Baudrand v. Iversen

• Decision Date: 26 April 2022
• Docket Number: 55493-3-II
• Parties: MERCEDES BAUDRAND and JAMES BAUDRAND, husband and wife, Respondent, v. CINDY IVERSEN, Appellant.
• Court: Washington Court of Appeals

MERCEDES BAUDRAND and JAMES BAUDRAND, husband and wife, Respondent, v. CINDY IVERSEN, Appellant.

No. 55493-3-II

Court of Appeals of Washington, Division 2

April 26, 2022

UNPUBLISHED OPINION

Worswick, J.

Cindy Iversen appeals a Judgment and Decree Quieting Title, that established title to a six foot and six inch strip of grass in her neighbors, James and Mercedes Baudrand. Iversen argues (1) the Baudrands did not adversely possess the disputed area because they mowed the strip as a neighborly accommodation. Iverson alternatively argues (2) the Baudrands are equitably estopped from asserting title, ^[1] and the trial court erred (3) by permanently enjoining her from entering or encroaching on the Baudrands' land, and (4) by composing an inadequate legal description that referred to a trial exhibit.

We hold that the Baudrands adversely possessed the disputed area and are not estopped from asserting title. However, we hold that the trial court erred in issuing a permanent injunction against Iversen and composing an inadequate the legal description. Thus, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

FACTS

A. Background

In 1995, the Baudrands purchased property located at 224 Tracy Avenue, Port Orchard, from Leonard Munroe. The property is adjacent to and north of the property currently owned by Iversen. Iversen acquired her property in 2014 at a foreclosure sale. When the Baudrands acquired their property William Rooms owned the Iversen property. Rooms died in 2011. The area subject to litigation is a strip of grass with minimal landscaping between the Baudrands' garage and Iversen's driveway.

B. Maintaining the Strip and Assisting Rooms

Munroe's grandson, Allan Muyskens, also lived on Tracy Avenue and mowed Munroe's lawn, including the disputed strip, from the time he was 12 years old. When Muyskens became an adult, he purchased a house in the neighborhood. At some point toward the end of his life, Rooms became dependent on a wheelchair, and Muyskens spoke with Rooms about mowing Rooms's backyard and cutting a hedge. Muyskens never discussed maintaining the disputed strip with Rooms. After Rooms became a "convalescent," Muyskens mowed Rooms's backyard and James Baudrand mowed Rooms's front yard. 1 Verbatim Report of Proceedings (VRP) (Oct. 20, 2022) at 70.

Between 1995 and 2014, the Baudrands and people on their behalf regularly mowed and maintained the disputed strip of land. No other person maintained the area during this time.

C. Filings and Surveys

In 1995, the Baudrands replaced an existing garage in the southeast corner of the property and obtained permits from the city, which included obtaining a variance. The Baudrands submitted a variance request that showed the setback from the corner of the garage to the shared property line with the Rooms's property was six feet and six inches. By this measurement, the variance request represented that the Baudrands owned the disputed strip. Rooms was aware of the variance request and did not object.

The six foot and six inch setback is the disputed area subject to litigation. The type of vegetation growing on the disputed strip was similar to that on the Baudrands' property. The area acted as a grassy buffer between the Baudrands' garage and the Iversen's driveway with no other specific utilitarian purpose.

In 2001, the Baudrands, who owned four adjacent lots, ^[2] recorded a short subdivision lot line adjustment in Kitsap County, adjusting the western border of the Baudrand property. Attached to this adjustment was a survey conducted by Robert Emerson of N.L. Olson & Associates, Inc. (Emerson survey). The Emerson survey incorrectly located the southern boundary of the Baudrand property. The Emerson survey showed the Baudrand/Rooms southern property line to be further to the north by three to four feet than the true property line. In 2004, the Baudrands recorded another boundary line adjustment involving their western boundary based again on the erroneous Emerson survey.^[3] D. Shed, Survey Stake, and String Line

Shortly after Iversen bought her property in 2014, James Baudrand helped her locate a survey stake on the western boundary line of the Baudrands' property. The survey stake was based on the erroneous Emerson survey.

Sometime after Iversen moved in, the Baudrands built a shed with a privacy fence on the western portion of their yard, about five feet away from the Iversen's garage. Iversen objected because she claimed it blocked her water view. The Baudrands then moved the shed to the other side of the property. After the dispute over the Baudrands' shed, Iversen strung a line from the southwest boundary marker to a concrete pin near the Baudrands garage. A year later in 2017, Iversen replaced the string line with a fence almost touching the Baudrands' garage. The fence was located on the disputed area.

The Baudrands filed a complaint against Iversen to quiet title to the disputed strip of land. In an amended complaint, the Baudrands asserted title through adverse possession and recognition and acquiescence, and they sought quiet title of the disputed property, barring Iversen from having any claim to the property, ejectment, and trespass damages. They did not seek injunctive relief. Iversen asserted the defense of estoppel, and also counterclaimed for quiet title to the disputed property.

E. Trial Testimony and Decisions

The matter proceeded to a bench trial. Witnesses testified to the facts above.

Muyskens specifically testified that he and Rooms did not discuss mowing the disputed strip of land, just the front and the back of the yard. Muyskens also testified that his grandparents built and lived in the Baudrands' home before they sold it to the Baudrands, and Muyskens regularly mowed the disputed area because his grandfather said "that's what [we] owned up to the garage." 1 VRP (Oct. 20, 2020) at 58. Muyskens approximated this area as "at least six feet" from the corner of the garage to Iversen's driveway. 1 VRP (Oct. 20, 2020) at 62. This approximation included the disputed area.

In addition, Muyskens testified that the Baudrands maintained the disputed area for at least 20 years, and that he had never seen Rooms use the disputed property. James Baudrand also testified that he mowed right up to the gravel driveway until Rooms was incapacitated, and only then did he start mowing the whole yard. The Baudrands' landscaper, Wendy Walker, testified that she started mowing the Baudrands' yard in 2010. She testified that she always mowed up to the gravel driveway.

James Baudrand testified that in addition to landscaping the area, he maintained the lilac bushes, placed a little garden birdbath and welcome tile, and planted a few plants in the disputed area. He also testified that he used the disputed area to get back in the yard. And, James Baudrands took down apple trees and blackberry bushes to make the area more accessible when he moved in. Mercedes Baudrand testified that they installed the birdbath when they first moved into the property in 1995. The Baudrands testified that they assumed they owned the disputed property, and that they maintained it as their own the entire time they owned the Baudrand property.

Iversen testified that the disputed area was overgrown when she purchased the property, and that she had placed the string line to "clarify" the boundary line. 2 VRP (Oct. 21, 2022) at 190. After she placed the string line, the Baudrands never said anything about it. She testified that the reason James Baudrand moved the location of his shed is because she told him it was on the property line.

The trial court entered findings of fact and conclusions of law, entered a Judgment Quieting Title in the Baudrands, ejected Iversen, and ordered that she must remove the fence encroaching on the Baudrands' property and further permanently enjoined Iversen from encroaching on the Baudrands' property. The trial court also determined that Iversen failed to prove her claims for trespass, ejectment, or adverse possession.

The trial court made the following relevant findings of fact "by a preponderance of the evidence":

19. Between 1995 and 2014 the Baudrands and people on their behalf mowed a strip of land and took care of the area around the lilac plants that were planted in the disputed area to the north of the Baudrands garage. The mowing and other maintenance were done regularly. No other maintenance of this area was done by anyone other than the Baudrands or people on their behalf.

19 n.ll. The court finds that the Baudrands and their predecessor's use of the disputed area exceeds the period from 1995 to 2014 but cannot find with certainty when the use began. It ended when Ms. Iversen constructed her fence that encroaches on the property the Baudrands have acquired by adverse possession.

20.Mr. Rooms was able to garden during this time, at first but towards the end of his life he was in a wheelchair and in pain.

21. The area of the Iversen Property that the Baudrands maintained is grass/slash lawn similar to the character of the grass/slash lawn on the adjacent Baudrand Property to the west of the Baudrand garage. It is a grassy buffer between the garage and the driveway on the Iversen Property There is no other specific utilitarian use of this area.

22. The Baudrands used this area openly and notoriously for a period of over ten years. The use was continuous, exclusive, and hostile to the rights of Mr. Rooms and Ms. Iversen. The use by the Baudrands was of the nature that a true owner would assert in view of the nature and location of the property.

25. There was insufficient evidence presented by the Baudrands or Ms. Iversen to prove claims of mutual recognition and

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