From Casetext: Smarter Legal Research

MacDonald v. Tobias

The Court of Appeals of Washington, Division Two
Nov 16, 2004
124 Wn. App. 1015 (Wash. Ct. App. 2004)

Opinion

No. 30879-7-II

Filed: November 16, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County. Docket No: 02-2-11752-5. Judgment or order under review. Date filed: 09/05/2003. Judge signing: Hon. Beverly G. Grant.

Counsel for Appellant(s), John Theodore Jr Robson, Attorney at Law, 2554 Locust Ave W Ste B, University Place, WA 98466-3561.

Counsel for Respondent(s), Gregory Emmett Gladnick, Attorney at Law, 4711 Aurora Ave N, Seattle, WA 98103-6515.


Carolyn Tobias appeals a summary judgment quieting title in her neighbors, Edwin and Kimberlie MacDonald, to disputed property near the parties' common boundary line. Tobias argues that issues of material fact exist as to whether the MacDonalds proved the line by oral agreement, acquiescence, or under the common grantor doctrine. Because issues of material fact exist as to the disputed boundary line's location, we reverse and remand for trial.

FACTS

Mathew and Gracy Abraham owned a four-lot parcel, including the two lots at issue. In the mid-1980s, a surveyor marked the boundary between lots one and two. In March 1996, Scott and Denise Gervais bought all four lots. In May 1996, Edwin and Kimberlie MacDonald purchased lot one and Jared and Jennifer Balmer purchased lot two. Tobias acquired Balmer's lot in 2000.

The survey was completed in 1984 or 1985.

In 2002, the MacDonalds began grading land that Tobias believed was her property. Tobias had lot two surveyed. She then began building a fence and posted no trespassing signs along the surveyed line.

In October 2002, the MacDonalds sued to quiet title to the land. Tobias counterclaimed for trespass and slander of title.

The MacDonalds moved for summary judgment, arguing that they owned the disputed property because a common grantor had set the boundary, previous owners had acquiesced in the line, and previous owners had orally agreed on the line. The court granted the summary judgment, ruling that the 1985 surveyed line was the correct boundary.

ANALYSIS

When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). The court must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437.

I. Common Grantor Doctrine

Tobias argues that the MacDonalds failed to establish title under the common grantor doctrine.

A common grantor may establish a binding boundary line if the grantor sells the land with reference to such line, and the grantor and grantees agree 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 sec. 77, at 651). The common grantor theory applies if: (1) an agreed on boundary was established between the common grantor and original grantee; and (2) a visual examination of the property would show subsequent purchasers that the deed line was no longer functioning as a 'true' boundary. Fralick v. Clark County, 22 Wn. App. 156, 160, 589 P.2d 273 (1978).

Here, Gervais stated in his declaration that he took both Edwin and Jared around the property and showed them the boundary markers. Neither party objected to the designated boundary.

The court means no disrespect when it calls the parties by their first names when referring to them individually.

But Tobias argues that a genuine issue of material fact exists regarding whether the 1984 survey markers were moved. She asserts that the original corner marker that Edwin photographed and identified in his declaration was moved she presumes by him. Tobias declares that she and the surveyor found the original stake in the true corner, the surveyor pulled the stake, her husband spray-painted it yellow, and they left it lying on the ground. She states that the same yellow stake appears in Edwin's exhibits C and D in support of his claimed common-grantor established corner, and the stake location in exhibits C and D is not the same as where she and the surveyor found it. Tobias also states that before the MacDonalds started grading in the disputed land, the disputed ground was totally covered with vegetation, making it 'impossible to determine from looking at the land, any use or possession of either property owner up to any property line.' Clerk's Papers (CP) at 50. Although Tobias's declaration is partly based on speculation, it is sufficient, construing all inferences in her favor, to create an issue of material fact as to whether the common-grantor boundary was apparent to a purchaser when Tobias acquired the property.

II. Oral Agreement

Tobias also argues that the summary judgment documents do not establish the line by oral agreement.

Adjoining landowners may set their common boundary line if (1) the landowners either disagree on the location of the line or both are uncertain as to the true location of the line; (2) the landowners 'arrive at an express meeting of the minds' to permanently resolve the dispute or uncertainty by setting a specific line; (3) the landowners physically designate the line on the ground; and (4) the landowners possess their property in a way that gives reasonable constructive notice of the line to later purchasers, or later purchasers have actual notice of the line. But see Johnston v. Monahan, 2 Wn. App. 452, 457, 469 P.2d 930 (1970) (citations omitted). Such agreements are generally binding upon successors in interest. See Johnston, 2 Wn. App. at 456 (quoting 2 Tiffany, Real Property sec. 653, at 678, 682 (3d ed. 1939).

Tobias contends that issues of material fact exist as to whether there was any dispute or uncertainty regarding the boundary. We agree.

Edwin and Gervais both stated in their declarations that, if it were not for the markers, they would not have known where the boundary was located. But the stakes were in place when Gervais purchased the property from Abraham. Thus, there was no uncertainty regarding the boundary when Gervais sold it to the MacDonalds. And any uncertainty that may have existed was apparently resolved before the MacDonalds purchased their land, when the two agreed that the existing stakes marked the boundary.

III. Acquiescence

Tobias also contends that the MacDonalds did not establish the line by acquiescence in the summary judgment documents. Again, we agree.

To establish a line by mutual recognition and acquiescence, a party must demonstrate that: (1) the boundary line was certain, well defined, and physically designated; (2) in the absence of an express agreement, the adjoining landowners or their predecessors manifested, by their acts, occupancy, and improvements, mutual recognition and acceptance of the designated line as the true boundary; and (3) this mutual recognition and acquiescence continued for the time required to acquire property by adverse possession. Lamm v. McTighe, 72 Wn.2d 587, 592-93, 434 P.2d 565 (1967). Tobias points out that the MacDonalds cannot satisfy the time requirement.

The MacDonalds assert that Lamm and a number of other cases incorrectly cite Thomas v. Harlan, 27 Wn.2d 512, 178 P.2d 965 (1947), for the proposition that the parties must acquiesce in the line for the statutory period. Thomas stated, 'Most courts have laid down the rule that the time required to elapse before a line is established, is the time necessary to secure property by adverse possession.' Thomas, 27 Wn.2d at 518-19 (citations omitted). The statement appears to be dicta because the court did not rely on it to decide the case. Rather, the court held that because the parties did not recognize the fence as a boundary line, the boundary was not fixed by acquiescence. See Thomas, 27 Wn.2d at 519-20. Still Washington courts have consistently cited and followed Lamm. See Miller v. Anderson, 91 Wn. App. 822, 827 n. 3, 964 P.2d 365 (1998); Lilly v. Lynch, 88 Wn. App. 306, 316-17, 945 P.2d 727 (1997); Lloyd v. Montecucco, 83 Wn. App. 846, 855, 924 P.2d 927 (1996); Piotrowski v. Parks, 39 Wn. App. 37, 44, 691 P.2d 591 (1984).

The MacDonalds and Balmers purchased their lots in May 1996. Before that, the Abrahams or Gervaises owned the entire parcel. Tobias commenced her action (counterclaim) against the MacDonalds in 2002. Thus, the adverse possession period — 10 years — had not run when Tobias started her action to recover the property. RCW 4.16.020(1) (10 years to commence actions for the recovery or possession of real property).

In conclusion, we find issues of material fact exist as to the MacDonalds' causes of action based on the common grantor doctrine and an oral agreement. We reverse and remand for trial.

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.

HOUGHTON, P.J. and BRIDGEWATER, J., Concur.


Summaries of

MacDonald v. Tobias

The Court of Appeals of Washington, Division Two
Nov 16, 2004
124 Wn. App. 1015 (Wash. Ct. App. 2004)
Case details for

MacDonald v. Tobias

Case Details

Full title:EDWIN MacDONALD and KIMBERLIE MacDONALD, and the marital community…

Court:The Court of Appeals of Washington, Division Two

Date published: Nov 16, 2004

Citations

124 Wn. App. 1015 (Wash. Ct. App. 2004)
124 Wash. App. 1015

Citing Cases

Andrews v. Kim

The common grantor theory applies if: (1) an agreed on boundary was established between the common grantor…