Jackson v. Pennington

• Decision Date: 15 July 1974
• Docket Number: No. 2095--I,2095--I
• Citation: 11 Wn.App. 638,525 P.2d 822
• Parties: Roy E. JACKSON and Florence E. Jackson, his wife, Appellants, v. Weldon J. PENNINGTON and Dorothy G. Pennington, his wife, Respondents, Roscoe S. Mosiman and Margaretta B. Mosiman, his wife, Defendants.
• Court: Washington Court of Appeals

Page 638

11 Wn.App. 638

525 P.2d 822

Roy E. JACKSON and Florence E. Jackson, his wife, Appellants, v. Weldon J. PENNINGTON and Dorothy G. Pennington, his wife, Respondents, Roscoe S. Mosiman and Margaretta B. Mosiman, his wife, Defendants.

No. 2095--I.

Court of Appeals of Washington, Division 1.

July 15, 1974.

Rehearing Denied Aug. 26, 1974.

Review Denied Nov. 19, 1974.

Jackson, Ulvestad & Goodwin, Daniel G. Goodwin, James A. Grutz, Seattle, for appellants.

Montgomery, Purdue, Blankinship & Austin, Jerry W. Spoonemore, Seattle, for respondents.

HOROWITZ, Judge.

Plaintiffs Jackson appeal a judgment dismissing their complaint based on a claim of adverse possession to a parcel of land located in a platted area in Seattle, Washington known as Magnolia Heights, and quieting title in defendants Pennington to that disputed parcel.

The controlling question presented is whether there is sufficient evidence of hostile possession against the City of Seattle to support three challenged findings of fact and four challenged conclusions of law generally supporting the position that the required hostile possession is missing to make out a case of adverse possession against defendants Pennington.

Most of the findings of fact are unchallenged, making it unnecessary to review evidence bearing on such findings presented in great detail below. The disputed area is shown on an illustrative map of the area contained in the appendix to this opinion. The map shows the Pennington property lies south of and adjoins the Jackson property. Each property at its easterly end abuts upon Ruffner Street. Proceeding from Ruffner Street in a generally westerly direction toward the tidelands of Puget Sound, a point is The challenged findings and conclusions set out in footnote 1 Infra deal with the issue of hostile possession as that term is understood in Washington in the law of adverse possession. A reading of the findings and conclusions--particularly conclusion of law No. 2--may prove helpful to an understanding of the somewhat complicated facts of the case next stated.

reached where a platted, unimproved street or parkway called the Esplanade crosses the Jackson and Pennington properties in a generally northwesterly-southeasterly direction. The disputed parcel is included in the Pennington deed description, but not in the description contained in the Jackson deed. That parcel, as shown on the map, is located principally within the Esplanade. The Jacksons claim title to that parcel by adverse possession for at least 10 years.

The material facts as the court found or could have found them, bearing on the issue of hostile possession, are these. in 1928 and 1933, the Pauls and other owners of property abutting upon the Esplanade petitioned the City of Seattle to vacate a portion of the Esplanade in and along the easterly side thereof. The two petitions called for a combined width of the vacation of about one-half of the Esplanade as platted. The city on each occasion agreed to grant the petitions of the abutting property owners on condition they quitclaim to the city for street purposes their interest in the vacated portion of the Esplanade, the abutting owners to reserve the right for a 15- or 20-year period, respectively, to use and occupy the vacated property. The vacations were effected and the abutting property owners delivered their required deeds. The city in 1953 accepted these deeds pursuant to an enabling city ordinance.

In 1944 Mrs. Paul, the surviving widow of the Pauls, sold the Haslunds the land now owned by the Penningtons. Mrs. Paul conveyed by warranty deed most of the property sold, but she merely quitclaimed to the Haslunds whatever interest she had in the Esplanade by virtue of the 1928 and 1933 transactions with the city. In November 1945 Mrs. Paul sold the Smiths the land now owned by the Jacksons.

Her conveyance included a quitclaim of her interest in portions of the Esplanade lying north of the northerly boundary of the land she had conveyed to the Haslunds the year before.

In 1945 the Pauls and other property owners abutting the Esplanade petitioned the city for a total vacation of the Esplanade abutting their property and covered by the 1928 and 1933 transactions. The City Council denied this petition. In 1946 the Smiths joined all other property owners abutting the Esplanade in signing a petition for a total vacation. The petition described the Esplanade as a city street and referred to the areas previously vacated pursuant to ordinance. This second petition was likewise denied June 3, 1946.

On June 20, 1946 the Smiths obtained a building permit to construct a beach cottage down the hill toward Puget Sound from their upland property. The proposed cottage location was not on land previously conveyed to the Smiths by Mrs. Paul. It was to be situated a few feet north of the northerly boundary of the land in the Esplanade plaintiffs seek to acquire by adverse possession. The Smiths knew of the existence of the Esplanade, but appear not to have known that the proposed cottage was to be located almost entirely on the Esplanade. Following construction, the Smiths occupied the beach cottage. The Smiths believed themselves to be the owners of the land on which the cottage stood. They and their subsequent tenants during the period of the Smith ownership, without objection from anyone, cleared, improved and used the general area adjoining the cottage to a wire fence which appeared to them to mark the southerly boundary of their property.

In 1952 the Smiths sold their land to the Johnstons. The Smiths' deed did not include the disputed area. Between 1952 and 1955, the Johnstons and their tenants continued to use the beach cottage and the adjoining land to the wire fence in the same manner as had the Smiths. In 1953 the 20-year period expired subsequent to the 1933 arrangement between the property owners abutting the Esplanade and In 1955 the Johnstons sold and deeded their property to the plaintiffs Jackson. The Johnston deed, as in the case of the earlier Smith deed to the Johnstons, did not convey the disputed parcel to the Jacksons. Although the deeds and title insurance policy upon examination and study would have shown the Jacksons that they did not cover the disputed parcel, these instruments were not sufficiently examined upon delivery to disclose to the Jacksons that the instruments did not cover the disputed area. After the 1955 purchase, the Jacksons and their tenants continued to use the cottage and the disputed parcel in the same way as had the Johnstons and Smiths before them.

the city. In that year the city, by means of an enabling ordinance, formally accepted the 1928 and 1933 deeds to the lands in the Esplanade vacated in those years.

In 1958 plaintiffs' cottage tenant began remodeling the cottage. The city 'red-tagged' the project because no building permit had been obtained. Plaintiffs, after Mrs. Jackson corresponded with Mr. Smith for information concerning the correct property line and received an insufficiently informative response, requested the Board of Public Works of the City of Seattle to approve the granting of a building permit. Plaintiffs' plat map, attached to their application, showed the Esplanade and abutting property. In the first vacated strip was the note 'Vac.Ord. 56455--Deeded to City effective 11--30--43,' and in the second vacated strip, 'Vac.Ord. 63671--Deeded to City effective 4--28--53.' In the letter of application plaintiffs stated that the cottage was located 'on vacated Sound View Avenue and the Esplenade (sic).'

On June 4, 1958 the Board of Public Works approved the granting of a building permit 'subject to obtaining also a permit for all street area which is being used.' It was the city's position the cottage was principally located in the Esplanade area belonging to the City. Without further inquiry from or objection to the city, plaintiffs formally applied for a building permit and a street use permit. Both applications were granted. The street use permit dated July In the early 1960's, plaintiffs discussed with the Haslunds and two other neighbors a possible joint repair project to a bulkhead situated upon the Esplanade and the possibility of seeking a vacation of the Esplanade by the City, or of otherwise extinguishing the city's interest. The task of investigating these possibilities was delegated to plaintiff Jackson, a lawyer. Later he and another neighbor discussed the city's interest in the Esplanade and the possibility of extinguishing it.

                28, 1958 granted plaintiffs the right to 'maintain cottage in street area--707 (square feet) (including 7    16  addition) app'd BPW 6--4--58' at an annual street use rental of $70.70.  Plaintiffs paid this sum annually from 1958 until at least 1970.  In the meantime, on June 10, 1958, plaintiff husband, in writing Mr. Smith for further information regarding the location of the cottage, stated that 'since the cottage is on street property, we will have to pay a street use fee.'
                

On June 25, 1965 the Haslunds sold and conveyed to the Penningtons a portion of their property which included the disputed parcel of land. Messrs. Haslund and Pennington discussed the city's interest in the Esplanade and the area now identified as the disputed parcel. In 1968 and 1970, respectively, defendants and others used the City of Seattle to quiet title in them to the portions of the Esplanade previously conveyed to them and abutting their lands. Plaintiffs were not parties to that litigation. These suits were not based upon adverse possession. On February 9, 1970 and March 30, 1971, judgments were entered which extinguished the rights of the City of Seattle in the vacated portions of the Esplanade claimed and determined Inter alia that the Penningtons were the owners in fee simple of the area in the Esplanade which is the subject of this suit.

Later, plaintiffs sued defendants asserting title by adverse possession to the...