with the principal/ corporation in his own interest which is adverse to that of the principal. Id. Similarly, the principal is not liable when the agent steps aside from the principal’s purposes in order to pursue a personal objective of the agent. McGrane, 94 Wn. App. at 929.

¶95 The gist of the Homeowners Association’s contention now on appeal is that if Mr. Johnson did commit a tort, he did so only in the interests of Key Development or himself personally. The Association suggests that the liability-creating conduct of relaxing the 16-foot height restrictions to 26 feet was known to Mr. Johnson (or harbored by him) well before the Association was formed and thus cannot be attributable to the Association.

¶96 Mr. Johnson did testify that exhibit A allowing for multistory homes was part of the covenants in the first instance and should have been recorded in 1996. The court did not believe Mr. Johnson’s claim that the title company was to blame for not recording exhibit A. Either way, he admittedly knew about the relaxed height restrictions before the Homeowners Association was formed. He was president of the Association and acted in that capacity in 2000, when he again recorded covenants that impaired the view from the lower level lounge — a view he had hoped not to have to protect in the first place. We will, then, impute his knowledge of the change in height restrictions to the Association. His failures to apprise the successor Homeowners Association presidents or prospective lot purchasers of the agreements were failures of his obligations as the Association’s president. Indeed one central purpose for creation of the Association, at least for the owners of the restaurant and lounge, was to enforce the restrictions to preserve the view. All of this is reflected in the court’s findings of fact. See CP at 646, 648 (I FF 1.65, 1.66, 1.78); RP at 276-77.

*270¶97 The Homeowners Association further argues that Mr. Johnson acted outside the scope of his capacity as the Association’s president. And the trial court then improperly imputed his knowledge to the Association. The Association then posits that there is no evidence Mr. Johnson was aware of any breach. He testified that he believed he had fully complied with his obligations as president when he turned over those duties. As we have concluded, Mr. Johnson tortiously interfered with the agreements and he did so also in his capacity as the Association’s president.

¶98 The fact that Mr. Johnson did not sign the agreements or that no one signed the agreements on behalf of the Association is not relevant. He committed to limiting height of houses in the development in furtherance of covenants that we have concluded run with the land. He committed to forming a homeowners association to effect those restrictions, again in furtherance of those covenants. And he did so. But then later, after creation of the Homeowners Association, he breached those agreements by changing the covenants. Finally, the court did not find Mr. Johnson credible; he acted disingenuously and knew he was facilitating a breach.

¶99 The Homeowners Association then, through its agent Mr. Johnson, failed in its duty to evaluate building plans for compliance with the covenants. It instead allowed lot owners, including the Taylors, to build in violation of the agreements and thereby impair the view from the lounge. The Homeowners Association is, then, subject to joint and several liability. Riss v. Angel, 131 Wn.2d 612, 628-30, 934 P.2d 669 (1997).

¶100 We affirm the trial court’s imposition of joint and several liability against Key Development, Jack Johnson, and the Homeowners Association.

*271II

DAMAGES

¶101 Issue Eight. Did the court err in allowing the Kenagys’ damages expert, Dennis Johnson, to give opinions on the diminution of the restaurant building’s value, based on the work of another appraiser?

¶102 Appellants Key Development, Jack Johnson, and the Homeowners Association next contend that the court should not have allowed the Kenagys’ expert, Dennis Johnson, to express opinions on the damages occasioned by any loss of view. They argue that he based his opinion, in part, on the valuation of another appraiser, Thomas Walters. They argue that this was inadmissible hearsay, that it was not Dennis Johnson’s expert opinion but that of Mr. Walters, and that the opinion violated various administrative regulations that govern real estate appraisals.

¶103 First, a trial judge’s decision to admit expert testimony is discretionary. We will not, then, disturb those rulings absent some abuse of that discretion. E.g., Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 683, 15 P.3d 115 (2000). Expert testimony is admissible if the witness’s expertise is supported by the evidence, his opinion is based on material reasonably relied on in his professional community, and his testimony is helpful to the trier of fact. Reese v. Stroh, 128 Wn.2d 300, 306, 907 P.2d 282 (1995); ER 702; ER 703.

¶104 Dennis Johnson is a licensed general certified appraiser with 40 years of experience appraising properties in the Chelan area. He was familiar with the restaurant building. He owned a neighboring condominium and watched the restaurant being built in 1984. He was a customer of the downstairs lounge on perhaps 12 occasions and recalled there was always a view of the lake, despite the presence of the orchard.

*272¶105 The first question here is whether Dennis Johnson’s opinion should be characterized as an “appraisal” that, according to appellants Key Development, Jack Johnson, and the Homeowners Association is invalid and inadmissible because it failed to meet the standards of the Uniform Standards of Professional Appraisal Practice and Advisory Opinion (2006) (USPAP). The standards of practice applicable to appraisers such as Mr. Johnson are adopted in WAC 308-125-200(1).

f 106 The USPAP defines “Appraisal” as “the act or process of developing an opinion of value.” USPAP at 1. “Appraisal Consulting” is “the act or process of developing an analysis, recommendation, or opinion to solve a problem, where an opinion of value is a component of the analysis leading to the assignment results.” Id. “An appraisal consulting assignment involves an opinion of value but does not have an appraisal or appraisal review as its primary purpose.” Id. “Appraisal Consulting” (definition) cmt. Standard 4 requires the person performing the assignment to “identify the problem to be solved, determine the scope of work necessary to solve the problem, and correctly complete the research and analyses necessary to produce credible results.” USPAP at 38. In addition, “In some assignments, the opinion of value may originate from a source other than the consulting appraiser.” Id. Standard 4 cmt.; see CP at 570 (II CL 2.15).

¶107 “An opinion of value or an opinion as to the quality of another appraiser’s work cannot be the purpose of an appraisal consulting assignment. Developing an assignment for those purposes is an appraisal or an appraisal review assignment, respectively.” USPAP Standard 4 cmt. at 38. There is nothing in the USPAP that addresses how to evaluate the Kenagys’ claim of damage to a view corridor.

¶108 Dennis Johnson explained that the purpose of his assignment was not to do an appraisal and that he did not do any appraisal. Rather, his assignment was to establish the loss in value attributable to the impeded view corridor due to some other influence — here, the building of houses in *273the Key Bay development. He opined that a diminution of value is not an appraisal. He did an analysis based upon an appraisal. And this, he concluded, complied with the applicable USPAP standard 4.

¶109 Dennis Johnson evaluated the loss by a retrospective (or snapshot in time) value of the Kenagys’ property before and after the view obstruction. He began with surveyor Norman Nelson’s conclusions that the roof lines of two homes in the development (including the Taylors’) impeded the lounge view corridor that was to be protected.

¶110 He then used Thomas Walters’ 1999 independent bank appraisal. Mr. Walters valued the property at $850,000. Dennis Johnson had worked with Mr. Walters for many years and trusted the quality of his work. But he did not accept Mr. Walters’ opinion at face value. He independently confirmed that the appraisal met the USPAP and that the value was justified. He confirmed the square footage and verified that the comparable sales used were consistent with what he had personally seen in the local market. He concluded that Mr. Walters’ 1999 appraisal was well supported, had all the necessary foundations, and was an accurate starting point for valuation. Indeed, Dennis Johnson testified that it would have been difficult to perform a retrospective appraisal as well as Mr. Walters’ appraisal here.

fill Dennis Johnson opined that it is common practice in the industry to rely on past appraisals that are shown by independent research to be reliable and accurate, and that he did not deviate from that practice here. He said that in a retrospective process, quality work previously done should not be disregarded by an appraiser.

¶112 Dennis Johnson added in the Kenagys’ $538,656 in capital investments in the property in 1999, after Mr. Walters’ appraisal. Mr. Johnson considered this amount reasonable because the building’s indoor square footage was increased and it was renovated to “turnkey” condition for the Kenagys’ 2005 purchaser.

*274¶113 Dennis Johnson also adjusted Mr. Walters’ appraisal to reflect market appreciation in the Chelan area during the time period the Kenagys owned the property. He applied a 4 percent rate for slower economy years beginning in 1999, and a 15 percent rate beginning in 2003 because the local real estate values increased dramatically. He concluded that the 15 percent rate could reasonably be applied to the Kenagys’ property because it was a premium property in 2005. Mr. Johnson valued the property at approximately $1.57 million before the view was obstructed.

¶114 Dennis Johnson used the actual sales price of $1,325 million that the Kenagys sold the property for in 2005 as the value following impairment of the view. He considered this to be the most appropriate measure because it was a negotiated, arm’s-length transaction that reflected the property’s fair market value considering the view corridor as it then existed. There were, moreover, no comparable sales at the time. Mr. Johnson then deducted the before value from the after value, to calculate the Kenagys’ damages at $245,000.

¶115 The court found that Dennis Johnson did not conduct an “appraisal” but conducted an analysis of the damages based on impairment of the view corridor pursuant to USPAP standard 4. It allows the opinion of value to originate from a source other than the consulting appraiser. These findings are supported by Dennis Johnson’s testimony, the USPAP, and the history of the restaurant building and the Key Bay development. The trial judge did not then abuse his discretion by first admitting the testimony of Dennis Johnson or by relying on that testimony for his damage award:

Mr. Dennis Johnson was far and away the more credible expert witness and that his methodology is extremely logical and reasonable and it would require the Court to engage in inappropriate speculation to deviate from [his] conclusion regarding diminution in value to the Property.

CP at 571 (II CL 2.20).

*275¶116 Appellants Key Development, Jack Johnson, and the Homeowners Association also challenge specific underpinnings of Dennis Johnson’s opinions, but all go to the weight to be given to expert witnesses’ testimony. This is the province of the trier of fact. Kwik-Lok Corp. v. Pulse, 41 Wn. App. 142, 150, 702 P.2d 1226 (1985); see also Davis v. Dep’t of Labor & Indus., 94 Wn.2d 119, 124, 615 P.2d 1279 (1980).

¶117 The appellants urge in the alternative that the use of Mr. Walters’ report is inadmissible hearsay under ER 703. But that rule permits experts to base their opinions on facts or data that might not otherwise be admissible into evidence “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” ER 703. The rule is not designed to allow a witness to “ ‘summarize and reiterate all manner of inadmissible evidence.’ ” State v. Martinez, 78 Wn. App. 870, 880, 899 P.2d 1302 (1995) (quoting 3 David Louisell & Christopher Nueller, Federal Evidence § 389, at 663 (1979)). But the trial court may allow the admission of hearsay evidence and otherwise inadmissible facts for the limited purpose of showing the basis of the expert’s opinion. State v. Wineberg, 74 Wn.2d 372, 384, 444 P.2d 787 (1968); State v. Ecklund, 30 Wn. App. 313, 633 P.2d 933 (1981); 5B Karl B. Tegland, Washington Practice: Evidence Law and Practice § 703.5, at 232-33 (5th ed. 2007).

¶118 That is what occurred here. First, Dennis Johnson’s testimony was clearly helpful to the trier of fact. ER 702. Indeed, it was the only testimony on the question of damages. Dennis Johnson also testified that, consistent with USPAP standard 4, it is common practice in the industry to rely on reliable and accurate past appraisals, and he followed that practice here. He testified that in a retrospective process, quality work previously done should not be disregarded by an appraiser. He also did not merely adopt Mr. Walters’ report as his own. He followed standard procedures in independently verifying the data before relying on it. The court did not abuse its discretion in admitting the testimony under ER 703.

*276¶119 Issue Nine. Did the court abuse its discretion by denying the defense motion to continue the damages phase of the trial?

¶120 A motion for continuance is addressed to the discretion of the trial court, but the court must nevertheless comply with the applicable rules. N. State Constr. Co. v. Banchero, 63 Wn.2d 245, 247, 386 P.2d 625 (1963); Makoviney v. Svinth, 21 Wn. App. 16, 28-29, 584 P.2d 948 (1978). Motions to continue are governed by CR 40:

A motion to continue a trial on the ground of the absence of evidence shall only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it, and also the name and address of the witness or witnesses. The court may also require the moving party to state upon affidavit the evidence which he expects to obtain.

CR 40(e).

¶121 The Kenagys’ counsel provided Dennis Johnson’s report to defense counsel on May 10, 2007. Defense counsel did not depose Dennis Johnson. And they complained that discovery requests were outstanding. The Kenagys’ counsel asked what information was sought and offered to waive the discovery cutoff date to accommodate. Defense counsel did not respond. The Kenagys’ counsel then obtained a copy of Dennis Johnson’s complete file and mailed copies to defense counsel on June 14, 2007.

¶122 Appellants Key Development, Jack Johnson, and the Homeowners Association moved to continue the trial on July 5; they had not yet identified an expert. The court denied the motion without prejudice but gave them a chance to obtain an expert and file affidavits showing compliance with CR 40(e). Trial remained set for July 31. The appellants retained their expert, Scot Auble, on July 10.

¶123 The appellants then renewed their motion to continue. The court denied that motion on July 25 because the appellants did not contact Mr. Auble until July 10, *277although they received Dennis Johnson’s report in May. And they did not show what efforts, if any, they made to get an expert between the receipt of Dennis Johnson’s report and the time they contacted Mr. Auble. The court concluded this showed a lack of diligence and refused to continue the trial. Those are tenable grounds for the judge to do what he did and therefore he did not abuse his discretion.

Ill

ATTORNEY FEES, COSTS, AND INTEREST

¶124 In Washington, attorney fees may be awarded when authorized by a private agreement, a statute, or a recognized ground in equity. Fisher Props., Inc. v. Arden-Mayfair, Inc., 106 Wn.2d 826, 849-50, 726 P.2d 8 (1986). Whether a specific statute, contract provision, or recognized ground in equity authorizes an award of fees is a question of law we review de novo. Tradewell Group, Inc. v. Mavis, 71 Wn. App. 120, 126, 857 P.2d 1053 (1993). We review the amount of a fee award for abuse of discretion. Boeing Co. v. Heidy, 147 Wn.2d 78, 90-91, 51 P.3d 793 (2002).

¶125 Issue Ten. Did the court err in awarding attorney fees and costs to the Kenagys based on contract (the agreements) and statute (RCW 4.84.330)?

¶126 Here, the agreements contain an attorney fees and costs provision. Exs. 2, 3. In particular, paragraph 19 of the right-of-way agreement provides:

In the event of any controversy, claim, or dispute relating to this Agreement or the prior Agreement, or their breach, the prevailing party shall be entitled to recover reasonable expenses, costs, and attorneys fees.

Ex. 3, at 7.

¶127 RCW 4.84.330 provides, “As used in this section ‘prevailing party means the party in whose favor final judgment is rendered.”

*278¶128 Jack Johnson contends that he was not liable for attorney fees under the agreements because the court dismissed all contract claims against him personally on summary judgment. And the court’s conclusion that he tortiously interfered with the agreements is effectively a conclusion that he was not a party to those agreements because claims of tortious interference with business relationships do not arise out of the underlying contract. Tradewell Group, 71 Wn. App. at 130; W. Stud Welding, Inc. v. Omark Indus., Inc., 43 Wn. App. 293, 299, 716 P.2d 959 (1986). Thus, even if he is liable for tortious interference with the agreements, no contractual attorney fees should have been awarded on that claim.

¶129 First, the court did dismiss a claim for breach of the agreements by Mr. Johnson personally and as the “alter ego” of Key Development. The only surviving cause of action against him and the Homeowners Association was the tortious interference claim when the Kenagys amended their complaint to add it at the close of the liability trial.

¶130 The court concluded, as it did in the liability phase of the trial, that the Kenagys are third party beneficiaries of the agreements. CP at 14 (III CL 2.1). We have concluded that they are not third party beneficiaries, but nonetheless can enforce the agreements (with attorney fees provisions) as running covenants protecting the view from their restaurant. Leighton, 22 Wn. App. at 139.

¶131 The central issue here is whether the agreements effectively protected the views of the lake in perpetuity, whether the view had been impaired and, if so, what damages followed. The court may award attorney fees for claims other than breach of contract when the contract is central to the existence of the claims, i.e., when the dispute actually arose from the agreements. See Hemenway v. Miller, 116 Wn.2d 725, 742-43, 807 P.2d 863 (1991); Seattle-First Nat’l Bank v. Wash. Ins. Guar. Ass’n, 116 Wn.2d 398, 413, 804 P.2d 1263 (1991); Hill v. Cox, 110 Wn. App. 394, 411-12, 41 P.3d 495 (2002) (contractual fees awarded when prevailing party elected to proceed on statutory tort claim

*279rather than contract); Edmonds v. John L. Scott Real Estate, Inc., 87 Wn. App. 834, 855-56, 942 P.2d 1072 (1997) (contract-based fees awarded for negligence claim when duty breached was created by parties’ agreement); W. Stud Welding, 43 Wn. App. at 299 (contract-related tortious interference claim justified awarding of contract-based fees); 25 David K. DeWolf et al., Washington Practice: Contract Law and Practice § 14:18, at 357 (2d ed. 2007) (even in cases where plaintiff’s claims are founded in tort or another legal theory, award of contract attorney fees may be appropriate).

¶132 Here, enforcement of the agreements and the claims that followed their breach is the essence of the Kenagys’ tortious interference with contract claim against Mr. Johnson and the Homeowners Association. Key Development breached the contract and, of course, remains liable for costs and fees. And it makes no argument to the contrary.

¶133 We conclude, then, based on the fee provisions set out in the agreements that the court properly awarded fees jointly and severally against Key Development (for breach) and Jack Johnson and the Homeowners Association (for tortious conduct arising from the agreements). Accordingly, we need not address Jack Johnson’s and the Homeowners Association’s contentions that the court erred in awarding attorney fees based upon the doctrine of equitable indemnity.

¶134 Issue Eleven. Did the court err in denying the Taylors’ and the Homeowners Association’s contract-based attorney fees requests against the Kenagys?

¶135 The Taylors argue that they are entitled to fees against the Kenagys since the court found at the close of the liability trial that the Taylors were bona fide purchasers without notice. They argue, then, that they are a prevailing party and entitled to fees from the Kenagys under the agreements and RCW 4.48.330.

¶136 The trial court refused to award fees because the Kenagys’ action against the Taylors was not contractual *280in nature — it was for building a home that blocked a view. And the fact that the Kenagys recovered damages from others due to the home being there does not provide a basis for the Taylors to recover fees from the Kenagys. We agree.

¶137 Moreover, the Taylors’ arguments in the trial court were a bit different than the arguments that they make here on appeal. In their trial brief, the Taylors and the Homeowners Association said the issue was “[w]hether Key Development misrepresented the sale transaction and/or breached the statutory warranty deed entitling the Taylors and the Key Bay [Homeowners Association] to damages and/or equitable indemnification?” CP at 887. They then specifically argued:

Should the Taylors prevail and Key Development is found to have misrepresented the condition of the property by failing to adequately disclose material facts, then the Taylors are entitled to their reasonable attorney’s fees. The purchase and sale agreement also has a specific provision that entitles the prevailing party to attorney’s fees and costs.

CP at 924. The Taylors next argued that Key Development breached the statutory warranty fulfillment deed. The Taylors and the Homeowners Association also argued they were entitled to equitable indemnification (ABC rule) against Key Development because of (A) Key Development’s wrongful act or omission toward (B) Cosina del Lago’s successor, the plaintiff Kenagys, that exposed or involved the Kenagys in litigation with (C) the Homeowners Association and the Taylors, who were not connected with the initial transaction or event (breach of the agreements). Manning v. Loidhamer, 13 Wn. App. 766, 769, 538 P.2d 136 (1975); CP at 925-27. The Taylors and the Homeowners Association argued that they were therefore entitled to attorney fees from Key Development based upon the agreements, RCW 4.48.330, and under equitable indemnity.

¶138 The court gave the Taylors what they asked for against Key Development and against Jack Johnson as *281well. The court’s unchallenged conclusions of law provide that the Taylors are bona fide purchasers who took with no notice of the Kenagys’ claims regarding the agreements; Key Development misrepresented the lot sale to the Taylors (there was a disagreement concerning the property; so the seller’s report of vacant land was misleading); the Taylors are entitled to their damages and attorney fees as a result of the negligent and/or intentional misrepresentation, as the purchase and sale agreement contains an attorney fees provision; Key Development further breached the warranties under the fulfillment deed to the Taylors, entitling them to their damages and attorney fees; and, the Taylors are entitled to equitable indemnification from Key Development and Jack Johnson as a result of their actions or omissions that involved the Taylors in this litigation.

¶139 The court denied the Taylors’ request for fees against the Kenagys since their claims were against others. But neither the Taylors nor the Homeowners Association submitted a fee request against Key Development or Mr. Johnson. And they make no such request against Key Development or Mr. Johnson here on appeal.

¶140 Issue Twelve. Are the court’s findings sufficient to support its award of attorney fees to the Kenagys?

¶141 Key Development, Jack Johnson, and the Homeowners Association next argue that the trial court failed to make findings of fact and conclusions of law sufficient for us to pass on its award of attorney fees. Mahler v. Szucs, 135 Wn.2d 398, 957 P.2d 632, 966 P.2d 305 (1998); Bentzen v. Demmons, 68 Wn. App. 339, 842 P.2d 1015 (1993). Specifically, they argue that the court failed to specify how it arrived at the figure of $243,000 for fees and $35,000 in costs. There is no analysis on whether the fees requested by the Kenagys were reasonable. There is no finding that the number of hours claimed and the hourly rates charged were reasonable. Nor is there any analysis or finding on whether some of the fees requested represented fees incurred on unsuccessful claims or were for duplicative *282efforts by the three law firms that represented the Kenagys throughout the litigation.

¶142 First, the party that receives the money judgment is the prevailing party when the question is one of money damages. Blair v. Wash. State Univ., 108 Wn.2d 558, 571, 740 P.2d 1379 (1987); Guillen v. Contreras, 147 Wn. App. 326, 333, 195 P.3d 90 (2008). Here, the central question in the case was damages for breach of the agreements. The Kenagys prevailed. The only defendant who prevailed on a major claim was the Taylors. The proportionality approach of Marassi v. Lau, then, does not apply in favor of Key Development, Mr. Johnson, or the Homeowners Association. Marassi v. Lau, 71 Wn. App. 912, 915-16, 859 P.2d 605 (1993), abrogated on other grounds by Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481, 200 P.3d 683 (2009).

¶143 But a court may limit a party’s recovery of attorney fees to those attributable to the claims upon which the party prevailed if the claims are separable. Kastanis v. Educ. Employees Credit Union, 122 Wn.2d 483, 502, 859 P.2d 26, 865 P.2d 507 (1993). The party claiming higher fees must show the claims are inseparable. Id. at 501; see also 14A Karl B. Tegland, Washington Practice: Civil Procedure § 37.16, at 580-81 (2003).

¶144 The court should be guided by the lodestar method in determining an award of attorney fees as costs. Mahler, 135 Wn.2d at 433. The trial court must first determine that counsel expended a reasonable number of hours in securing a successful recovery for the client. This necessarily requires that the court exclude any wasteful or duplicative hours and any hours pertaining to unsuccessful theories or claims and make a record of this:

In the past, we have expressed more than modest concern regarding the need of litigants and courts to rigorously adhere to the lodestar methodology. Courts must take an active role in assessing the reasonableness of fee awards, rather than treating cost decisions as a litigation afterthought. Courts should not simply accept unquestioningly fee affidavits from counsel. Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 744, 733 P.2d 208 (1987).

*283Consistent with such an admonition is the need for an adequate record on fee award decisions. Washington courts have repeatedly held that the absence of an adequate record upon which to review a fee award will result in a remand of the award to the trial court to develop such a record. Not only do we reaffirm the rule regarding an adequate record on review to support a fee award, we hold findings of fact and conclusions of law are required to establish such a record.

This case exemplifies the rationale for such a rule. The record discloses affidavits from four different counsel or firms who represented Mahler. We cannot discern from the record if the trial court thought the services of four different sets of attorneys were reasonable or essential to the successful outcome. We do not know if the trial court considered if there were any duplicative or unnecessary services.

Id. at 434-35 (some citations omitted); see Bentzen, 68 Wn. App. at 349-50 (specific findings of fact under the lodestar method are required to support a conclusion that the fees are reasonable).

¶145 Here, in its written findings and conclusions, the court first listed the 16 different attorney fees and cost declarations that it considered. It then made several findings relating to the legal and equitable bases for attorney fees, findings detailing Mr. Johnson’s tortious conduct giving rise to liability, and findings relating to his threats to bury the Kenagys in legal fees. But none of these findings address those required by Mahler.

¶146 The court then found:

The following facts support the Court’s decision regarding the amount to award for attorney’s fees and costs to Kenagys. Defendants Taylors, Key Development Corporation, Jack Johnson and the Association have incurred approximately $231,000 in attorney’s fees. Kenagys seek $292,000 in fees, thus approximately $62,000 [sic] more in attorneys fees than the defendants have incurred. It is reasonable that the plaintiffs would have incurred more attorney’s fees and costs than the defendants because it is normally a lot harder to create a case than it is to shoot one down. Mr. Kenagy and his attorneys demonstrated unflagging tenacity in their pursuit to obtain *284justice in this hard fought, factually and legally complex case. The hourly rates charged by Mr. Todd were $160 and $175 per hour. Mr. Jackson charged $250 per hour. Mr. Kube charged $205 per hour and Ms. Dengate [the paralegal] charged $75 per hour.

CP at 14 (III FF 1.12). No party on appeal challenges the reasonableness of any hourly rate.

¶147 The court entered conclusions of law addressing the contract, statute, and equitable bases for the fees and cost award. The court then concluded:

The Court looking in hindsight at the case, will not award all of the attorney’s fees and costs incurred by the Plaintiffs. For example, the design costs Plaintiffs incurred as to the cost of cure analysis in the amount of approximately $6,900 is not an awardable cost because the Kenagys had sold the property and the cost to cure analysis was not admitted expert testimony by the Court. Fees expended pursuing the cost to cure after Plaintiffs sold the property have been excluded.

CP at 15 (III CL 2.9). No one assigns error to this conclusion.

¶148 Finally, the court concluded “Kenagys are awarded reasonable attorney’s fees in the amount of $243,000 and reasonable costs at $35,000.” CP at 16 (III CL 2.10).

¶149 The Kenagys are correct that the award of costs should stem from the contract (the agreements) language and not the more limiting statute (RCW 4.48.330). And defense counsel agreed. RP (Jan. 16, 2008) at 91.

¶150 But Key Development, Jack Johnson, and the Homeowners Association are correct that the above findings of fact and conclusions of law are insufficiently specific to meet the standards required by Mahler to apply the lodestar principles (necessary nonduplicative work in support of successful claims and theories). Nor is there any finding detailing the costs and their reasonableness. The only pertinent portion of the court’s oral opinion regarding the reasonableness of fees and costs appears at pages 87 through 92 of the January 16, 2008, Report of Proceedings. *285The excerpt is not sufficient to glean findings necessary to support the award of fees under Mahler, 135 Wn.2d at 434-35.

¶151 We then remand for the entry of appropriate findings of fact and conclusions of law to support the award of fees and costs attributable to the Kenagys’ claims related to securing a successful recovery.

¶152 Issue Thirteen. Did the court err in applying a 12 percent interest rate on the judgment?

¶153 Key Development, Jack Johnson, and the Homeowners Association next argue that the court imposed the wrong interest rate — the 12 percent rate for contracts rather than the rate called for by RCW 4.56.110(3) for torts.

¶154 RCW 4.56.110 provides:

(3) Judgments founded on the tortious conduct of individuals or other entities, whether acting in their personal or representative capacities, shall bear interest from the date of entry at two percentage points above the equivalent coupon issue yield, as published by the board of governors of the federal reserve system, of the average bill rate for twenty-six week treasury bills as determined at the first bill market auction conducted during the calendar month immediately preceding the date of entry. In any case where a court is directed on review to enter judgment on a verdict or in any case where a judgment entered on a verdict is wholly or partly affirmed on review, interest on the judgment or on that portion of the judgment affirmed shall date back to and shall accrue from the date the verdict was rendered.

(4) Except as provided under subsections (1), (2), and (3) of this section, judgments shall bear interest from the date of entry at the maximum rate permitted under RCW 19.52.020 on the date of entry thereof. In any case where a court is directed on review to enter judgment on a verdict or in any case where a judgment entered on a verdict is wholly or partly affirmed on review, interest on the judgment or on that portion of the judgment affirmed shall date back to and shall accrue from the date the verdict was rendered. The method for determining an interest rate prescribed by this subsection is also the method *286for determining the “rate applicable to civil judgments” for purposes of RCW 10.82.090.

¶155 The question here is whether the judgment was “founded on” tort or “founded on” contract. See, e.g., Little v. King, 147 Wn. App. 883, 887-90, 198 P.3d 525 (2008).

¶ 156 The court’s judgment is based on the agreements as reflected in III CL 2.3 (central issue of dispute was extent of view protections of the agreements and extent of damages from those view protections not being honored); III CL 2.4 (contractual basis under agreements and statutory basis to award to the prevailing party, the Kenagys, their costs and attorney fees jointly and severally against Key Development, Mr. Johnson, and the Homeowners Association).

¶157 Enforcement of the agreements was the central issue in this case; there would have been no tort claims otherwise. Thus, for the same reasons that Mr. Johnson is liable for costs and fees under the contract (the agreements), the proper interest rate on the judgment is 12 percent as per RCW 4.56.110(4) (judgments shall bear interest from the date of entry at the maximum rate permitted under RCW 19.52.020).

¶158 The Kenagys also ask for fees on appeal based upon contract. This basis applies only to the parties jointly and severally liable on the contract — Key Development, Jack Johnson, and the Homeowners Association — not the Taylors.

¶159 We award fees on appeal to the Kenagys and remand to the trial court to determine the appropriate amount. RAP 18.1(i).

HOLDING

¶160 In sum, we remand for findings of fact and conclusions of law on the question of attorney fees and costs and an award of fees. We affirm the judgment against Key Development Corporation, Jack Johnson, and Key Bay Homeowners Association. We also affirm the trial court’s *287denial of the Taylors’ request for attorney fees against the Kenagys. We award fees on appeal to the Kenagys and direct the trial court to determine the appropriate amount.

Brown and Korsmo, JJ., concur.

Reconsideration denied November 4, 2009.

Review denied at 168 Wn.2d 1024 (2010).

OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, P.J., W.S., and HOLLY M. KIRBY, J., joined.

This case involves the enforcement of restrictive covenants in equity. After subdividing their property, imposing restrictions on the three lots they sold, and retaining the remaining land, vendors brought suit against remote grantees to enforce the restrictive covenants and to enjoin them from operating a wedding chapel, for commercial use, on the land. The central issue on appeal is whether the restrictions bind the remote grantees when the covenants were listed on an undated and unsigned attachment to a deed that neither identified encumbrances nor incorporated the attached restrictions. Following a trial on the matter, the trial court permanently enjoined the commercial activity because the remote grantees took title with actual notice of the restrictions. Finding ample support for the imposition of an equitable servitude, we concur in the trial court's judgment. Affirmed and remanded.

In 1991, Joe and Jeri Gambrell (Mr. Gambrell, Ms. Gambrell, or the Gambrells) purchased approximately 69 acres1 in Fay-ette County and subdivided the parcel into four (4) lots, selling three (3) of them, and retaining one (1), twenty-one acre lot for themselves. In September of 1992, they sold the subject lot to Mr. Frank Foshee (Mr. Foshee). In the deed to Mr. Foshee, the Gambrells left blank the space reserved for reciting encumbrances on the property. Instead, they attached to the deed an untitled, undated, and unsigned page listing the restrictions and recorded it along with the deed. The deed made no mention of the attachment, nor did the text *433of the attachment refer to the deed. The attachment set forth, in pertinent part, the following:

1. THESE COVENANTS ARE TO RUN WITH THE LAND AND SHALL BE BINDING ON ALL PARTIES AND ALL PERSONS CLAIMING UNDER THEM FOR A PERIOD OF THIRTY YEARS FROM THE DATE THESE COVENANTS ARE RECORDED....

2. ENFORCEMENT — ENFORCEMENT SHALL BE BY A PROCEEDING AT LAW OR IN EQUITY AGAINST ANY PERSON OR PERSONS VIOLATING OR ATTEMPTING TO VIOLATE ANY COVENANT, EITHER TO RESTRAIN VIOLATION OR TO RECOVER DAMAGES.

4. LAND USE AND BUILDING TYPE — NO LOT SHALL BE USED EXCEPT FOR RESIDENTIAL PURPOSES. NO MOBILE, MODULAR, OR PREFAB HOMES SHALL BE PERMITTED....

8. THE OWNER OF EACH LOT(S) SHALL BE RESPONSIBLE AND HELD LIABLE FOR MAINTAINING, WHETHER OR NOT ANY IMPROVEMENTS HAVE BEEN MADE THEREON, THE CONDITION OF HIS/ITS LOT(S), INCLUDING BUT IN NO WAY LIMITED TO, CLEARING OF ANY TRASH OR LITTER, HAVING THE GRASS CUT TO A REASONABLE LENGTH AND KEEPING THE PROPERTY IN A GENERAL STATE OF REPAIR SO AS NOT TO DISTURB OR AESTHETICALLY OFFEND THE CHARACTER OF THE SURROUNDING LOT(S).

9. NO NOXIOUS OR OFFENSIVE TRADE OR ACTIVITY SHALL BE CARRIED ON UPON ANY LOT, NOR ANYTHING BE DONE THEREON WHICH MAY BE OR BECOME AN ANNOYANCE OR NUISANCE TO THE NEIGHBORHOOD.

The Gambrells employed this format for the first two lots they sold but expressly incorporated the attachment in the 1993 deed conveying the third lot. They placed the same restrictions, verbatim, upon all three lots.

Mr. Foshee conveyed his lot to Sonny and Carrie Nivens (Mr. Nivens, Ms. Ni-vens, or the Nivenses) by warranty deed in May of 1996. The deed affirmatively recited that there were no encumbrances.2 When Mr. Foshee first placed the property on the market, he provided Mary Foster (Ms. Foster), his real estate agent, a copy of the restrictions. She, in turn, provided a copy of them to Mary Ann Tapp (Ms. Tapp), the real estate agent for the Ni-venses and discussed them with Ms. Tapp during the negotiation phase. Although the Nivenses disputed the evidence and testimony on this issue at trial, Ms. Tapp testified that she provided them a copy of the covenants prior to the purchase but acknowledged she could not remember discussing the issue with them. As noted below, even though the trial court found that the Nivenses had actual notice of the restrictions, they do not dispute this finding on appeal.

*434The Nivenses had begun to build a large wedding chapel and facility, known as Car-ahills Estate, when the Gambrells filed suit on February 18, 1998, to enforce the purported restrictions and enjoin the Nivens-es from completing the chapel’s construction and using it for commercial purposes.3 The Gambrells sought injunctive relief and $50,000 in damages. The Nivenses filed their answer on April 22, 1998, contending that the lot they purchased was unencumbered, that the “protective covenants” did not run with the land, and that they had no notice of the protective covenants when they took title to the property. In addition, they relied upon their acquisition of a special exception to the residential zoning of the area. On January 13, 2001, the trial court granted summary judgment in favor of the Nivenses, finding that the attachment to Mr. Foshee’s deed was not properly authenticated and had no legal effect upon the state of the title. Then, on June 15, 2001, on plaintiffs motion, the trial court modified that order and granted partial summary judgment to the Nivenses on the issue of constructive notice only, reserving the issue of actual notice for trial.

The matter proceeded to a bench trial on April 4, 2003, after which the trial court concluded that the Gambrells were entitled to enforce the restrictions because the Ni-venses had actual notice of them prior to the transfer of title. The trial court found that the attachment was stamped as part of the warranty deed when recorded and, at least, constituted a cloud on title. Further, it found that the Nivenses received actual notice of the covenants during their negotiations with Mr. Foshee and that Ms. Tapp’s knowledge of the covenants should also be imputed to them. The court de-dined to award damages but reserved the issue of the proper remedy for “such time as the Court’s judgment becomes final.”

Following the trial court’s denial of their motion to alter or amend, the Nivenses filed a notice of appeal, which this Court dismissed for lack of a final judgment, as the trial court had not entered judgment on the remedy. On November 13, 2006, the trial court conducted a hearing in which the Nivenses proffered evidence that they, along with the owners of the other two lots, had executed and recorded a mutual release and waiver regarding the covenants two months prior to the hearing. In that document, the parties waived any breaches of the purported covenants related to the wedding services, and the landowner neighbors expressly consented to the Nivenses’ operation of the wedding chapel.

Nonetheless, the trial court issued a permanent injunction prohibiting the Ni-venses from operating the chapel or any other commercial enterprise on their property. It stayed enforcement, sua sponte, pending this appeal. Final judgment was entered on December 5, 2006, and the Ni-venses filed their notice of appeal on December 14, 2006.

Issues Presented

The Nivenses raise four issues, as restated below, for our review:

(1) Whether Plaintiffs are estopped by their warranty deed, which covenanted that there were no encumbrances, from enforcing restrictive covenants they attempted to place *435on the property against remote grantees;

(2) Whether unsigned “protective covenants” attached to, but not incorporated into a deed, run with the land and are enforceable against remote grantees when every deed in the remote grantees’ chain of title expressly covenanted that the property was unencumbered;

(3) Whether an equitable servitude exists; and

(4) Whether the “protective covenants” have been released.

The Gambrells frame the issue on appeal as follows:

Whether the Protective Covenants, including the provision that “no lot shall be used except for residential purposes,” are enforceable against Defendants/Appellants, Sonny Nivens and Carrie Ni-vens ..., where the Nivenses had actual knowledge of the Protective Covenants well before they purchased the real property [at issue].

Standard of Review

In appeals of cases tried without a jury, our standard of review is de novo upon the record; we accord a presumption of correctness to the trial court’s findings of fact and will disturb those findings only where the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d); Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn.Ct.App.2001). In contrast, we review the trial court’s legal conclusions de novo, with no presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.1997).

Analysis

The resolution of this dispute requires us to address three issues. First, we must consider whether the Gambrells are es-topped from denying the language on the face of the Gambrell-Foshee deed indicating there are no encumbrances on the property. Second, we must determine whether the restrictive covenants are enforceable as an equitable servitude. Finally, we address the Nivenses’ alternative argument that, even if the restrictions were enforceable, they have since been released or otherwise terminated. For the following reasons, we conclude that estop-pel by deed does not apply in this case, that the trial court properly imposed an equitable servitude under these unusual facts, and that the restrictions continue to bind the Nivenses.

Estoppel by Deed

The Nivenses first assert that our holding in Patterson v. Cook, 655 S.W.2d 955 (Tenn.Ct.App.1983), controls this case. In Patterson, this Court held that the equitable doctrine of estoppel by deed prevented the plaintiff/grantor from enforcing restrictive covenants that contravened the deed’s recital that the land was unencumbered. Patterson, 655 S.W.2d at 958. “Estoppel by deed is a bar which precludes one party to a deed and his privies from asserting as against the other party and his privies any right or title in derogation of the deed or from denying the truth of any material facts asserted in it.” Id. (quoting 19 Am.Jur. Estoppel § 6). According to the Nivenses, this authority compels the conclusion that the language in the Gambrells’ deed to Mr. Foshee es-tops them from denying the lot is unencumbered and from enforcing the covenants altogether. We disagree.

First, the facts of Patterson v. Cook differ from the determinative ones here. In Patterson, the original grantor who had subdivided property into many tracts filed suit against one of her grantees, the owner of two adjacent tracts in the subdivision, to *436enjoin the construction of a greenhouse allegedly intended for commercial use. Id. at 957. The defendant/grantee had purchased his lots at different points in time. He took title to the first lot by a deed specifically incorporating restrictions set forth in a defectively recorded instrument. Id. at 957. He purchased the second lot, the location of the prospective greenhouse, thereafter, and took title by a general warranty deed affirmatively reciting that the lot was unencumbered. Id. Although the instrument creating the restrictions also listed the second tract by number, it was not of record and did not impart constructive notice. Id. at 959. This Court stated that “[i]t seems grossly unfair for the grantor ... on the one hand to promise the grantee ... that the property is unencumbered, and then, on the other hand, seek to enforce an encumbrance that the grantor herself placed upon the property.” Id. at 958.

In Patterson, the dispute involved the original parties to a conveyance in which the grantor had abandoned the incorporation language from the first deed in favor of an affirmative recital that the land was unencumbered. There, the defendant purchased adjacent lots from the same person who, in the first deed, incorporated restrictions that were not of record. In the second deed, the (same) grantor affirmatively recited the lot was unencumbered. In contrast, the original parties to this transaction, the Gambrells and Mr. Foshee, do not dispute that Mr. Foshee purchased his lot encumbered by these covenants. Moreover, unlike the plaintiff/grantor in Patterson, the Gambrells did not incorporate restrictions into the first deeds they executed, only to abandon such language in later conveyances.

Second, the most striking contrast arises from the undisputed finding that the Nivenses had actual notice of the restrictions. Generally, factual assertions contained in a deed bind the grantor and the grantee. Duke v. Hopper, 486 S.W.2d 744, 748 (Tenn.Ct.App.1972). To assert estoppel, however, a party damaged by a false factual assertion must establish (1) its lack of knowledge, without fault, of the true facts, (2) its reliance upon the false factual assertion, and (3) its consequent action based upon that untrue statement. Id. Indeed, reasonable reliance lies at the heart of every estoppel claim, and the instant facts fall far short of satisfying this requirement. The trial court expressly found that the Nivenses had actual notice of the restrictions prior to executing the sale contract, but they do not dispute this finding on appeal. They could not have reasonably relied on the face of the Gam-brell-Foshee deed when they had actual notice of the restrictions. Accordingly, our holding in Patterson does not apply in this case, and the trial court’s finding of actual notice precludes the application of estoppel by deed in this dispute.

Enforceability of the Covenants as an Equitable Servitude

The Nivenses additionally argue that the covenants cannot be enforced as an equitable servitude because there was no common plan of development and because the Gambrells did not similarly restrict the lot they retained. They support this assertion in part by claiming that the Gambrells have failed to abide by these covenants, as evidenced by the excessive grass length on their lot and by the strategic discharge of Mr. Gambrell’s shotgun during one of the wedding ceremonies. We conclude, however, that we need not address these questions because the unusual facts of this case independently establish the elements of an equitable servitude.

Substantive Elements of the Equitable Servitude

An owner of land may sell portions of it and make restrictions as to its *437use for the benefit of himself as well as for the benefit of those to whom he sells. Laughlin v. Wagner, 146 Tenn. 647, 244 S.W. 475 (1922); Benton v. Bush, 644 S.W.2d 690, 691 (Tenn.Ct.App.1982). Even though Tennessee law does not favor private restrictions upon the use and enjoyment of land, our courts will enforce the covenants as they would contracts, according to the clearly expressed intention of the parties. Benton, 644 S.W.2d at 691; Carr v. Trivett, 24 Tenn.App. 308, 143 S.W.2d 900, 903 (1940). Covenants that fail the more exacting requirements for real covenants at law may still be enforced in equity as an equitable servitude. An equitable servitude is a “covenant respecting the use of land enforceable against successor owners or possessors in equity regardless of its enforceability at law.” 2 American Law of Property § 9.31 (A.J. Casner ed. 1952). This Court has noted that

[w]here an owner of land enters into a contract that he will use or abstain from using his land in a particular way or manner, equity will enforce the agreement against any purchaser or possessor with notice who attempts to use the land in violation of its terms, irrespective of whether the agreement creates a valid covenant running with the land at law or not.

Tennsco Corp. v. Attea, No. M2001-01378-COA-R3-CV, 2002 WL 1298808, at *2 (Tenn.Ct.App. June 13, 2002) (no perm. app. filed) (quoting 2 American Law of Property § 9.24 (A.J. Casner ed. 1952)). For a covenant to bind remote grantees in equity, (1) it must “touch and concern” the land; (2) the original parties to the covenant must intend that it run with the land and bind remote grantees; and (3) the remote grantee must have had notice of the covenant. Id. at *1-*2 (quoting 5 Richard R. Powell & Patrick J. Rohan, The Law of Real Property § 673 (1991)). To have binding effect, valid restrictions on property need not be in the chain of title if the purchaser had actual notice of them. Land Developers, Inc. v. Maxwell, 537 S.W.2d 904, 913 (Tenn.1976); Ridley v. Raiman, 164 Tenn. 239, 47 S.W.2d 750, 752 (1932); Stracener v. Bailey, 737 S.W.2d 536, 539 (Tenn.Ct.App.1986). Nonetheless, even where the remote grantee takes title with actual notice, the first two requirements — that the covenant “touch and concern” the land and that the original parties intend the covenant to run — must still be established.

The instant facts satisfy each element with ease. First, and most fundamental, is the covenant itself, as the equitable servitude arises out of a promise. The record reveals that a central element of the Gambrell-Foshee conveyance was Mr. Foshee’s covenant to restrict the use of his property. We agree with the Ni-venses’ assertion that the attachment creating the restrictions is not part of the deed itself. Under Tennessee law, undated and unsigned writings located below the signatures and the certificate of acknowledgment in a deed do not constitute part of that deed. Anderson v. Howard, 18 Tenn.App. 169, 74 S.W.2d 387, 390 (1934). To conclude otherwise would “open wide the door to the perpetration of fraud.” Id. But there is no dispute regarding the agreement between the Gambrells and Mr. Foshee at the time of the conveyance. The record makes clear that the language of the deed itself did not express the true intention of the parties. In his deposition,4 Mr. Foshee unequivocally stated that the *438terms of their contract included the restrictions, that he understood the restrictions would run with the land for thirty-years, and that the list was attached to the deed and duly recorded. Despite the omission of encumbrances on the face of the Gambrell-Foshee deed, Mr. Foshee never believed his property to be unencumbered. Certainly, the undated, unsigned, and unacknowledged written covenants fail in form; however, the original covenanting parties confirmed their substance.

Additionally, the language in the attachment clearly expresses an intent that the covenants run with the land and bind remote grantees. The first paragraph of the attached restrictions leaves little doubt in this regard:5

1. THESE COVENANTS ARE TO RUN WITH THE LAND AND SHALL BE BINDING ON ALL PARTIES AND ALL PERSONS CLAIMING UNDER THEM FOR A PERIOD OF THIRTY YEARS FROM THE DATE THESE COVENANTS ARE RECORDED....

Further, the restrictions “touch and concern” the land. Although there is some dispute among authorities as to the test for this requirement, there is little question that building restrictions embodied in a covenant between owners in fee satisfy this test, both as to the benefit and the burden. Tennsco Corp., 2002 WL 1298808, at *2. And, finally, as noted above, the Nivenses do not dispute the trial court’s finding that they had actual notice of the covenants well before accepting the deed from Mr. Foshee.

Indeed, the case at bar is strikingly similar to the landmark English case of Tulk v. Moxhay, in which the court enforced restrictions on equitable principles even though the covenants did not meet the requirements for enforcement at law. There, the owner of property conveyed to his purchaser the area known as Leicester Square and included in the deed the covenant that the grantee, his heirs, and assigns, would keep the area as a garden for the benefit of the residents in the area. The grantor, still owning land adjacent to the square, sued a remote grantee, whose deed did not contain the restriction, but who admitted he took title with notice of it. The court stated:

Here there is no question about the contract: the owner of certain houses in the square sells land adjoining, with a covenant from the purchaser ... And it is now contended, not that the vendee could violate the contract, but that he might sell the piece of land, and that the purchaser from him may violate it without this Court having any power to interfere. If that were so, it would be impossible for an owner of land to sell part of it without incurring the risk of rendering what he retains worthless. It is said that, the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered *439into by his vendor, and with notice of which he purchased....

That the question does not depend upon whether the covenant runs with the land is evident from this, that if there was a mere agreement and no covenant, this Court would enforce it against a party purchasing with notice of it; for if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.

Tulk v. Moxhay, 2 Phillips 774, 41 Eng. Rep. 1148 (1848), quoted in Stracener, 737 S.W.2d at 537-38. Like the plaintiff grantor in Tulk v. Moxhay, the Gambrells are similarly suing upon written covenants of which the defendant took title with actual notice. Additionally, the language of the covenants in this case, like that in Tulk, establishes that the restrictions “touch and concern” the land and that the covenanting parties intended to bind the successors and assigns of the grantee.

Equitable Servitudes and the Plan of Development

Although the Nivenses do not dispute the finding of actual notice, they argue that more than actual notice is required for the court to enforce the restrictions as an equitable servitude, specifically pointing to the need for a common plan of development and the requirement that the grantor’s retained land be similarly restricted. Couching their challenge in terms of standing,6 the Nivenses chiefly rely on three cases to prove that the Gam-brells cannot enforce the restrictions in equity. First, we see no issue of standing here, as the Gambrells were original parties to the transaction creating the covenants and still owned a portion of the land. Second, although our existing case law on the subject emphasizes the need for a common plan of development, the facts before those courts otherwise lacked proof of some substantive element of an equitable servitude. In those cases, the common plan of development provided a basis for the courts to extend the restrictions by implication. The instant facts suffer no such deficiency. We now turn to, and distinguish, the Nivenses’ chief cases: Land Developers, Inc. v. Maxwell, Ridley v. Haiman, and Tennsco Corp. v. Attea.

In certain circumstances, a general development plan allows a court to imply the promise to restrict the use of one’s own property when none is otherwise apparent. In Land Developers, grantees and remote grantees sued to enforce restrictions against the common grantor who had retained a portion of the original land without placing express restrictions upon it. Land Developers, Inc. v. Maxwell, 537 S.W.2d 904 (Tenn.1976). There, the Tennessee Supreme Court held, in pertinent part, that where a grantor had subdivided his land, sold tracts to various grantees according to a general development plan, and placed identical restrictive covenants in the deeds to the grantees, the land remaining in the grantor’s possession was similarly restricted. Id. at 913. When the original purchasers acquired them encumbered lots with the understanding that the use of the other lots would conform to a *440uniform plan, they also acquired a reciprocal negative easement7 in the acreage retained by the grantor. See id. Accordingly, they could enforce, in equity, similar restrictions upon the grantor’s use of that property. See id. In that case, even though it was unclear whether the grantor had ever intended or promised to conform to the same restrictions noted in the grantees’ deeds, equity extended the restriction by implication. Here, the Gambrells, common grantors, are suing upon an express promise made by Mr. Foshee. There is no question that Mr. Foshee promised to use his land in conformance with the restrictions or that the parties intended that his lot be encumbered.

A general development plan can also confer standing to a third party8 to sue for enforcement when the defendant’s deed does not expressly extend the restriction’s benefits to anyone other than the grantor. For example, Ridley v. Hai-nan involved the question of whether one grantee could enforce restrictions against another grantee (e.g., had standing to sue) where the plaintiff grantee was a stranger to the conveyance from the common grant- or to the defendant grantee, and where the deed between the two did not identify the beneficiaries of the restrictions. Ridley v. Hainan, 164 Tenn. 239, 47 S.W.2d 750, 753 (1932). The Tennessee Supreme Court announced that “where the owner of a tract of land subdivides it and sells the different lots to separate grantees, [and restricts] the use of the lot[s] conveyed ... in accordance with a general building, improvement, or development plan, such restrictions may be enforced by any grantee against any other grantee.” Id. Certainly, if the restrictions placed upon one lot were not intended to benefit the lot of another purchaser in the area, that lot owner could not sue to enforce the restriction. Yet, where there is a general plan of development and the several purchasers acquire encumbered lots (from a common grantor) with the expectation that the use of the land will conform to that scheme, they also acquire reciprocal negative easements in all other lots. See id.

[A grantor’s] intention to make restrictive covenants mutually binding upon the [purchasing] parties and their successors and assigns need not be spelled out within the four corners of the deed[;] ... such intention may be gathered from the circumstance of a uniform building, improvement and development plan[.]

Owenby v. Boring, 38 Tenn.App. 540, 276 S.W.2d 757, 761 (1954). Notably, the court in Ridley expressly distinguished the facts before it from others in which the common grantor brought suit against a grantee or remote grantee. Ridley, 47 S.W.2d at 753. We make the same distinction here.

The status of the parties as grantors or grantees and their procedural posture in this dispute distinguish this case from both *441Ridley and Land Developers. For example, in contrast to the facts in Ridley, this dispute involves the common grantors, not a grantee, seeking to enforce restrictions attached to a deed to which they were parties. Inquiry into a common plan of development would be proper in this case if the Nivenses had sued the Gambrells to enforce the same restrictions upon their use of the land or, likewise, if a neighboring landowner (grantee) had sued the Ni-venses to enjoin their operation of the wedding chapel. Obviously, we find this case in a different posture.

Finally, a common plan of development may serve to establish the covenanting parties’ intent to bind remote grantees when the written restrictions do not incorporate the “hems and assigns” language required for real covenants at law. Two cases from this jurisdiction illustrate the need for a development plan when the restrictions themselves fail to evidence the parties’ intent to bind successors. In Tennsco Corp. v. Attea, a landowner subdivided his property into three lots, retained the middle lot, and sold the other two lots with the following deed restriction:

This conveyance is made subject to the restrictions that any buildings constructed on the land shall be single family dwellings of traditional design at least 4,000 square feet in size and on lots of one (1) acre or greater.

Tennsco Corp. v. Attea, No. M2001-01378-COA-RB-CV, 2002 WL 1298808, at *1 (Tenn.Ct.App. June 13, 2002) (no perm, app. filed). After the grantor sold the lot he had originally retained, his successor then brought suit against a remote grantee who had taken title to the adjoining lot by an unrestricted deed. Id. The restriction in the deed delivered to the original purchaser was unenforceable as a real covenant at law because it did not expressly bind the heirs, successors, and assigns of the grantee, as required under Tennessee law. Id. at *2. This Court also declined to approve enforcement of the restriction as an equitable servitude because it did not appear that the grantor had restricted and conveyed the lots according to a general plan of development. Tennsco Corp., 2002 WL 1298808, at *2. This Court concluded that the restriction in the original deed was personal to the parties, muring to the grantor’s benefit. See id. at *3. Indeed, nothing in the record established the covenanting parties’ intent to bind remote grantees. Similar to the holding in Tennsco, our conclusion in Essary v. Cox, 844 S.W.2d 169 (Tenn.Ct.App.1992), was to deny enforcement of the restrictions in equity where the restriction in the deed lacked the “heirs and assigns” language and where there was no common plan of development. Essary, 844 S.W.2d at 172. There we held that “[ajbsent express language indicating that the parties intended for the restriction on the sale of oil and gas products to apply to the parties’ successors and assigns, this Court is unwilling to interfere with Defendants’ free and unrestricted enjoyment of their property.” Id. In contrast, we now consider a dispute in which the written covenants contain this express language.

The covenants in Tennsco and Essary failed to express a substantive element of a real covenant at law: the intent to bind successors, heirs, and assigns. Equity requires proof of the same substantive intent but does not confine the scope of inquiry to the language of the covenant itself. Nonetheless, Tennsco and Essanj together stand for the proposition that our courts will broaden the scope of inquiry only where the vendor imposed the restrictions according to a general plan of development. A development plan logically supports a finding that the parties intended *442the covenant to run with the land and bind the grantees’ successors, assigns, and heirs. The very concept of a development plan and the consequent expectations of the purchasers require the individual burdens and their corresponding benefits to inhere in the land and to benefit and bind whoever occupies that land. This much seems implicit, for a common plan would crumble if the burdens and benefits were merely personal to the contracting parties.

The facts in Essary, in particular, bear an important likeness to — as well as a determinative difference from — the ones at bar. In both cases, the grantor, not the grantee, sought legal and equitable enforcement of the restrictions against a remote grantee. Yet, the covenants in each case were unenforceable at law for quite different reasons. In Essary, the restrictions failed in substance, as noted above. Unlike the written covenants in Essary that omitted the express intent to bind successors, heirs, and assigns, the covenants attached to the Gambrell-Foshee deed made this intent explicit. Instead, the Gambrell-Foshee covenants reveal a defect in form only, as they were omitted from the deed and instead set forth on an undated, unsigned, and unacknowledged document.

Where restrictive covenants are unenforceable at law because of some defect in substance, our courts may enforce the restrictions in equity where the common grantor has restricted and conveyed the property according to a plan of development. See, e.g., Land Developers, 587 S.W.2d 904, 918 (Tenn.1976) (extending by implication covenant’s restriction to land retained by grantor); Ridley, 47 S.W.2d 750, 753 (Tenn.1932) (allowing grantee to enforce restrictions against another grantee by implying from development plan the parties’ intent to benefit all lots within the plan). Where, as here, the covenants fail at law from a defect in form but otherwise satisfy the substantive elements of an equitable servitude, there is no need to inquire into the existence of a common plan of development. We conclude that the Gambrell-Foshee deed and its attached restrictions were deficient in form but substantively supported the imposition of an equitable servitude. Accordingly, the trial court did not err in restricting the use of the Nivenses’ property.

Release of Covenants

Finally, the Nivenses contend that, even if the covenants were binding, they have since been released. They primarily assert that the mutual waiver and release executed by the Nivenses and their neighbors, owners of the other two lots, terminated the operation of the restrictions. The release of restrictive covenants requires the assent of those for whose benefit they were imposed. See Ridley, 47 S.W.2d at 752. Without a release executed by the Gambrells, the undeniable beneficiaries of the subject restrictions, we fail to see how this release could impact the viability of the covenant between the Gam-brells and Mr. Foshee, the Nivenses’ predecessor in interest.

The Nivenses also contend that the restrictions are no longer valid because they have ceased to serve a useful purpose. Specifically, they rely upon the change in zoning to support this point. We disagree. “While rezoning of property covered by a restrictive covenant is some evidence of a change in the character of the use of the property, rezoning alone does not require the courts to conclude that the restrictive covenant no longer serves a useful purpose.” Hewgley v. Vivo, No. 01-A-01-9506-CH-00266, 1997 WL 92077, at *2 (Tenn.Ct.App. Mar. 5, 1997) (quoting, inter alia, Hysinger v. *443Mullinax, 204 Tenn. 181, 319 S.W.2d 79, 82 (1958)). We not only disagree with the Nivenses’ overall assertion, but we also note that rezoning of the area did not occur here. Rather, the Nivenses secured an exception to the zoning ordinance. We therefore reject their contention that the covenants have been released or otherwise terminated.

Conclusion

We hold that where the language in a restrictive covenant expressly states that the parties intend to bind the grantee’s successors and assigns and that the covenant shall run with the land, equity does not require a common plan of development if the grantor is the party seeking enforcement and if the defendant/remote grantee took title with actual notice of the covenants. Moreover, in this case, the defense of estoppel by deed likewise fails; with actual notice, the Nivenses could not have reasonably relied on the absence of listed encumbrances on the face of the Gambrell-Foshee deed. Finally, the mutual release and waiver is ineffective because the Gambrells, the undeniable beneficiaries of the restrictions, did not execute it or in any way agree to its terms. For the foregoing reasons, we affirm the judgment of the trial court and remand the matter for entry of an order dissolving the stay and for further proceedings not inconsistent with this opinion. We tax the costs of this appeal to the Appellants, Sonny Nivens and Carrie Nivens, and their surety, for which execution shall issue if necessary.

SHIRLEY S. ABRAHAMSON, J.

This appeal from a judgment of the circuit court for Waukesha county, Max Raskin, circuit judge, was certified to this court by the court of appeals, sec. (Rule) 809.61, Stats. 1979-80, as presenting an issue of first impression, namely, whether an owner of a solar-heated residence states a claim upon which relief can be granted when he asserts that his neighbor’s proposed construction of a residence (which conforms to existing deed restrictions and local ordinances) interferes with his access to an unobstructed path for sunlight across the neighbor’s property. This case thus involves a conflict between one landowner (Glenn Prah, the plaintiff) interested in unobstructed access to sunlight across adjoining property as a natural source of energy and an adjoining landowner (Richard D. Mar-*225etti, the defendant) interested in the development of his land.

The circuit court concluded that the plaintiff presented no claim upon which relief could be granted and granted summary judgment for the defendant. We reverse the judgment of the circuit court and remand the cause to the circuit court for further proceedings.

I.

According to the complaint, the plaintiff is the owner of a residence which was constructed during the years 1978-1979. The complaint alleges that the residence has a solar system which includes collectors on the roof to supply energy for heat and hot water and that after the plaintiff built his solar-heated house, the defendant purchased the lot adjacent to and immediately to the south of the plaintiff’s lot and commenced planning construction of a home. The complaint further states that when the plaintiff learned of defendant’s plans to build the house he advised the defendant that if the house were built at the proposed location, defendant’s house would substantially and adversely affect the integrity of plaintiff’s solar system and could cause plaintiff other damage. Nevertheless, the defendant began construction. The complaint further alleges that the plaintiff is entitled to “unrestricted use of the sun and its solar power” and demands judgment for injunctive relief and damages.1

*226After filing his complaint, the plaintiff moved for a temporary injunction to restrain and enjoin construction by the defendant. In ruling on that motion the circuit court heard testimony, received affidavits and viewed the site.

The record made on the motion reveals the following additional facts: Plaintiff’s home was the first residence built in the subdivision, and although plaintiff did not build his house in the center of the lot it was built in accordance with applicable restrictions. Plaintiff advised defendant that if the defendant’s home were built at the proposed site it would cause a shadowing effect on the solar collectors which would reduce the efficiency of the system and possibly damage the system. To avoid these adverse effects, plaintiff requested defendant to locate his home an additional several feet away from the plaintiff’s lot line, the exact number being disputed. Plaintiff and defendant failed to reach an agreement on the location of defendant’s home before defendant started construction. The Architectural Control Committee of the subdivision and the Planning Commission of the City of Muskego approved the defendant’s plans for his home, including its location on the lot. After such approval, the defendant apparently changed the grade of the property without prior notice to the Architectural Control Committee.2 The problem with defendant’s proposed *227construction, as far as the plaintiff’s interests are concerned, arises from a combination of the grade and the distance of defendant’s home from the defendant’s lot line.

The circuit court denied plaintiff’s motion for injunc-tive relief, declared it would entertain a motion for summary judgment and thereafter entered judgment in favor of the defendant.

1 — 1 HH

The defendant argues that because the circuit court conducted a hearing and considered all material issues of fact, we should consider this case an appeal from a judgment after trial, not as an appeal from a summary judgment. We do not accept the defendant’s characterization of the circuit court’s proceedings.

The circuit court held a hearing to consider plaintiff’s motion for a temporary injunction. A primary consideration on such motion is whether the moving party has a reasonable probability of ultimate success; the ruling on the motion does not resolve the issue of whether the moving party will in fact ultimately succeed in the lawsuit. Werner v. Grootemaat, 80 Wis. 2d 513, 520, 259 N.W.2d 310 (1977). The circuit court denied the motion for a temporary injunction, concluding that there was no reasonable probability that the plaintiff would ultimately succeed and that the plaintiff had not stated a claim upon which relief could be granted. The circuit court ended its memorandum decision on the motion for a temporary injunction with the following comment:

*228“In as much as the court is of the opinion that the plaintiff has failed to state a claim upon which equitable relief can be granted, and the parties having joined issue, the court will entertain a motion by the defendant for summary judgment.”

This statement clearly indicates the intention and expectation of the circuit court to deal with this case on a motion for summary judgment. We therefore consider this as an appeal from a judgment entered on a motion for summary judgment.

In deciding a motion for summary judgment the initial question is the same as that on a sec. 802.06(2), Stats. 1979-80, motion to dismiss the complaint for failure to state a claim upon which relief can be granted, namely, whether the complaint states a claim upon which relief can be granted. Kanack v. Kremski, 96 Wis. 2d 426, 435, 291 N.W.2d 864 (1980) (Abrahamson, J., concurring) . If the complaint states a claim and the pleadings show the existence of factual issues, the court then examines the affidavits and other proof and determines whether there are disputed material facts that entitle the non-moving party to a trial. On summary judgment the court does not decide those issues of fact; it merely decides whether genuine issues of fact exist. Coleman v. Outboard Marine Corp., 92 Wis. 2d 565, 570-71, 285 N.W.2d 631 (1979).

In this case there is some ambiguity whether the judgment was based on the complaint or on factual matters outside the pleadings which were presented to the circuit court in connection with the motion for a temporary injunction. Consequently, we shall first test the sufficiency of the complaint and then determine whether the matters outside the pleadings present disputed material facts sufficient to justify a trial.

*229III.

In testing the sufficiency of the complaint the facts pleaded by the plaintiff, and all reasonable inferences therefrom, are accepted as true. Hartridge v. State Farm Mutual Auto Ins. Co., 86 Wis. 2d 1, 4-5, 271 N.W.2d 598 (1978). The pleadings are to be liberally construed with a view to substantial justice to the parties, sec. 802.02 (6), Stats. 1979-80, and the complaint should be dismissed as legally insufficient only if “it is quite clear that under no circumstances can the plaintiff recover.” Clausen & Lowe, The New Wisconsin Rules of Civil Procedure, Chapters 801-803, 59 Marq. L. Rev 1, 54 (1976), quoted with approval in Morgan v. Pennsylvania General Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660 (1979).

The plaintiff presents three legal theories to support his claim that the defendant’s continued construction of a home justifies granting him relief: (1) the construction constitutes a common law private nuisance; (2) the construction is prohibited by sec. 844.01, Stats. 1979-80 ;3 *230and (3) the construction interferes with the solar easement plaintiff acquired under the doctrine of prior appropriation.4

As to the claim of private nuisance the circuit court concluded that the law of private nuisance requires the court to make “a comparative evaluation of the conflicting interests and to weigh the gravity of the harm to the plaintiff against the utility of the defendant’s conduct.” The circuit court concluded: “A comparative evaluation of the conflicting interests, keeping in mind the omissions and commissions of both Prah and Maretti, indicates that defendant’s conduct does not cause the gravity of the harm which the plaintiff himself may well have avoided by proper planning.” The circuit court also concluded that sec. 844.01 does not apply to a home constructed in accordance with deed and municipal ordinance requirements. Further, the circuit court rejected the prior appropriation doctrine as “an intrusion of judicial egoism over legislative passivity.”

We consider first whether the complaint states a claim for relief based on common law private nuisance. This state has long recognized that an owner of land does not have an absolute or unlimited right to use the land in a way which injures the rights of others. The rights of neighboring landowners are relative; the uses by one must not unreasonably impair the uses or enjoyment of the other.5 VI-A American Law of Property sec. 28.22, *231pp. 64-65 (1954). When one landowner’s use of his or her property unreasonably interferes with another’s enjoyment of his or her property, that use is said to be a private nuisance. Hoene v. Milwaukee, 17 Wis. 2d 209, 214, 116 N.W.2d 112 (1962); Metzger v. Hochrein, 107 Wis. 267, 269, 83 N.W. 308 (1900). See also Prosser, Law of Torts sec. 89, p. 591 (2d ed. 1971).

The private nuisance doctrine has traditionally been employed in this state to balance the conflicting rights of landowners,6 and this court has recently adopted the analysis of private nuisance set forth in the Restatement (Second) of Torts. CEW Mgmt. Corp. v. First Federal Savings & Loan Association, 88 Wis. 2d 631, 633, 277 N.W.2d 766 (1979). The Restatement defines private nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restate*232ment (Second) of Torts Sec. 821D (1977). The phrase “interest in the private use and enjoyment of land” as used in sec. 821D is broadly defined to include any disturbance of the enjoyment of property. The comment in the Restatement describes the landowner’s interest protected by private nuisance law as follows:

“The phrase ‘interest in the use and enjoyment of land’ is used in this Restatement in a broad sense. It comprehends not only the interests that a person may have in the actual present use of land for residential, agricultural, commercial, industrial and other purposes, but also his interests in having the present use value of the land unimpaired by changes in its physical condition. Thus the destruction of trees on vacant land is as much an invasion of the owner’s interest in its use and enjoyment as is the destruction of crops or flowers that he is growing on the land for his present use. ‘Interest in use and enjoyment’ also comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using land is often as important to a person as freedom from physical interruption with his use or freedom from detrimental change in the physical condition of the land itself.” Restatement (Second) of Torts, Sec. 821D, Comment b, p. 101 (1977).

Although the defendant’s obstruction of the plaintiff’s access to sunlight appears to fall within the Restatement’s broad concept of a private nuisance as a nontres-passory invasion of another’s interest in the private use and enjoyment of land, the defendant asserts that he has a right to develop his property in compliance with statutes, ordinances and private covenants without regard to the effect of such development upon the plaintiff’s access to sunlight. In essence, the defendant is asking this court to hold that the private nuisance doctrine is not applicable in the instant case and that his right to develop his land is a right which is per se superior to his neighbor’s interest in access to sunlight. *233This position is expressed in the maxim “cujus est solum, ejus est usque ad coelum et ad infernos,” that is, the owner of land owns up to the sky and down to the center of the earth. The rights of the surface owner are, however, not unlimited. U.S. v. Causby, 328 U.S. 256, 260-1 (1946). See also 114.03, Stats. 1979-80.

The defendant is not completely correct in asserting that the common law did not protect a landowner’s access to sunlight across adjoining property. At English common law a landowner could acquire a right to receive sunlight across adjoining land by both express agreement and under the judge-made doctrine of “ancient lights.” Under the doctrine of ancient lights if the landowner had received sunlight across adjoining property for a specified period of time,7 the landowner was entitled to continue to receive unobstructed access to sunlight across the adjoining property. Under the doctrine the landowner acquired a negative prescriptive easement and could prevent the adjoining landowner from obstructing access to light.8

Although American courts have not been as receptive to protecting a landowner’s access to sunlight as the English courts, American courts have afforded some protection to a landowner’s interest in access to sunlight. American courts honor express easements to sunlight. American courts initially enforced the English common law doctrine of ancient lights, but later every state which considered the doctrine repudiated it as incon*234sistent with the needs of a developing country. Indeed, for just that reason this court concluded that an easement to light and air over adjacent property could not be created or acquired by prescription and has been unwilling to recognize such an easement by implication. Depner v. United States National Bank, 202 Wis. 405, 408, 232 N.W. 851 (1930) ; Miller v. Hoeschler, 126 Wis. 263, 268-69, 105 N.W. 790 (1905).

Many jurisdictions in this country have protected a landowner from malicious obstruction of access to light (the spite fence cases) under the common law private nuisance doctrine.9 If an activity is motivated by malice it lacks utility and the harm it causes others outweighs any social values. VI-A Law of Property sec. 28.28, p. 79 (1954). This court was reluctant to protect a landowner’s interest in sunlight even against a spite fence, only to be overruled by the legislature. Shortly after this court upheld a landowner’s right to erect a useless and unsightly sixteen-foot spite fence four feet from his neighbor’s windows, Metzger v. Hochrain, 107 N.W. 267, 83 N.W. 308 (1900), the legislature enacted a law specifically defining a spite fence as an actionable private nuisance.10 Thus a landowner’s interest in sunlight has been pro*235tected in this country by common law private nuisance law at least in the narrow context of the modern American rule invalidating spite fences. See, e.g., Sundowner, Inc. v. King, 95 Idaho 367, 509 P.2d 785 (1973) ; Restatement (Second) of Torts, sec. 829 (1977).

This court’s reluctance in the nineteenth and early part of the twentieth century to provide broader protection for a landowner’s access to sunlight was premised on three policy considerations. First, the right of landowners to use their property as they wished, as long as they did not cause physical damage to a neighbor, was jealously guarded. Metzger v. Hochrein, 107 Wis. 267, 272, 83 N.W. 308 (1900).

Second, sunlight was valued only for aesthetic enjoyment or as illumination. Since artificial light could be used for illumination, loss of sunlight was at most a personal annoyance which was given little, if any, weight by society.

Third, society had a significant interest in not restricting or impeding land development. Dillman v. Hoffman, 38 Wis. 559, 574 (1875). This court repeatedly emphasized that in the growth period of the nineteenth and early twentieth centuries change is to be expected and is essential to property and that recognition of a right to sunlight would hinder property development. The court expressed this concept as follows:

“As the city grows, large grounds appurtenant to residences must be cut up to supply more residences. . . . The cistern, the outhouse, the cesspool, and the private drain must disappear in deference to the public waterworks and sewer; the terrace and the garden, to the need for more complete occupancy. . . . Strict limitation [on the recognition of easements of light and air over adjacent premises is] in accord with the popular conception upon which real estate has been and is daily being conveyed in Wisconsin and to be essential to easy and rapid development at least of our municipalities.” Mil*236ler v. Hoeschler, supra, 126 Wis. at 268, 270; quoted with approval in Depner, supra, 202 Wis. at 409.

Considering these three policies, this court concluded that in the absence of an express agreement granting access to sunlight, a landowner’s obstruction of another’s access to sunlight was not actionable. Miller v. Hoeschler, supra, 126 Wis. at 271; Depner v. United States National Bank, supra, 202 Wis. at 410. These three policies are no longer fully accepted or applicable. They reflect factual circumstances and social priorities that are now obsolete.

First, society has increasingly regulated the use of land by the landowner for the general welfare. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ; Just v. Marinette, 56 Wis. 2d 7, 201 N.W.2d 761 (1972).

Second, access to sunlight has taken on a new significance in recent years. In this case the plaintiff seeks to protect access to sunlight, not for aesthetic reasons or as a source of illumination but as a source of energy. Access to sunlight as an energy source is of significance both to the landowner who invests in solar collectors and to a society which has an interest in developing alternative sources of energy.11

*237Third, the policy of favoring unhindered private development in an expanding economy is no longer in harmony with the realities of our society. State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974). The need for easy and rapid development is not as great today as it once was, while our perception of the value of sunlight as a source of energy has increased significantly.

Courts should not implement obsolete policies that have lost their vigor over the course of the years. The law of private nuisance is better suited to resolve landowners’ disputes about property development in the 1980’s than is a rigid rule which does not recognize a landowner’s interest in access to sunlight. As we said in Ballstadt v. Pagel, 202 Wis. 484, 489, 232 N.W. 862 (1930), “What is regarded in law as constituting a nuisance in modern times would no doubt have been tolerated without question in former times.” We read State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974), as an endorsement of the application of common law nuisance to situations involving the conflicting interests of landowners and as rejecting per se exclusions to the nuisance law reasonable use doctrine.

In Deetz the court abandoned the rigid common law common enemy rule with respect to surface water and adopted the private nuisance reasonable use rule, namely that the landowner is subject to liability if his or her interference with the flow of surface waters unreasonably invades a neighbor’s interest in the use and enjoyment of land. Restatement (Second) of Torts, sec. 822, 826, 829 (1977). This court concluded that the common enemy rule which served society “well in the days of burgeoning national expansion of the mid-nineteenth and *238early-twentieth centuries” should be abandoned because it was no longer “in harmony with the realities of our society.” Deetz, supra, 66 Wis. 2d at 14-15. We recognized in Deetz that common law rules adapt to changing social values and conditions.12

Yet the defendant would have us ignore the flexible private nuisance law as a means of resolving the dispute between the landowners in this case and would have us adopt an approach, already abandoned in Deetz, of favoring the unrestricted development of land and of applying a rigid and inflexible rule protecting his right to build on his land and disregarding any interest of the plaintiff in the use and enjoyment of his land. This we refuse to do.13

*239Private nuisance law, the law traditionally used to adjudicate conflicts between private landowners, has the flexibility to protect both a landowner’s right of access to sunlight and another landowner’s right to develop land. Private nuisance law is better suited to regulate access to sunlight in modern society and is more in harmony with legislative policy and the prior decisions of this court than is an inflexible doctrine of non-recognition of any interest in access to sunlight across adjoining land.14

*240We therefore hold that private nuisance law, that is, the reasonable use doctrine as set forth in the Restatement, is applicable to the instant case. Recognition of a nuisance claim for unreasonable obstruction of access to sunlight will not prevent land development or unduly hinder the use of adjoining land. It will promote the reasonable use and enjoyment of land in a manner suitable to the 1980’s. That obstruction of access to light might be found to constitute a nuisance in certain circumstances does not mean that it will be or must be found to constitute a nuisance under all circumstances. The result in each case depends on whether the conduct complained of is unreasonable.

Accordingly we hold that the plaintiff in this case has stated a claim under which relief can be granted. Nonetheless we do not determine whether the plaintiff in this case is entitled to relief. In order to be entitled to relief the plaintiff must prove the elements required to establish actionable nuisance, and the conduct of the defendant herein must be judged by the reasonable use doctrine.

IV.

The defendant asserts that even if we hold that the private nuisance doctrine applies to obstruction of access to sunlight across adjoining land, the circuit court’s granting of summary judgment should be affirmed.

Although the memorandum decision of the circuit court in the instant case is unclear, it appears that the circuit court recognized that the common law private nuisance doctrine was applicable but concluded that defendant’s conduct was not unreasonable.15 The circuit court ap*241parently attempted to balance the utility of the defendant’s conduct with the gravity of the harm. Sec. 826, Restatement (Second) of Torts (1977).16 The defendant urges us to accept the circuit court’s balance as adequate. We decline to do so.

*242The circuit court concluded that because the defendant’s proposed house was in conformity with zoning regulations, building codes and deed restrictions, the defendant’s use of the land was reasonable. This court has concluded that a landowner’s compliance with zoning laws does not automatically bar a nuisance claim. Compliance with the law “is not the controlling factor, though it is, of course, entitled to some weight.” Bie v. Ingersoll, 27 Wis. 2d 490, 495, 135 N.W.2d 250 (1965). The circuit court also concluded that the plaintiff could have avoided any harm by locating his own house in a better place. Again, plaintiff’s ability to avoid the harm is a relevant but not a conclusive factor. See secs. 826, 827, 828, Restatement (Second) of Torts (1977).

Furthermore, our examination of the record leads us to conclude that the record does not furnish an adequate basis for the circuit court to apply the proper legal principles on summary judgment. The application of the reasonable use standard in nuisance cases normally requires a full exposition of all underlying facts and circumstances. Too little is known in this case of such matters as the extent of the harm to the plaintiff, the suitability of solar heat in that neighborhood, the availability of remedies to the plaintiff, and the costs to the defendant of avoiding the harm.17 Summary judgment is not an appropriate procedural vehicle in this case when the circuit court must weigh evidence which has not been presented at trial. 6 (Pt. 2) Moore’s Federal Practice, 56.15 [7], pp. 56-638 (1982) ; 10 Wright and Miller, Federal Practice and Procedure — Civil, secs. 2729, 2731 (1973).

Because the plaintiff has stated a claim of common law private nuisance upon which relief can be granted, the judgment of the circuit court must be reversed. We need not, and do not, reach the question of whether the complaint states a claim under sec. 844.01, Stats. 1979-*24380, or under the doctrine of prior appropriation. Attoe v. Madison Professional Policemen’s Assoc., 79 Wis. 2d 199, 205, 255 N.W.2d 489 (1977).

For the reasons set forth, we reverse the judgment of the circuit court dismissing the complaint and remand the matter to circuit court for further proceedings not inconsistent with this opinion.

By the Court. — The judgment of the circuit court is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Ceci, J., took no part.

WILLIAM G. CALLOW, J.

(dissenting). The majority has adopted the Restatement’s reasonable use doctrine to grant an owner of a solar heated home a cause of action against his neighbor who, in acting entirely within the applicable ordinances and statutes, seeks to design and build his home in such a location that it may, at various times during the day, shade the plaintiff’s solar collector, thereby impeding the efficiency of his heating system1 during several months of the year. Because I believe the facts of this case clearly reveal that a cause of action for private nuisance will not lie, I dissent.

The majority arrives at its conclusion that the common law private nuisance doctrine is applicable by analogizing this situation with the spite fence cases which protect a landowner from malicious obstruction of access to light. Supra, at 233-235. See Piccirilli v. Groccia, 114 R.I. 36, 39, 327 A.2d 834, 837, (1974) (plaintiff must prove allegedly objectionable fence was erected solely for the avowed purpose of damaging the abutting neighbor and not for the advantage of the person who constructed the fence) ; Schorck v. Epperson, 74 Wyo. 286, 287-88, 287 P.2d 467 (1955) (doctrine of private nuisance founded *244on maxim that no one should have a legal right to make a malicious use of his property for no benefit to himself but merely to injure another). Accord Daniel v. Birmingham Dental Mfg. Co., 207 Ala. 659, 661, 93 S. 652 (1922); Green v. Schick, 194 Okla. 491, 492, 153 P.2d 821 (1944). See also Comment, Obstruction of Sunlight as a Private Nuisance, 65 Calif. L. Rev. 94, 99-102 (1977) (“the ironclad rule has been that the obstruction of a neighbor’s light and air is not a nuisance if it serves any useful purpose”). Id. at 101 (emphasis in original). Courts have likewise refused to limit interference with television reception and other broadcast signals. The People ex rel. Hoogasian v. Sears, Roebuck and Co., 52 Ill. 2d 301, 305, 287 N.E.2d 677 (1972), cert. denied, 409 U.S. 1001. Clearly, the spite fence cases, as their name implies, require malice which is not claimed in this case.

The majority then concludes that this court’s past reluctance to extend protection to a landowner’s access to sunlight beyond the spite fence cases is based on obsolete policies which have lost their vigor over the course of the years. Supra, at 237. The three obsolete policies cited by the majority are: (1) Right of landowners to use their property as they desire as long as no physical damage is done to a neighbor; (2) In the past, sunlight was valued only for aesthetic value, not a source of energy; and (3) Society has a significant interest in not impeding land development. Supra, at 235. See Comment, Obstruction of Sunlight as a Private Nuisance, supra at 105-12. The majority has failed to convince me that these policies are obsolete.

It is a fundamental principle of law that a “landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.” United States v. Causby, 328 U.S. 256, 264 (1946) ; In Re Honolulu Rapid Transit Co., 54 Hawaii 402, 408, 507 P.2d 755 (1973) ; Granberry v. Jones, et al., 188 Tenn. 51, 54-55, 216 S.W.2d 721 (1949). As stated in *245the frequently cited and followed case of Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. Dist. Ct. App. 1959), cert. denied, 117 So. 2d 842 (Fla. 1960) :

“There being, then, no legal right to the free flow of light and air from the adjoining land, it is universally heid that where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action, either for damages or for an injunction under the maxim sic utere tuo ut alienum non laedas, even though it causes injury to another by cutting off the light and air and interfering with the view that would otherwise be available over adjoining land in its natural state, regardless of the fact that the structure may have been erected partly for spite.” Id. at 359 (emphasis in original).

See Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d 116, 127, 99 Cal. Rptr. 350, 357 (1971). I firmly believe that a landowner’s right to use his property within the limits of ordinances, statutes, and restrictions of record where such use is necessary to serve his legitimate needs is a fundamental precept of a free society which this court should strive to uphold.

As one commentator has suggested:

“It is fashionable to dismiss such values as deriving from a bygone era in which people valued development as a ‘goal in itself,’ but current market prices for real estate, and more particularly the premiums paid for land whose zoning permits intensive use, suggest that people still place very high values on such rights.”

Williams, Solar Access and Property Rights: A Maverick Analysis, 11 Conn. L. Rev. 430, 443 (1979) (footnote omitted). Cf. Goble, Solar Access and Property Rights: Reply to a “Maverick” Analysis, 12 Conn. L. Rev. 270 (1980).

The majority cites two zoning cases, Village of Euclid v. Ambler Realty Company, 272 U.S. 365 (1926), and Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 *246(1972), to support the conclusion that society has increasingly regulated private land use in the name of public welfare. Supra, at 236. The cases involving the use of police power and eminent domain are clearly distinguishable from the present situation as they relate to interference with a private right solely for the public health, safety, morals, or welfare. In the instant case, we are dealing with an action which seeks to restrict the defendant’s private right to use his property, notwithstanding a complete lack of notice of restriction to the defendant and the defendant’s compliance with applicable ordinances and statutes. The plaintiff who knew of the potential problem before the defendant acquired the land seeks to impose such use restriction to accommodate his personal, private benefit — a benefit which could have been accommodated by the plaintiff locating his home in a different place on his property or by acquiring the land in question when it was for sale prior to its acquisition by the defendant.

1 know of no cases repudiating policies favoring the right of a landowner to use his property as he lawfully desires or which declare such policies are “no longer fully accepted or applicable” in this context. Supra, at 236.2 The right of a property owner to lawful enjoyment of his property should be vigorously protected, particularly in *247those cases where the adjacent property owner could have insulated himself from the alleged problem by acquiring the land as a defense to the potential problem or by provident use of his own property.

The majority concludes that sunlight has not heretofore been accorded the status of a source of energy, and consequently it has taken on a new significance in recent years. Solar energy for home heating is at this time sparingly used and of questionable economic value because solar collectors are not mass produced, and consequently, they are very costly. Their limited efficiency may explain the lack of production.

Regarding the third policy the majority apparently believes is obsolete (that society has a significant interest in not restricting land development), it cites State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974). I concede the law may be tending to recognize the value of aesthetics over increased volume development and that an individual may not use his land in such a way as to harm the ‘public. The instant case, however, deals with a private benefit. I note that this court in Deetz stated: “The reasonable use rule retains ... a policy of favoring land improvement and development.” Id. at 20. See also id. at 15. Accord Moritz v. Buglewicz, 187 Neb. 819, 194 N.W.2d 215 (1972). I find it significant that community planners are dealing with this country’s continued population growth and building revitalization where “[t]he number of households is expected to reach almost 100 million by the end of the decade; that would be 34 percent higher than the number in 1970.” F. Strom, 1981 Zoning and, Planning Law Handbook, sec. 22.02 [8], 396 (1981). It is clear that community planners are acutely aware of the present housing shortages, particularly among those two groups with limited financial resources, the young and the elderly. Id. While the majority’s policy arguments may be directed to a cause of action for *248public nuisance, we are presented with a private nuisance case which I believe is distinguishable in this regard.3

I would submit that any policy decisions in this area are best left for the legislature. “What is ‘desirable’ or ‘advisable’ or ‘ought to be’ is a question of policy, not a question of fact. What is ‘necessary’ or what is ‘in the best interest’ is not a fact and its determination by the judiciary is an exercise of legislative power when each involves political considerations.” In re City of Beloit, 37 Wis. 2d 637, 644, 155 N.W.2d 633 (1968). See generally Holifield v. Setco Industries, Inc., 42 Wis. 2d 750, 758, 168 N.W.2d 177 (1969) ; Comment, Solar Rights: Guaranteeing a Place in the Sun, 57 Or. L. Rev. 94, 126-27 (1977) (litigation is a slow, costly, and uncertain method of reform). I would concur with these observations of the trial judge: “While temptation lingers for the court to declare by judicial fiat what is right and what should be done, under the facts in this case, such action under our form of constitutional government where the three branches each have their defined jurisdiction and power, would be an intrusion of judicial egoism over legislative passivity.”

*249The legislature has recently acted in this area. Chapter 354, Laws of 1981 (effective May 7, 1982), was enacted to provide the underlying legislation enabling local governments to enact ordinances establishing procedures for guaranteeing access to sunlight. This court’s intrusion into an area where legislative action is being taken is unwarranted, and it may undermine a legislative scheme for orderly development not yet fully operational.

Chapter 354, Laws of 1981, sec. 66.032, provides specific conditions for solar access permits. In part that section provides for impermissible interference with solar collectors within specific limitations:

“66.032 Solar access permits. (1) . . .

“(f) ‘Impermissible interference’ means the blockage of solar energy from a collector surface or proposed collector surface for which a permit has been granted under this section during a collector use period if such blockage is by any structure or vegetation on property, an owner of which was notified under sub. (3)(b). ‘Impermissible interference’ does not include:

“1. Blockage by a narrow protrusion, including but not limited to a pole or wire, which does not substantially interfere with absorption of solar energy by a solar collector.

“2. Blockage by any structure constructed, under construction or for which a building permit has been applied for before the date the last notice is mailed or delivered under sub. (S)(b).

“3. Blockage by any vegetation planted before the date the last notice is mailed or delivered under sub. (3) (b) unless a municipality by ordinance under sub. (2) defines impermissible interference to include such vegetation.” (Emphasis added.)

Sec. 66.032(3) (b) provides for notice:

“ (3) Permit applications.

“(b) An agency shall determine if an application is satisfactorily completed and shall notify the applicant of its determination. If an applicant receives notice that *250an application has been satisfactorily completed, the applicant shall deliver by certified mail or by hand a notice to the owner of any property which the applicant proposes to be restricted by the permit under sub. (7). The applicant shall submit to the agency a copy of a signed receipt for every notice delivered under this paragraph. The agency shall supply the notice form. The information on the form may include, without limitation because of enumeration:

“1. The name and address of the applicant, and the address of the land upon which the solar collector is or will be located.

“2. That an application has been filed by the applicant.

“3. That the permit, if granted, may affect the rights of the notified owner to develop his or her property and to plant vegetation.

“4. The telephone number, address and office hours of the agency.

“5. That any person may request a hearing under sub. (4) within 30 days after receipt of the notice, and the address and procedure for filing the request.” (Emphasis added.)

This legislative scheme would deal with the type of problem presented in the present case and precludes the need for judicial activism in this area.

I examine with interest the definition of nuisance as set out in the Restatement (Second) of Torts and adopted in the majority opinion: “A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts sec. 821D (1977) (emphasis added). The majority believes that the defendant’s obstruction of the plaintiff’s access to sunlight falls within the broad definition of “use and enjoyment of land.” Supra, at 230-232. I do not believe the defendant’s “obstruction” of the plaintiff’s access to sunlight falls within the definition of “invasion,” as it applies to the private use and enjoyment of land. Invasion is typically synonymous with *251“entry,” “attack,” “penetration,” “hostile entrance,” “the incoming' or spread of something unusually hurtful.” Webster’s Third International Dictionary, 1188 (1966). Most of the nuisance cases arising under this definition involve noxious odors, smoke, blasting, flooding, or excessive light invading the plaintiff’s right to the use of enjoyment of his property. See Prosser, Law of Torts, sec. 89, 591-92 (4th ed. 1971) .4 See Williams, Solar Access and Property Rights: A Maverick Analysis, 11 Conn. L. Rev. at 441 (there are significant practical differences between dust and noise, on the one hand, and solar access blockage on the other). Clearly, an owner who merely builds his home in compliance with all building code and municipal regulations is not “invading” another’s right to the use and enjoyment of his property. To say so is to acknowledge that all construction may be an “invasion” because all construction has some restrictive impact on adjacent land. A “view,” for example, is modified by any construction simply because it is there.

In order for a nuisance to be actionable in the instant case, the defendant’s conduct must be “intentional and unreasonable.”5 It is impossible for me to accept the majority’s conclusion that Mr. Maretti, in lawfully seeking to construct his home, may be intentionally and unreasonably interfering with the plaintiff’s access to sunlight. In addressing the “unreasonableness” component of the actor’s conduct, it is important to note that *252“ [t] here is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.” Restatement (Second) of Torts sec. 821F (1979). The comments to the Restatement further reveal that “[if] normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncracies of the particular plaintiff may make it unendurable to him.” Id. Comment d.6 See Bie v. Ingersoll, 27 Wis. 2d 490, 493, 135 N.W.2d 250(1965) ; Belmar Drive-In Theatre Co. v. The Illinois State Toll Highway Commission et al., 34 Ill. 2d 544, 547-49, 216 N.E.2d 788 (1966).

I conclude that plaintiff’s solar heating system is an unusually sensitive use. In other words, the defendant’s proposed construction of his home, under ordinary circumstances, would not interfere with the use and enjoyment of the usual person’s property. See W. Prosser, supra, sec. 87 at 578-79. “The plaintiff cannot, by devoting his own,land to an unusually sensitive use, such *253as a drive-in motion picture theater easily affected by light, make a nuisance out of conduct of the adjoining defendant which would otherwise be harmless.” Id. at 579 (footnote omitted).7

Looking solely at the defendant’s conduct, the circuit court concluded that the defendant’s construction of a house did not create a cause of action for nuisance because the defendant’s proposed home was in conformity with zoning regulations, building codes, deed restrictions, as well as the fact that the defendant’s use of the land to build his home was reasonable. The majority, however, cites Bie v. Ingersoll, supra, for the proposition that compliance with the law is not the controlling factor in evaluating a nuisance claim. I note that Bie involved the operation of an asphalt plant from which dust and odors permeated the plaintiff’s adjoining residence. The defendants asserted that, because the property occupied by the asphalt plant was zoned for industrial use, the plant could not constitute a nuisance. This court concluded that the zoning classification was not the controlling factor. “It is rather ‘the peculiar nature and the location of the business, not the fact that it is a business, that constitutes the private nuisance.’ ” 27 Wis. 2d at 495. The Bie case is clearly distinguishable from the case at bar. Here, *254the defendant seeks to build his home in compliance with all existing laws, and it will have no “peculiar nature.” As I read the Bie case, the negative implication from its facts is that a business which does not emit dust or odors (i.e., which has no peculiar nature) and which is in conformity with zoning regulations is not a private nuisance. I would hold under the facts of the instant case that the defendant’s conduct is not unreasonable per se, and consequently, a nuisance cause of action cannot stand.

I further believe that the majority’s conclusion that a cause of action exists in this case thwarts the very foundation of property law. Property law encompasses a system of filing and notice in a place for public records to provide prospective purchasers with any limitations on their use of the property. Such a notice is not alleged by the plaintiff. Only as a result of the majority’s decision did Mr. Maretti discover that a legitimate action exists which would require him to defend the design and location of his home against a nuisance suit, notwithstanding the fact that he located and began to build his house within the applicable building, municipal, and deed restrictions.

Obviously, the legislature was cognizant of the importance of notice. In Chapter 354, Laws of 1981, secs. 66.032(5) and (6) deal with notice to an adjoining landowner :

“(5) Permit grant, (a) The agency shall grant a permit if the agency determines that:

“1. The granting of a permit will not unreasonably interfere with the orderly land use and development plans of the municipality;

“2. No person has demonstrated that she or he has present plans to build a structure that would create an impermissible interference by showing that she or he has applied for a building permit prior to receipt of a notice under sub. (3) (b), has expended at least $500 on planning or designing such a structure or by submitting any other credible evidence that she or he has made substan*255tial progress toward planning or constructing a structure that would create an impermissible interference; and

“3. The benefits to the applicant and the public will exceed any burdens.

“ (b) An agency may grant a permit subject to any condition or exemption the agency deems necessary to minimize the possibility that the future development of nearby property will create an impermissible interference or to minimize any other burden on any person affected by granting the permit. Such conditions or exemptions may include but are not limited to restrictions on the location of the collector and requirements for the compensation of persons affected by the granting of the permit.

“(6) Record op permit. If an agency grants a permit:

“(a) The agency shall specify the property restricted by the permit under sub. (7) and shall prepare notice of the granting of the permit. The notice shall include the identification required under s. 706.05(2) (c) for the owner and the property upon which the solar collector is or will be located and for any owner and property restricted by the permit under sub. (7), and shall indicate that the property may not be developed and vegetation may not be planted on the property so as to create an impermissible interference with the solar collector which is the subject of the permit unless the permit affecting the property is terminated under sub. (9) or unless an agreement affecting the property is filed under sub. (10).

“(b) The applicant shall record with the register of deeds of the county in which the property is located the notice under par. (a) for each property specified under par. (a) and for the property upon which the solar collector is or will be located.”

In recognizing this common law cause of action, this court’s decision is in direct conflict with the 1981 legislative provisions for the granting of solar access permits. In a municipality which enacts the ordinance in conformity with the statute, neighbors know their respective rights. Under the majority decision, in a municipality which does not enact the ordinance, a common law cause of action for nuisance exists without any defined rights.

*256I believe the facts of the instant controversy present the classic case of the owner of a solar collector who fails to take any action to protect his investment. There is nothing in the record to indicate that Mr. Prah disclosed his situation to Mr. Maretti prior to Maretti’s purchase of the lot or attempted to secure protection for his solar collector prior to Maretti’s submission of his building plans to the architectural committee. Such inaction should be considered a significant factor in determining whether a cause of action exists.

The majority’s failure to recognize the need for notice may perpetuate a vicious cycle. Maretti may feel compelled to sell his lot because of Prah’s solar collector’s interference with his plans to build his family home. If so, Maretti will not be obliged to inform prospective purchasers of the problem. Certainly, such information will reduce the value of his land. If the presence of collectors is sufficient notice, it cannot be said that the seller of the lot has a duty to disclose information peculiarly within his knowledge. I do not believe that an adjacent lot owner should be obliged to experience the substantial economic loss resulting from the lot being rendered un-buildable by the contour of the land as it relates to the location and design of the adjoining home using solar collectors.8

I am troubled by the majority’s apparent retrospective application of its decision. I note that the court in Deetz saw the wisdom and fairness in rendering a prospective decision. 66 Wis. 2d at 24. Surely, a decision such as this *257should be accorded prospective status. Creating the cause of action after the fact results in such unfair surprise and hardship to property owners such as Maretti.

Because I do not believe that the facts of the present case give rise to a cause of action for private nuisance, I dissent.