Vance v. Massey, No. 32608-6-II (WA 2/14/2006)

Decision Date14 February 2006
Docket NumberNo. 32608-6-II,32608-6-II
CourtWashington Supreme Court
PartiesDAVID H. VANCE and DEBBIE VANCE, husband and wife, Respondents, v. PHILLIP A. MASSEY, Trustee for PHILLIP A. MASSEY PROFIT-SHARING PLAN, Appellants.

Appeal from Superior Court of Cowlitz County. Docket No. 03-2-00997-1. Judgment or order under review. Date filed: 11/03/2004. Judge signing: Hon. James J Stonier.

Counsel for Appellant(s), Michael William Frey, Attorney at Law, 600 Royal St Ste B, Kelso, WA 98626-1167.

Counsel for Respondent(s), Odine Harris Husemoen, Attorney at Law, PO Box 1549, Longview, WA 98632-7934.


Phillip A. Massey appeals from a judgment quieting title under a common grantor theory to David and Debbie Vance. We affirm.

This dispute involves the boundary of two adjacent lots in a short plat near Kalama, Washington. David Van Skike1 recorded a short plat in 1982, dividing land he owned near Kalama into separate parcels. Lots 2 and 3 are adjacent and each is roughly five acres. A road running north and south leading to a Washington State Patrol radio tower provides access to both lots. On the plat map, the road is inside lot 3's boundaries, with an easement running west providing access into lot 2. The disputed land is the strip of land between the road and the plat map's property line, a strip several feet wide.2

In 1983, Van Skike sold lot 2 to David and Debbie Vance. Van Skike walked the property with Mr. Vance and told him that the road into the Washington State Patrol land went straight down the property line. Van Skike had also put in a yard on lot 2 that went all the way to the road. Mr. Vance testified that the Vances maintained this yard from 1983 to the present dispute. He further testified that no one else ever maintained the area. At some point, the Vances also put in a rock wall and some shrubbery in the area along the road in what was lot 2's driveway easement in the plat.

Lot 3, meanwhile, had several owners until Phillip Massey bought it in 2003. In 1988, Van Skike initially sold the land to Michael and Julie Hart. Van Skike testified that he told Hart then that the property line ran down the road, although Hart denied the conversation. Next, in 2000, Michael Hart sold the land to Dan and Judi Fiest. Dan Fiest also denied being told about the property line being along the road and testified he relied on the plat map boundary. Finally, in 2003, the Fiests sold the land to Massey. Massey denies having ever been told that the property line was along the road. And in all three of these transactions, the deeds referenced the legal description in the plat, which indicated the road was within lot 3 by several feet.

Massey, the defendant and appellant in this case, testified that he located the true property line past the road using the plat map and some flagging put up by Dan Feist's brother, who was a logger experienced at walking property lines. In addition, Massey testified that a line of trees followed the property line. Massey then told the Vances he owned the disputed area.

In May 2003, the Vances commenced a quiet title action after Massey claimed ownership of the disputed area. They argued, in the alternative, that they owned the strip under adverse possession, common grantor, or mutual recognition theories. The trial court denied their simultaneous request for a preliminary injunction, but it ordered Massey to provide a bond to cover any damages in the event the Vances prevailed.

Massey responded by commissioning a survey that confirmed the line was several feet past the road. Having determined the property line, but after this lawsuit began, Massey used a tractor to scrape off the topsoil up to the plat line and replaced it with gravel laid over newspapers. He then parked his bulldozer and fire truck on the disputed area. He also used it for turning his log trucks.

Following a bench trial, the trial court ordered the line adjusted to the western edge of the road, ordering Massey to pay for removing the gravel over the line and restoring the land to lawn. The court entered a finding of fact that the Vances' use and maintenance of the land made it clearly visible that the Vances treated the strip as their land. In its ruling, the court also indicated that it found Van Skike's testimony credible. But the adverse possession claim failed, according to the court, because the Vances' use of the land was not exclusive.

I. Legal description

Massey first argues that there is insufficient evidence to support the trial court's legal description of the land. First, he argues that Van Skike's testimony, `straight down the road' was insufficient to establish a legal boundary. Report of Proceedings (RP) at 19. Second, he argues that the actual legal description the trial court used was erroneous because Massey was not allowed to question its location, sufficiency, or accuracy.

Massey contends that the court should apply adverse possession and acquiescence cases, requiring Vance to prove a well-defined boundary. Massey cites Scott v. Slater, for example, where the court noted that the inadequate proof of a well-defined boundary is fatal to an adverse possession claim. Scott v. Slater, 42 Wn.2d 366, 369, 255 P.2d 377 (1953), overruled on other grounds by Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984). Even assuming that this case applies, Van Skike's testimony is sufficient to establish a legal boundary.

Proof of a legal boundary need not be exact. The boundary may be defined by use of the property, by a natural feature, or by some building or structure such a fence. Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, 212, 936 P.2d 1163, review denied, 133 Wn.2d 1022 (1997). The line need not be straight so long as it is ascertainable. Frolund v. Frankland, 71 Wn.2d 812, 819-20, 431 P.2d 188 (1967) (finding a cleared area was sufficient to establish a clear boundary), overruled on other grounds by Chaplin, 100 Wn.2d 853 (1984). A road is a sufficient legal boundary. Bryant, 86 Wn. App. at 213-14 (indicating that a dirt road was a sufficient boundary). Similarly, the edge of cultivation can be a boundary if well marked. Skoog v. Seymour, 29 Wn. 2d 355, 365, 187 P.2d 304 (1947), overruled on other grounds by Chaplin, 100 Wn.2d 853 (1984).

Here, the road Van Skike referenced was visible on the ground. In addition, there was testimony at trial that the lawn and landscaping, though spotty, went right up to the edge of the road. Therefore, there was sufficient evidence to establish a legal boundary.

Massey also contends that the exact boundary the trial court chose may be inaccurate because the Vances did not enter a survey into the record. In its ruling, the trial court included a full legal description of the quieted land, but the survey that produced the line is not in the record. Massey suggests this is problematic because the Vances asked for title either up to the road or to the edge of the ditch next to the road, and it is not clear which the trial court chose. But this ambiguity is irrelevant. The trial court ruled that the boundary was the edge of the road easement and that is an easily ascertainable line.

To the extent the legal description in the trial court's ruling might track neither the road nor the ditch and thus might fail for lack of substantial evidence, Massey failed to provide an adequate record. The appellant has the burden of providing a record sufficient to resolve the issues raised. RAP 9.2(b); In re Marriage of Berg, 47 Wn. App. 754, 756, 737 P.2d 680 (1987). Because Massey introduced no evidence to show the legal description is inaccurate, his argument fails.

II. Common Grantor

Massey contends that the evidence was insufficient to support the trial court's finding that the common grantor doctrine applied. The common grantor doctrine requires the original grantor and grantee to agree to a boundary that is evident from a visual examination of the property. Fralick v. Clark County, 22 Wn. App. 156, 160, 589 P.2d 273 (1978). Massey suggests that there was an insufficient agreement between Van Skike and Vance and that a visual examination of the property did not show later purchasers that the deed line was no longer the true boundary.

We review the trial court's factual findings for substantial evidence. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). Substantial evidence is a quantum of evidence sufficient to persuade a rational fair-minded person the premise is true. Wenatchee Sporstmen Ass'n, 141 Wn.2d at 176. If the standard is satisfied, we will not substitute our judgment even though we may have resolved a factual dispute differently. Croton Chem. Corp. v. Birkenwald, Inc., 50 Wn.2d 684, 685, 314 P.2d 622 (1957). The fact finder's determines the credibility of the witnesses and weight to give evidence, and we will not evaluate them on appeal. Burke v. Pepsi-Cola Bottling Co., 64 Wn.2d 244, 246, 391 P.2d 194 (1964).

In order to apply the common grantor doctrine, the trial court must find that (1) a common grantor and original grantee agreed on a boundary during the sale and (2) a visual examination of the property would reveal that the deed line was no longer the `true' boundary. Fralick, 22 Wn. App. at 160. The theory behind this doctrine is not that subsequent buyers acquiesced in an erroneous boundary, but that the original grantor's statement of the boundary was correct and that land was sold in reference to it. Thompson v. Bain, 28 Wn.2d 590, 592, 183 P.2d 785 (1947).

These two elements under the common grantor doctrine appear to be factual issues: (1) whether there was an agreement to set the line and (2) whether a visual exam would provide notice. The Washington cases on common grantor have not directly addressed whether these are factual or legal determinations. In Winans v. Ross, however, the court appeared to cast the trial court's determination that a fence line...

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