Acord v. Pettit

• Decision Date: 14 March 2013
• Docket Number: No. 30323–3–III.,30323–3–III.
• Citation: 174 Wash.App. 95,302 P.3d 1265
• Court: Washington Court of Appeals
• Parties: Eddie E. ACORD and Sharon K. Acord, husband and wife, Respondents, v. Britton K. PETTIT and Lynnette F. Pettit, husband and wife, Appellants.

174 Wash.App. 95

302 P.3d 1265

Eddie E. ACORD and Sharon K. Acord, husband and wife, Respondents,

v.Britton K. PETTIT and Lynnette F. Pettit, husband and wife, Appellants.

No. 30323–3–III.

Court of Appeals of Washington,

Division 3.

March 14, 2013.

Karl Wesley Kime, Kime Law Office, Stephen Day Phillabaum, Phillabaum, Ledlin, Matthews & Sheldon P, Spokane, WA, for Appellants.

Chris Alan Montgomery, Montgomery Law Firm, Colville, WA, for Respondents.

SWEENEY, J.

[174 Wash.App. 98]¶ 1 The trial judge here awarded title to a strip of land to the plaintiffs after concluding that they and their predecessors had adversely possessed the property. The appellants challenge the factual and legal basis for the court's ruling on a number of grounds. We conclude that the judge properly admitted testimony, from a previous trial, of a witness who had died. We conclude that the court properly admitted the opinions of the respondents' expert on logging operations on the disputed property. And we ultimately conclude that the court's findings support the necessary elements of adverse possession. We then affirm the judgment of the trial court.

FACTS

¶ 2 Eddie E. Acord and Sharon K. Acord and Britton K. Pettit and Lynnette F. Pettit own adjacent property. The Acords' property is situated to the north of the Pettits. This dispute is over an approximately 100–foot strip between the two parcels. The contested property is forest land.

¶ 3 The Acords purchased 180 acres of property from Fred and Carol Chandler in September 1991. The Pettits purchased 20 acres of property that borders the Acords' property to the south, from Leigh Robertson on August 21, 2000.

¶ 4 The Pettits obtained a permit to log their property in 2005. Walter Acord then logged his father's property to a fence line in the contested area. This dispute followed. The Pettits filed a stumpage lien on March 21, 2006, and claimed title to the logs the Acords had harvested between the section line and the fence line. The Pettits sued in small claims court to recover the value of the logs. The Acords responded with a suit to quiet title to the disputed property by adverse possession. They prayed for damages from the timber harvest that the Pettits interrupted and for release of the Pettits' stumpage lien.

¶ 5 At trial, the Acords planned to use the transcript of earlier testimony of their predecessor, Fred Chandler, to show the necessary use of the disputed strip of land. The earlier 1996 suit by the Acords established ownership by adverse possession against their neighbors to the east, Carl and Donna Thomsen. Fred Chandler had died in the interim.The Pettits moved to prohibit use of this prior testimony. They argued that his testimony in the previous trial was irrelevant because that suit was over an east west boundary whereas this suit was over a north south boundary. And they argued that his previous testimony failed to satisfy the requirements of ER 804(b)(1)¹ because they HAD NOT BEEN ABLE TO Cross-examine mr. Chandler. The Acords responded that Mr. Chandler's 1996 testimony was relevant to the current case because it included information about when fences on the property were built, by whom, and for what purpose, including that portion of the fence south of the Acords' property that played a role in the judge's decision here. The judge agreed with the Acords and ordered publication of the 1996 transcript.

¶ 6 During the earlier 1996 trial, Mr. Chandler testified that he purchased 160 acres from John and Jacqueline Sperber in 1972. In 1974, he purchased an additional 20 acres from Grouse Creek Associates. He testified that the property did not have a fence in 1974 and that he hired Jim Bosingham, a surveyor, to establish the boundary of his property. Mr. Chandler marked the boundary line with a fence after the perimeter was surveyed. Exhibit (Ex.) 16, at 11. He testified that he fenced the east line and then continued the fence to the southwest corner of the property where he continued the fence along his southern line. He testified that he fenced the south side of the property he purchased from Grouse Creek Associates according to the unofficial “survey on the south side of my property at the same time.” Ex. 16, at 34. He testified that, when he sold his property to the Acords in 1991, the fence was still in good repair and that he had regularly maintained it once or twice a year. Ex. 16, at 22, 24. During cross-examination in this first trial, he twice reiterated that he fenced his southern border in 1974 and regularly maintained the fence. Ex. 16., at 34, 35, 43.

¶ 7 During the trial giving rise to this appeal, witnesses testified about maintaining the boundary fence. Walter Acord was an adult when his parents bought the property. He testified that he moved to the area in 1996 and that he worked on the southern fence and rebuilt the gate on the south easement road. Eddie Acord also testified that he maintained the southern fence in the disputed area, explaining that he “cut trees off of it and stuck it back up.” Report of Proceedings (RP) at 40.

¶ 8 The Acords presented testimony that the disputed area had been used to cut wood. The Acords presented testimony of an expert, Al Lang. Mr. Lang had worked for the Department of Natural Resources for over 30 years as an engineer, surveyor, and forester. He then worked as a private forest consultant after retirement. At trial, he identified photos of 12 stumps he analyzed in the disputed area. He testified that he compared the stumps between the survey line and the fence line (the area in dispute) with comparable property that had been logged in 1976. He concluded based on this experience and these observations that the stumps in the disputed area had been cut between 1976 and 1980. And he observed that the stumps had been cut to the fence line.

¶ 9 The Pettits objected that the testimony did not pass the Frye² test because there were no peer reviewed articles to support his method of dating the stumps in the disputed area. The Acords responded that the Frye test did not apply and Mr. Lang simply had to show that he had knowledge and expertise beyond the average person. The court agreed with the Acords and allowed Mr. Lang to testify, “There's no peer review articles for sure, but again, [Mr. Lang's] been a forester in Idaho and Washington and he has been working in this part of the area for again about forty years. So for those reasons in the belief that the various environmental factors are much the same, I'll allow the opinion.” RP at 128.

¶ 10 At the end of the trial, the court entered conclusions of law including:

• The Chandlers and then the Acords had exclusive possession of the Acord property, including the contested area, for a total of 21 years, from 1974 to 1995, as evidenced by the boundary fence to the south, which established exclusive dominion. Clerk's Papers (CP) at 375–76.

• The Acords' possession was actual and uninterrupted because they lived on the property and the Chandlers and then the Acords made ongoing use of the contested area by logging and cutting firewood. CP at 376.

• The Acords and the Chandlers treated the contested area as “theirs as against the world throughout the statutory period.” They had it fenced, and kept the fences maintained. Their overt actions prove the hostility and claim of right element of adverse possession. “Their possession of the wooded area which included the contested area, was clear to the world.” CP at 376.

• The acts of the possessors were sufficiently open and notorious to manifest to others a claim to the contested area, given the character of the land.

• Vesting of title occurs once the 10–year period of adverse possession is completed. The Acords' claim to the contested area dates back to 1974 and therefore their interest in the contested area vested in 1984. CP at 377.

• Leigh Robertson interrupted the use of the eastern part of the Acords' property in 1995 by bulldozing the fence. Following this incident, the Acords stopped making use of the eastern part of the contested property. CP at 377.

• The Pettits and Leigh Robertson have made exclusive use of the contested area since 1995. The Pettits have adversely possessed the entire contested area since August 2000. CP at 377–78.

• The Acords acquired their title to the contested forest land by adverse possession under the law in effect in 1984. RCW 7.28.085 did not take effect until June 11, 1998. CP at 378. The Pettits cannot claim the contested area by adverse possession because they have not made substantial improvements under RCW 7.28.085 and are not record holders. CP at 378.

¶ 11 The court then quieted title to the disputed property to the Acords and released the stumpage lien. The court ordered that the Pettits were “forever barred” from asserting any right or interest to the disputed property. The court also dismissed the Acords' claim for money damages and attorney fees and costs.

DISCUSSION

Adverse Possession

¶ 12 Essentially, the Pettits contend that the Acords have not made a sufficient showing to establish ownership by adverse possession based on the evidence that should have been admitted and considered by the court.

¶ 13 To establish their claim of ownership by adverse possession, the Acords had to show possession that had lasted for 10 years and that was (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile. Chaplin v. Sanders, 100 Wash.2d 853, 857, 676 P.2d 431 (1984); ITT Rayonier, Inc. v. Bell, 112 Wash.2d 754, 757, 774 P.2d 6 (1989); RCW 4.16.020. The Acords can also “tack” the possession of a predecessor in interest to establish the use required for adverse possession. Roy v. Cunningham, 46 Wash.App. 409, 413, 731 P.2d 526 (1986); RCW 4.16.020.

[174 Wash.App. 104]¶ 14 Open and notorious requires a showing of use consistent with ownership. Chaplin, 100 Wash.2d at 863, 676 P.2d 431. The use and occupancy only needs to be like that of a true owner,...