Kiely v. Graves

• Decision Date: 01 March 2012
• Docket Number: No. 84828–9.,84828–9.
• Citation: 271 P.3d 226
• Court: Washington Supreme Court
• Parties: William H. KIELY and Sally Chapin–Kiely, husband and wife, Respondents, v. Kenneth W. GRAVES and Karen R. Graves, Trustees, Graves Family Trust; and all persons or parties unknown claiming any right, title, estate, lien, or interest in the real estate described in the complaint, Appellants.

271 P.3d 226

William H. KIELY and Sally Chapin–Kiely, husband and wife, Respondents,

v.Kenneth W. GRAVES and Karen R. Graves, Trustees, Graves Family Trust; and all persons or parties unknown claiming any right, title, estate, lien, or interest in the real estate described in the complaint, Appellants.

No. 84828–9.

Supreme Court of Washington, En Banc.

Argued Oct. 25, 2011.Decided March 1, 2012.

Philip Albert Talmadge, Emmelyn Hart, Talmadge/Fitzpatrick, Tukwila, WA, Frederick Mendoza, Maya Riley Mendoza–Exstrom, Mendoza Law Center, PLLC, Burien, WA, for Appellants.

Richard Lee Shaneyfelt, Attorney at Law, Port Townsend, WA, Kenneth Wendell Masters, Shelby R. Frost Lemmel, Masters Law Group, PLLC, Bainbridge Island, WA, for Respondents.

MADSEN, C.J.

¶ 1 At issue in this review is whether homeowners William Kiely and Sally Chapin–Kiely may claim adverse possession of an alley dedicated for public use. Relying on Erickson Bushling, Inc. v. Manke Lumber Co., 77 Wash.App. 495, 891 P.2d 750 (1995), the trial court ruled that the Kielys established their adverse possession claim to the underlying fee interest held by their neighbors, Kenneth and Karen Graves, in an alley vacated by the city of Port Townsend. We hold that the city held an interest in the alley for use as a public thoroughfare and that RCW 7.28.090 precluded adverse possession of the alley while it was held for a public purpose. Because the city of Port Townsend did not vacate the alley until February 2009, its interest in the alley prevented the Kielys from obtaining the property through adverse possession.

FACTS

¶ 2 The Kielys own real property in the city of Port Townsend next to real property owned by the Graves. The disputed alley was dedicated to the city in 1908 by John and Mary Power through the following plat language: “[a]nd we do hereby dedicate to the Public for its use forever as Public thoroughfares the streets and alleys as shown on this plat.” Ex. 27.

¶ 3 The plat describes an alley 15 feet wide, running along the length of the boundary between the Graves property to the south and the Kiely property to the north. For as long as anyone can remember, a hog wire fence has run along the southern boundary of the alley. The Graves property adjacent to the disputed alley has remained open space where the Graves have planted fruit trees, berry vines, and garlic. Part of the Kielys' recently restored cottage encroaches upon the disputed alley.

¶ 4 In 2008, the Graves filed a petition with the city to vacate the western half of the alley and merge it into their adjoining lands. The city held a public hearing on the application, which it processed according to the statutes and ordinances applicable to vacation. As conditions precedent to vacating the alley, the city required the Graves to pay for an appraisal of the alley, a survey of the alley, a lot line adjustment, and the appraised value of the alley.¹ The Graves satisfied all of the city's financial conditions.

¶ 5 The city also required the Graves to sign an indemnity and hold harmless agreement releasing the city from any future damage claims resulting from encroachments and/or any adverse possession claims.² The Graves complied. Neither the city nor the Graves were aware of any adverse possession claim upon the alley.

¶ 6 In February 2009, the Port Townsend City Council passed Ordinance 3005 to vacate the alley. The city then conveyed the vacated alley to the Graves through a lot line adjustment recorded on March 2, 2009. The Kielys filed an action in the Jefferson County Superior Court alleging ownership of the entire alley through adverse possession on June 10, 2009.

¶ 7 On March 26, 2010, visiting Judge Wood denied cross motions for summary judgment. Relying on Erickson, Judge Wood ruled that the city's easement did not preclude the Kielys from adversely possessing the Graves' underlying fee interest in the disputed alley. Because satisfaction of the elements of adverse possession was in dispute, Judge Wood denied summary judgment. Id. ¶ 8 In a bench trial, on July 2, 2010, Jefferson County Superior Court Judge Verser agreed that Erickson was controlling and concluded that the Kielys met the requirements for adverse possession. The trial court entered a judgment and decree in favor of the Kielys. We granted direct review to decide whether the Kielys could assert adverse possession based on events which preceded vacation of the alley.

ANALYSIS

¶ 9 As a threshold matter, the parties dispute the nature of title held by the city as a result of the Powers' 1908 dedication of the alley to the public for its use “forever as [a] public thoroughfares.” Ex. 27. The Kielys assert that when property is dedicated to a municipality as a street or alley, the city receives only an easement, and the abutting owners retain title to the land. The Graves contend that the Powers' dedication transferred to the city a fee simple that could not be adversely possessed by the Kielys because RCW 7.28.090 precludes adverse possession of land owned by the government. The Graves also insist the trial court erred by not analyzing whether the Powers made a statutory or common law dedication.

¶ 10 The Kielys contend that our courts have consistently held that a city presumptively holds only an easement as a result of the dedication of land for use as a street or thoroughfare. E.g., Rainier Ave. Corp. v. City of Seattle, 80 Wash.2d 362, 494 P.2d 996 (1972).

¶ 11 In Finch v. Matthews, 74 Wash.2d 161, 167–68, 443 P.2d 833 (1968), this court held that ordinarily, “the fee in a public street or highway remains in the owner of the abutting land, and the public acquires only the right of passage, with powers and privileges necessarily implied in the grant of the easement.” The court noted, “This rule was [first] applied specifically to a street dedicated to the public through the recording of a plat in Schwede v. Hemrich Bros. Brewing Co., 29 Wash. 21, 69 P. 362 (1902).” Id. at 168, 69 P. 362. Relying on Schwede, the court held that the city owned only an easement in the right-of-way it had received through a dedication and that the original owner retained title to the property. Id. at 167–69, 69 P. 362.

¶ 12 The holdings in Finch and Schwede are consistent with numerous other decisions of this court. Rainier Ave. Corp., 80 Wash.2d 362, 494 P.2d 996 (holding that absent an intent to convey a fee, a dedication for public park purposes creates a public easement only); Puget Sound Alumni of Kappa Sigma, Inc. v. City of Seattle, 70 Wash.2d 222, 422 P.2d 799 (1967) (determining that a city may not require payment of one-half of appraised value of property in connection with street vacations because the city merely holds easements); Rowe v. James, 71 Wash. 267, 128 P. 539 (1912) (finding that the courts have uniformly held that a city acquires only an easement in a street in consequence of a dedication); Burmeister v. Howard, 1 Wash. Terr. 207, 1867 WL 5421 (1867) (holding that when an easement is taken as a public highway, the soil and freehold remain in the owner of the land encumbered only with the right of passage in the public).

¶ 13 The Graves, however, attack this line of cases as the result of either an overly broad or incorrect reading of Burmeister that fails to recognize the implications of a statutory dedication. Burmeister, 1 Wash. Terr. at 211–12, is the seminal case recognizing an easement presumption in land dedicated as a public highway and subsequent cases have relied on that decision. Meanwhile, other decisions such as Karb v. City of Bellingham, 61 Wash.2d 214, 377 P.2d 984 (1963), and secondary sources like 6 Washington State Bar Association, Washington Real Property Deskbook § 91.9 (3d ed. 2001) (Deskbook), discuss the importance of the distinction between common law dedication and statutory dedication for determining the nature of the interest the public acquires.

¶ 14 We agree with the Graves that there is a distinction between common law dedications and statutory dedications. Common law dedications are controlled by common law principles while statutory dedications are governed by specific statutes. See Karb, 61 Wash.2d at 218–19, 377 P.2d 984. Another distinction between a statutory and common law dedication is that the former operates by way of grant and the latter by way of equitable estoppel. Id. The title or right acquired by the public in a statutory dedication depends upon the language of a jurisdiction's dedication statute. Deskbook, supra, at § 91.9(2). In many jurisdictions, a statutory dedication conveys a fee interest to the public. See Gen. Auto Serv. Station v. Maniatis, 328 Ill.App.3d 537, 262 Ill.Dec. 568, 765 N.E.2d 1176 (2002); Nettleton Church of Christ v. Conwill, 707 So.2d 1075 (Miss.1997). However, in other jurisdictions a statutory dedication may confer no further right than a mere easement. See Heyert v. Orange & Rockland Utils., Inc., 17 N.Y.2d 352, 218 N.E.2d 263, 271 N.Y.S.2d 201 (1966); City of Bartlesville v. Ambler, 1971 OK 154, 499 P.2d 433; Lee v. Musselshell County, 2004 MT 64, 320 Mont. 294, 87 P.3d 423; Mallory v. Taggart, 24 Utah 2d 267, 470 P.2d 254 (1970).

¶ 15 Here, the Powers made a statutory dedication, evidenced by the presentment for filing of a plat and its subsequent approval by the city. See RCW 58.17.020(3); Richardson v. Cox, 108 Wash.App. 881, 891, 26 P.3d 970, 34 P.3d 828 (2001). Thus, we turn to the statutes.

¶ 16 In Washington a statutory dedication to a city or town is governed by RCW 58.08.015, which states:

Every donation or grant to the public, or to any individual or individuals, religious society or societies, or to any corporation or body politic, marked or noted as such on the plat of the town, or wherein such donation or grant may have been made, shall be considered, to all intents and purposes, as a quitclaim deed to the said donee or donees, grantee or grantees, for his, her or their use, for the purposes intended by...