Opinion
No. 51711-2-I.
Filed: February 23, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-2-12207-0. Judgment or order under review. Date filed: 01/14/2003. Judge signing: Hon. Michael J Trickey.
Counsel for Appellant(s), Guy Paul Michelson, Corr Cronin LLP, 1001 4th Ave Ste 3900, Seattle, WA 98154-1051.
Theodore Andrew Myhre, Corr Cronin LLP, 1001 4th Ave Ste 3900, Seattle, WA 98154-1051.
Counsel for Respondent(s), Keith E. Moxon, Buck Gordon LLP, 2025 1st Ave Ste 500, Seattle, WA 98121-3140.
This is an action to quiet title. The disputed area is a narrow, six to twelve inch strip of land located between a split rail fence to the north and a boundary line to the south. George and Christie Papadakis, who own the property south of the boundary line, claim that they own the disputed area by adverse possession. The trial court rejected that claim and the Papadakises appeal, arguing that the trial court improperly found that they used the disputed area with the permission of the disputed area's title owner, Carolyn Wood.
Even assuming the Papadakises' use of the disputed area was hostile, not permissive, the Papadakises do not dispute the trial court's finding that their use was not exclusive. The record contains substantial evidence that Wood used the disputed area by maintaining it concurrently with the Papadakises. The failure to show exclusive use, an essential element of adverse possession, defeats the Papadakises' claim. We therefore affirm and grant Wood's request for costs.
FACTS
A split rail fence has extended from east to west along the southern edge of the Wood property since at least 1971 when Carolyn Wood and her late husband acquired their property. The Papadakis property is located immediately south of the Wood property. Survey markers showing the boundary line between the Papadakis and Wood properties are located six to twelve inches south of the fence. George and Christie Papadakis bought their house in 1986 from Isobel Armstrong. In 1987, they bought an adjacent lot that also borders the Wood property. The Papadakises understood that the fence marked the boundary of their property. Wood regarded the survey line as the boundary.
In January 1993, the fence was damaged in a storm and the Papadakises decided to rebuild it. Although they installed new footings for a new, larger fence, at Wood's request, the Papadakises retained the original split rail fence design. Also at Wood's request, they left a gap in the fence where a large plum tree was growing. While discussing the rebuilding of the fence, Wood showed the Papadakises a copy of an agreement she and Armstrong allegedly signed in 1984 and again in 1987 to confirm their understanding that the fence was located on the Wood property and that the Woods and Armstrong recognized the survey line as the true boundary. The text of the agreement consists of the following:
It is agreed between Thomas and Carolyn Wood and Isobel Armstrong that the boundary line between our respective property is that line determined by a recent survey (1984) and indicated by stakes placed by the survey team. It is also agreed between the Woods and Mrs. Armstrong that the property between the true boundary line and the fence remain in its present condition until such time that the Woods may wish to alter it.
Exhibit 67. The Papadakises did not agree to honor the agreement, instead telling Wood that they had no knowledge of the agreement and that it was not recorded. They proceeded to rebuild the fence in the same place it had been before. Wood believed that they did so as a neighborly gesture because her husband had recently died.
Both the Papadakises and Wood presented evidence at trial that they used and maintained the disputed area. Wood presented evidence that since 1971 she routinely weeded, spread and raked landscaping gravel, planted lilies of the valley, and trimmed bamboo plants back to the survey line. When necessary, she replaced fallen fence rails. In 2001, she moved some irrigation hoses onto the Papadakis side of the survey line. The Papadakises testified that they also did maintenance in the disputed area. Since 1995, both parties have hired the same gardener, who did work on both sides of the fence. Wood testified that neither she nor her gardener mowed the grass on the south side of the fence, whereas the Papadakises testified that their gardener mowed the disputed area weekly. The Papadakises also paid for the fence to be rebuilt and occasionally repaired it.
A dispute arose in 2001, when the Papadakises planned to build a storage shed in their yard with a setback of five feet from the fence. Wood insisted upon a five foot setback from the survey line, not the fence. The Papadakises were in a hurry to build before their son's wedding and agreed to Wood's demand The Papadakises then filed suit to quiet title, claiming adverse possession up to the north edge of the fence. After conducting a bench trial, the trial court rejected the Papadakises' adverse possession claim. They appeal.
DECISION
A party claiming ownership by adverse possession must show possession that is (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile. ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). The party claiming to have adversely possessed the property has the burden of showing that each element has existed for at least ten years. ITT Rayonier, 112 Wn.2d at 757 (citing RCW 4.16.020). There is a presumption that possession is in the holder of legal title. ITT Rayonier, 112 Wn.2d at 757 (citing Peeples v. Port of Bellingham, 93 Wn.2d 766, 773, 613 P.2d 1128 (1980), overruled on other grounds by Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984)). Where the facts are undisputed, whether the facts constitute adverse possession is a question of law. ITT Rayonier, 112 Wn.2d at 758.
Although there are numerous factual issues raised on appeal, there is one element exclusivity not disputed by the parties. Failure to demonstrate exclusive possession defeats their adverse possession claim.
The trial court found that, `[b]oth Papadakises and the Woods have performed certain maintenance landscaping and other activities in the disputed area during the time of the Papadakises' ownership.' The record contains evidence supporting this finding. At trial, Wood testified that during the period the Papadakises claimed adverse possession, she routinely reached through and walked through the gap in the fence to pull weeds north of the survey line and to trim back bamboo plants encroaching over the survey line. She also planted lily of the valley plants and spread gravel directly under and beyond the fence. The trial court also found that `[t]he open design of the split rail fence has allowed defendant Wood to gain access to the disputed area for activities such as weeding, landscaping and placing landscape gravel.' To the extent the Papadakises dispute this finding, the Papadakises argue only that the fence was not designed to allow Wood access. They do not argue that she did not conduct maintenance activities, instead relying upon the argument that Wood's activities were too minimal to show possession and ownership of the disputed area. The Papadakises rely upon their extensive use and maintenance of the disputed area as proof of their adverse possession. But as was noted in ITT Rayonier, 112 Wn.2d at 759, `such an approach logically fails to negate instances of use by others.'
`Exclusive dominion over land is the essence of possession[.]' Wood v. Nelson, 57 Wn.2d 539, 540, 358 P.2d 312 (1961). ITT Rayonier was also resolved on a failure to show exclusive use; the claimant's specific uses of the claimed property did not include taking steps to prevent others from using the property in a similar manner. ITT Rayonier, 112 Wn.2d at 759. Although Nelson states that a fence that purports to mark a boundary and effectively excludes abutting owners can constitute prima facie evidence of exclusive possession, Nelson, 57 Wn. App. at 541, this presumption can be rebutted, as it was here with evidence of permissive use and continued access to an area easily and actually used by the legal title owner. Even with the existence of the fence between the Papadakis and Wood properties, the Papadakises never excluded Wood from using the disputed area. While the Papadakises argue that neighbors should not be forced to resort to `unneighborly' conduct to preserve adverse possession claims, they have nevertheless failed to prove exclusive dominion. Moreover, at the time the Papadakises rebuilt the fence in 1993, Wood showed them a document supporting her contention that the fence did not mark the boundary line and was placed on her property with her permission. They did not attempt to exclude her at that time. Because the Papadakises have not proven the essential elements of adverse possession, it is not necessary to review their remaining claims of error.
The Papadakises also argue that their predecessor in interest adversely possessed the disputed area before 1971 and that the doctrine of tacking applies. But the Papadakises fail to show that Armstrong's possession was exclusive or hostile. Wood's testimony regarding her maintenance activities in the disputed area since 1971 and the express permission she and her husband granted to Armstrong to use the disputed area does not support the Papadakises' argument. The Papadakises cite no evidence of how the disputed area was used before 1971, so the Papadakises have not met their burden of showing adverse possession during that period.
Furthermore, even if the Papadakises had used the disputed area exclusively, the facts here make it reasonable to infer that they did so with Wood's permission. Permissive use can be implied or express. Lingvall v. Bartmess, 97 Wn. App. 245, 251, 982 P.2d 690 (1999). Wood clearly asserted a claim of ownership to the disputed area during her 1993 discussion with the Papadakises. Survey markers were in place at the time. Wood testified that she did not object to the Papadakises' use of the disputed area because she already expressly granted Armstrong permission to use it and believed that her permissive use carried over to the Papadakises' ownership. Under these circumstances, the facts support a finding that the Papadakises had Wood's implied permission to use the disputed area. The trial court correctly concluded that the Papadakises' use was not hostile.
Wood requests an award of costs, defined in RAP 14.3 as statutory attorney fees and reasonable expenses on review. Under RAP 14.2, a commissioner or clerk will award costs to the party that substantially prevails on review. Wood is a substantially prevailing party, and we grant her request.
We affirm.
BECKER, and COX, J., concur.