Lilly v. Lynch

• Decision Date: 10 October 1997
• Docket Number: 20055-4-II,Nos. 19810-0-I,s. 19810-0-I
• Citation: 945 P.2d 727,88 Wn.App. 306
• Court: Washington Court of Appeals
• Parties: Carol E. LILLY, a single woman, Appellant, v. Stephen L. LYNCH and Doris A. Hammer, husband and wife and the marital community composed thereof; and all other person claiming right and title to the real property described herein, Respondent.

Page 306

88 Wn.App. 306

945 P.2d 727

Carol E. LILLY, a single woman, Appellant, v. Stephen L. LYNCH and Doris A. Hammer, husband and wife and the marital community composed thereof; and all other person claiming right and title to the real property described herein, Respondent.

Nos. 19810-0-II, 20055-4-II.

Court of Appeals of Washington Division 2.

Oct. 10, 1997.

Heather Houston, Gibbs Houston Pauw, Seattle, for Appellant.

Kathleen E. Pierce, Bonneville Viert Morton & McGoldrick, Tacoma, for Respondents.

HUNT, Judge.

Carol E. Lilly appeals an adverse summary judgment, denial of her motion to reconsider, and exclusion of her expert witness's declaration. She sued to quiet title to a boat ramp adjoining her house, on alternative theories of adverse possession, estoppel, or mutual recognition and acquiescence. The trial court granted summary judgment in favor of Stephen Lynch, her neighbor and the true title owner.

We affirm summary judgment in favor of Lynch on the issue of estoppel only. Finding a genuine issue of material fact regarding Lilly's claims of adverse possession and mutual recognition and acquiescence, we reverse the summary judgment and remand for trial on all issues except estoppel.

FACTS

A. Substantive

Carol Lilly and Stephen Lynch own neighboring properties on the waterfront in Gig Harbor, Washington. For at least 20 years before this lawsuit, successive owners of both properties believed that a boat ramp between the properties was part of the Lilly property. All parties believed the north wall of the cement ramp was the boundary line between the properties. See map below:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Owners of each property regularly used the ramp, with permission from the owners of the Lilly property. Unbeknownst to all, Lynch and his predecessors held legal title to the property on which the ramp was located.

From 1972 until 1985, Eric Lindgren owned the Lilly property, south of the boat ramp. He believed the north wall of the boat ramp was the boundary between the properties. During this time, Hardwick Smith owned the Lynch property, north of the boat ramp. Smith also believed the north wall was the boundary. Smith regularly used the boat ramp to launch his boat and occasionally helped Lindgren with maintenance. Occasionally, Smith would leave his boat on the ramp overnight, first asking for permission from Lindgren. When the bulkheads in front of the properties were repaired, Lindgren directed contractors to leave an opening on the ramp for launching boats.

The Bergers purchased the Lilly property from Lindgren in 1985. For several years they kept a boat on the ramp at all times, forcing Smith to launch around it. Smith did not complain directly to the Bergers, nor did he ask them to move the boat. In 1989, Smith sold his property to Lynch. Lynch occasionally used the ramp to launch his boat or to walk to the beach. Lynch, too, believed the ramp was part of the Lilly property.

Lilly purchased the property from the Bergers in 1990. Part of Lilly's septic system is under the boat ramp. Believing the boat ramp was hers, she extensively remodeled her home, building a wrap-around deck over a portion of the ramp. Believing that the boundary was actually north of the boat ramp's north wall, Lilly landscaped north of the wall in 1991. Lynch complained and stated in a letter to Lilly that the previous owners all believed the north boat ramp wall was the boundary. Lilly removed the landscaping and built a fence along the north side of the ramp, thus precluding all access from the Lynch property to the boat ramp.

A recent survey revealed that the actual boundary is just south of the boat ramp's south wall. Thus, Lynch is the true title holder to the ramp. The survey also revealed that a portion of Lilly's house, deck, and storage shed are on the Lynch property.

B. Procedural

Shortly after the survey was completed, Lilly filed suit in Pierce County Superior Court, seeking to quiet title to the property south of the boat ramp's north wall. She asserted that she and her predecessors had adversely possessed the disputed parcel for more than 10 years.

Lynch answered and asked the court to dismiss Lilly's claim. ¹ Lynch conceded that Lilly had adversely possessed the land upon which she had built part of her house, disputing only ownership of the ramp. In response to Lynch's motion to dismiss, Lilly raised the defenses of mutual recognition and acquiescence, estoppel, and parole agreement. ²

Both parties moved for summary judgment. The trial court found that no genuine issue of material fact existed and granted summary judgment in favor of Lynch. ³ Lilly filed a motion for reconsideration, which the trial court denied.

ANALYSIS

A. Summary Judgment

When reviewing summary judgment, the appellate court engages in the same inquiry as the trial court and reviews the evidence de novo. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982); Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wash.2d 1, 12-13, 721 P.2d 1 (1986). A summary judgment motion brought under CR 56 should be granted only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of genuine issues of material fact and the moving party's entitlement to judgment as a matter of law. Wilson, 98 Wash.2d at 437, 656 P.2d 1030. The court considers the facts and all reasonable inferences in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030. Summary judgment is appropriate only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wash.2d at 437, 656 P.2d 1030.

B. Adverse Possession--Exclusivity

Lilly first claims the trial court should have quieted title to the boat ramp in her favor based on adverse possession. A possessor may gain title to property from the true owner by adverse possession if four conditions are met: "[T]he possession must be[ ](1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile and under a claim of right made in good faith." Chaplin v. Sanders, 100 Wash.2d 853, 857, 676 P.2d 431 (1984). These conditions must be met concurrently for at least 10 years. Chaplin, 100 Wash.2d at 857, 676 P.2d 431; RCW 4.16.020. Both parties agree that Lilly has demonstrated conditions (2), (3) and (4). The primary issue is whether Lilly can demonstrate condition (1), "exclusive" possession. ⁴

1. Ten-Years/Tacking

Because Lilly owned the property for only two years before commencing this action, we look to the actions of not only Lilly and Lynch, but also their predecessors in interest. "Where there is privity between successive occupants holding continuously and adversely to the true title holder, the successive periods of occupation may be tacked to each other to compute the required 10-year period of adverse holding." Roy v. Cunningham, 46 Wash.App. 409, 413, 731 P.2d 526 (1986) ⁵ Here, Lilly and the Bergers both purchased the property through a real estate contract. Accordingly, there is privity and Lilly may tack her period of ownership to Lindgren's and the Bergers' ownership.

2. True Owner Character of Use

A claimant's possession need not be absolutely exclusive in order to satisfy the exclusivity condition of adverse possession. Crites v. Koch, 49 Wash.App. 171, 174, 741 P.2d 1005 (1987). An "occasional, transitory use by the true owner usually will not prevent adverse possession if the uses the adverse possessor permits are such as a true owner would permit a third person to do as a 'neighborly accommodation.' " 17 WILLIAM B. STOEBUCK, Washington Practice Real Estate: Property Law § 8.19 at 516 (1995). "Cases where the courts have found a lack of exclusivity involve use by the title owner that indicate ownership." Bryant v. Palmer Coking Coal Co., 86 Wash.App. 204, 936 P.2d 1163, 1172 (1997).

"The ultimate test is the exercise of dominion over the land in a manner consistent with actions a true owner would take." ITT Rayonier, Inc. v. Bell, 112 Wash.2d 754, 759, 774 P.2d 6 (1989). The primary questions here are (1) whether Smith's and Lynch's use of the boat ramp was more than "occasional" or "transitory," and (2) whether Lilly and her predecessors acted as true owners would.

Several cases discussing a true owner's use of disputed property are informative. Frolund v. Frankland, 71 Wash.2d 812, 431 P.2d 188 (1967), overruled on other grounds by Chaplin, 100 Wash.2d at 861 n. 2, 676 P.2d 431, reiterated the rule that the necessary occupancy and use of property, for the purposes of establishing adverse possession, need only be of the character that a true owner would assert, considering the nature and location of the land. Frolund, 71 Wash.2d at 817, 431 P.2d 188. In circumstances similar to this case, the Supreme Court held:

[T]he evidence reveals that the children of the parties, as well as those of other neighbors, played about and over the various neighborhood beach areas with no more than the usual parental approval and restraint, and that the parties themselves occasionally, socially, and casually visited back and forth, and sometimes assisted one another in the performance of various work projects, e.g., beaching the swimming raft for winter storage. Such conduct, under the circumstances, denotes neighborliness and friendship. It does not amount to a subordination of defendants' adverse claim to the disputed wedge....

Frolund, 71 Wash.2d at 818-19, 431 P.2d 188 (emphasis added).

In Crites, the true owners used the disputed property occasionally to park farming equipment and as a shortcut to another parcel of land. In contrast, the possessor regularly farmed and cultivated the disputed parcel for over 15 years. Division III of this court found that the possessor's "intensive" use "differed fundamentally in scope and substance" from the "slight" use made by the true owner. Crites, 49 Wash.App. at 175, 741 P.2d 1005. The...