Opinion
No. 58351-4-I.
October 15, 2007.
Appeal from a judgment of the Superior Court for Whatcom County, No. 01-2-01627-6, Vickie I. Churchill, J., entered June 5, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Schindler, A.C.J., concurred in by Agid and Dwyer, JJ.
This is the second appeal in this case. In the first appeal, we held that the oral agreement between Martinus H. Nickerson and Sheila B. Nickerson (the Nickersons) and Craig K. Allen and Karen R. Allen (the Allens) to settle their property dispute was unenforceable. Following trial on remand, the court ruled the Allens proved adverse possession of the disputed area by clear, cogent, and convincing evidence and quieted title in the Allens to approximately 49 feet of the Nickersons' property. The trial court also ruled that the Nickersons committed trespass by building a fence in the disputed area and awarded the Allens damages and attorney fees under the trespass statute. The Nickersons challenge the trial court's decision and judgment quieting title to the Allens, the determination that the Nickersons committed trespass, and the order awarding attorney fees under the trespass statute. We affirm the trial court's decision that the Allens proved adverse possession by clear, cogent, and convincing evidence, but vacate the trial court's findings and conclusions on trespass and the attorney fee award, and remand.
FACTS
This case involves a property dispute over 49 feet of property. In 1983, Craig K. Allen and Karen R. Allen (the Allens) purchased a house located on Lot 2 in Edgemoor, a subdivision in Bellingham. In 2001, Martinus H. Nickerson and Sheila B. Nickerson (the Nickersons) acquired legal title to a portion of an adjacent lot, Lot 3, that includes the disputed area. Lot 3 is located northeast of Lot 2. The disputed area is between a line of trees and the boundary line between Lot 2 and Lot 3. The tree line begins south of the boundary line and curves northeast of the legally described common boundary.
The most northeasterly tree is now a stump.
The previous owner of Lot 3, Richard Duggan (Duggan), stacked cordwood in the disputed area. According to a 1974 survey obtained by the previous owners of Lot 2, the row of trees planted between Lot 2 and Lot 3 is not actually located on the boundary line between the two lots. But there is no evidence in the record that the Allens knew about the 1974 survey. After purchasing Lot 2, the Allens also used the disputed area for yard waste.
In 1988, Duggan sold Lot 3 to Russell A. Abbess, Jr. and Margaret M. Abbess (the Abbesses). A week after the sale, Duggan told the Abbesses that the trees on the property did not mark the property line between Lot 2 and Lot 3. But during the time the Abbesses owned Lot 3, the Abbesses and the Allens both continued to use the disputed area for yard waste. The Abbesses put in stakes and wire mesh to contain the yard waste pile.
By 1990, the yard waste pile was a well-defined berm. It is undisputed that the Allens did not go on the Abbess side of the berm and the Abbesses did not go on the Allen side of the berm. The Allens cultivated and maintained their side of the berm and in 1990 they constructed a greenhouse next to the berm.
In 2000, the Abbesses offered to sell a portion of Lot 3 that included the berm to their neighbors, the Nickersons. The Nickersons accepted the offer. After purchasing the property, the Nickersons hired a surveyor to mark the boundaries for purposes of obtaining a lot line adjustment and building a fence. The survey showed that the tree line was not on the boundary between Lots 2 and 3 and the berm was located entirely on the part of Lot 3 that the Nickersons owned.
As described in our first opinion in this case, after obtaining the survey, the Nickersons decided to build a fence along the boundary line between Lot 2 and Lot 3 and asked the Allens to remove their debris and the greenhouse. The Allens refused to do so, claiming that they owned the property on their side of the berm by adverse possession.
Nickerson v. Allen, No. 52036-9-I, 2004 Wash. App. Lexis 1563 (May 3, 2004).
On September 4, 2001, the Nickersons sued the Allens to quiet title. After the lawsuit was filed, the Allens, the Nickersons, and their attorneys met at the property to discuss settlement. The parties later disputed whether the meeting resulted in an agreement or was merely a discussion, but there is no dispute as to the outline of their oral agreement. The Allens agreed to disclaim any interest acquired by adverse possession and would remove debris from the Nickersons' property within 24 hours in exchange for an easement over a small, triangular portion of the Nickerson's property and $2,500. The parties also agreed that when the Nickersons built a fence, they would not follow the boundary line and would leave the easement on the Allens' side of the fence. The parties placed a stake in the ground at the point where the fence would deviate from the surveyed boundary line.
Later, when the parties disagreed about the size of the easement, the Allens moved to enforce the oral agreement. The trial court granted the Allens' motion to enforce the terms of the oral agreement. After the court entered the order enforcing the agreement, the Nickersons destroyed the berm and built a fence.
In the first appeal, we held that the oral agreement was not enforceable because the terms of the agreement were disputed and it violated the statute of frauds. On remand, the court ruled that the Allens established adverse possession to the disputed area by clear, cogent, and convincing evidence. The court also ruled that the Nickersons committed trespass by building a fence and destroying the berm and awarded the Allens damages and attorney fees under the trespass statute, RCW 4.24.630(1). The Nickersons appeal, asserting the Allens did not prove adverse possession, the Nickersons did not commit trespass, and the trial court erred in awarding attorney fees.
Analysis
Adverse Possession
The Nickersons claim that the Allens did not meet their burden of proving adverse possession because their use of the property was not exclusive or hostile.
While the Nickersons argue that the court erred by not finding adverse possession by clear, cogent, and convincing evidence, the written findings clearly state, "The Allens have established all elements of adverse possession by clear, cogent and convincing evidence as to the disputed area." Although we do not necessarily agree that this is the correct standard for adverse possession, it is the standard the trial court applied.
Title may be established by adverse possession only if possession is (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile for the ten-year statutory period. Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984); RCW 4.16.020. The party claiming title to the property by adverse possession has the burden of establishing each element. Miller v. Anderson, 91 Wn. App. 822, 828, 964 P.2d 365 (1998).
Whether a person has gained title by adverse possession is a mixed question of law and fact. The trier of fact decides whether the requisite facts exist, but the court decides whether those facts constitute adverse possession. Miller, 91 Wn. App. at 828. Whether the facts as found establish adverse possession, is a question of law, which we review de novo. Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, 210, 936 P.2d 1163 (1997). Where, as here, the court's findings of fact on adverse possession are not challenged, we treat those findings as verities on appeal. In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004) (citing State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994)); RAP 10.3(g).
Although the Nickersons challenged one finding of fact regarding adverse possession, finding of fact 14, they fail to argue the assignment of error in their brief and have therefore abandoned it. Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 630, 733 P.2d 182 (1987).
The Nickersons argue that because the Allens jointly used the disputed area with Duggan and the Abbesses and had permission to do so, the use was not either exclusive or hostile. Possession is hostile if the untitled possessor treats the property like a true owner would throughout the ten-year statutory period. Chaplin, 100 Wn.2d at 860-61. Hostility in the context of adverse possession is not personal animosity or adversarial intent. Miller, 91 Wn. App. at 828. If the true owner gives the claimant or his predecessor in interest express or implied permission to occupy the land, that negates the element of hostility. Chaplin, 100 Wn.2d at 861-62; Miller, 91 Wn. App. at 828.
Use that is permissive is presumed to continue unless (1) there is a change in the use that goes beyond the permission, giving the true owner notice of hostility, or (2) the owner sells the servient estate. Miller, 91 Wn. App. at 825; See also Granston v. Callahan, 52 Wn. App. 288, 295, 759 P.2d 462 (1988) (A permissive use necessarily terminates when the licensor alienates the servient estate. A change in the title and ownership of the servient estate operates as a revocation of a permissive use previously granted and such use may then become adverse.).
The evidence shows while Duggan owned Lot 3, he allowed the Allens to use part of his property for yard waste. However, any permission Duggan gave the Allens to use his property terminated when Duggan sold his property. See Miller, 91 Wn. App. at 825. Thus, permission ended as a matter of law when Duggan sold Lot 3 to the Abbesses in 1988.
Even though permission clearly terminated when Duggan sold the property to the Abbesses, without citation to authority, the Nickersons assert that the express permission from Duggan became implied permission from Abbesses. Because this argument is unsupported by authority or persuasive argument, we will not review it. See RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). In any event, according to the unchallenged findings, by 1990 there was a well-defined berm in place, separating the disputed area from Lot 3, and thereafter the Allens did not go on the Abbess side of the berm and the Abbesses did not go on the Allen side of the berm. Thus, from 1990 on, Allens' use of their side of the berm was exclusive.
The undisputed findings also support the trial court's conclusion that the Allens' use of the disputed area was hostile. By cultivating and maintaining their side of the berm and building a greenhouse next to it, the Allens treated the property like a true owner would throughout the ten-year statutory period. See Chaplin, 100 Wn.2d at 860-61.
The trial court did not err in its conclusion that the Allens satisfied the elements of adverse possession for the ten-year statutory period.
Trespass
The Nickersons also assert that the trial court erred in concluding they committed trespass and by awarding attorney fees under the trespass statute, RCW 4.24.630(1). The Nickersons claim that they did not commit trespass when they built the fence and destroyed the berm pending the appeal because they complied with the trial court's order enforcing the oral settlement agreement.
Under RCW 4.24.630, every person who goes onto the land of another and wrongfully causes waste or injury to land is liable for treble damages and attorney fees. A person acts "wrongfully" if he intentionally and unreasonably commits trespass while knowing, or having reason to know, that he lacks authorization to do so. RCW 4.24.630(1).
RCW 4.24.630(1) provides:
Every person who goes onto the land of another and who removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, or wrongfully injures personal property or improvements to real estate on the land, is liable to the injured party for treble the amount of the damages caused by the removal, waste, or injury. For purposes of this section, a person acts "wrongfully" if the person intentionally and unreasonably commits the act or acts while knowing, or having reason to know, that he or she lacks authorization to so act. Damages recoverable under this section include, but are not limited to, damages for the market value of the property removed or injured, and for injury to the land, including the costs of restoration. In addition, the person is liable for reimbursing the injured party for the party's reasonable costs, including but not limited to investigative costs and reasonable attorneys' fees and other litigation-related costs.
The trial court's conclusion that the Nickersons' actions "constitute[d] a trespass within the meaning of RCW 4.24.630" was based on finding of fact 27. Finding of Fact 27 states that:
Subsequent to the entry of the order enforcing the Settlement Agreement, the Nickersons intruded southwesterly of the berm and extension of the Tree Line, and destroyed the remnants of the berm and built a fence up to the legally described boundary.
The phrase "legally described boundary" as used in finding of fact 27 is ambiguous — it could mean either the surveyed boundary line or the boundary according to the terms of the court order enforcing the oral settlement agreement.
According to the trial court's letter addressing the proposed findings of fact and conclusions of law, the court states that in adopting proposed finding of fact 27, it is relying on the Allens' testimony that the Nickersons destroyed the berm and built a fence along the surveyed boundary line, which "was uncontroverted by the Nickersons." But at trial, Martinus Nickerson expressly testified that the fence complied with the court order enforcing the oral settlement agreement:
Q . . . [Y]ou said that you built the fence in order to comply with that order; is that right?
A We did.
Q But at the same time you were appealing the order; is that right?
A We were.
Q . . . [W]hy would you build a fence to comply with an order you were appealing; could you explain that?
A At some point if it turned out that the appeal failed we would have a fence which was still a functional, as it were, legal fence which complied with the order.
On appeal, the Allens also rely on El Cerrito v. Ryndak, 60 Wn.2d 847, 855, 376 P.2d 528 (1962) to argue that when an adverse possessor holds real property for the ten-year period, possession ripens into original title. Below, the trial court also relied on El Cerrito to conclude that by the time the Nickersons removed the berm and built a fence, the Allens had already acquired title by adverse possession. But the issue in El Cerrito was when a party claiming adverse possession has to file the lawsuit to quiet title. See El Cerrito, 60 Wn. App. at 855. El Cerrito stands for the proposition that a person can claim title based on the adverse possession of a predecessor in interest. See, e.g., Muench v. Oxley, 90 Wn.2d 637, 584 P.2d 939 (1987) (overruled on other grounds).
Because the court's finding supporting the conclusion that the Nickersons trespassed is ambiguous and there is conflicting testimony about where the Nickersons built the fence, we remand and vacate the award of attorney fees under the trespass statute.
On remand, the trial court should also address the adequacy of the legal description of the disputed area.
CONCLUSION
We conclude the Allens established title to approximately 49 feet of the Nickersons' property by adverse possession. But because there is conflicting testimony and the court's findings of fact and conclusions of law on trespass are ambiguous, we remand to determine whether the Nickersons are liable for trespass.
WE CONCUR: