Butler v. Anderson, 38823
| Decision Date | 06 April 1967 |
| Docket Number | No. 38823,38823 |
| Citation | 426 P.2d 467,71 Wn.2d 60 |
| Parties | Anna Virginia BUTLER, as Executrix of the Estate of Harry R. Butler, Deceased, and Anna Virginia Butler, Individually, Respondent, v. Orland ANDERSON and Jane Doe Anderson, his wife, Jan Hoskins and Jane Doe Hoskins, his wife, Defendants, Grady Hammon and Jane Doe Hammon, his wife, Robert L. Shields and Jane Doe Shields, his wife, and W. P. vonMarenholtz and Jane Doe vonMarenholtz, his wife, Appellants. |
| Court | Washington Supreme Court |
Burkheimer, Cavender, Wyman & Curtis, Seattle, for appellants.
Newman & McCann, Seattle, for respondent.
This appeal arises from an action instituted by the plaintiff (respondent), Anna Butler, individually and as executrix of the estate of her deceased husband, Harry R. Butler, to quiet title to a narrow strip of property between her tract and that of the defendants (appellants), W. P. vonMarenholtz and his wife. Both tracts are located on the shores of Lake Sammamish. Plaintiff Anna Butler, who will be referred to as the sole owner of the Butler tract, also sought damages for the destruction of certain natural and planted growth on the disputed strip.
The trial court found that there was actual, open, continuous and exclusive adverse possession by the plaintiff to a portion of the disputed strip. It entered judgment quieting title to this portion in favor of the plaintiff and awarded her $1,750 damages for destruction of the greenery. Defendants appeal.
The defendants first assign error to the trial court's entry of the finding of adverse possession. They contend that it is not supported by the evidence. The evidence supporting the finding of the trial court is as follows:
Plaintiff and her husband purchased their lakefront lot in 1927. The following illustrative diagram shows the respective tracts of the parties as they appeared at the time of trial. The shaded portion reflects that part of the disputed strip which the trial court found to have been adversely possessed by the plaintiff. The plaintiff does not question this finding, on appeal, even though her original claim extended beyond the shaded area to the extreme southwestern corner of her tract (not pictured).
The approximate south boundary of the Butler tract, pictured in this diagram as the cyclone fence, is the surveyed line between the two parcels. The record discloses that when the plaintiff purchased the northern tract, its south boundary was irregularly defined by an old wire and cedar post fence, which had been placed just south of the line before the possession of either party. The fence was not cared for by the plaintiff or her husband and fell into disrepair.
Plaintiff never regarded the irregular fence line as her south boundary; but at all times believed the line to extend from a single piling in the lake to the southwesterly corner of her lot, continuing along the south line of the shaded area. Pursuant to this belief, the plaintiff and her husband constructed a summer cottage on the property in 1928, and planted a lawn running to the water line, shortly thereafter. Both desired privacy to the south for their cottage and the swimming area, and set about to improve the boundary by planting a 50-to 60-foot holly hedge beside and to the rear of the cottage. The angle of this hedge was on line with the piling and engulfed the old fence at various points within its foliage.
In addition, the plaintiff allowed the native growth from the water line to the planted holly hedge to grow and each year, after it grew to hedge dimensions, the plaintiff's husband or other relatives would trim the south side of both the native hedge and the holly hedge on line with the offshore piling as the boundary. A gate, shown in the diagram, indicates the division between the planted holly hedge and the native hedge. The width of this native hedge varied from 1 to 2 feet near the cottage to 10 to 12 feet near the shoreline. Its height exceeded 10 feet, and in length, the hedge ran from the cottage to just above the shoreline.
The grass planted by plaintiff's husband was mowed by him during these years and included a patch of grass on plaintiff's side of the native hedge, one below the hedge near the water, and a 6-foot strip on the other side, now designated by the trial court's ruling as the vonMahrenholtz property. One disinterested witness unequivocally stated that in the early '30s he had helped the plaintiff's husband mow this lawn on both sides of the native hedge, as well as trim both sides of this growth. Other testimony corroborated that this hedge and lawn care continued for many years past the statutory period.
Evidence was also introduced to show that the plaintiff had over the years, since at least 1928, made other improvements on the triangular shaped strip by augmenting the native growth of the hedge below the light pole with trees, berry vines, and flowers. These plantings were described as golden willows, elm, privet, honeysuckle, blackberries, and wild roses.
The record further reveals that in the '30s plaintiff's husband layed a pipeline on the ground from the lake to the rear of the Butler home, and that a portion of it came over across the south line for several feet on the vonMahrenholtz property. By 1958 this pipeline became obscured in the growth of the native hedge. At the lakefront, in front of the hedge, the pipeline was connected to a pump that lifted irrigation water from the lake.
Between the native hedge and the house, children had trampled a path to a width of 3 feet and the fence had fallen far enough to permit regular grass mowing between it and the southernmost corner of the house.
There was abundant testimony that from 1927, and at least through the '30s, a cable stretched between the two properties from the piling in the lake up to the hedge, in general extension of...
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