Miller v. Anderson

• Decision Date: 10 August 1998
• Docket Number: No. 39448-7-I,39448-7-I
• Citation: 91 Wn.App. 822,964 P.2d 365
• Parties: Bruce MILLER and Pam Miller, husband and wife, Respondents, v. O. Lowell ANDERSON and Laurie L. Baker, husband and wife, Appellants. and Merle E. Shaw and Doris C. Shaw, husband and wife, Third-Party Defendants.
• Court: Washington Court of Appeals

Page 822

91 Wn.App. 822

964 P.2d 365

Bruce MILLER and Pam Miller, husband and wife, Respondents, v. O. Lowell ANDERSON and Laurie L. Baker, husband and wife, Appellants. and Merle E. Shaw and Doris C. Shaw, husband and wife,

Third-Party Defendants.

No. 39448-7-I.

Court of Appeals of Washington,

Division 1.

Aug. 10, 1998.

Robert Erling Ordal, Ordal & Jones, Seattle, for Appellants.

Daryl Allan Deutsch, Rodgers & Deutsch, Bellevue, for Respondents.

ELLINGTON, Judge.

This case involves a dispute over the boundary between two adjacent parcels of property bordering Lake Washington, and requires us to examine the doctrine of adverse possession in the context of permissive use and successors in title.

Summary

Merle and Doris Shaw (the Shaws), owners of the north lot, and Ernest Tuttle, owner of the south lot, recognized that the fence between their lots diverged from the platted line such that Mr. Tuttle was using the Shaws' property. In 1968, they entered into and recorded a formal agreement, accepting the platted line as the true boundary. The Shaws did not move the fence, however, and allowed Mr. Tuttle and subsequent owners of the south lot to continue to use their property on the south side of the fence. In 1973, Mr. Tuttle sold the south lot to David and Marcella Clark (the Clarks); they in turn sold in 1986 to Bruce and Pam Miller (the Millers). The Shaws owned the north lot until 1986, when they sold to O. Lowell Anderson and Laurie Baker (Anderson/Baker). After Anderson/Baker had a survey done in 1991, a dispute over the true property line arose between Anderson/Baker and the Millers. The trial court quieted title in the Millers on a theory of adverse possession, concluding that Mr. Tuttle's use was permissive, but that permission was revoked as a matter of law upon Mr. Tuttle's 1973 sale to the Clarks, and that Anderson/Baker failed to prove that the Clarks' or the Millers' use was permissive.

We reverse. Use that is permissive at its inception is presumed to remain permissive unless proof exists of (1) a change in use beyond that permitted, providing notice of hostility to the true owner, or (2) the sale of the servient estate. Mr. Tuttle's sale of his property did not automatically terminate the permissive use, and did not shift the burden to Anderson/Baker to prove continued permission. The permissive use did not end by operation of law until the Shaws' 1986 sale of the servient estate to Anderson/Baker. The Millers had the burden to prove that the permissive use in fact ended sooner. They presented no evidence to satisfy this burden, and thus failed to establish adverse use for the statutory period. We therefore remand for the court to quiet title in Anderson/Baker.

Facts ¹

When Merle and Doris Shaw purchased the north lot in 1951, it was fenced on its south side from the street to the lake. In the late 1960s, the Shaws realized that the correct boundary was south of the original fence. No formal survey was done. In 1968, the Shaws and Ernest Tuttle entered into and recorded a boundary line agreement, accepting the platted line as the boundary between their properties. But the Shaws did not want to move the fence, and permitted Mr. Tuttle to continue to maintain the property up to the fence. Mr. Tuttle's use of the property was essentially border landscaping.

In 1973, Mr. Tuttle sold the south lot to David and Marcella Clark. Like Mr. Tuttle, the Clarks landscaped and otherwise used the property up to the original fence, except that the Shaws trimmed one hedge on both sides along part of the fence. In 1986, Bruce and Pam Miller purchased the south lot from the Clarks, and Lowell Anderson and Laurie Baker purchased the north lot from the Shaws. Like Mr. Tuttle and the Clarks, the Millers used the property up to the original fence.

Anderson/Baker had the property surveyed in 1991. The survey indicated that the correct platted line for their lot lies south of the fence line by 3.5 feet on the east near the road and by 6.5 feet on the west near the lake. They told the Millers they planned to build a fence on that line.

In 1994, the Millers sued to quiet title, claiming adverse possession of the land up to the original fence based upon the exclusive use of the disputed area by them and their predecessors. Anderson/Baker denied any exclusive use, arguing that (1) the recorded 1968 boundary line agreement established the boundary, (2) any use by the Millers or their predecessors was permissive, and (3) any adverse use was not for the 10-year statutory period required for adverse possession. Anderson/Baker asked the court to quiet title in them. ²

The trial court found that Mr. Tuttle's use was permissive, but concluded the permission granted by the Shaws to Mr. Tuttle was revoked as a matter of law when Mr. Tuttle conveyed his property. The court found that Mr. Tuttle's successors in interest, the Clarks, landscaped the property to the fence line, and that their use was exclusive, uninterrupted, open, notorious, and hostile for the statutory 10-year period. The court found that "[l]ittle evidence exists on the issue of permissive use after Tuttle conveyed ... to the Clarks although an inference does exist that such use might have been permissive [,]" but concluded that Anderson/Baker failed to prove by a preponderance of the evidence that this use was permissive, and quieted title in the Millers.

Adverse Possession ³

The doctrine of adverse possession arose "to assure maximum utilization of the land, encourage the rejection of stale claims, and quiet titles." Roy v. Cunningham, 46 Wash.App. 409, 412, 731 P.2d 526 (1986) (citing Chaplin v. Sanders, 100 Wash.2d 853, 859-60, 676 P.2d 431 (1984) (citing 7 Richard R. Powell, Powell on Real Property p 1012 (1982))), review denied, 108 Wash.2d 1018 (1987); see also William B. Stoebuck, The Law of Adverse Possession in Washington, 35 Wash. L.Rev. 53, 53 (1960). But courts will not permit "theft" of property by adverse possession unless the owner had notice and an opportunity to assert his or her right. See 7 Richard R. Powell & Patrick J. Rohan, Powell on Real Property p 1012, at 91-12 (Lori A. Hauser ed.1991). Thus, no presumption exists in favor of the adverse holder because "possession will be presumed to be in subordination to the title of the true owner." Muench v. Oxley, 90 Wash.2d 637, 642, 584 P.2d 939 (1978), overruled on other grounds in Chaplin, 100 Wash.2d at 861 n. 2, 676 P.2d 431.

Adverse possession requires proof of 10 years' possession that was (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile. RCW 4.16.020; ITT Rayonier, Inc. v. Bell, 112 Wash.2d 754, 757, 774 P.2d 6 (1989) (citing Chaplin, 100 Wash.2d at 857, 676 P.2d 431). The 10-year period may be shown by tacking a predecessor's adverse use if privity exists between them, and they have held continuously and adversely to the title holder. Roy, 46 Wash.App. at 413-14, 731 P.2d 526. Because the holder of legal title is presumed to possess the property, the party claiming adverse possession bears the burden of proof on each element. ITT Rayonier, 112 Wash.2d at 757-58, 774 P.2d 6.

Adverse possession is a mixed question of law and fact: whether the necessary facts exist is for the trier of fact, but whether those facts constitute adverse possession is an issue of law for the court to decide. Chaplin, 100 Wash.2d at 863, 676 P.2d 431; Anderson v. Hudak, 80 Wash.App. 398, 401-02, 907 P.2d 305 (1995). "Whether use is adverse or permissive is a question of fact." Miller v. Jarman, 2 Wash.App. 994, 997, 471 P.2d 704 (citing Northwest Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75, 84, 123 P.2d 771 (1942)), review denied, 78 Wash.2d 995 (1970).

Permission

This case requires examination of the impact of permission on the hostility element of adverse possession. Generally, the hostility element requires proof that the possessor treated the property as an owner would. Chaplin, 100 Wash.2d at 860-61, 676 P.2d 431. But "permission to occupy the land, given by the true title owner to the claimant or his predecessors in interest, will still operate to negate the element of hostility." Chaplin, 100 Wash.2d at 861-62, 676 P.2d 431. This qualification means that "a different set of rules applies when the initial use is permissive." Granston v. Callahan, 52 Wash.App. 288, 293, 759 P.2d 462 (1988) (applying Chaplin analysis to claim of prescriptive easement). Hostility does not mean personal animosity or even adversarial intent. It connotes rather that the claimant's use has been hostile to the title owner's, in that the claimant's use has been that of an owner. See Chaplin, 100 Wash.2d at 857-58, 676 P.2d 431. Use with the true owner's permission thus cannot be use hostile to the true owner's title.

Permission can be express or implied; an inference of permissive use arises when it is reasonable to assume "that the use was permitted by sufferance and acquiescence." Granston, 52 Wash.App. at 294, 759 P.2d 462. The 1968 boundary agreement between Mr. Tuttle and the Shaws does not contain an express grant of permission to Mr. Tuttle to use the disputed area. In context, however, the agreement, Mr. Shaw's testimony, and other evidence in the record establish that the Shaws gave at least implied (and perhaps express) permission to Mr. Tuttle to use the disputed area. The trial court so found, and the Millers have not cross appealed this finding.

The question then is whether any subsequent act terminated permission such that a hostile use arose. Generally, the party claiming adverse possession bears the burden of proving that permission terminated either because (1) the claimant has asserted a hostile right, or (2) the servient estate has changed hands through death or alienation. Granston, 52 Wash.App. at 294-95, 759 P.2d 462; see also Ormiston v. Boast, 68 Wash.2d 548, 551, 413 P.2d 969 (1966) (permissive use cannot ripen into prescriptive use unless...