Roy v. Cunningham

• Decision Date: 03 March 1983
• Citation: 731 P.2d 526,46 Wn.App. 409
• Parties: Lester W. ROY and Emma B. Roy, husband and wife, Respondents, v. Sanford M. CUNNINGHAM and Mary Cunningham, husband and wife; Allen D. Israel, as Trustee of the Cunningham Childrens Trust Pursuant to Instrument Dated
• Court: Washington Court of Appeals

Page 409

46 Wn.App. 409

731 P.2d 526

Lester W. ROY and Emma B. Roy, husband and wife, Respondents, v. Sanford M. CUNNINGHAM and Mary Cunningham, husband and wife Allen D. Israel, as Trustee of the Cunningham Childrens Trust Pursuant to Instrument Dated March 3, 1983; Robert W Meyers and Sandra L. Meyers, husband and wife; Ernest Cunningham and Jane Doe Cunningham, husband and wife; and Bradley M. Cunningham and Cheryl Keeton Cunningham, husband and wife, Appellants Theodore A. Roy and Patricia J. Roy, husband and wife, Respondents.

No. 7208-8-III.

Court of Appeals of Washington Division 3.

Dec. 30, 1986.

Charles C. Flower, Patrick M. Andreotti, Flower & Andreotti, F. Joseph Falk, Jr., Walters, Whitaker, Finney & Falk, Yakima, for appellants.

Reed C. Pell, Ted A. Roy, Roy & Pell, Yakima, for respondents.

THOMPSON, Judge.

The Cunninghams, Meyerses and Trustee Allen Israel appeal the trial court judgment quieting title in the Roys to a disputed strip of property along a fence line in Yakima County. We affirm in part and remand for a redetermination of damages.

In 1977, the Roys ¹ were contract purchasers of property, the eastern boundary of which, they believed, ran along a north-south fence line. In August 1980, Robert Meyers removed the old fence and constructed a new one approximately 47 to 52 feet to the west. The new fence line ran along the actual property boundary between the Roys' land on the west, and a series of four parcels on the east owned by Robert and Sandra Meyers (lots 3 and 4) and Trustee Allen D. Israel (lot 1). Lot 2 was being purchased by Earnest and Helen Cunningham on a real estate contract.

After September 15, 1982, the Cunninghams, ² contract purchasers of property to the north of the other four parcels, also removed the old fence and reconstructed a new fence along the actual boundary between their property and the Roys' to the west. The Roys brought suit to quiet title to the disputed property between both fence lines, and by judgment dated June 21, 1985, title was confirmed in them by adverse possession. They were also awarded costs and $1,700 in damages. The Meyerses' counterclaim for tortious interference with a business expectancy and third party complaint for improper institution of legal process were dismissed. All parties except the Roys appeal.

We are first asked to consider whether a presumption of permissive use arises where a fence is used to contain livestock. Permission to occupy the land, given by the true title owner to the claimant or his predecessors in interest, will operate to negate the element of hostility in an adverse possession claim. Chaplin v. Sanders, 100 Wash.2d 853, 861-62, 676 P.2d 431 (1984). The Cunninghams cite Hawk v. Walthew, 184 Wash. 673, 52 P.2d 1258 (1935) for the proposition that where testimony establishes the original purpose of a fence was pasturage, the use will be deemed permissive. Although Hawk was not expressly overruled by Chaplin, it had already been arguably limited. Notably, Taylor v. Talmadge, 45 Wash.2d 144, 149, 273 P.2d 506 (1954), overruled on other grounds in Chaplin v. Sanders, supra, 100 Wash.2d at 861 n. 2, ruled the building of a pasture fence on disputed land "would not militate against an adverse holding" if the use of the land was incident to a claim of right. Taylor framed the question as "whether a property fence is maintained as a matter of convenience, or under a claim of ownership". The nature of the actual use, rather than the original purpose for constructing the fence is controlling. Therefore, in instances such as this, particularly where the original purpose for the fence is unknown, no presumption of permission arises.

The next and major issue is whether express declarations of a prior owner that he does not know exactly where his boundary line is with regard to the disputed land will negate the "hostility/claim of right" element of adverse possession. The main purpose of the adverse possession doctrine is to assure maximum utilization of the land, encourage the rejection of stale claims, and quiet titles. Chaplin, 100 Wash.2d at 860 (citing 7 R. Powell, Real Property p 1012 (1982)). The elements of adverse possession include possession which is (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile and under a claim of right made in good faith. Chaplin, at 857. These elements must exist concurrently for 10 years. RCW 4.16.020; Chaplin, at 857. The hostility/claim of right element requires only that the claimant "treat the land as his own as against the world throughout the statutory period". Chaplin, at 860-61. The claimants' subjective belief and intent to dispossess or not dispossess another are not relevant to this determination. Chaplin, at 861.

Here, the trial court ruled that, although the original purpose for constructing the fence was unknown, for at least 20 years prior to its removal the fence represented and was used as a "well marked and defined boundary between the real property lying west and east of said fence". Testimony at trial indicated a difference of opinion by certain prior owners as to their understanding of the purpose of the fence. The Meyerses, et al., argue that statements made by a prior owner, Willis Mondor, to the Roys' immediate predecessor, Don Agnew, establish objective indicia of the use of the land. Specifically, Mr. Mondor testified that, prior to the 1974 sale to Mr. Agnew, he had a southern portion of the property surveyed; he knew the fence was beyond his actual eastern boundary line; he informed Mr. Agnew of these facts; and told Mr. Agnew "that [Mr. Mondor] was selling him according [to] the legal description. That the land was there someplace. If it was inside the fence, all right, and if it wasn't, it was up to him to get it". Mr. Mondor testified he owned the property for at least 14 to 16 years prior to the sale to Mr. Agnew and he used the entire area up to the fence for grazing purposes.

We note reference in Chaplin, at 862, to the relevance of the objective character of the possession. But we also note Chaplin rejected the distinction between acts and declarations formerly set forth in O'Brien v. Schultz, 45 Wash.2d 769, 780, 278 P.2d 322 (1954); see Survey of Washington Law, Property Law: Adverse Possession, 19 Gonz.L.Rev. 777 (1984). Notwithstanding the argument Mr. Mondor's conversations established the objective use of the property, the evidence indicates Mr. Mondor and his successors treated the land up to the fence as their own as against the world. That essential fact was correctly determined by the trial court, and we conclude Mr. Mondor's statements were merely expressions of irrelevant subjective beliefs.

The next issue is whether the Roys may tack adverse use of the property by their predecessors in interest, Agnew and Mondor, in order to satisfy the element of 10 years' adverse possession. 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. RCW 4.16.020; El Cerrito, Inc. v. Ryndak, 60 Wash.2d 847, 856, 376 P.2d 528 (1962) (citing Buchanan v. Cassell, 53 Wash.2d 611, 335 P.2d 600 (1959)).

The Meyerses, et al., quote the following language from Buchanan, 53 Wash.2d at 614:

This state follows the rule that a purchaser may tack the adverse use of its predecessor in interest to that of his own where the land was intended to be included in the deed between them, but was mistakenly omitted from the description.

(Italics ours.) They argue privity does not exist under these facts since Mr. Mondor did not intend to convey any interest in the disputed property. His only intent, as stated, was to convey the property described in the Mondor-Agnew contract.

The doctrine of privity has been broadly construed to be the "judicial recognition of the need for some reasonable connection between successive occupants of real property so as to raise their claim of right above the status of the wrongdoer or the trespasser". Howard v. Kunto, 3 Wash.App. 393, 400, 477 P.2d 210 (1970), overruled on other grounds in Chaplin v. Sanders, supra, 100 Wash.2d at 861 n. 2. Just as intent of the adverse possessor is irrelevant to the determination of the element of...