Frolund v. Frankland

Decision Date17 August 1967
Docket NumberNo. 38799,38799
Citation71 Wn.2d 812,431 P.2d 188
PartiesMarglt FROLUND, Respondent, v. Charles F. FRANKLAND and Jane Doe Frankland, his wife, Appellants.
CourtWashington Supreme Court

Holman, Marion, Perkins, Coie & Stone, J. Paul Coie, Seattle, Dudley N. Perrine, Port Orchard, for appellants.

James Munro, Bremerton, for respondent.

HAMILTON, Judge.

This appeal concerns itself with a boundary dispute between adjoining owners of two partially cleared water-front properties located on Bainbridge Island, Kitsap County, Washington.

In 1903, Sten K. Larson and his wife owned all of Government Lot 2, Section 18, Township 25 North, Range 2 East W.M., on the west side of Bainbridge Island. On September 26th of that year, the Larsons conveyed 'All of the north 11 1/2 acres of Lot 2' to Lars Andersen, and 'All of the south 10 acres of Lot 2' to Gunder Vick. Thereafter, on February 5, 1904, the Larsons made the following conveyance to Ole Mickelsen and his wife:

The center 10 acres of Lot 2, Section 18, Township 25 North, Range 2 E.W.M., in Kitsap County, Washington, running from salt water back to Section line and bounded on the north by the land of Lars Andersen and on the south by Gunder Vick's land, all being in Lot 2 said Section and Township.

In 1926, following two intervening conveyances, plaintiff (respondent) and her husband acquired the 'center 10 acres' by deed containing the following description:

Beginning at a point on the Section line between Sections 17 and 18, Township 25 North, Range 2 E.W.M., in Kitsap County, Washington, 568.1 feet north of the quarter corner on said Section line; Thence west along the north boundary of the ten acre tract heretofore conveyed to Gunder Vick 1060 feet, more or less to the meander line; thence northwesterly along said meander line to the southwest corner of the 11 1/2 acre tract heretofore conveyed to Lars Anderson (sic); thence easterly along the south boundary of said 11 1/2 acre tract 1254 feet, more or less, to the Section line; thence south along said section line 376 1/2 feet to the place of beginning; thence the included area being 10 acres, more or less, The intent being to convey all the land in Lot 2, Section 18 aforesaid between the 11 1/2 acre tract on the north heretofore conveyed to Lars Anderson (sic) and the 10 acre tract on the south heretofore conveyed to Gunder Vick, * * *. (Italics ours.)

At the time plaintiff received her deed there were two recorded deeds, representing appropriate conveyances, describing the Gunder Vick tract, in pertinent part, as follows:

Commencing at the southeast corner of Lot 2, section 18, township 25 north, range 2 east, W.M., thence north on said section line 568 1/10 feet; Thence west parallel with the south boundary of said lot 2, 1060 feet to the meander line; * * *. (Italics ours.)

Defendants (appellants) by deed dated in 1941 acquired, with certain exceptions not relevant here, the Gunder Vick tract. Their deed described the property simply as 'The south 568.1 feet of Government Lot 2, Section 18, Township 25 North, Range 2 E.W.M.'

At or about the time defendants acquired the Gunder Vick property, they obtained a survey of the boundaries. This survey, made by a University of Washington engineering professor, determined the south boundary of Government Lot 2 to be on a course of North 89 05 30 West from the southeast corner of the lot, and accordingly determined the north boundary of the Vick tract to be on a like and parallel course. The north boundary of the surveyed area was then staked. Relying upon this survey, defendants bulldozed and cleared the northwesterly portion of their beach and recreational area up to the staked line.

At some time prior to plaintiff's acquisition of the 'center 10 acres' a fence had been constructed in the vicinity of the boundary between plaintiff's property and the Vick tract. Who constructed this fence, and whether it was initially installed as a 'line fence' or as a random or stock-retaining fence is unknown. In any event, it would appear from the evidence that this fence commenced at a point 568.1 feet north of the southeast corner of Government Lot 2 and ran westerly 1060 feet, more or less, toward and to the beach on a course of South 89 08 17 West. At the time defendants purchased their property this fence was to a great extent obscured by brush, and when defendants bulldozed and cleared and northwesterly portion of their beach area during the 1940's approximately 150 feet of the fence was destroyed. However, the easterly remants of the fence, and a dilapidated gate at a path between the respective properties, remained discoverable through the years.

The southerly deviation of the course of the old fence line along the southern boundary of plaintiff's property from the defendants' 1941 survey line creates a narrow wedge shaped area approximately 1060 feet in length, with a base of 28 feet at the beach or meander line and an apex at the common corner on the easterly line of the respective properties. It is this triangular area which gives rise to this action. Plaintiff claims the disputed wedge by virtue of the existence and course of the old fence line and/or adverse possession. Defendants, on the other hand, base their claim to the area upon the consistency of their survey line with the various deed calls and/or adverse possession.

The trial court, in essence, found that, although it was not the true boundary, the old fence line was acquiesced in and recognized as the boundary line between the respective properties by plaintiff's and defendants' predecessors in interest between 1926 and 1941, and that defendants' actions thereafter did not sustain their claim of acquisition of any property lying north of the old fence line by adverse possession or otherwise. Accordingly, the trial court quieted title to the disputed wedge in plaintiff.

On appeal defendants principally assign error to the trial court's basic findings of fact and conclusions of law flowing therefrom.

We find no basis in fact or law to disturb the trial court's finding of acquiescence in the fence line as the recognized boundary between the properties from 1926 to 1941. However, we are constrained to disagree with the trial court's determination that defendants' actions subsequent to 1941 did not amount to acquisition of title to the strip of property in dispute by adverse possession.

The evidence is virtually undisputed, and the trial court so found, that defendants, during their initial negotiations for purchase of the so-called Gunder Vick tract, in good faith obtained the survey of the north boundary of that tract. This survey followed the calls of the two preceding deeds in defendants' chain of title, i.e., parallel with the south boundary of Government Lot 2. This line was in turn staked out on the gound with surveyors stakes some of which still remained as late as 1960. It is further undisputed that between 1941 and 1945 defendants bulldozed and cleared the underbrush from their property between the existing homestite (the location of which is not disputed) and the beach, including upwards of 150 feet of area in the northwest corner of their property, up to their survey line. During the course of this bulldozing and clearing, it is...

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    ...ramp that straddled the property line. Id. at 729. The Lilly court reviewed earlier Washington cases, including Frolund v. Frankland, 71 Wash.2d 812, 431 P.2d 188 (1967), overruled on other grounds by Chaplin v. Sanders, 100 Wash.2d 853, 676 P.2d 431 (1984). In Frolund, another factually si......
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