Opinion
No. 39567-3-II.
Filed: January 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Cowlitz County, No. 06-2-01922-0, Stephen M. Warning, J., entered June 26, 2009.
Reversed and remanded by unpublished opinion per Dwyer, C.J., concurred in by Worswick, A.C.J., and Armstrong, J.
In this action to quiet title, John and Julie Kuhlman (the Kuhlmans) appeal from the trial court's grant of summary judgment in favor of Stephen Chandler and Kim O'Neill (collectively the Chandlers). The Chandlers assert that title to the disputed land is vested in them by virtue of application of the common grantor doctrine and the doctrine of mutual recognition and acquiescence. Because genuine issues of material fact exist, precluding summary judgment, we reverse and remand.
I.
"'This case involves one of the too frequent disputes between adjoining owners of real estate. Whether the time, cost and effort is justified is only for the litigants to determine, but both will never be satisfied until it is finally determined and then one side only.'" Martin v. Hobbs, 44 Wn.2d 787, 787, 270 P.2d 1067 (1954).
Harry and Audrey Axtell (the Axtells) owned a contiguous tract of land along the Kalama River. In 1974, they conveyed the tract's southern portion to Frank and Suzanne Bishop (the Bishops), keeping the tract's northern portion for themselves.
Russell Bass surveyed the Axtells' southern boundary, which they shared with the Bishops and which is now disputed in this lawsuit. Bass marked the shared boundary at three points: on the east by a roadway with an iron pipe, roughly in the middle with a blazed tree, and on the west by the river with an iron pipe. At some point, but at least by 1980, Bass drew a short plat depicting the Axtells' northern tract and its boundaries, including the southern boundary. The short plat depicts two iron pipes marking the east and west of Axtells' southern boundary but does not depict a blazed tree.
In 1980, the Axtells sold their remaining northern tract to Dan and Pat Carlson (the Carlsons). At the time of the sale, the Carlsons did not see the iron pipe by the river and assumed that the river had eroded the bank and taken the pipe. Regardless, the iron pipe by the river was back in place at some point in 1980.
From time to time, the river would wash away the iron pipe by the river. When this was noted, the Carlsons and the Bishops would replace the pipe, using upland portions of the southern boundary to put the pipe approximately in its previous location. In 1996, after a particularly bad flood, the river washed the iron pipe away, and, to create a more flood-resistant marker, the Carlsons and the Bishops replaced the pipe with a rock embedded in concrete. The Carlsons also used the rock as an end-form for a curved concrete mow strip.
The Carlsons and the Bishops treated their yards as a "park" and did not have any disputes over their shared boundary. Clerk's Papers at 125. At some point, the Carlsons built a fence running along the river; it stops at the concrete embedded rock by the river. The Carlsons also built a railroad tie retaining wall that extends south past the blazed tree toward the Bishops' property. The concrete mow strip also extends south of the disputed boundary toward the Bishops' property. Finally, the Bishops planted a flower bed that extends north into the Carlsons' property.
In 2001, the Carlsons sold their property to the Kuhlmans. The Kuhlmans maintain that the Carlsons gestured toward the general vicinity of the boundary markers but did not show them specific monuments. The Carlsons claim that they showed the Kuhlmans where the boundary was before selling the property to them.
The Kuhlmans assert that they have never seen the blaze on the tree alleged to have contained such a marking. They maintain that the blazed tree was covered in ivy when they bought the property and that they have not since been able to find any blaze or mark on that tree. The Chandlers do not dispute that the tree was covered in ivy at the time the Kuhlmans bought the property, but they assert that the tree was once blazed and stood as a boundary monument.
Between December 2004 and February 2005, the Kuhlmans built a split-rail decorative fence. They ran the fence east from near the river bank toward the blazed tree but left an opening between the fence and the tree to allow easy access for mowing.
In 2005, the Chandlers bought the Bishops' property. Frank Bishop told Stephen Chandler that the Kuhlmans' fence was the boundary, explaining that the boundary ran along the fence down to the rock embedded in concrete, which he also showed to Stephen.
After purchasing their property, the Chandlers had a dispute with the Kuhlmans and ordered a survey. The survey revealed that the property line, as described in the deed, is actually south of the Kuhlmans' decorative fence and south of the line formed by the blazed tree and concrete embedded rock.
The Chandlers sued to quiet title to the disputed parcel, asserting boundary by common grantor and by mutual recognition and acquiescence. The Kuhlmans counterclaimed, seeking a declaration that title was vested in them. The Chandlers moved for summary judgment. The Kuhlmans moved for partial summary judgment. The trial court found that no genuine issues of material fact existed and granted summary judgment in favor of the Chandlers, dismissing the Kuhlmans' cross-claim. The trial court quieted title in favor of the Chandlers.
The Kuhlmans appeal.
II.
We review an order granting summary judgment de novo and engage in the same inquiry as the trial court. Weden v. San Juan County, 135 Wn.2d 678, 689, 958 P.2d 273 (1998). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). We view the facts and any reasonable inferences from those facts in the light most favorable to the nonmoving party. Federal Way Sch. Dist. No. 210 v. State, 167 Wn.2d 514, 523, 219 P.3d 941 (2009).
III.
The Kuhlmans first contend that the trial court erred by granting summary judgment on the basis of the common grantor doctrine. We agree.
It is well established that the location of a boundary line by a common grantor is presumed to be the line mentioned in the deed and binds the grantees and their successors in interest who take with reference to that line:
"A practical location made by the common grantor of the division line between the tracts granted is binding on the grantees who take with reference to that boundary. The line established in that manner is presumably the line mentioned in the deed, and no lapse of time is necessary to establish such location, which does not rest on acquiescence in an erroneous boundary, but on the fact that the true location was made, and the conveyance in reference to it. However, for a boundary line established by a common grantor to become binding and conclusive on grantees it must plainly appear that the land was sold and purchased with reference to such line, and that there was a meeting of minds as to the identical tract of land to be transferred by the sale."
Strom v. Arcorace, 27 Wn.2d 478, 481, 178 P.2d 959 (1947) (quoting 11 C.J.S. Boundaries § 77 at 651 (1938)).
The common grantor doctrine is premised on a special relationship between the original grantee and the common grantor, wherein the common grantor had unilateral authority to determine the location of the boundary. Levien v. Fiala, 79 Wn. App. 294, 302, 902 P.2d 170 (1995); see Strom, 27 Wn.2d at 481; Thompson v. Bain, 28 Wn.2d 590, 592-93, 183 P.2d 785 (1947). This special relationship is not found in other boundary adjustment doctrines and justifies the presumption that the grantor's line is the boundary line mentioned in the deed, immediately binding as to the grantee. See Clausing v. Kassner, 60 Wn.2d 12, 15, 371 P.2d 633 (1962); Martin, 44 Wn.2d at 790; Strom, 27 Wn.2d at 481; Levien, 79 Wn. App. at 302. Subsequent purchasers are bound to the grantor's line if they purchase the property with actual or inquiry notice that it is the boundary. Atwell v. Olson, 30 Wn.2d 179, 184, 190 P.2d 783 (1948); see Strom, 27 Wn.2d at 481; Windsor v. Bourcier, 21 Wn.2d 313, 315-16, 150 P.2d 717 (1944).
Drawing from these rules, uniformly applied in a series of decisions, Washington courts have reduced the common grantor doctrine to two questions: (1) did a common grantor and original grantee establish an agreed boundary, and (2) if so, would a visual inspection of the property indicate to subsequent purchasers that the deed line was no longer functioning as the "true" boundary? Winans v. Ross, 35 Wn. App. 238, 241, 666 P.2d 908 (1983); Fralick v. Clark County, 22 Wn. App. 156, 160, 589 P.2d 273 (1978), review denied, 92 Wn.2d 1005 (1979). The plaintiff asserting boundary by common grantor has the burden of establishing these elements by clear and convincing evidence.
No Washington decision has explicitly declared the plaintiff's burden under the common grantor doctrine. However, related doctrines require proof by clear and convincing evidence. See, e.g., Thomas v. Harlan, 27 Wn.2d 512, 518, 178 P.2d 965 (1947) ("Title to real property is a most valuable right which will not be disturbed by estoppel unless the evidence is clear and convincing."); Merriman v. Cokeley, 168 Wn.2d 627, 630, 230 P.3d 162 (2010) (Acquiescence and mutual recognition must be proved by clear, cogent, and convincing evidence.); accord Keierleber v. Botting, 77 Wn.2d 711, 715, 466 P.2d 141 (1970) (Reformation of a deed conveying a property interest for mutual mistake requires proof by clear, cogent, and convincing evidence.). The common grantor doctrine is similar in kind to these doctrines; the rationale that boundary adjustments require this higher quantum of evidence is equally applicable to it.
Here, genuine issues of material fact exist concerning whether a visual inspection would have revealed to the Kuhlmans that the deed line was no longer functioning as the "true" boundary. The Kuhlmans' property had a fence that ran along the river and stopped near the rock embedded in concrete. But nothing ran along the asserted boundary between the rock, blazed tree, and pipe by the road. Moreover, improvements extended in both directions over the purported line. Still, we cannot say that the isolated markers inadequately marked the boundary as a matter of law because the record does not sufficiently characterize their appearance at the time the Kuhlmans bought the property. Whether this evidence is sufficient to have given the Kuhlmans inquiry notice of the boundary is a question of fact.
Because we find that there are genuine issues of material fact concerning whether a visual inspection would have revealed the boundary, as the Chandlers assert, we need not determine whether the common grantor and original grantee established an agreed boundary.
A genuine issue of material fact also remains as to whether the Kuhlmans had actual notice of the boundary. They maintain that the Chandlers never showed them the monuments, contending, instead, that they only pointed to the general area of the boundary. The Chandlers claim that they pointed out the boundary to the Kuhlmans. This disputed fact is for the trier of fact to resolve.
IV.
The Kuhlmans next contend that genuine issues of material fact exist concerning whether a boundary was established by mutual recognition and acquiescence.
The mutual recognition and acquiescence doctrine supplements adverse possession. Lilly v. Lynch, 88 Wn. App. 306, 316, 945 P.2d 727 (1997). A party claiming title to land by mutual recognition and acquiescence must prove the following elements:
(1) The line must be certain, well defined, and in some fashion physically designated upon the ground, e.g., by monuments, roadways, fence lines, etc.; (2) in the absence of an express agreement establishing the designated line as the boundary line, the adjoining landowners, or their predecessors in interest, must have in good faith manifested, by their acts, occupancy, and improvements with respect to their respective properties, a mutual recognition and acceptance of the designated line as the true boundary line; and (3) the requisite mutual recognition and acquiescence in the line must have continued for that period of time required to secure propertyby adverse possession.
Lamm v. McTighe, 72 Wn.2d 587, 593, 434 P.2d 565 (1967). The plaintiff has the burden of proving these elements by clear, cogent, and convincing evidence. Merriman v. Cokeley, 168 Wn.2d 627, 630, 230 P.3d 162 (2010). The plaintiff must also prove that both parties acquiesced in the line for the period required to establish adverse possession, which is 10 consecutive years. Merriman, 168 Wn.2d at 630. To meet this standard of proof, the evidence must show that the ultimate facts are highly probable. Merriman, 168 Wn.2d at 630-31 (citing Douglas Nw., Inc. v. Bill O'Brien Sons Constr., Inc., 64 Wn. App. 661, 678, 828 P.2d 565 (1992)).
If the line is insufficiently defined, a claim for boundary adjustment by mutual recognition and acquiescence fails. See, e.g., Merriman, 168 Wn.2d 631 (more than isolated survey markers are required where the disputed area is overgrown); Waldorf v. Cole, 61 Wn.2d 251, 255, 377 P.2d 862 (1963) (disputed strip of land unused; only improvement was rockery built against a dirt bank); Scott v. Slater, 42 Wn.2d 366, 367-68, 255 P.2d 377 (1953) (only a row of pear trees; no fence or other mark to define line; cultivation of disputed strip varied), overruled on other grounds by Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984); Green v. Hooper, 149 Wn. App. 627, 642, 205 P.3d 134 (wall constructed of railway ties without other monuments, roadways, or fence lines), review denied, 166 Wn.2d 1034 (2009); Lloyd v. Montecucco, 83 Wn. App. 846, 855, 924 P.2d 927 (1996) (concrete blocks moveable by tides, intermittent moorage, and the seeding of oysters and clams), review denied, 131 Wn.2d 1025 (1997); but cf. Windsor, 21 Wn.2d at 316 (upholding boundary marked by electric pole and cedar tree, where original owners treated that line as true line and subsequent purchasers had notice of line). As our Supreme Court has recently advised, "where the disputed area is overgrown, more than isolated markers are required to prove a clear and well-defined boundary. "A fence, a pathway, or some other object or combination of objects clearly dividing the two parcels must exist." Merriman, 168 Wn.2d at 631.
In Merriman, a surveyor placed three survey markers along a boundary line, which remained undisturbed from 1993 to 2002. Merriman, 168 Wn.2d at 629. During that time, blackberries, weeds, and ivy grew in the area. Merriman, 168 Wn.2d at 629. A subsequent survey in 2006 revealed that the earlier survey was incorrect. Merriman, 168 Wn.2d at 630. The landowner who had land to gain sued to quiet title, arguing that the first survey line applied as a boundary by mutual recognition and acquiescence. Merriman, 168 Wn.2d at 630. Our Supreme Court rejected the claim, holding that "[t]he three widely spaced markers in this case, set in a thicket of blackberry bushes, ivy, and weeds, did not constitute a clear and well-defined boundary." Merriman, 168 Wn.2d at 632.
Here, genuine issues of material fact exist as to whether a certain, well-defined boundary existed for any discernable, complete 10-year period. The iron pipe by the river washed away on different occasions. Carlson claimed that it was not in place in 1980 when he bought the property, but it was replaced at some point later that year. The parties agree that the iron pipe by the road was in place, but it is unclear from the record as to whether it was visible. More importantly, the blazed tree was covered with ivy when the Kuhlmans bought the property. Nothing in the record indicates at what point this came to be. The record does not contain sufficient evidence to support a finding, as a matter of law, that a certain, well-defined boundary existed for any discernable 10-year period. Nor does the record contain sufficient evidence to the contrary. A question of fact for the trier of fact exists.
Reversed and remanded.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and WORSWICK, A.C.J., concur.