Severson v. Clinefelter
| Decision Date | 22 September 2015 |
| Docket Number | 45596-0-II |
| Court | Washington Court of Appeals |
| Parties | DENNIS SEVERSON, a single person and KENNETH D. UPHOFF and CHRISTINE S. BURNELL, husband and wife, Respondents, v. BRAD A. CLINEFELTER and SUZANNE CLINEFELTER, husband and wife, Appellants. |
UNPUBLISHED OPINION
Brad and Suzanne Clinefelter appeal the trial court's judgment quieting title to a strip of land in their neighbors, Dennis Severson, Kenneth D. Uphoff, and Christine S. Burnell. The trial court concluded that Uphoff and Burnell (collectively Uphoff), owners of one parcel, as well as Severson, owner of another, had adversely possessed the disputed strip, which lies between their parcels and the Clinefelters' in a vacated street right-of-way. The Clinefelters assign error to a number of the trial court's findings of fact and conclusions of law, contending that (1) a 1983 stipulation by predecessors in interest to the Clinefelters, Severson, and Uphoff, resolving litigation involving the same strip precluded Severson's[1] and Uphoff s claims and (2) the evidence does not establish adverse possession by either Severson or Uphoff. Because we hold that (1) the 1983 stipulation is not binding on Severson or Uphoff and (2) the evidence establishes adverse possession by Severson and by Uphoffs predecessors, we affirm.
The disputed strip of land in this appeal is located in the western half of a 50-foot wide former right-of-way platted in 1899 as "Swan Street, " running north and south. We refer to the entire 50-foot wide former right-of-way as "Swan Street" and to its western half as the "disputed strip."[2] Clerk's Papers (CP) at 62-63. The Clinefelters' parcel lies to the west of Swan Street directly across from Uphoffs and part of Severson's parcels, which lie to the east of Swan Street. The Uphoff parcel lies immediately south of Severson's.
Severson bought his parcel in 1977 from Ted Thompson, who also had owned the future Clinefelter and Uphoff parcels. Severson testified that he and Thompson thought an old fence running down the west side of the former right-of-way was the boundary between Thompson's parcel, now the Clinefelters', and Swan Street, not necessarily the boundary of Severson's parcel.
After purchasing the property, Severson cleared most of Swan Street up to about two feet from the old fence along the west side of the former right-of-way, including most of the disputed strip. Severson also at times kept a boat in the disputed strip, although the record is not clear for how long. He also put in a driveway on the eastern, undisputed half of Swan Street side to provide access to the Uphoff's parcel. Severson kept the entire Swan Street area, including the disputed strip, mowed almost up to the old fence, except for a 50-foot diameter semicircular berm around a large fir tree, mostly on the west side of the street but extending past the Swan Street center line, that he "left untouched." 1 Verbatim Report of Proceedings (VRP) at 93-95.
Uphoff bought their parcel, immediately south of Severson's, in December 2003, and moved onto it a few months later. As noted, Sever son had regularly mowed and maintained the portion of Swan Street adjacent to Uphoff s parcel up to the old fence, including most of the disputed strip. Uphoff took over the mowing and maintenance from Severson, and at some point planted a garden very close to the old fence. Kenneth Uphoff testified that he believed he and Burnell owned the adjacent portion of Swan Street up to the old fence, but admitted that, once he learned about it, he did not actually know where Swan Street was and that it "was a question in [his] mind." 1 VRP at 220-22.
After Uphoff moved onto his parcel, Clinefelters built a gate in the old fence across from Uphoff s parcel, near the garden. Kenneth Uphoff testified that, before building the gate, Brad Clinefelter asked him for permission to do so, and Uphoff replied, "Yeah, no problem." 1 VRP at 183. Brad Clinefelter testified that he and his wife decided to put in the gate in order to access the Uphoff s property, as well as to get to the public road via Swan Street, and denied having asked Uphoff s permission.
Shortly before this litigation began, Uphoff had Brad Clinefelter build a chicken coop slightly east of the old fence, in the disputed strip. The chicken coop was designed, per Uphoff s instructions, so it would not be a permanent fixture. After this dispute arose, but prior to trial, Severson and Uphoff moved the chicken coop east, toward the Uphoff parcel and out of the disputed area.
The Clinefelters bought their parcel in 2000. They generally accessed their property from the portion of Nolton Road that runs along the west edge of their parcel, before it turns east and runs along the north edge of their parcel. Brad Clinefelter testified that he and his wife sometimes walked on Swan Street to access the portion of Nolton Road that runs north of their parcel.
Shortly after buying the property, the Clinefelters repaired the dilapidated barbed wire fence running along the eastern part of their parcel and the western edge of Swan Street. Severson testified at trial that Thompson, who continued to own the Clinefelters' parcel for many years after Severson bought his parcel, "always said that. . . the fence was the boundary line." 1 VRP at 41.
As a result of the chicken coop events, Uphoff began researching Swan Street and discovered that in 1983, the Thompson estate, which then still owned the Clinefelters' parcel, sued James and Florence Hubbard, predecessors in interest to Uphoff s parcel, regarding the portion of Swan Street between the two parcels. Those parties resolved the dispute by stipulation, which provided in relevant part:
CP at 9-10. The executor of the Thompson estate, the Hubbards, and the Jefferson County prosecuting attorney signed the stipulation, which purports to "be binding upon the heirs, successors and assigns of the parties hereto." CP at 10. It was never recorded or reduced to a judgment. In 1985, the Jefferson County Superior Court dismissed the lawsuit on the court clerk's motion, for want of prosecution.
The Clinefelters first learned of the stipulation when Uphoff gave them a copy of it. Severson, Florence Hubbard's brother-in-law, knew about the lawsuit and resulting stipulation all along, but did not tell Uphoff or the Clinefelters.
In early 2011, the Clinefelters hired licensed professional surveyor Eric Olson, an acquaintance of Brad Clinefe Iter's, to survey their parcel. Olson's survey located the center line of Swan Street about 17 feet east of the old fence, which was about 6.5 feet east of where Severson believed it to be. Thus, according to the Olson survey, Uphoff s garden was on the Clinefelters' side of Swan Street, in the disputed strip.
Shortly after Severson and Uphoff learned where Olson had located Swan Street, they filed this lawsuit, seeking to quiet title to the west half of Swan Street, up to the old fence, in each adjacent to their respective real properties. The complaint stated causes of action for adverse possession, based on use of the disputed strip by Severson, Uphoff, and Uphoff s predecessors in interest.[3]
At trial, in addition to the facts described above, witnesses testified to the use of Swan Street by previous owners of the Uphoff and Clinefelter parcels. Florence Hubbard testified that she purchased Uphoff s parcel in 1977. She also testified that she built a greenhouse in the disputed area in 1983, but removed it a few years later in 1985 or 1986. In addition to a greenhouse, she kept a small garden all the time that she was there. The garden and the greenhouse were on Swan Street about 3 to 10 feet from the old fence. She testified further that, although there was no gate in the old fence, Thompson sometimes came over it into Swan Street. She sold her property to Douglas Kronquist in 1990.
Hubbard testified that Kronquist used the property "as a garbage dump" and "let the garden go." 1 VRP at 123. According to Hubbard, Kronquist did not store anything in Swan Street, except possibly his car, but used it for ingress and egress. Hubbard testified that, in 1992, when Paul and Elaine Myers bought the parcel, there was nothing in the disputed area, which was open and cleared. The Meyers also used Swan Street for ingress and egress, but Hubbard did not know if they maintained a garden or anything else in the disputed area. The Myers sold the parcel to Uphoff in 2003. Severson's recollection largely agreed with Hubbard's, but Severson also testified that Kronquist maintained the Hubbards' garden ...
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