ITT Rayonier, Inc. v. Bell, 10148-3-II

• Decision Date: 12 April 1988
• Docket Number: No. 10148-3-II,10148-3-II
• Court: Washington Court of Appeals
• Parties: ITT RAYONIER, INC., Respondent, v. Arthur BELL, Jane Doe Bell, and the marital community composed thereof, Appellants.

Page 124

51 Wn.App. 124

752 P.2d 398

ITT RAYONIER, INC., Respondent, v. Arthur BELL, Jane Doe Bell, and the marital community composed thereof, Appellants.

No. 10148-3-II.

Court of Appeals of Washington Division 2.

April 12, 1988.

John H. Doherty, Doherty, Doherty & Ritchie, Port Angeles, for appellants.

John W. Phillips, Wickwire, Goldmark & Schorr, Seattle, for respondent.

ALEXANDER, Judge.

This court accepted discretionary review of a partial summary judgment granted by the Superior Court of Clallam County. The judgment dismissed Arthur Bell's claim of title to land by adverse possession and quieted title in ITT Rayonier, Inc. Bell contends, on review, that the trial court erred in concluding that there was no genuine issue of material fact concerning the exclusivity element necessary to a claim of adverse possession. We affirm.

ITT Rayonier, Inc. filed a complaint against Bell in the Clallam County Superior Court, seeking to quiet title to land in that County. ITT Rayonier also sought to eject Bell from the land and to obtain damages for trespass. Bell answered the complaint and alleged affirmatively that he had acquired title to the property by adverse possession. Bell has never asserted that he has record title to the property.

ITT Rayonier moved for a partial summary judgment on the quiet title issue. Three affidavits, Bell's deposition and five "certificates" ¹ were considered by the trial court at the summary judgment hearing. ² The trial court granted the relief sought by ITT Rayonier, concluding that, although there were genuine issues of material fact concerning three of the four elements of adverse possession, there was no genuine factual issue on the element of the "exclusivity" of Bell's possession of the subject property.

We are confronted with one question. Did the trial court err in granting partial summary judgment to ITT Rayonier?

Summary judgment should be granted only if there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). "A 'material fact' is one on which the litigation's outcome depends." Ohler v. Tacoma Gen. Hosp., 92 Wash.2d 507, 511, 598 P.2d 1358 (1979).

When considering a summary judgment motion, the trial court must look at the evidence in a light most favorable to the nonmoving party. Jacobsen v. State, 89 Wash.2d 104, 108, 569 P.2d 1152 (1977). If reasonable people could reach different conclusions when considering the facts, the motion for summary judgment must be denied. Jacobsen v. State, supra. However, if reasonable minds could reach only one conclusion as to a question of fact, the question may be resolved as a matter of law. Trane Co. v. Brown-Johnston, Inc., 48 Wash.App. 511, 513, 739 P.2d 737 (1987). In reviewing the disposition of a motion for summary judgment, the appellate court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

Viewing the evidence presented to the trial court most favorably to Bell, the following facts emerge: In the early 1970's, Bell purchased a houseboat which had been moored for some time to the land here in question. The houseboat was located in a remote part of Lake Ozette where the Big River empties into the lake. Bell maintained the boat in approximately the same location throughout the time material to this lawsuit. The houseboat was secured to the land by two ropes which were attached to trees on the subject land. The houseboat and land to which it was secured were inaccessible by road and, consequently, Bell could reach the property only by path or boat.

Bell resided in the houseboat frequently from the time he acquired it until 1985. During the approximately 12 years that he resided on the houseboat, ³ Bell conducted considerable activities on the abutting land, with which we are here concerned. During this period, he built a firepit, a woodshed and an outhouse. In addition, he developed an herb garden and a vegetable garden on the property, as well as a potato patch. He also tended other parts of the property and even maintained a lawn on the property during a portion of the time. He attempted to construct a sauna bath, but it was never completed. The portion of the structure which was completed eventually "rotted away."

Bell's houseboat was not the only houseboat in the area. Claude Olesen and L.W. Klock also moored a houseboat in the same vicinity for approximately 20 years. Their houseboat was "moored adjacent" to Bell's houseboat. Olesen and Klock both indicated that when they occupied their houseboat they used the adjacent land for digging a hole for an outhouse and other minimal uses associated with the occupancy of the houseboat. They indicated that Bell never attempted to exclude them from the subject property.

Bell did not deny that Olesen and Klock used the same land, although he said they used the land only 1 to 3 times a year. When asked in a deposition whether other people had the right to use the property, Bell answered: "I suppose they did." When he was asked if he ever attempted to "throw anyone off the property," he responded that he had not done so, except for the "lady" who rented his houseboat. He indicated that he evicted her from the houseboat for non-payment of rent. Finally, he was asked if "it was your understanding that other people could use the property if they wanted to?" He answered, "when I was there they--I didn't think somebody was going to come up and go camping right there. But I suppose if they tried to, I wouldn't have said anything to them."

Even viewing this evidence in a light most favorable to Bell, it is apparent that the exclusive possession that is required for adverse possession is lacking. A party seeking to establish a claim of adverse possession must show that his possession of the claimed property was exclusive in addition to being actual and uninterrupted, open and notorious, and hostile and under a claim of right made in good faith. Chaplin v. Sanders, 100 Wash.2d 853, 857, 676 P.2d 431 (1984).

The trial court, as we have noted already, found genuine fact issues on all of the necessary elements except for exclusivity. We agree with the trial court that Bell's use of the property, though considerable, was not exclusive. The facts are that Klock and Olesen used the same land as Bell and Bell did not interfere with their use of it. Indeed, Bell concedes in his deposition testimony that other people had the right to use the land. In its memorandum opinion, the trial court very succinctly set forth its views on the exclusivity issue. The remarks bear quotation:

With regard to the element of exclusivity, the Defendant believed that others had the right to use the property, deposition of Defendant, 72:25-73:2; if others had tried to use the subject land, the Defendant would not have interfered, deposition of Defendant 74:4-74:9; the adjacent houseboat owners have used the land that the Defendant claims, affidavits of Mr. Klock and Mr. Olesen; and the Defendant has erected no fence around the property that he claims and has set up no "no trespassing" signs, deposition of Defendant, 49:12-22....

While possession of property by a party seeking to establish ownership of it by adverse possession need not be absolutely exclusive, "the possession must be of a type that would be expected of an owner ..." Crites v. Koch, 49 Wash.App. 171, 174, 741 P.2d 1005 (1987)....