Walker v. Plummer
| Decision Date | 06 March 2012 |
| Docket Number | No. 40864-3-II,40864-3-II |
| Court | Washington Court of Appeals |
| Parties | DENNIS WALKER & SANDRA WALKER, a marital community, Appellants, v. JEFFREY PLUMMER & KELLI PLUMMER, a marital community, Respondents. |
Quinn-Brintnall, J. — In this quiet title action, Dennis and Sandra Walker appeal the trial court's declaratory judgment quieting title to a disputed area in favor of their neighbors, Jeff and Kelli Plummer. The Walkers contend that the trial court erred by striking a portion of the Plummers' predecessor, Lorri Tipton's,1 video deposition testimony as inadmissible hearsay. The Walkers argue that the evidentiary error resulted in the trial court erroneously concluding that they failed to prove their adverse possession, mutual recognition and acquiescence, common grantor, and estoppel claims. Because the Walkers invited the alleged evidentiary error, they waived any challenge to the stricken portion of Tipton's deposition. We hold that the trial courtdid not err in concluding that the Walkers failed to prove their adverse possession, mutual recognition and acquiescence, common grantor, and estoppel claims and affirm.
On August 25, 1989, Jack Januska purchased approximately 10 acres of land in Vancouver, Washington. Januska did not live on the property. Instead, Januska owned and lived on a parcel immediately to the south of the 10-acre parcel. Januska used the 10 acres for grazing his livestock year-round. He reinforced an old, dilapidated fence running north-south near the center of the property to keep his cattle close to his home.
On December 23, 1992, Januska divided the 10 acres and sold the eastern 5-acre parcel to Tipton. At the time, Januska did not consider the old, dilapidated barbed wire fence to be the boundary between the eastern and western parcels. The old fence ran north-south the entire length of the property, approximately 86 feet from the deed line at the northern end and approximately 65 feet at the southern end. Januska did not refer to the fence as the deed line when he sold the property to Tipton.
Two wells sat on Tipton's eastern parcel. Well #184, the well closest to the western parcel, was built in 1970. Well #181, the well on the eastern side of Tipton's parcel, was built in 1980. Tipton stated that when she purchased her property, there was an old well house servicing well #181 located about 100 feet from the main house. Tipton stated that well #184 was "maybe eight feet from the property line," meaning that the well was eight feet into what she believed to be the western parcel. Br. of Appellant, App. (Tipton Dep. at 24). Tipton stated she never thought she owned or had permission to use well #184.
Tipton stated that because she planned to raise llamas, she installed field fencing "all theway around property." Br. of Appellant, App. (Tipton Dep. at 13-14). Tipton used a "written out description" of her property and "survey markers"2 to determine where to install her fence. Br. of Appellant, App. (Tipton Dep. at 16). Tipton stated that she tore down the old dilapidated fence between her parcel and the western parcel when she built her new fence. Tipton stated that the old dilapidated fence was not on the property line. Tipton used the "survey markers" to determine that the true boundary line was approximately three feet east of the old fence; the western parcel gained those three feet. Tipton stated that once she built her new fence, she considered it the boundary line of her property. The area between the eastern and western parcels' deed line and Tipton's fence is the disputed area in this case.
Prior to November 1997, Januska's cattle sporadically and noncontinuously grazed in the disputed area. On November 18, 1997, Januska sold the western parcel to the Walkers ("Walker parcel"). During negotiations for the sale, Januska made representations to the Walkers that well #184 served the property and requested well-water testing because the sale was contingent on the test. The Walkers' realtor testified he also thought well #184 was part of the Walker parcel.
In June 1998, the Plummers moved onto Tipton's eastern parcel to make sure the property complied with all codes before purchasing the property. Tipton stated that she met with the Plummers before they purchased her property. Tipton stated that she walked the Plummers along her boundary fence and discussed with them "where the property lines were" and about "the markers." Br. of Appellant, App. (Tipton Dep. at 65). Tipton stated that she told the Plummers there was "just the one" well, well #181, on her property. Br. of Appellant, App. (Tipton Dep. at67). Tipton stated that she told the Plummers they could use well #181 to service the house they planned to build at the top of the hill near the Walker parcel.3 Tipton sold her property to the Plummers ("Plummer parcel") on March 1, 1999.
Sometime before the Plummers purchased the property, Tom Davis, a neighbor to the south of the Plummer parcel, told Kelli Plummer that Tipton's fence was not the boundary line and that their property extended past the fence. Beginning in the summer of 1999, Kelli Plummer went to the fence every day to oversee excavation and construction as the Plummers prepared to move their new house onto the property. In the fall of 2000, the Plummers took part of the fence down to move their house onto the property. The front door of the house was approximately 45 feet from the fence and the garage door was approximately 30 feet from the fence. A different neighbor fixed the fence after the Plummers finished moving their house.
The Walkers had well #184 serviced in November 2001. When Kelli Plummer saw the service worker at the well, she approached him and he told her, 2 Report of Proceedings (RP) at 367. Kelli Plummer replied, "That's because . . . it's our well." 2 RP at 367.
The Walkers did not live on the Walker parcel before 2002. Between 1999 and 2002, the Walkers occasionally had picnics in the disputed area, cut trails in a grove in the disputed area, and allowed neighbors to graze livestock and salvage fallen trees from the disputed area. The Walkers began building their house on the Walker parcel in April 2002. They trenched and connected their house to well #184. The Walkers also removed trees, leveled the property,planted and mowed grass, built irrigation lines, and planted and mulched trees along the fence. These tasks occurred in the disputed area.
On July 24, 2007, Dennis Walker called Jeff Plummer and said that he had discovered the deed line was farther west than the fence. Dennis Walker offered to pay the Plummers $3,000 to offset the inconvenience of legal proceedings. Dennis Walker clarified that he was not asking to move the fence toward the Plummers' house and agreed that Jeff Plummer could move the fence one foot west, toward the Walkers' house. Jeff Plummer told Dennis Walker he would have to speak with Kelli Plummer before agreeing to accept the $3,000. Kelli Plummer later called Dennis Walker to inform him that the Plummers would not give the Walkers title to the disputed property. Dennis Walker replied that the Walkers would pursue legal title.
The Plummers tore down part of the fence on August 1, 2007. Dennis Walker observed Kelli Plummer mowing the disputed area. The same day, the Walkers went to the Plummers' house to discuss the disputed area. According to Dennis Walker, when asked why they took part of the fence down, Kelli Plummer responded, "[B]ecause you told [Jeff Plummer] we could put up a new fence." 1 RP at 97. Dennis Walker testified that the next comments the Plummers made to him were "because it's our fence" and "because our attorney told us to take it down and seize possession of the land." 1 RP at 98. Kelli Plummer testified that she "had no problem with [the Walkers] using [well #184]" because the Plummers were not using it. 2 RP at 389.
On September 13, the Walkers filed a complaint against the Plummers seeking declaratory judgment quieting title to the disputed area, damages for trespass, a permanent injunction, and equitable relief for damages resulting from the Plummers' interference with the Walkers' use of the disputed area. The Plummers answered and filed a counterclaim also seeking declaratoryjudgment quieting title to the disputed property.
During bench trial, the Walkers' counsel directed Dennis Walker to read into the record a letter4 written by Januska's wife which stated that 1 RP at 71. Januska purportedly signed the letter. Neither party objected to the testimony.
The Walkers introduced Tipton's video deposition at trial, but the Plummers objected to several lines from the deposition testimony, some of which the trial court sustained. At the conclusion of the Walkers' case, the Plummers moved to dismiss the Walkers' claims. The trial court reserved ruling on the motion without prejudice to finish presentation of the evidence. On May 19, 2010, the trial court entered declaratory judgment with written findings of fact and conclusions of law in favor of the Plummers. The Walkers timely appeal.
The Walkers assign error to the trial court striking a portion of Tipton's deposition testimony and entering findings of fact and conclusions of law that the Walkers failed to prove adverse possession, mutual recognition and acquiescence, common grantor, and estoppel. The Plummers argue that the Walkers waived their right to challenge the admissibility of Tipton's testimony when they agreed to strike and that substantial evidence supports the declaratory judgment.
After a trial court has weighed the evidence in a bench trial, we may not substitute ourjudgment for that of the trial court. Our review is limited to...
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