City of Edmonds v. Williams

• Decision Date: 26 June 1989
• Docket Number: No. 21448-9-I,21448-9-I
• Citation: 54 Wn.App. 632,774 P.2d 1241
• Parties: CITY OF EDMONDS, Respondent, v. Kenneth E. WILLIAMS, Sr., and Jane Doe Williams, Husband and Wife, and the marital community composed thereof, Appellants.
• Court: Washington Court of Appeals

Page 632

54 Wn.App. 632

774 P.2d 1241

CITY OF EDMONDS, Respondent, v. Kenneth E. WILLIAMS, Sr., and Jane Doe Williams, Husband and Wife, and the marital community composed thereof Appellants.

No. 21448-9-I.

Court of Appeals of Washington Division 1.

June 26, 1989.

William W. Brown and Charles D. Brown, Seattle, for appellants, Kenneth E. Williams, Sr

Steven J. Gordon, Bellevue, for respondent, City of Edmonds.

JOHN SCHUMACHER, Judge Pro Tem. ¹

Kenneth Williams, Sr., and Jane Doe Williams (Williams), appeal from an order of summary judgment establishing an easement over Williams' property. We affirm.

Williams and the City of Edmonds (City) own adjacent parcels of real property. For purposes of this opinion, the City's parcel is referred to as parcel A; Williams' parcel is referred to as parcel B. Both parcels A and B were owned by Myron and Ruth Hamlin (Hamlin) until July 30, 1969. On that date, Hamlin conveyed parcel A to Neil and Mildred Matson. The parcel A deed included "an easement for ingress, egress and utilities over, under and upon" parcel B. On the same date, Hamlin conveyed parcel B to Pacific Northwest Realty, Inc. The parcel B deed did not indicate that an easement burdened the property. The parcel A deed was recorded prior to the parcel B deed.

Pacific Northwest Realty conveyed parcel B to Williams' daughter in 1970, without reference to any easement burdening the property. Williams acquired title from his daughter in the same year and constructed a fence around the boundaries of parcel B, which fence has remained since.

The City obtained a judgment of foreclosure against parcel A for unpaid LID assessments in 1973, and in 1975 received a foreclosure deed to parcel A. No mention was made of the easement rights over parcel B in the foreclosure proceeding and Williams was not directly notified of the pending foreclosure.

The City became aware that Williams' fence blocked its easement over parcel B and, in 1987, filed suit to quiet title in its easement and to enjoin Williams from obstructing use of the easement. After considering motions by the City and Williams, the trial court entered an order of summary judgment for the City. Williams appealed, asking this court to find that he adversely possessed the City's easement and that the City does not have valid title to parcel A.

ADVERSE POSSESSION

Williams first contends that he adversely possessed the City's easement over parcel B. Williams' claimed adverse use consists of having used the easement area for approximately 17 years, and having maintained a fence around the entire parcel B perimeter for the same period.

An easement can be extinguished through adverse use by the owner of the servient estate. Howell v. King Cy., 16 Wash.2d 557, 559-60, 134 P.2d 80, 150 A.L.R. 640 (1943); Lewis v. Seattle, 174 Wash. 219, 223-25, 24 P.2d 427 (1933). Generally, whether an easement is extinguished by adverse use is determined by applying the principles that govern acquisition of title by adverse possession and acquisition of an easement by prescription. Annot., Loss of Private Easement by Nonuser or Adverse Possession, 25 A.L.R.2d 1265, § 2 at 1274-75 (1952); 1 Washington State Bar Ass'n, Real Property Deskbook § 15.48 (2d ed. 1986). Thus, the principle that adverse possession cannot be acquired against property held by a municipality in its governmental capacity applies to extinguishing easements by adverse use, as well as to acquiring property interests through adverse use. See generally Commercial Waterway Dist. No. 1 v. Permanente Cement Co., 61 Wash.2d 509, 512, 379 P.2d 178 (1963); West Seattle v. West Seattle Land & Imp. Co., 38 Wash. 359, 363-64, 80 P. 549 (1905). This limitation upon adverse possession derives from the rule that the adverse possession statute cannot run against the state. RCW 4.16.160; see also Commercial Waterway, 61 Wash.2d at 512, 379 P.2d 178.

The question here is whether the City held parcel A and the access easement across Williams' property in its governmental capacity, thereby precluding Williams from adversely possessing the easement. We hold that under Gustaveson v. Dwyer, 83 Wash. 303, 145 P. 458 (1915), the City's property interest was held in its governmental capacity.

In Gustaveson, the court ruled that property acquired by a governmental body by purchase at a tax sale is held for public purposes and therefore in its governmental capacity. The court reasoned that because actions to enforce taxes are necessary to obtain revenue for maintaining governmental functions, property acquired in a tax foreclosure action is held in a governmental capacity. It is irrelevant whether the state, a municipality, or another governmental body initiated the revenue collection action at issue, because a

statute of limitations [including an adverse possession statute] has no application, whether the tax sought to be collected is to become the property of the state and payable directly into the state treasury, or whether it is to become the property of the particular county or municipality and payable into the municipal treasury to be expended for municipal purposes. In either case the tax has been imposed and collected for the express purpose of carrying on the functions of government.

Gustaveson, 83 Wash. at 309-10, 145 P. 458.

On appeal, Williams attempts to distinguish Gustaveson as involving a tax sale rather than a LID assessment foreclosure. Williams also attacks Gustaveson's continuing validity. Neither argument is persuasive.

Williams' attempt to distinguish Gustaveson ignores the real focus of a governmental capacity inquiry: whether the revenue collection procedure at issue was imposed to raise revenue for carrying on governmental functions. A LID assessment clearly serves this purpose. Article 7, section 9 of the Washington State Constitution, RCW Ch. 35.43, and RCW 36.94.220 et seq., authorize local governments to use LID assessments to finance and construct vital public improvements, such as streets, water systems, and sewers. A LID can be established only to serve public interest or convenience. RCW 35.43.040; see also RCW 36.94.900 (sewerage and water system LID special assessments are for a public purpose).

Williams' attack on Gustaveson's validity is also unpersuasive. The cases upon which Williams relies, Kesinger v. Logan, 51 Wash.App. 914, 756 P.2d 752, review granted, 111 Wash.2d 1018 (1988), and Sisson v. Koelle, 10 Wash.App. 746, 520 P.2d 1380 (1974), ² are inapposite, as neither involves property acquired in tax or LID foreclosures.

Furthermore, Williams did not make a sufficient showing of adverse use to establish adverse possession of the City's easement. Termination of easements is disfavored under the law. 28 C.J.S. Easements § 52 (1941). Thus, a permanent easement created by grant or reservation is not lost by mere...