Michel v. City of Seattle

• Citation: 498 P.3d 522
• Decision Date: 08 November 2021
• Docket Number: No. 82073-7-I consolidated with No. 82074-5-I,82073-7-I consolidated with No. 82074-5-I
• Parties: Paul MICHEL and Ann Michel, husband and wife; John W. Merriam and Brenda K. Walker, husband and wife, Respondents, v. CITY OF SEATTLE, a Washington municipality, d/b/a Seattle City Light, Appellant.
• Court: Court of Appeals of Washington

498 P.3d 522

Paul MICHEL and Ann Michel, husband and wife; John W. Merriam and Brenda K. Walker, husband and wife, Respondents,

v.CITY OF SEATTLE, a Washington municipality, d/b/a Seattle City Light, Appellant.

No. 82073-7-I consolidated with No. 82074-5-I

Court of Appeals of Washington, Division 1.

FILED November 8, 2021

Andrew Carl Eberle, Stephen Richard Karbowski, Seattle City Attorney's Office, 701 5th Ave. Ste. 2050, Seattle, WA, 98104-7095, for Appellant.

Matthew Rick Cleverley, Fidelity National Law Group, 701 5th Ave. Ste. 2710, Seattle, WA, 98104-7054, Stephen P. Vanderhoef, Jonathan David Tebbs, Cairncross & Hempelmann PS, 524 2nd Ave. Ste. 500, Seattle, WA, 98104-2323, Howard Mark Goodfriend, Smith Goodfriend PS, 1619 8th Ave. N, Seattle, WA, 98109-3007, G. Michael Zeno Jr., Law Office of G. Michael Zeno, Jr., P.S., 135 Lake St. S Ste. 257, Kirkland, WA, 98033-6435, for Respondents.

Megan Christine Clark, Etter McMahon Lamberson Van Wert & Oresk, 618 W Riverside Ave. Ste. 210, Spokane, WA, 99201-5048, Bob C. Sterbank, Attorney at Law, P.O. Box 987, Snoqualmie, WA, 98065-0987, Duncan Mcgehee Greene, Van Ness Feldman LLP, 1191 2nd Ave. Ste. 1800, Seattle, WA, 98101-2996, for Amicus Curiae Wa State Association of Municipal Attorneys.

Daniel J. Frohlich, Dickson Frohlich PS, 1200 E D St., Tacoma, WA, 98421-1710, for Other Parties.

PUBLISHED OPINION

Verellen, J.

¶ 1 When the legislature enacted RCW 7.28.090, it shielded municipal "lands held for any public purpose" against being taken by adverse possession. The common law rule of nullum tempus occurrit regi (no time runs against the king) shields only those lands used in a governmental capacity and is narrower than this statutory immunity because RCW 7.28.090 prevents the loss of municipal lands actually being used or planned for use to provide any direct or indirect benefit to the public.

¶ 2 The trial court granted summary judgment against the City of Seattle (City) and allowed portions of its land to be taken by adverse possession. It concluded the land could be taken by adverse possession because it was used for a proprietary purpose and so was not held in a governmental capacity. The trial court should have applied the broader statutory "held for any public purpose" test.

¶ 3 On de novo review, we conclude that the City holds title to the entirety of tract 44 and that RCW 7.28.090 applies and shields the disputed property from adverse possession by the homeowners.

¶ 4 Therefore, we vacate the trial court's order and remand for further proceedings in accordance with this opinion.

FACTS

¶ 5 In the early 1900s, the Wenzlers and the Mehlhorns owned tract 44, a long, 100-foot wide lot adjacent to Echo Lake in Shoreline, as appears below. In 1905, they executed a "right of way deed" in favor of the Seattle-Everett Interurban Railway Company, letting it use tract 44 as a railway.¹ If tract 44 stopped being used as a railway, then ownership would revert to the original owners and their heirs or assigns. Over the next 25 years, ownership of tract 44 changed numerous times. In 1939, it stopped being used as a railway. In 1945, it was conveyed to the Puget Sound Power & Light Company. And in 1951, Puget Sound Power & Light conveyed tract 44 to the City, which managed the tract through Seattle City Light.

¶ 6 By 2018, the lots adjacent to tract 44 had been subdivided and developed. Married couples, the Michels² and the Merriams³ (homeowners), lived on neighboring lots between Echo Lake and tract 44. The homeowners’ fenced front yards, the disputed properties, are located in tract 44. The nearest street runs along tract 44. A map appears below, identifying the homeowners’ properties and tract 44.

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¶ 7 In June of 2018, the City sent a letter to the Michels stating their fence and other "encroachments" on tract 44 had to be removed.⁴ It sent a similar letter to the Merriams in October of 2018. The Michels and the City did not negotiate a solution. In November, the City removed most of the Michels’ fence. The homeowners filed separate quiet title actions against the City, alleging they possessed their fenced front yards. The City counterclaimed in each case, seeking to quiet title and eject the homeowners. The cases were consolidated.

¶ 8 During discovery, the homeowners learned of the restrictive 1905 right-of-way deed and moved for partial summary judgment on the City's ability to claim ownership of tract 44 by deed. The court agreed, dismissing the City's counterclaims except to the extent they were based on adverse possession by the City.⁵

¶ 9 Following discovery, the parties filed amended complaints. The Michels brought claims for adverse possession, quiet title, and for a prescriptive easement for access against the City and all putative owners.⁶ They also brought claims for trespass and conversion against the City. The Merriams brought claims for adverse possession and for a prescriptive easement for access against the City and all putative owners. The City brought claims for adverse possession against the homeowners and against any heirs or assigns of the original owners of tract 44.

¶ 10 The parties filed cross motions for summary judgment. The City argued that it took the entirety of tract 44 by adverse possession and that RCW 7.28.090 barred the homeowners from adversely possessing the disputed property because it was using the land for a public purpose. The homeowners contended that the City did not take their fenced yards by adverse possession because it "has never occupied or even used [them]"⁷ and that the City's land was not shielded from adverse possession because, as a matter of law, a municipality providing utility services is not acting in a governmental capacity.

¶ 11 The court concluded that the City adversely possessed tract 44 as of 1961, except for the disputed properties.⁸ It concluded the City had not held tract 44 in a governmental capacity, so RCW 7.28.090 did not shield it from being adversely possessed. The court held the Merriams took title to their disputed property in 1963, and the Michels took title to their disputed property in 1974. It also granted both homeowners prescriptive easements for access.⁹ The City filed a motion for reconsideration, which the court denied.

¶ 12 The City appeals.

ANALYSIS

¶ 13 When parties file cross motions for summary judgment, questions of law determine the outcome if there are no genuine issues of material fact.¹⁰ We engage in de novo review of the trial court's rulings.¹¹ Determinations by the trial court are not entitled to any deference.¹²

¶ 14 The core question raised on appeal is whether the City is shielded by RCW 7.28.090 from the homeowners’ claims of adverse possession to their fenced yards, the disputed portions of tract 44.¹³ The homeowners argue the statute is inapplicable because of its narrow scope or because the City did not use tract 44 for a public purpose. But, as a preliminary matter, we address the homeowners’ contention that the City never acquired ownership of the disputed properties.

¶ 15 The homeowners challenge the City's claim that it acquired title to the disputed properties by adverse possession as of 1961. Specifically, they argue an adverse possessor has actual and exclusive possession of a disputed property only when they have actual, physical possession,¹⁴ and the City "never established exclusive possession of the portions of [tract] 44 occupied by the Michels and the Merriams and their predecessors" because it "never possessed the area inside the [homeowners’] fence line."¹⁵ The homeowners do not dispute that the City took title to the rest of tract 44 by adverse possession.

¶ 16 A person claiming adverse possession under RCW 4.12.020 must prove they "possess[ed] the property for at least 10 years in a manner that is ‘(1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile.’ "¹⁶ The homeowners’ narrow arguments challenge only the elements of actual and exclusive possession.¹⁷

¶ 17 The homeowners misconstrue the meanings of "possession" and "exclusive," and they cite no authority requiring physical occupation of the entirety of a disputed property to prove "actual" and "exclusive" use. While "it is not possible to be in adverse possession without physical occupation,"¹⁸ "[t]he ultimate test is the exercise of dominion over the land in a manner consistent with actions a true owner would take."¹⁹ "Adverse possession must be as exclusive as one would expect of a titled property owner under the circumstances."²⁰ "[T]he exclusivity element means that an adverse possessor may not share possession of the area claimed with the true owner and, though less critical, not too much with third persons who are there without the adverse possessor's consent."²¹

¶ 18 The City has maintained a continuous physical presence on tract 44 since 1951, using it for electrical distribution with power poles. Nothing shows the City shared possession of tract 44 with the "true owners," the Wenzlers, the Mehlhorns, and their heirs or assigns. The City consented to third persons’ uses of tract 44 for road access, recreation, parks, and trails. Although possession of tract 44 was not literally exclusive, as the homeowners would require, the record shows the City managed the land as a true owner would under the circumstances.

¶ 19 Tract 44 is a 100-foot wide parcel that cuts off the Michels’ and Merriams’ properties from the road. In 1951, the City took possession of and actively managed the uses of tract 44. It granted permits, charging only a nominal fee, to the homeowners’ predecessors for use of tract 44 to garden and access the road. The temporary permits issued in the 1950s and 1960s did not prohibit the construction of fences, driveways, or temporary structures, such as a shed. The City required that it be allowed to access the homeowners’ property within tract 44 "at all reasonable times" to ensure compliance with the permitted uses.²² And, as discussed in more detail...