Opinion
No. 31773-7-II
Filed: April 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No. 02-2-01982-1. Judgment or order under review. Date filed: 04/19/2004. Judge signing: Hon. Stephen M. Warning.
Counsel for Appellant(s), David Allen Nelson, Nelson Law Firm PLLC, 1516 Hudson St Ste 204, Longview, WA 98632-3046.
Counsel for Respondent(s), Matthew J. Andersen, Attorney at Law, PO Box 1549, Longview, WA 98632-7934.
Cheryl Sharkey appeals an order quieting title, arguing that genuine issues of material fact preclude summary judgment. We affirm.
FACTS
Sharkey owns four adjoining parcels of land in Longview. The lots run from north to south and attach side by side, lot one being furthest south and lot four being furthest north. Lot one contains a rental house managed by a property management agency, while the remaining three lots stand vacant and wooded. Sharkey designated a 25-foot easement running north-south along the western border of all four parcels.
Dwight and Loretta Sutherland own and live on the property west of Sharkey's parcels. In 1990, the Sutherlands built a house and garage on their property without a formal survey.
The Sutherlands used a friend's survey to define the property line between their property and Sharkey's.
In October 2002, Sharkey observed a cleared area that encroached on her property line. An aerial photograph of the property provided by the county assessor shows three encroachment areas: (1) the northeast corner of the Sutherland's house; (2) the heat pump, grass, and gravel in the front and side yards; and (3) a cleared slope that extends upward to the 'line of vegetation.' Clerk's Papers (CP) at 44.
In its order amending summary judgment, the trial court ruled on a survey and legal description of the area coordinates when interpreting the vegetation line.
In November 2002, Sharkey filed a complaint to quiet title to the disputed property. In their answer, the Sutherlands counterclaimed and prayed for judgment quieting title in their favor because they had adversely possessed the property at issue.
On December 12, 2002, the Sutherlands served Sharkey with a request for admission, to which Sharkey failed to respond within the 30 days provided by CR 36.
CR 36 states, in relevant part: 'Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter.'
The Sutherlands filed a motion for partial summary judgment to determine as a matter of law that they had adversely possessed all of the disputed property within the line of vegetation. Sharkey opposed the motion. She conceded that the Sutherlands adversely possessed her property where the house, heat pump, grass, and gravel encroached. But she claimed that questions of fact remained whether the Sutherlands used the sloping area to the line of vegetation in a sufficiently hostile and continuous manner over a 10-year period.
The trial court determined that Sharkey had admitted to the truth of all the facts in the request for admissions. It quieted title in the Sutherlands to all property within the line of vegetation, as depicted on a survey provided by the surveyor, Gregory Spurlock.
Specifically, the trial court found:
1. That the Defendants . . . constructed a home, cleared land and occupied the land since 1990 openly, notoriously and adverse to any claim of the Plaintiff.
2. Title to the real property located within the area defined as 'the line of vegetation' on Exhibit B [CP 44] attached hereto is quieted in the Defendants, free and clear of any claim by the Plaintiff, her heirs, assigns or successors.
3. The Defendants' claim for adverse possession to additional real property located within the Plaintiff's real property which is depicted on Exhibit B is reserved for trial.
CP at 88.
The Sutherlands filed a motion to amend the summary judgment order. They asked the trial court to include a legal description of the property with a more definitive line of vegetation, as provided by Spurlock. The trial court amended its summary judgment order to include Spurlock's legal description of the property.
Sharkey appeals.
ANALYSIS Standard of Review
We review summary judgment orders de novo, engaging in the same inquiry as the trial court. Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 197, 943 P.2d 286 (1997). We consider all facts and reasonable inferences in favor of the nonmoving party. Weyerhaeuser Co. v. Aetna Cas. Sur. Co., 123 Wn.2d 891, 897, 874 P.2d 142 (1994). And we affirm summary judgment orders only if the pleadings, affidavits, depositions, and admissions demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Christen v. Lee, 113 Wn.2d 479, 488, 780 P.2d 1307 (1989); see also CR 56(c).
CR 56(c) states, in relevant part: 'The judgment sought shall be rendered forthwith 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.'
The nonmoving party may not rest on allegations or denials from the pleadings. The response, by affidavits or as otherwise provided under CR 56, must set forth specific facts that reveal a genuine issue for trial. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988). '[C]onclusory statements of fact will not suffice.' Grimwood, 110 Wn.2d at 360, (citing Am. Linen Supply Co. v. Nursing Home Bldg. Corp., 15 Wn.App. 757, 767, 551 P.2d 1038 (1976)).
CR 56(e) states in part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Adverse Possession
To establish a claim of adverse possession, a claimant's possession of the disputed property must be (1) open and notorious, (2) hostile, (3) exclusive, and (4) actual and uninterrupted. Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984). The claimant must possess the property with all necessary elements for 10 years. RCW 4.16.020.
RCW 4.16.020 states, in relevant part:
The period prescribed for the commencement of actions shall be as follows:
Within ten years:
(1) For actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it appears that the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of the action.
Adverse possession is a mixed question of law and fact. Miller v. Anderson, 91 Wn. App. 822, 828, 964 P.2d 365 (1998), review denied, 137 Wn.2d 1028 (1999). Although the fact finder determines whether the necessary facts exist, the court decides whether those facts constitute adverse possession as a matter of law. Miller, 91 Wn. App. at 828. 'If the essential factual findings are not in dispute, whether use is adverse or permissive is purely a question of law.' Lingvall v. Bartmess, 97 Wn. App. 245, 250, 982 P.2d 690 (1999).
Open and Notorious Use
Sharkey claims that the uses of the property Dwight Sutherland described in his declaration insufficiently establish open and notorious use.
'A claimant can satisfy the open and notorious element by showing either (1) that the title owner had actual notice of the adverse use throughout the statutory period or (2) that the claimant used the land such that any reasonable person would have thought he owned it.' Riley v. Andres, 107 Wn. App. 391, 396, 27 P.3d 618 (2001).
Sharkey cites Anderson v. Hudak to support her argument, but her reliance on this case is misguided. 80 Wn. App. 398, 907 P.2d 305 (1995). In Hudak, we reasoned that in successful claims of adverse possession, 'the parties furnish some evidence of usage,' which 'include[s] acts such as clearing land, mowing grass, and maintaining shrubs and plants.' 80 Wn. App. at 404 (emphasis omitted). Conversely, the plaintiff in that case showed 'absolutely no evidence that she even sporadically maintained and cultivated the trees or the land immediately surrounding the trees throughout the statutory period.' Hudak, 80 Wn. App. at 404.
Unlike the plaintiff in Hudak, Sutherland declared he had 'cleared brush, dumped grass clippings and created a compost pile and maintained a vegetation barrier' on the disputed property, an otherwise wooded area. CP at 22. And because Sharkey failed to timely respond to the request for admissions, she had admitted that the Sutherlands 'openly possessed, occupied and improved' the disputed property from 1990 through 2002, two years beyond the statutorily required 10 years of occupation. CP at 16.
Furthermore, the photographs submitted by the Sutherlands clearly show use in agreement with their declaration and show that they used the land such that reasonable persons would have thought they owned it. A party who claims adverse possession must show that the use is that of a true owner, given the nature and location of the land. Here, clearing the wooded area back away from the structures was typical use for land of this character.
Sharkey also submitted photographs of the sloped area as evidence that the Sutherlands failed to maintain the property in a sufficiently open and notorious manner. She claims that the recent photographs of the sloped area show that the Sutherlands did not consistently maintain the area in a manner sufficiently open to notify her of their intent to possess the land.
Although Sharkey's photographs show some dead grass and leaves, the sloped area stands in stark contrast to the brush line. And these photographs depict the condition of the property in late 2002, after the 10-year period required by RCW 4.16.020 for the Sutherlands to establish title to the property. As such, the photographs do not contradict the Sutherlands' evidence and, therefore, do not present an issue for the fact finder.
Having addressed Sharkey's photographs, nothing in the record conflicts with the request for admissions or Dwight Sutherland's declaration. As such, she fails to present a genuine trial issue.
Hostile Use
Sharkey uses the same evidence to argue that the Sutherlands' use was not hostile. This argument also fails.
'The 'hostility/claim of right' element of adverse possession requires only that the claimant treat the land as his own as against the world throughout the statutory period. The nature of his possession will be determined solely on the basis of the manner in which he treats the property.' Chaplin, 100 Wn.2d at 860-61. The only relevant matter is the claimant's treatment of the land, not his subjective belief about his true interest in the land. Riley, 107 Wn. App. at 397.
Here, the Sutherlands' use of the disputed area is sufficient to find that they worked the land such that a reasonable person would have thought they owned it. As noted above, the Sutherlands 'cleared brush, dumped grass clippings and created a compost pile and maintained a vegetation barrier' on the disputed property.' CP at 22. Thus, they treated the land as their own, meeting the hostility requirement.
Exclusive Use
This element is not at issue on appeal.
Continuous Use
Sharkey argues that a question of fact exists as to whether the Sutherlands occupied the disputed property continuously for 10 years. The Sutherlands contend that Sharkey's evidence either (1) does not touch on the 10-year period from 1992 to 2002 or (2) does not contradict their evidence of continuous occupancy.
To establish possession, a claimant must show continuous possession of the relevant property for the statutory period, adverse to all other persons. See ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). 'The principle should be that the acts of possession must be as continuous as an owner would normally make of land of the nature and location of the disputed land.' 17 William B. Stoebuck John W. Weaver, Washington Practice: Real Estate: Property Law sec. 8.17, at 537 (2004).
Sharkey fails to present an issue of fact on the element of continuous use. The court determined that Sharkey admitted everything in the request for admissions and among those admissions were that (1) the Sutherlands had cleared the property to the line of vegetation in 1990; (2) they openly possessed, occupied, maintained, and improved the real property to the line of vegetation; and (3) there were no complaints from Sharkey until October 2002. This sufficiently establishes continuous use for the statutory period.
Affirmed.
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.
BRIDGEWATER, J., and ARMSTRONG, J., Concur.