Erickson Bushling, Inc. v. Manke Lumber Co.
| Citation | 77 Wn.App. 495,891 P.2d 750 |
| Decision Date | 13 April 1995 |
| Docket Number | No. 16321-7-II,16321-7-II |
| Court | Court of Appeals of Washington |
| Parties | ERICKSON BUSHLING, INC., a Washington corporation, and Jack Hart, Respondents, v. MANKE LUMBER COMPANY, a Washington corporation, Appellant. |
Thomas J. Taylor, Taylor Law Offices, Tumwater, for appellant.
Nathan G. Richardson, Johnson, Miller & Richardson, Port Angeles, for respondent.
Manke Lumber Company appeals from a trial court judgment quieting title to certain property and awarding damages for timber trespass. We affirm.
The facts are undisputed. Erickson Bushling, Inc. and Jack Hart (Erickson) own adjoining undeveloped parcels of land in Clallam County. Manke Lumber Company (Manke) owns property abutting Erickson's land on the north. A section line divides the Erickson and Manke properties. When the land was originally platted, a 60-foot wide easement for a county road was dedicated. The easement ran 30 feet on either side of the section line. Although the road was never opened, the easement was likewise never vacated by Clallam County.
Sometime in the 1950's, Erickson's predecessor in interest built a barbed wire fence along what he believed was the section line. However, the fence actually meandered to the north of the section line, at one point encroaching more than 30 feet onto Manke's property. In 1990, Manke had the property surveyed and discovered the discrepancy. Manke then logged the property up to the section line, crossing the existing fence line.
Erickson filed a lawsuit to quiet title to the property and for timber trespass. Erickson moved for partial summary judgment to determine whether the action could be maintained in light of the County's easement and the law that adverse possession generally cannot run against property held for any public purpose. Erickson's motion was granted, and in its memorandum opinion granting partial summary judgment, the trial court noted that RCW 7.28.090, the general rule that adverse possession cannot run against lands held for a public purpose, applies only where the government has title to the land in question.
Before a bench trial was held on the matter, Manke moved in limine for an order barring Erickson from presenting any testimony relating to adverse possession of the property. The motion was denied. At the conclusion of trial, the court entered judgment quieting title to the disputed property in Erickson. Pursuant to RCW 64.12.030, Erickson was also awarded treble damages for Manke's timber trespass in logging on the property. Manke appeals.
Manke contends the trial court erred in: (1) granting partial summary judgment for Erickson; (2) denying Manke's motion in limine; and (3) entering conclusions of law 2, 3, 4, 5, 6, 7, and 8. Manke's contentions are all predicated upon the argument that adverse possession claims are precluded against property held by a governmental entity for a public purpose. Manke asserts that RCW 7.28.090 and case law bar Erickson's claim, because most of the disputed property was part of a dedicated, unopened public road or right of way, and thus was subject to a governmental interest.
RCW 7.28.090 reads in pertinent part:
RCW 7.28.070 and 7.28.080 1 shall not extend to lands or tenements owned by the United States or this state, nor to school lands, nor to lands held for any public purpose.
However, when land is dedicated to the public for a street or road, the public acquires only an easement. See Rowe v. James, 71 Wash. 267, 270, 128 P. 539 (1912). Therefore, here, the County has only an equitable interest in the property for a public right of passage. See Finch v. Matthews, 74 Wash.2d 161, 167-68, 443 P.2d 833 (1968). The underlying fee remains in the adjacent property owners. See Finch, at 167-68, 443 P.2d 833. The owners of land on each side of the street own in fee to the center of the street, subject only to the easement in the public. See Rowe, 71 Wash. at 270, 128 P. 539.
Manke relies upon several cases for its argument. First, Manke argues that Jackson v. Pennington, 11 Wash.App. 638, 525 P.2d 822, review denied, 84 Wash.2d 1013 (1974), supports its position. Jackson involved a claim for adverse possession against property formerly held by a municipality for a public esplanade. However, in Jackson, the city held title to the land in question, a fact which was recognized by the party asserting adverse possession. The plaintiffs owned a small cottage which had been built almost entirely on land within the esplanade. When the plaintiffs sought a building permit to expand the cottage, the city informed them that because the cottage was on land designated for a street, it would require a permit to use the street before issuing the building permit. The appellate court held that by applying for a such a permit, the plaintiffs had recognized the city's superior title, thereby failing to establish the element of hostility for the 10-year statutory period required for adverse possession. As a result, the case did not reach the issue of whether the plaintiff could adversely possess against a governmental entity.
Manke also...
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