El Cerrito, Inc. v. Ryndak, 36134
Decision Date | 29 November 1962 |
Docket Number | No. 36134,36134 |
Citation | 60 Wn.2d 847,376 P.2d 528 |
Parties | EL CERRITO, INC., a Washington corporation; Frank J. Capretto and Fredena Capretto, his wife; and John G. Young and Elsa C. Young, his wife, Respondents, v. Bruno RYNDAK and Margaret Ryndak, his wife, et al., Appellants |
Court | Washington Supreme Court |
William B. Christie, Seattle, for appellants.
Riddell, Williams, Voorhees, Ivie & Bullitt, Seattle, for respondents.
This is an appeal by the record title holder of a two-and-one-half-foot strip of land from a judgment quieting title to this land in respondents in an action brought under the ten-year adverse possession statute. The case was tried before the court which made certain findings of fact and conclusions of law, both of which are assigned as error.
Respondents move to dismiss this appeal on the ground that appellants failed to comply with Rule on Appeal 51 concerning the service of notice of filing an appeal bond. Appellants did serve a copy of the index of the transcript upon the respondent, which shows that a cash deposit in lieu of a bond was given. Since this is not a jurisdictional matter, it is within this court's discretion to grant or deny the motion. Hamilton v. Kiona-Benton Irrigation District, 44 Wash.2d 421, 268 P.2d 446 (1954). Since there is no showing that respondents have been prejudiced in this instance, dismissal of the appeal is not justified. The motion will be denied.
Respondents John G. Young and Elsa C. Young now hold title to the following described real property:
'The South 40 feet of Lot 26, Block 11, Greene's Addition to the City of Seattle, as recorded in Volume 2 of
Plats, page 73, records of King County, King County, State of washington.'
October 28, 1957, the Youngs sold, by an executory contract of sale, the above described real property, together with adjoining properties not here involved, to respondents Frank J. Capretto and Fredena Capretto, who in turn sold, by an executory contract of sale, the property to respondent El Cerrito, Inc., a Washington corporation, which is now in possession. The Caprettos and El Cerritos, Inc., have a conditional vendee's interest in the above described property.
In 1930, an apartment house, known as El Cerrito Apartments, was constructed on respondents' property (hereafter referred to as the apartment property) by one Beardsley. March 31, 1936, Beardsley sold and conveyed the apartment property to Captain Severin K. Gilje and Alma Gilje, his wife. Captain and Mrs. Gilje immediately entered into possession of the apartment property and lived in the apartment house until about 1947, at which time they moved out and turned over the management of the apartment house to one of their tenants. In 1949, the Giljes sold the El Cerrito Apartments to Harry W. Boyd and Ruth, his wife. The Boyds entered into possession and lived in the apartment house until they sold the apartment property in 1957 to respondents Young.
Appellants Bruno Ryndak and Margaret Ryndak, his wife, are the record title holders of the real property which abuts upon the north side of the apartment property. Appellants' land will hereafter be referred to as the Ryndak property. The Ryndaks acquired their property in 1948, and since then have resided in the house that was already constructed thereon.
The disputed property is a two-and-one-half-foot strip immediately north of the Ryndaks' south property line. The southern edge of the strip constitutes the record 109-foot common boundary between appellants' and respondents' properties. The trial court found that the Giljes and the Boyds (severally) held the disputed property during their entire respective periods of ownership in such a manner as to acquire title thereto by adverse possession if held for the requisite ten-year period, under RCW 4.16.020.
The findings of fact of the trial court as they pertain to respondents' claim of adverse possession based on occupancy by the Giljes and the Boyds may be summarized as follows:
Prior to the Giljes' occupancy, a green picket fence, about four feet in height, was constructed on a line substantially parallel to the true north line of respondents' property and approximately two and one half feet north thereof. This fence existed only along the central thirty-nine feet of the disputed area, which is about one third of the length thereof. It remained standing until sometime in 1959 or 1960, when it was removed. The Giljes and the Boyds considered this fence the north line of their property. The pickets of the fence were repaired by Gilje when damaged, and he installed a gate where the fence formed a T, joining it to the apartment house to afford access along the north side of the apartment house building without trespassing on his neighbor's property to the north.
The Giljes planted flowers and raised laurel shrubs on the south side of this fence and north of the true property line. A laurel tree and a holly tree situated at the westerly end of the property and just north of the true lot line were trimmed and cared for by the Giljes.
A cement walk serving the side door of the apartment house was built in 1930, the north edge of this sidewalk being eight inches or more north of the true line of respondents' property. The eaves of the apartment house extend across the true line approximately two inches for the full length of that portion of the apartment house wall directly across from the south wall of appellants' house. The casement windows of the apartment house when fully open extend approximately a foot across the true line and can be washed from the outside only by standing partly on the disputed strip of land. Captain Gilje kept the garbage cans for the apartment house where they projected approximately two to two and one half feet north of the true line. Early in the period of Captain Gilje's occupancy, he had a wooden covering constructed for the garbage cans by having holes dug for posts and building a frame around and over the garbage cans. This wooden frame remained until forcibly removed by appellants Ryndak in 1960.
Mrs. Boyd also planted and cared for flowers and ferns on the south side of the fence, but north of the true property line, In addition, she installed flagstones on the south side of the fence, but north of the true line. Harry Boyd and his gardener cared for the laurel tree and the holly tree previously mentioned, and Boyd, just prior to 1957, removed the laurel tree.
Harry Boyd built a two-foot-wide walk along the north side of the garbage can area to provide better access to the garbage cans; he obtained permissing from Ryndak to construct this walk and no claim is made to the land under it. Various tennants of the apartment house raised flowers on portions of the Ryndak property with their permission, and no claim is made as to that property.
The Giljes, for the thirteen years of their ownership, and the Boyds, for the eight years of their ownership, exercised dominion and possession over the disputed two-and-one-half-foot strip of land for the entire length of the property. None of the respective occupants or owners of the Ryndak property made claim to any of the land south of the land marked by the above fence from 1936 to at least 1956 or 1957.
Although appellants have made nine assignments of error, they admit in their brief that the issues involved are more sharply limited. Appellants' first contention to be considered is that the findings of fact do not support the conclusion that the use and possession of the disputed two-and-one-half-foot strip over the entire length of the Ryndak property by, first, the Giljes and, later, the Boyds during the period from 1936 through 1957 was of such a character as to establish title by adverse possession. The character of respondents' possession during the statutory period is one of fact. Mugaas v. Smith, 33 Wash.2d 429, 206 P.2d 332, 9 A.L.R.2d 846 (1949). Where the record contains substantial evidence which supports the findings of the trial judge, they will not be disturbed on appeal. Clausing v. Kassner, 160 Wash.Dec. 11, 371 P.2d 633 (1962); Guyton v. Temple Motors, Inc., 58 Wash.2d 828, 365 P.2d 14 (1961).
With regard to the findings of the trial court appellants have assigned error to the specific findings that the laurel tree was not on the questioned tract and that the holly tree was actually trimmed by the Giljes. Additional error is assigned to the finding that dominion and possession were exercised by the Giljes and Boyds over the two-and-one-half-foot strip for the entire length of the property during their respective ownership of the apartment property. A survey of the apartment property, together with photographs admitted in evidence, shows that the stem of the tree was to the west of the brick retaining wall that marked the western extremity of both the Ryndak and apartment properties; nevertheless, the trial court could well have found that the branches and foliage which were trimmed by the Giljes extended over the disputed strip. There is no evidence to support a finding that the Giljes trimmed the holly tree. However, we deem these particulars insufficient, in the light of all the evidence, to warrant disturbing the general findings that the Giljes and Boyds exercised required dominion and possession over the entire strip, which is necessary to support the adjudication of adverse possession under the facts of this case.
The fact that the apartment house was managed by a tenant during the last two years of the Giljes' ownership does not negate the finding of uninterrupted and exclusive possession by them of the disputed strip of land for the thirteey-year period. O'Brien v. Schultz, 45 Wash.2d 769, 278 P.2d 322 (1954); Foote v. Kearney, 157 Wash. 681, 290 P. 226 (1930).
Appellants argue that, if there were adverse possession, at most it covered only the area where the garbage cans were...
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