Smith v. Peterson

Decision Date13 February 2012
Docket NumberNo. 66245-7-I,66245-7-I
CourtWashington Court of Appeals
PartiesGREGG SMITH and KELLY SMITH, husband and wife, Respondents/Cross-Appellants, v. LARRY L. PETERSON and SUSAN PETERSON, husband and wife and the marital community composed thereof, Appellants/Cross-Respondents,


Dwyer, C.J.This case involves a boundary dispute between two lakefront property owners. Each party claims an ownership interest in a covered dock that extends from the shoreline near the boundary line between the respective properties. The trial court concluded (1) that no ownership interest in the dock arose through mutual recognition and acquiescence and (2) that the presence of a canopy was insufficient to establish title to the underlying shorelands by adverse possession. Finding no error, we affirm.


The Smiths and the Petersons are owners of adjoining properties on the eastern shore of Lake Washington in Bellevue. Larry and Susan Peterson acquired the southern parcel in 1971 from the Wolfe family. Gregg and Kelly Smith acquired the northern parcel in 2007 from the Heath family, the long-timeneighbors of the Petersons.1 A covered dock extends from the land near the border between the two properties. The dock has existed in its current configuration for more than 50 years.

In 1971, shortly after purchasing the Wolfe property, the Petersons installed a fence in the area of the boundary between their property and the Heath parcel. The fence did not coincide with the legal boundary line. Nor, as originally constructed, did the fence extend to the shoreline of Lake Washington. Instead, it terminated approximately eight feet from the shore, leaving a gap between the two parcels near the water. However, the path of the fence—if it were to have been extended in a straight line along the same track—would bisect the dock. The fence has been maintained, repaired, and replaced in the same location at the Petersons' expense since 1971.

In the early 1980s, Larry Peterson installed a gate at the western end of the fence, thus completing the physical division between the Smith and Peterson properties. Instead of following the original fence line, the newly-installed gate veers in a northwesterly direction. The gate intersects the shoreline at a point that lies approximately seven feet to the north of where the original fence would have intersected the shoreline had it been extended in a straight line along the same track. The entrance to the dock now lies entirely on the southern side of the fence. Although the gate has never been locked, the Heaths made little use of the dock after installation of the gate. In contrast, the Petersons used the dockand its moorage slips to store boats and equipment, supplied power to the dock, and repaired and replaced various portions of the dock's structure at their own expense.

In 2008, one year after purchasing the Heath property, the Smiths filed a lawsuit against the Petersons seeking to quiet title to the northern half of the dock and gate area. Following a three day bench trial, the trial court determined that an adjusted upland boundary had been established by the Heaths' and Petersons' longstanding recognition of the fence and gate as the true dividing line between their respective properties. The trial court relied on the testimony of a professional surveyor to set the shoreland boundary line. The court determined that the shoreland boundary "commenc[es] at the point of intersection of the upland boundary and the west face of the bulkhead and extend[s] westerly in a straight line therefrom parallel to adjoining legal subdivision boundary lines." Clerk's Papers (CP) at 247.

Based upon this survey—which depicted the dock as lying nearly entirely to the south of the common boundary line—the court concluded that the dock belonged solely to the Petersons. However, the court also determined that several pilings supporting the dock's canopy lay on the Smiths' side of the border. The trial court determined that these pilings belonged to the Smiths. Finding that the canopy was not a fixture, the court ruled that the Petersons had not acquired the shoreland beneath the dock's canopy or the pilings by adversepossession or prescriptive easement.

The Petersons appeal from the trial court's ruling that they failed to establish ownership of the pilings and shoreland based upon principles of adverse possession. The Smiths cross-appeal from the trial court's determination that they failed to demonstrate an ownership interest in the dock based upon mutual recognition and acquiescence.


The Smiths contend in their cross-appeal that the trial court erred by determining that the true dividing line between the Smith and Peterson properties was established by a fence and gate running along the upland border of these parcels. We disagree.

When evaluating evidence in a bench trial, our review is limited to determining whether the trial court's factual findings are supported by substantial evidence and whether those findings support the trial court's conclusions of law.2Standing Rock Homeowners Ass'n v. Misich, 106 Wn. App. 231, 242-43, 23 P.3d520 (2001). Substantial evidence is the "quantum of evidence sufficient to persuade a rational fair-minded person the premise is true." Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). On review, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the prevailing party. Korst v. McMahon, 136 Wn. App. 202, 206, 148 P.3d 1081 (2006). Although the trier of fact is free to believe or disbelieve any evidence presented at trial, "[a]ppellate courts do not hear or weigh evidence, find facts, or substitute their opinions for those of the trier-of-fact." Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009) (citing Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 572, 343 P.2d 183 (1959)), review denied, 168 Wn.2d 1041 (2010). We review questions of law de novo. Sunnyside Valley, 149 Wn.2d at 880.

Pursuant to well-established Washington law, if adjoining landowners recognize and acknowledge a common boundary, this boundary becomes the "'true dividing line'" between the properties. Lilly v. Lynch, 88 Wn. App. 306, 316, 945 P.2d 727 (1997) (quoting Mullally v. Parks, 29 Wn.2d 899, 906, 190 P.2d 107 (1948)). A party claiming title to land by mutual recognition and acquiescence must prove (1) that the boundary line between the two properties was "'certain, well defined, and in some fashion physically designated upon the ground,'" (2) that the adjoining landowners, in the absence of an express boundary line agreement, manifested in good faith a mutual recognition of thedesignated boundary line as the true line, and (3) that mutual recognition of the boundary line continued for the period of time necessary to establish adverse possession. Merriman v. Cokeley, 168 Wn.2d 627, 630, 230 P.3d 162 (2010) (quoting Lamm v. McTighe, 72 Wn.2d 587, 593, 434 P.2d 565 (1967)). The time period required to establish adverse possession is 10 years. Merriman, 168 Wn.2d at 630. These elements must be proved by clear, cogent, and convincing evidence. Lilly, 88 Wn. App. at 316-17.

Here, the trial court found that each element of mutual recognition and acquiescence was established "by clear, cogent and convincing standards." CP at 245 (Finding of Fact 6). In the trial court's written findings of fact and conclusions of law, the court determined that the dividing line was physically designated upon the ground by the fence and gate, which were respected "as the common boundary between the two parcels." CP at 244-45 (Finding of Fact 7). The Petersons and the Heaths (the predecessors in interest to the Smith property) manifested their mutual recognition of this designated boundary by "maintenance" and "use." CP at 245 (Finding of Fact 7). Finally, this recognition persisted for the required time period—the Petersons erected the original fence in 1971, and the gate was added in "the early 1980s." CP at 244 (Finding of Fact 6). At all times, the fence and gate were "treated as the common legal boundary line between the respective ownerships." CP at 245 (Finding of Fact 7).

Substantial evidence supports each of these findings. Our courts have long treated fence lines as a type of physical designation that is sufficient to establish a boundary line. Lamm, 72 Wn.2d at 593 (listing "monuments, roadways, [and] fence lines" as markers sufficient to establish a boundary). Here, the evidence was undisputed that the fence and gate had completely separated the Smith and Peterson properties along their upland boundary since the early 1980s. Larry Peterson testified that he had built the original fence in 1971, installed the gate in 1982, and had repaired, maintained, and replaced the fence in the same location ever since. Moreover, there is substantial evidence that the Smiths and Heaths manifested in good faith a mutual recognition of the fence and gate as the true boundary line. Dean Secord, a grandson of Marian Heath who maintained her yard from 1994 to 2003, testified that he would weed and mow up to the fence and gate, but that he would not mow beyond the fence and "never really opened the gate." Report of Proceedings (RP) (Jan. 25, 2010) at 164. Tamara Heath, the daughter of Marian Heath, likewise testified that her parents had maintained the yard on their side of the fence line. Larry Peterson testified that, although he occasionally weeded the Heaths' side of the fence as a neighborly gesture, he at all times considered the area north of the fence to be "Marian [Heath's] yard." RP (Jan. 27, 2010) at 125. Thus, there is substantial evidence that the Heaths and Petersons recognized the fence and gate as the true boundary between their properties for nearly 30 years.

The Smiths contend that, as a matter of law, the presence of an unlocked gate prevents a fence from...

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