Howard v. Kunto

• Decision Date: 15 October 1970
• Docket Number: No. 141,141
• Citation: 3 Wn.App. 393,477 P.2d 210
• Court: Washington Court of Appeals
• Parties: Joseph C. HOWARD and Madeline L. Howard, husband and wife, and William J. Yearly and Elizabeth H. Yearly, husband and wife, Respondents, v. V. Waldemar KUNTO and Garnet Kunto, husband and wife, Appellants. (41244) II.

Page 393

3 Wn.App. 393

477 P.2d 210

Joseph C. HOWARD and Madeline L. Howard, husband and wife, and William J. Yearly and Elizabeth H. Yearly, husband and wife, Respondents, v. V. Waldemar KUNTO and Garnet Kunto, husband and wife, Appellants.

No. 141 (41244) II.

Court of Appeals of Washington.

Oct. 15, 1970.

Review Denied Nov. 25, 1970.

Glenn E. Correa, Shelton, for appellant.

R. F. Dotsch, Philip W. Richardson, Olympia, for respondent.

PEARSON, Judge.

Land surveying is an ancient art but not one free of the errors that often creep into the affairs of men. In this case, we are presented with the question of what happens when the descriptions in deeds do not fit the land the deed holders are occupying. Defendants appeal from a decree quieting title in the plaintiffs of a tract of land on the shore of Hood Canal in Mason County.

At least as long ago as 1932 the record tells us that one McCall resided in the house now occupied by the appellant-defendants, Kunto. McCall had a deed that described a 50-foot-wide parcel on the shore of Hood Canal. The error ¹ that brings this case before us is that 50 feet described in the deed is not the same 50 feet upon which McCall's house stood. Rather, the described land is an adjacent 50-foot lot directly west of that upon which the house stood. In other words, McCall's house stood on one lot and his deed described the adjacent lot. ² Several property owners to the west of defendants, not parties to this action, are similarly situated.

Over the years since 1946, several conveyances occurred, using the same legal description and accompanied by a transfer of possession to the succeeding occupants. The Kuntos' immediate predecessors in interest, Millers, desired to build a dock. To this end, they had a survey performed which indicated that the deed description and the physical occupation were in conformity. Several boundary stakes were placed as a result of this survey and the dock was constructed, as well as other improvements. The house as well as the others in the area continued to be used as summer recreational retreats.

The Kuntos then took possession of the disputed property under a deed from the Millers in 1959. In 1960 the respondent-plaintiffs, Howard, who held land east of that of the Kuntos, determined to convey an undivided one-half interest in their land to the Yearlys. To this end, they undertook to have a survey of the entire area made. After expending considerable effort, the surveyor retained by the Howards discovered that according to the government survey, the deed descriptions and the land occupancy of the parties did not coincide. Between the Howards and the Kuntos lay the Moyers' property. When the Howards' survey was completed, they discovered that they were the record owners of the land occupied by the Moyers and that the Moyers held record title to the land occupied by the Kuntos. Howard approached Moyer and in return for a conveyance of the land upon which the Moyers' house stood, Moyer conveyed to the Howards record title to the land upon which the Kunto house stood. Until plaintiffs Howard obtained the conveyance from Moyer in April, 1960, neither Moyer nor any of his predecessors ever asserted any right to ownership of the property actually being possessed by Kunto and his predecessors. This action was then instituted to quiet title in the Howards and Yearlys. The Kuntos appeal from a trial court decision granting this remedy.

At the time this action was commenced on August 19, 1960, ³ defendants had been in occupance of the disputed property less than a year. The trial court's reason for denying their claim of adverse possession is succinctly stated in its memorandum opinion: 'In this instance, defendants have failed to prove, by a preponderance of the evidence, a continuity of possession or estate to permit tacking of the adverse possession of defendants to the possession of their predecessors.'

Finding of fact 6, ⁴ which is challenged by defendants, incorporates the above concept and additionally finds defendant's possession not to have been 'continuous' because it involved only 'summer occupancy.'

Two issues are presented by this appeal:

(1) Is a claim of adverse possession defeated because the physical use of the premises is restricted to summer occupancy?

(2) May a person who receives record title to tract A under the mistaken belief that the has title to tract B (immediately contiguous to tract A) and who subsequently occupies tract B, for the purpose of establishing title to tract B by adverse possession, use the periods of possession of tract B by his immediate predecessors who also had record title to tract A?

In approaching both of these questions, we point out that the evidence, largely undisputed in any material sense, established that defendant or his immediate predecessors did occupy the premises, which we have called tract B, as though it was their own for far more than the 10 years as prescribed in RCW 4.16.020. ⁵

We also point out that findings of fact is not challenged for its factual determinations but for the conclusions contained therein to the effect that the continuity of possession may not be established by summer occupancy, and that a predecessor's possession may not be tacked because a legal 'claim of right' did not exist under the circumstances.

We start with the oft-quoted rule that:

(T)o constitute adverse possession, there must be actual possession which is Uninterrupted, open and notorious, hostile and exclusive, and under a Claim of right made in good faith for the statutory period.

(Italics ours.) Butler v. Anderson, 71 Wash.2d 60, 64, 426 P.2d 467, 470 (1967). Also see Fadden v. Purvis, 77 Wash.Dec.2d 22, 459 P.2d 385 (1969) and cases cited therein.

We reject the conclusion that summer occupancy only of a summer beach home destroys the continuity of possession required by the statute. It has become firmly established that the requisite possession requires such possession and dominion 'as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like nature and condition.' Whalen v. Smith, 183 Iowa 949, 953, 167 N.W. 646, 647 (1918). Also see Mesher v. Connolly, 63 Wash.2d 552, 388 P.2d 144 (1964); Skoog v. Seymour, 29 Wash.2d 355, 187 P.2d 304 (1947); Butler v. Anderson, Supra; Fadden v. Purvis, Supra.

We hold that occupancy of tract B during the summer months for more than the 10-year period by defendant and his predecessors, together with the continued existence of the improvements on the land and beach area, constituted 'uninterrupted' possession within this rule. To hold otherwise is to completely ignore the nature and condition of the property. See Fadden v. Purvis, Supra.

We find such rule fully consonant with the legal writers on the subject. In F. Clark, Law of Surveying and Boundaries, § 561 (3d ed. 1959) at 565: 'Continuity of possession may be established although the land is used regularly for only a certain period each year.' Further, at 566:

This rule (which permits tacking) is one of substance and not of absolute mathematical continuity, provided there is no break so as to sever two possessions. It is not necessary that the occupant should be actually upon the premises continually. If the land is occupied during the period of time during the year it is capable of use, there is sufficient continuity.

We now reach the question of tacking. The precise issue before us is novel in that none of the property occupied by defendant or his predecessors coincided with the property described in their deeds, but was contiguous.

In the typical case, which has been subject to much litigation, the party seeking to establish title by adverse possession claims More land than that described in the deed. In such cases it is clear that tacking is permitted.

In Buchanan v. Cassell, 53 Wash.2d 611, 614, 335 P.2d 600, 602 (1959) the Supreme Court stated:

This state follows the rule that a purchaser may tack the adverse use of its predecessor in interest to that of his own where the land was intended to be included in the deed between them, but was mistakenly omitted from the description.

El Cerrito, Inc. v. Ryndak, 60 Wash.2d 847, 376 P.2d 528 (1962).

The general statement which appears in many of the cases is that tacking of adverse possession is permitted if the successive occupants are in 'privity.' See Faubion v. Elder, 49 Wash.2d 300, 301 P.2d 153 (1956). The deed running between the parties purporting to transfer the land possessed traditionally furnishes the privity of estate which connects the possession of the successive occupants. Plaintiff contends, and the trial court ruled, that where the deed does not describe Any of the land which was occupied, the actual transfer of possession is insufficient to establish privity.

To assess the cogency of this argument and ruling, we must turn to the historical reasons for requiring privity as a necessary prerequisite to tacking the possession of several occupants. Very few, if any, of the reasons appear in the cases, nor do the cases analyze the relationships that must exist between successive possessors for tacking to be allowed. See...