LeBleu v. Aalgaard

• Decision Date: 24 March 2016
• Docket Number: No. 32908–9–III.,32908–9–III.
• Parties: John W. LeBLEU and Rola M. LeBleu, husband and wife, Respondents, v. David W. AALGAARD and Louella A. Aalgaard, husband and wife, Appellants.
• Court: Washington Court of Appeals

193 Wash.App. 66

371 P.3d 76

John W. LeBLEU and Rola M. LeBleu, husband and wife, Respondents

v.David W. AALGAARD and Louella A. Aalgaard, husband and wife, Appellants.

No. 32908–9–III.

Court of Appeals of Washington, Division 3.

March 24, 2016.

Heather Yakely, Attorney at Law, Spokane, WA, for Appellants.

Joseph Todd Reuter, Foster Pepper PLLC, Spokane, WA, for Respondents.

SIDDOWAY, C.J.

¶ 1 In determining whether a person has acquired title to real property through adverse possession, the fact that he or she was given permission to occupy land by the true title owner will operate to negate the essential element of hostility. But in the case of a failed parol agreement to adjust a boundary line, the fact that the true title owner agreed that his neighbor would own whatever land fell on the neighbor's side of the agreed line does not negative the element of hostility. As some authorities have put it, parties can agree to a nonowner's use of land that is adverse.

¶ 2 Accordingly, while an oral agreement that David Aalgaard reached with the Aalgaards' former neighbor as to their shared property line is not enforceable, the existence of that agreement does not detract from the Aalgaards' evidence that following the 1993 agreement, they adversely possessed an area on which they built a home and outbuildings and lived for 20 years. Because the undisputed evidence demonstrates that the Aalgaards have satisfied the elements of adverse possession to at least some of the property held of record by John and Rola LeBleu, we reverse the trial court's order granting summary judgment to the LeBleus and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 In September 1991, Eric and Kim Deno purchased approximately 20 acres of property in Chattaroy. At that time, their seller—who had retained property to the north—walked the property with Mr. Deno and showed him the location of the property's boundary lines.

¶ 4 In June 1993, the same seller sold his remaining parcel north of the Deno property (also approximately 20 acres) to Dave and Louella Aalgaard. Shortly thereafter, Mr. Deno and Mr. Aalgaard walked and measured their respective properties and established a boundary line that Mr. Deno described as

a straight line defined by our agreement as to the location and physical monuments and features between our respective parcels.

The line ran from a 90° corner then down along the center of a natural gully dividing our parcels.

Clerk's Papers (CP) at 341. Mr. Deno describes their agreement on the boundary line as “important,” because he planned to assist the Aalgaards in building the home on their property. Id.

¶ 5 Following the men's agreement on the property line, the Aalgaards began building their home “at least 50 feet, if not more from the common boundary line” they had established. Id. The foundation of the Aalgaards' home was placed with Mr. Deno's assistance. With the help of Mr. Deno, the Aalgaards finished building their home in 1994. They later installed a water line, a propane tank, a barn, a woodshed, and a shop on the property, “approximately 30 feet from the agreed boundary line.” CP at 308.

¶ 6 In 2012, John and Rola LeBleu bought the property formerly owned by the Denos. In November 2013, Bruce Larsen of Landtek LLC was engaged to perform a survey and discovered that the Aalgaards' home, barn, and shed were located on the LeBleus' property. In preparing his survey map, he drew “clearing limits,” which he describes as “the area that is out of the woods and appeared to be used by the Aalgaards.” CP at 211. He measured the area as containing approximately 0.61 acres.

¶ 7 The LeBleus brought suit against the Aalgaards a month later, seeking possession of all the property to which the LeBleus held record title and an injunction requiring the Aalgaards to remove their improvements. The Aalgaards counterclaimed, asking that the court quiet title to the disputed property in them based on multiple theories, including parol agreement, acquiescence, and adverse possession.

¶ 8 Both sides moved for summary judgment, which the trial court granted in the LeBleus' favor. In ruling on the adverse possession claim, the court reasoned that the hostility element could not be shown because the Aalgaards used the property with Mr. Deno's permission. The court quieted title in the LeBleus, ejected the Aalgaards, and ordered them to remove their house, barn, and shed from the property within 30 days.

¶ 9 Upon the Aalgaards' filing of a notice of appeal, the court stayed its order of ejectment.

ANALYSIS

¶ 10 To establish a claim of adverse possession, a party's possession of property must be: (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile and under a claim of right. Chaplin v. Sanders, 100 Wash.2d 853, 857, 676 P.2d 431 (1984). All of these elements must exist concurrently for at least 10 years. RCW 4.16.020. Because courts presume that the holder of legal title is in possession, “the party claiming to have adversely possessed the property has the burden of establishing the existence of each element.” ITT Rayonier, Inc. v. Bell, 112 Wash.2d 754, 757, 774 P.2d 6 (1989).

¶ 11 The only element of adverse possession that the LeBleus claim is not established by the Aalgaards is that of hostility. Hostility “ ‘does not import enmity or ill-will.’ ” Chaplin, at 857, 676 P.2d 431 (quoting King v. Bassindale, 127 Wash. 189, 192, 220 P. 777 (1923) ).

The “hostility/claim of right” element of adverse possession requires only that the claimant treat the land as his own as against the world throughout the statutory period. The nature of his possession will be determined solely on the basis of the manner in which he treats the property. His subjective belief regarding his true interest in the land and his intent to dispossess or not dispossess another is irrelevant to this determination.

Id. at 860–61, 676 P.2d 431.

¶ 12 The Aalgaards treated the property as their own; they constructed a home and other significant improvements. “The construction and maintenance of a structure partially on the land of another almost necessarily is exclusive, actual and uninterrupted, open and notorious, hostile and made under a claim of right.” Draszt v. Naccarato, 146 Wash.App. 536, 542, 192 P.3d 921, (2008) (citing Reitz v. Knight, 62 Wash.App. 575, 582, 814 P.2d 1212 (1991) ). Professor Stoebuck has suggested that the most useful general test of hostility is whether “[c]onsidering the character of possession and the locale of the land, is the possession of such a nature as would normally be objectionable to owners of such land?” 17 William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate: Property Law § 8.12, at 526 (2d ed.2004) (citing People's Sav. Bank v. Bufford, 90 Wash. 204, 155 P. 1068 (1916) ). Normally, constructing a home, outbuildings, and infrastructure on a neighbor's residential parcel would be highly objectionable.

¶ 13 In the trial court, the LeBleus successfully invoked the presence in this case of “permission.” But permission to do what? Mr. Aalgaard and Mr. Deno indisputably reached an agreement in 1993. But before equating an agreement with permissive use that will negate the element of hostility, one must consider the agreement.

¶ 14 Washington cases hold that permissive use of the sort that will negative hostility and prevent adverse possession is use based on a personal, revocable license from the true title owner. E.g., Miller v. Anderson, 91 Wash.App. 822, 829, 964 P.2d 365 (1998) ; Teel v. Stading, 155 Wash.App. 390, 395, 228 P.3d 1293 (2010) ; Granston v. Callahan, 52 Wash.App. 288, 294, 759 P.2d 462 (1988) (citing Black's Law Dictionary 1298 (rev. 4th ed.1968)). If there is no explicit agreement but only unobjected-to use, it is reasonable to infer a personal revocable license. But where there is an explicit agreement, it can be agreement to something that is different from “permission” in this sense. It can be agreement to adverse use, such as an agreement to a permanent boundary line.¹

¶ 15 A leading treatise explains:

[I]t appears reasonably safe to say that a use is adverse if not accompanied by any recognition, in express terms or by implication, of a right in the landowner to stop such user now or at some time in the future. The recognition of the landowner's right to put an end to the user precludes any presumption, from his failure to assert such right, that no such right exists.

....

When the owner undertakes to confer upon another a perpetual right of user in the land, but fails to do so in a valid manner, as when he makes an oral grant of an easement, the user of the land by such other in accordance with the terms of the invalid grant cannot be regarded as permissive and in subordination to the rights of the landowner, but is in effect adverse to such rights. Such a case is analogous to that of the possession of land under an invalid conveyance thereof, which is ordinarily adverse to the grantor. The user of the land under such circumstances involves no recognition of any right as remaining in the grantor.

4 Herbert Thorndike Tiffany, The Law of Real Property § 1196 (3d ed.1975) (footnotes omitted).

¶ 16 Washington cases dealing with prescriptive easements are in accord. In Lechman v. Mills, 46 Wash. 624, 91 P. 11 (1907), the evidence showed that a predecessor owner of land had verbally granted an easement for a water ditch across his land. The purported grantee constructed the ditch and then used it in an exclusive, open, notorious and hostile manner for a period sufficient to acquire a prescriptive right. In rejecting the title holder's argument that use of the ditch had been permissive, the court observed that evidence supported the trial court's finding that the agreement made “was not a mere revocable license or permission to occupy, but that it was intended to operate as a grant.” Id. at 628, 91 P. 11. Such an agreement could not be...