Hanson v. Lee, 219--40011--I

Decision Date26 October 1970
Docket NumberNo. 219--40011--I,219--40011--I
Citation476 P.2d 550,3 Wn.App. 461
PartiesBertha HANSON, a widow, Respondent, v. William Joseph LEE and Naomi Lee, his wife, Appellants.
CourtWashington Court of Appeals

Karr, Tuttle, Campbell, Koch & Campbell, Coleman P. Hall, Seattle, for appellants.

Clodfelter, Lindell & Carr, Richard F. Krutch, Seattle, for respondent.

HOROWITZ, Acting Chief Judge.

Plaintiff commenced an action to quiet title to one-half of the area between two houses owned by the plaintiff and defendants, respectively, located in Seattle. Defendants counterclaimed praying that title to the entire area lying between the houses be quieted in them. From a decree in favor of plaintiff, defendants appeal.

The evidence supports the following statement of the case. Plaintiff and her mother purchased their home at 2716 South Norman Street in Seattle in 1922, on a 32 foot lot. They moved in and continued to live in the property until the action below, nearly 45 years later. No survey of the property lines was made when the plaintiff purchased the property and there is no evidence that the plaintiff ever knew of the exact location of the platted boundary lines until a 1962 survey was made at the instance of the defendants. However, when plaintiff purchased her home, she was advised that the property line between her lot and the adjoining lot to the west, owned by the defendants' predecessor in interest, was the line equidistant between the two lots running the length of the properties. She had heard a rumor that all lot lines in the block were off but that the homes had been in existence on such lots for over 50 years and that the houses had not been moved. The rumor was ignored and she treated the westerly boundary of her lot as a boundary line equidistant between the two adjoining lots. Thereafter, the plaintiff and the then owners of the defendants' property treated and continued to treat the true boundary line between their respective lots as on a center line equally distant between their houses.

About 1937 plaintiff and the defendants' predecessor owner of the adjoining property built a double garage for joint use to the rear (north) of both houses, the respective owners sharing the cost of the material involved. The center line of the garage was about 2 feet east of the center line between the houses. Sometime between 1937 and 1941, pursuant to agreement between the plaintiff and the defendants' predecessor owner, it was orally agreed that concrete strips be put in from the garage to the street on each side of the theretofore agreed upon center line, the concrete strips to be used for driveway purposes. Subsequent to the construction of the concrete strips until about 1962, the concrete strips were used by the respective owners for the agreed upon driveway purposes without incident or friction between plaintiff and defendants' predecessor, and later, by the defendants themselves. In fact, subsequent to 1947 the double garage was improved by the joint efforts of the plaintiff and the defendants, the latter paying for a portion of the material.

Defendants purchased their property adjoining that of the plaintiff in 1947. Defendants made no survey of the correct boundary lines. On the basis of information given them, possibly by seller's agent, they assumed that the property line between the two houses 'was community and * * * what both had to share' and further assumed that the driveway was a common driveway for both owners. Defendants observed the garage was built 2 feet east of the center line. Sometime in 1958 or 1959 defendants suspected that the boundaries then used were off, but said nothing. Shortly after the death of the plaintiff's husband in 1962 some difficulties developed concerning the use of the double garage. Defendants then caused a survey to be made of the property lines. The survey showed that the center line, accepted for so many years as the agreed boundary line, did not conform to the platted boundary line; and that the garage was located entirely on defendants' property as surveyed, and the boundary extended 4 feet into the plaintiff's house. In 1965, while the action to quiet title was pending, the defendants tore down the double garage and constructed a new, single garage for their own use. The court below held defendants' action violated plaintiff's rights.

Defendants contend that certain findings and conclusions entered by the court below are erroneous. The court in substance found that the plaintiff and the defendants' predecessors had at all times since 1922 agreed that the common boundary line between the respective parties was on a center line equally distant between their houses; that the common boundary line was reaffirmed (between 1937 and 1941) when concrete strips were placed upon the property of the parties for driveway purposes; that the concrete driveway was thereafter used continuously for driveway purposes. In its conclusions of law the court stated that the plaintiff and her predecessors and the defendants' predecessors over 40 years ago established a common boundary equidistant between the houses; that the line was partially modified in 1936 or 1937 when a common garage was built 2 feet east of the line and that the placement of the two concrete strips on either side of the line was 'a permanent grant of easement over each property to the other property for an easement for ingress or egress.' In our opinion, these findings as summarized, including one in the nature of a finding contained in the conclusions, are the critical findings and there is substantial evidence to support them. It is enough if the critical findings are so supported. See Johnson v. Safeway Stores, Inc., 1 Wash.App. 380, 461 P.2d 890 (1969). It is true that defendant complains that certain other findings are not supported by the evidence. We do not regard such other findings as critical.

Defendants particularly claim that there is no evidence of agreement on a common boundary line in 1922 and that there is no evidence of later agreement under which the concrete strips were built. We disagree. The testimony of the plaintiff concerning the original agreement on the common boundary line and the testimony of her son concerning the recognition of the common boundary line when the concrete strips were to be installed, and long acquiescence therein by the respective property owners subsequent thereto, followed by the construction of the concrete strips and their subsequent uninterrupted use from at least 1941 to 1962 for common driveway purposes, is sufficient evidence to support a finding of an agreed boundary line. It is true that the evidence of the plaintiff's son that he heard conversation between or among his mother, father and the next-door neighbor, defendants' predecessor, recognizing the common boundary line when the concrete strips were to be built, failed to identify the neighbor by name and the evidence failed to show whether he was the owner of the property he was occupying. However, plaintiff's son testified that the conversation and agreement concerning the common boundary line occurred among 'Mr. Hanson and Mrs. Hanson and the property owners that were in the Lee house at the time before they laid out the center line * * * I was in the conversation.' This testimony was not disputed. The failure to recollect the name of the neighbor goes to the weight of the testimony. Furthermore, the evidence showed the neighbor involved was in possession of the house and lot for whose partial benefit the concrete strips were being built. As the person in possession, he was presumptively the owner and could be dealt with as such by the plaintiff. See 42 Am.Jur. Property § 41 (1942); Thomsen v. State, 70 Wash.2d 92, 422 P.2d 824 (1966). See also Gurley v. Arnstead, 148 Mass. 267, 19 N.E. 389 (1889). It is well settled that

where boundaries have been defined in good faith by the interested parties, and thereafter for a long period of time acquiesced in, acted upon, and improvements made with reference thereto, such boundaries will be considered the true dividing lines and will govern, and whether the lines as so established are correct or not becomes immaterial.

Mullally v. Parks, 29 Wash.2d 899, 906, 190 P.2d 107, 111 (1948). See also Waldorf v. Cole, 61 Wash.2d 251, 377 P.2d 862 (1963); Scott v. Slater, 42 Wash.2d 366, 255 P.2d 377 (1953); 6 G. Thompson, Commentaries on the Modern Law of Real Property §§ 3034--36 (1962 Repl.); 2 H. Tiffany, The Law of Real Property §§ 653--54 (3d ed. 1939). The existence of an express agreement is not essential; an agreement implied from actions of the interested parties is sufficient. Lamm v McTighe, 72 Wash.2d 587, 593, 434 P.2d 565 (1967). The boundary line here involved was acquiesced in for the minimum ten year period required as in the case of adverse possession. Waldorf v. Cole, Supra; Scott v. Slater, Supra.

The conclusion of law denominated as such concerning a permanent easement contains subject matter sufficiently factual in nature to be treated as a finding. See Ferree v. Doric Co., 62 Wash.2d 561, 567, 383 P.2d 900 (1963); See Gray v. Fuller, 85 Wash. 13, 147 P. 402 (1915). To the extent that it is a finding, it is supported by evidence of a mutual agreement for the construction and the use of the concrete strips for the purposes of ingress and egress so as to justify the conclusion stated of 'a permanent grant of easement over each property to the other property for an easement for ingress or egress.' See York v. Cooper, 60 Wash.2d 283, 373 P.2d 493 (1962); 2 G. Thompson, Commentaries on the Modern Law of Real Property § 331, p. 117, and § 333, pp. 127--130 (1961 Repl.). No contention as to any procedural defect in the creation or duration of the easement has been advanced. The use to which the easement was subsequently put is evidence of the intent of the parties in establishing it. See York v. Cooper, Supra.

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