Campbell v. Reed

• Decision Date: 01 August 2006
• Docket Number: No. 33395-3-II.,33395-3-II.
• Citation: 139 P.3d 419,134 Wn. App. 349
• Court: Washington Court of Appeals
• Parties: Margaret R. CAMPBELL, a married person but on behalf of her separate estate; Respondent, and Timothy J. Taylor and Laura Lynn Taylor, husband and wife; Jon E. Steiner and Ruth V. Steiner, husband and wife; Ruth A. Steiner, a single person, Plaintiffs, v. William G. REED, Jr. and Victoria Reed, husband and wife, and the marital community composed thereof, Appellants. William G. Reed, Jr. and Victoria Reed, husband and wife, and the marital community composed thereof, Third-Party Plaintiffs, v. Charles W. Gunstone, Jr., et al., a Washington corporation, Third-Party Defendants.

Page 419

139 P.3d 419

134 Wn. App. 349

Margaret R. CAMPBELL, a married person but on behalf of her separate estate; Respondent, and Timothy J. Taylor and Laura Lynn Taylor, husband and wife; Jon E. Steiner and Ruth V. Steiner, husband and wife; Ruth A. Steiner, a single person, Plaintiffs, v. William G. REED, Jr. and Victoria Reed, husband and wife, and the marital community composed thereof, Appellants.

William G. Reed, Jr. and Victoria Reed, husband and wife, and the marital community composed thereof, Third-Party Plaintiffs, v. Charles W. Gunstone, Jr., et al., a Washington corporation, Third-Party Defendants.

No. 33395-3-II.

Court of Appeals of Washington, Division 2.

August 1, 2006.

Michael Dennis Dwyer, Michael Barr King, Lane Powell PC, Seattle, WA, for Appellant.

J. Anthony Hoare, Seattle, WA, for Respondent.

Keith E. Moxon, Buck & Gordon LLP, Seattle WA, for Plaintiff Gunstone.

ARMSTRONG, J.

¶ 1 Margaret Campbell and William Reed have owned adjoining parcels of property on Discovery Bay for a number of years. When a recent survey revealed that the property Campbell thought she owned was actually within Reed's legal description, Campbell sued to quiet title on theories of (1) mutual recognition and acquiescence; (2) payment of taxes under color of title; and (3) adverse possession. Both parties moved for summary judgment; the trial court granted Campbell's motion, ruling that she had paid taxes under color of title on the property for more than seven consecutive years under RCW 7.28.070 or RCW 7.28.080. We hold that because Campbell failed to establish color of title, RCW 7.28.070 and RCW 7.28.080 do not apply. Accordingly, we reverse the summary judgment for Campbell; but because Campbell has established issues of material fact on her other claims, we hold that Reed is not entitled to summary judgment. We remand for further proceedings.

FACTS

¶ 2 Margaret Campbell and William G. Reed, Jr. own adjoining property lots abutting Discovery Bay in Port Townsend. The Campbell property is legally described as:

The westerly 100 feet of the easterly 500 feet of Government Lot 2, Section 35, Township 30 North, Range 2 West, W.M., together with tidelands of the second class abutting upon said parcel as conveyed by the State of Washington, in Jefferson County, Washington.

Clerk's Papers (CP) at 54.

¶ The Reed property is described as:

The easterly 400 feet of the northeasterly 29 acres of the northeast quarter of the southwest quarter and the easterly 400 feet of Government Lot 2 in Section 35, Township 30 North, Range 2 West, W.M., together with [the] tidelands of the second class abutting upon said parcel as conveyed by the State of Washington, in Jefferson County, Washington.

CP at 54-55.

¶ 4 Concerned that some loggers might be encroaching on his property, Reed hired Ronald Nesary in 1992 to survey and set his boundaries. The survey showed that the loggers were working on the Gunstone property to the east of Reed's boundary. But Nesary also set Reed's common boundary with Campbell nearly 100 feet west of where Campbell had always believed it to be based on a 1945 survey by Harold Walker. The Walker and Nesary surveys conflicted because the surveyors used different methods to locate the north-south centerline of section 35.

¶ 5 Campbell's property is only 100 feet wide, and she knew that locating her boundary, with Reed 100 feet to the west, put her property almost entirely on the land her neighbor Edwin Flowers had improved and occupied for more than 10 years. Accordingly, Campbell knew that if the Nesary survey was correct, she had lost her property by adverse possession to Flowers.¹ Consequently, Campbell brought this action to quiet title to the property she believed she had always owned (the west 100 feet of Reed's property as surveyed by Nesary). She alleged alternative theories of (1) payment of taxes under color of title, (2) mutual recognition and acquiescence in a common boundary, and (3) adverse possession.

¶ 6 To ensure that the same survey would apply to both his east and west boundary lines, Reed joined Gunstone as a third party defendant. The trial court granted Gunstone's motion for a separate trial and ordered Campbell and Reed to proceed to trial "solely on the issue of which survey or survey methodology controls the location of both boundaries ... at issue." CP at 54.

¶ 7 The trial court found that the Nesary survey was correct and controlled the locations of the Reed—Campbell boundary and the Reed—Gunstone boundary. In an unpublished opinion, we affirmed, holding that "the trial court's findings [were] supported by substantial evidence, and the conclusion that Nesary's survey should prevail [was] supported by the findings." Campbell v. Reed, No. 23603-6-II, 96 Wash.App. 1017, 1999 WL 429855 at *6, 1999 Wash.App. LEXIS 1154 at *21 (Wash.Ct.App. June 25, 1999). We remanded the case for further proceedings on Campbell's alternative title claims.

¶ 8 On remand, Campbell moved for summary judgment quieting title based on payment of taxes under color of title for more than seven consecutive years under RCW 7.28.070 or RCW 7.28.080. In support of her motion, Campbell submitted a declaration from Judith E. Morris, the Jefferson County Treasurer. Morris declared that "Tax Parcel No. 002-352-008 [the Campbell property] has been assessed and taxed as a separate parcel of land for more than 10 years prior to 1990 and the taxes have been paid on such parcel until 1997." CP at 120.

¶ 9 In addition, Campbell declared that "[f]rom 1972 until I sold the subject property to Steiner and Taylor, et al, in 1990, a period of at least 17 years, I was billed for and paid the real estate taxes on the subject property."² CP at 128. She also stated:

At the time of my conveyance of the property to Steiner, Taylor et al, the survey stakes placed in 1945 as a result of the Walker-Batcheller survey were clearly evident and present and had been present and evident based on my personal knowledge and familiarity with the property beginning in 1962 when my parents acquired the property and continuing to the present time.

CP at 129.

¶ 10 Peter Degroot, a surveyor, stated that his firm had recently surveyed the Campbell property. He testified that the Walker survey stakes at the southeast corner and northeast corner of "what was purportedly the Campbell property were evident and capable of being located at the time our field work was accomplished within the last several months." CP at 112. He also explained that along the "Flowers/Campbell boundary there were fence lines near the south end of the property, wood posts at various locations and a wire fence at the north end of the property." CP at 113.

¶ 11 Reed argued in part that RCW 7.28.070 and RCW 7.28.080 apply only to land legally described in a paper title and that Campbell has no paper title to the disputed 100 feet of property. Reed also argued that his payment of taxes on the same property, which his deed describes, nullifies any duplicate payment of taxes on that property by Campbell.

¶ 12 Reed also moved for summary judgment dismissing Campbell's boundary location claims based on (1) mutual recognition and acquiescence and (2) adverse possession. In his affidavit in support of his motion, Reed states, "I have never seen a fence or other potential boundary marker on or near the Discovery Bay Property other than the dilapidated barb wire fence that existed in 1973 near the eastern boundary of the property where it meets the Gunstone property." CP at 169.

¶ 13 The lower court granted Campbell's motion, ruling that she had obtained title to the disputed property by paying taxes on the property under color of title. Reed moved for reconsideration or, in the alternative, for leave to amend his third party complaint. With this motion, Reed submitted a declaration from Jack Westerman, the acting Jefferson County Assessor. Westerman stated,

Since the Assessor has assessed the owner of the Campbell property for what the Assessor believed to be the 100 feet of property due east of the property occupied by the owners of the Flowers/Carey property, and since the Assessor ... believed to be the east 400 feet of Government Lot 2, it is now evident that there has been a double assessment of the west 100 feet of the east 400 feet of Government Lot 2 and that both Margaret Campbell and Wm. G. Reed, Jr. have been paying tax on the west 100 feet of the east 400 feet of Government Lot 2.

CP at 332.

¶ 14 The court denied Reed's motion for reconsideration but allowed him to amend the third party complaint.

ANALYSIS

I. Standard of Review

¶ 15 We review a summary judgment de novo. Ret. Pub. Employees Council of Wash. v. Charles, 148 Wash.2d 602, 612, 62 P.3d 470 (2003). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); Charles, 148 Wash.2d at 612, 62 P.3d 470. In considering a summary judgment motion, we view the facts and all reasonable inferences from them in the light most favorable to the nonmoving party. Wagg v. Estate of Dunham, 146 Wash.2d 63, 67, 42 P.3d 968 (2002); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

II. Grant of Summary Judgment Quieting Title in Campbell

¶ 16 Reed argues that the trial court erred in granting quiet title to the disputed property based on payment of taxes under color of title in accordance with RCW 7.28.070 and/or RCW 7.28.080. He asserts that Campbell has no color of title to the disputed property because she has no paper title to it, and she has not paid any taxes "legally assessed" against the property. Br. of Appellant at 19.

¶ 17 Under RCW 7.28.070, one who possesses land under color of title and who pays legally assessed taxes for seven successive years may bring an adverse possession action at the end...