Opinion
No. 57128-1-I.
January 8, 2007.
Appeal from a judgment of the Superior Court for King County, No. 02-2-27599-1, Laura Gene Middaugh, J., entered August 30 and September 28, 2005.
Dan Platter, Attorney at Law, Counsel for Appellant(s).
John Richard Aramburu, Attorney at Law, Counsel for Respondent(s).
Affirmed by unpublished opinion per Ellington, J., concurred in by Appelwick, C.J., and Becker, J.
Robert Tasler and Louanne Coachman claim title by adverse possession to land owned by their neighbors, Thomas McSheery and Denise Sirven. Tasler and Coachman's use of the land satisfies all the elements of adverse possession, and the trial court properly quieted title in them.
BACKGROUND
Dr. Dean Gerimonte owned property in a residential area in Kent. In 1983, he divided the property into three lots, one of which (Lot 1) contained his house and garage. The other two lots were undeveloped. Dr. Gerimonte sold Lot 1 to a Mr. Johnson, who, in February 1992, sold it to Robert Tasler and his wife, Louanne Coachman. In 2000, Dr. Gerimonte sold Lots 2 and 3 to Denise Sirven. She and her husband, Thomas McSheery, planned to build on both lots.
In 2002, Tasler and Coachman filed a complaint to quiet title by adverse possession to a strip of land along the boundary between Lot 1 and Lot 2. According to surveyors' lot lines, the strip lies within Lot 2. After a bench trial, the court quieted title to the strip in Tasler and Coachman. McSheery and Sirven appeal.
ANALYSIS
Title may be acquired by adverse possession only where possession is exclusive, actual and uninterrupted, open and notorious, and hostile. ITT Rayonier Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). These elements must coexist for 10 years. RCW 4.16.020. Possession is exclusive if it is the possession one would expect of a titled property owner, considering the nature and location of the land. ITT Rayonier, 112 Wn.2d at 759. Possession is open and notorious if the title owner has or should have knowledge that the occupancy constitutes an ownership claim. Riley v. Andres, 107 Wn. App. 391, 396, 27 P.3d 618 (2001). Possession is hostile if the untitled possessors treated the property as a true owner would throughout the statutory period. Chaplin v. Sanders, 100 Wn.2d 853, 860-61, 676 P.2d 431 (1984).
We uphold findings of fact if they are supported by evidence sufficient to persuade a fair-minded person of the truth of the declared premise. Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, 210, 936 P.2d 1163 (1997). Whether the facts as found establish adverse possession is a question of law, which we review de novo. Id.
The disputed property lies on the edge of Lot 2, abutting Lot 1. For purposes of presenting evidence at trial, the court and the parties separated the disputed area into Parts A, B, and C. We will do the same in our analysis. The map below illustrates the property:
In his brief, McSheery assigns error to various findings and conclusions. However, arguments address only the conclusions of law. An assignment of error is deemed abandoned if not supported by argument in the party's brief. Valley View Indus. Park v. Redmond, 107 Wn.2d 621, 630, 733 P.2d 182 (1987). We thus address whether the findings support the conclusions of law. We have reviewed the evidence and conclude it supports the findings.
Part A
Part A is a strip of lawn approximately 16 feet long and six feet wide, extending eastward from Tasler and Coachman's property (Lot 1). When Johnson owned Lot 1, he installed a concrete bulkhead around the eastern and southern boundaries of Part A, creating a level area. Tasler and Coachman planted grass in Part A, set up a trampoline for Tasler's son, installed a raised flower bed, and erected a fence.
Between 1992 and 2001, Dr. Gerimonte hired surveyors three or four times to survey Lot 2. Every time surveyors walked onto Part A and placed survey stakes along the true boundary line, Coachman told the surveyors that Part A belonged to her and Tasler, and removed the stakes. Coachman also told Dr. Gerimonte's real estate agents to get off Part A when they were showing Lot 2 to prospective buyers.
McSheery and Sirven also used Part A, but testimony about the extent and nature of their use conflicted. McSheery testified he left his daughter to play in Part A about 20 times, frequently entered Part A to check drainage, and once put up a tent to have a picnic with his wife and daughter. Coachman testified she saw McSheery in Part A only twice, and she never saw him erect a tent. When McSheery hung a string and planted stakes along the true boundary line, Coachman removed them.
The trial court found that "[McSheery and Sirven] occasionally went onto the disputed Part A." Clerk's Papers at 118. McSheery and Sirven do not challenge this finding, but contend their occasional entrances were sufficient to defeat Tasler and Coachman's exclusive use. Occasional, transitory uses of the disputed area by the title owner will not prevent ownership transfer to the adverse possessor if the adverse possessor permits the uses as a neighborly accommodation. Lilly v. Lynch, 88 Wn. App. 306, 313, 945 P.2d 727 (1997). Most of the entrances McSheery described are the kinds of uses an owner would allow to a neighbor who owned an adjacent, undeveloped lot. Further, Coachman immediately removed the string and stakes McSheery hung on the boundary line. Tasler and Coachman used Part A as their back yard and excluded others, thus using the area as true owners in a manner consistent with the land's nature, character, and location. See Selby v. Knudson, 77 Wn. App. 189, 196, 890 P.2d 514 (1995); Heriot v. Lewis, 35 Wn. App. 496, 505, 668 P.2d 589 (1983) (ejecting intruders is an act distinctive to true ownership). The court did not err in concluding that McSheery's occasional entrances were insufficient to defeat Tasler and Coachman's exclusive possession.
Part B
Part B consists of a slope extending east and north from Part A. Based on conversations with Dr. Gerimonte and Johnson at the time of purchase, Tasler and Coachman thought the true boundary line of their property was "the toe of the slope," or the eastern edge of Part B. They kept Part B clear of blackberry bushes and planted grass and shrubs. When McSheery's nephew started clearing groundcover Coachman had planted in Part B, she yelled at him to stop. McSheery also did some mowing in the area. The trial court found that Tasler and Coachman "maintained this area as a minimal use area, consistent with its topography, mowing it and later adding plantings and bark." Clerk's Papers at 118.
Citing Wood v. Nelson, 57 Wn.2d 539, 358 P.2d 312 (1961), McSheery argues that the "mere cutting" of grass and blackberry bushes does not demonstrate dominion and control over the land. Appellant's Brief at 18. But Tasler and Coachman did more than occasionally cut grass and blackberries. They excluded others from the property, and planted shrubs and groundcover. These are acts of a true owner exercising dominion and control. The trial court did not err in concluding that McSheery's sporadic maintenance was insufficient to defeat exclusivity. Clerk's Papers at 118. McSheery's use of Part B was similar to that of the title owner in Harris v. Urell, 133 Wn. App. 130, 138, 135 P.3d 530 (2006), where we held that the title owner's acts of felling one tree on the disputed property and occasionally walking across the disputed area did not deprive the adverse possessor of exclusive use.
Next, McSheery challenges the trial court's failure to find that Tasler and Coachman's use of Part B was permissive. Permission to occupy the land from the title owner negates the element of hostility. Chaplin, 100 Wn.2d at 861. McSheery argues that Tasler asked Dr. Gerimonte for permission to cut blackberry bushes in Part B. Tasler testified, however, that he sought and obtained approval to cut blackberry bushes on land adjacent to Part B in order to facilitate maintaining Part B. The court did not err in rejecting the argument that Tasler's use of Part B was permissive.
Tasler testified: "It's a hill like this; and trying to keep the grass cut on a steep hill, you can't get down and turn around; and I asked him about the blackberries pushing them back here. . . . And so it was quite an extensive, beyond this disputed area, which I actually maintained and kept the blackberries back long enough for grass actually to have grown." Report of Proceedings (Dec. 6, 2004) at 19.
Finally, McSheery contends that Tasler and Coachman did not possess Part B openly and notoriously because their maintenance and occupation of the area was occasional and transitory. The trial court found that their "usage of Part B to the end of the slope was open and for all to see." Clerk's Papers at 118. On an undeveloped residential lot otherwise overrun with blackberries, clearing, mowing, and planting grass and shrubs provides sufficient, visible notice of the adverse possessor's claim. Skoog v. Seymour, 29 Wn.2d 355, 358, 187 P.2d 304 (1947), overruled on other grounds by Chaplin, 100 Wn.2d at 861; Riley v. Andres, 107 Wn. App. 391, 397, 27 P.3d 618 (2001). Moreover, every time Gerimonte or McSheery hired surveyors, Coachman removed the survey stakes. The owners of Lot 2 thus had actual knowledge of Tasler and Coachman's claim to the area. If the title owner knows of the adverse use, no further proof as to notice is required. Hovila v. Bartek, 48 Wn.2d 238, 241, 292 P.2d 877 (1956); Chaplin, 100 Wn.2d at 862.
Part C
Part C is a strip that widens an access easement to Lot 1 by six feet. According to McSheery, Dr. Gerimonte and his visitors parked their cars in Part C when the doctor lived on Lot 1. After Tasler and Coachman bought Lot 1, they used Part C regularly for access to the rear of their home, to park a trailer and cars, to store soil and beauty bark, and to house a dog kennel and compost bins. Until September 1993, the entire easement was dirt and gravel. Tasler then paved it, including all of Part C. Thereafter Dr. Gerimonte or other visitors to Lot 2 still occasionally parked there, and Dr. Gerimonte temporarily stored construction equipment on Part C when he was installing a drainage system on Lot 2 in 1994.
McSheery contends that Tasler and Coachman had implied permission from Dr. Gerimonte to use the area, and further that Dr. Gerimonte's occasional use of Part C defeated Tasler and Coachman's exclusive possession. Implied permission may arise when it is reasonable to infer the use was permitted by neighborly sufferance or acquiescence. Roediger v. Cullen, 26 Wn.2d 690, 707, 175 P.2d 669 (1946). Nothing indicates that Tasler had permission to use or pave Part C. The trial court found that Tasler did not "change the grade or dimensions of the road" when he paved Part C. Clerk's Papers at 119. The reasonable inference is that Tasler and Coachman believed Part C was a portion of Lot 1's access easement and used it accordingly. The fact that Dr. Gerimonte temporarily stored equipment on Part C suggests a neighborly accommodation by Tasler and Coachman, not that their use of Part C was permissive. The court did not err in concluding that Tasler's and Coachman's use was hostile.
Nor did Dr. Gerimonte's or McSheery's occasional uses render Tasler and Coachman's use nonexclusive, because they were the kind of uses neighbors commonly allow. The court found that the neighbor's use of Part C during construction did not interfere with Tasler's use of the road, and the court did not err in concluding that Tasler's and Coachman's use was exclusive.
The court's findings support the conclusion that Tasler and Coachman acquired title to all three parts of the disputed area by adverse possession. We affirm the order quieting title.
Marlin Appelwick, and Mary Kay Becker, concur.
WE CONCUR: