Opinion
No. 60251-9-I.
May 5, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-39897-3, Brian D. Gain, J., entered June 8, 2007.
Reversed and remanded by unpublished per curiam opinion.
This case involves a boundary dispute. The trial court concluded that the doctrine of mutual recognition and acquiescence applied as a matter of law and granted summary judgment quieting title in favor of Bill and Betty Barnett. There were, however, genuine issues of fact as to whether both neighbors acquiesced in using a particular fence as the true boundary line. Genuine issues of material fact also preclude affirming based on the Barnetts' alternative theory of adverse possession, on which the trial court did not rely. We reverse and remand for trial.
FACTS
At issue is the location of the boundary between two properties in rural King County. Bill and Betty Barnett owned a 16-acre parcel of real property. In 1990, they sold the easternmost 10 acres of their property to their neighbors to the east, John and Janene Maryanski.
The parties are referred to as Barnett and Maryanski through the rest of this opinion.
Before purchasing the property, John Maryanski had a fence constructed near the west edge of the new parcel to contain livestock. Because of concern about the accuracy of the legal description and the potential that the boundary had not been correctly determined, the purchase and sale documents provided that any fence Maryanski constructed would be changed if found to be located on property that was not sold. When the sale was completed, the parties believed the difficulty with the legal description had been limited to the property retained by Barnett and was resolved. There were no disputes or difficulties with the border until 2004, when Maryanski had his property surveyed.
The 2004 survey determined that the property line ranged between 59 and 70 feet to the west of the existing fence. Maryanski notified Barnett of his plan to construct a new fence along the survey line.
Barnett filed suit, seeking to enjoin Maryanski from constructing a new fence and asking the court to quiet title to the approximately one-half acre between the 1990 fence and the 2004 survey line. Barnett filed a motion for summary judgment, contending that undisputed facts established that he had acquired title to the disputed property by adverse possession, or alternatively, under the doctrine of mutual recognition and acquiescence. Maryanski objected, arguing there were genuine issues of fact precluding summary judgment resolution on either theory. Declining to rely on Barnett's adverse possession theory, the trial court nonetheless granted Barnett summary judgment, reasoning that the elements of the doctrine of mutual recognition and acquiescence were established as a matter of law.
Maryanski appeals.
ANALYSIS
When reviewing a summary judgment order, the appellate court undertakes the same inquiry as the trial court. Thompson v. Peninsula Sch. Dist. No. 401, 77 Wn. App. 500, 504, 892 P.2d 760 (1995). Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Civil Rule (CR) 56(c). The moving party bears this burden of proof. Young v. Key Pharm. Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). All facts and inferences are considered in the light most favorable to the non-moving party. Ashcraft v. Wallingford, 17 Wn. App. 853, 854, 565 P.2d 1224 (1977).
Our Supreme Court has identified five distinct methods of resolving boundary disputes short of execution of duly recorded formal documents: "(1) [a]dverse possession, (2) parol agreement of the adjoining landowners, (3) estoppel in pais, (4) location by a common grantor, and/or (5) mutual recognition and acquiescence in a definite line by the interested parties for a long period of time." Lamm v. McTighe, 72 Wn.2d 587, 591, 434 P.2d 565 (1967) (citations omitted). See also 17 William B. Stoebuck John W. Weaver, Washington Practice: Real Estate: Property Law § 8.21, at 544-49 (2d ed. 2004). Such prescriptive rights are not favored in the law because "they necessarily work corresponding losses or forfeitures of the rights of other persons." NW Cities Gas Co. v. Western Fuel Co., 13 Wn.2d 75, 83, 123 P.2d 771 (1942).
The doctrine of mutual recognition and acquiescence supplements the more frequently invoked doctrine of adverse possession. Lloyd v. Montecucco, 83 Wn. App. 846, 855, 924 P.2d 927 (1996). To establish a boundary line by mutual recognition and acquiescence, the claiming party must show that: (1) the boundary line is certain, well-defined, and physically designated; (2) in the absence of an express agreement establishing the line as the boundary, the adjoining landowners, or their predecessors in interest, must have in good faith manifested, by their acts, occupancy, and improvements to their respective properties, a mutual recognition and acceptance of the designated line as the true boundary; and (3) the mutual recognition and acquiescence in the boundary line must last for 10 years. Lamm, 72 Wn.2d at 592-93.
The claiming party bears the burden of showing, by clear, cogent, and convincing evidence that both parties acquiesced in the line as a boundary for 10 years. Lilly v. Lynch, 88 Wn. App. 306, 316-317, 945 P.2d 727 (1997) (citing Muench v. Oxley, 90 Wn.2d 637, 641, 584 P.2d 939 (1978), overruled on other grounds by Chaplin v. Sanders, 100 Wn.2d 853, 861 n. 2, 676 P.2d 431 (1984)). A claimant cannot establish acquiescence in a boundary line through unilateral acts. Heriot v. Smith, 35 Wn. App. 496, 501, 668 P.2d 589 (1983) (citing Houplin v. Stoen, 72 Wn.2d 131, 431 P.2d 998 (1967)). To prove mutual recognition and acquiescence, the claimant must show that the parties recognized the purported boundary line as a true boundary and not just a barrier. Muench, 90 Wn.2d at 641.
It is undisputed that the 1990 fence line was fixed and definite, and that it was in place for more than ten years. Because there was no express agreement designating the fence a boundary, the question is whether there was an issue of fact that both parties manifested by their "acts, occupancy, and improvements with respect to their respective properties" the necessary mutual recognition and acceptance of that fence as the true boundary line. Lamm, 72 Wn.2d at 592-93. We conclude genuine issues of fact preclude summary judgment.
Barnett argues that Maryanski manifested recognition of the fence as the property line by maintaining it and constructing improvements only on his side. But a trier of fact could reasonably view Maryanski's maintenance, which consisted of straightening some of the fence posts, as merely reflecting use of the fence as a barrier to keep livestock enclosed on the interior of his property rather than showing acquiescence in the fence as a boundary defining the exterior. See Heriot, 35 Wn. App. at 500; Muench, 90 Wn.2d at 641 (evidence must show neighbors recognized a physical boundary as a true line, not just a barrier). And the record regarding Maryanski's improvements reflects construction on property Maryanski owned before the purchase from Barnett, or which involved other borders of the purchased property. It cannot be said Maryanski made these improvements with respect to the line at issue here.
Barnett's claims regarding his use of the property are similarly problematic. Barnett claims that "he had [e]mus on the property, he mowed the grass up until the fence line, he used the area as pasture for cows, growing hay, and his children/grandchildren rode three-wheelers throughout the property." But Barnett does not cite to the record for this sweeping claim, and the record does not establish these facts as a matter of law.
Barnett's declaration in support of the motion for summary judgment merely asserted in conclusory fashion that he "used and maintained all property up to the fence line," without providing details about what the use or maintenance was. His declaration in itself therefore could not support summary judgment. See Guile v. Ballard Community Hospital, 70 Wn. App. 18, 26-27, 851 P.2d 689 (1993). Barnett's sworn interrogatory answers provided some specific facts, but Barnett then retreated from some of those contentions in his deposition so substantially that a finder of fact could question the credibility of all of his claims. In his deposition, for example, Barnett denied ever keeping cattle on the disputed property, which he claimed in his interrogatory answer to have done for fourteen years. Barnett also arguably conceded the extent of any maintenance or harvesting of hay was limited to sometimes allowing other neighbors to put their horses on the property to eat the grass.
Moreover, Maryanski disputed some of Barnett's claims. Maryanski testified in his deposition that the only livestock he ever saw on the property was horses, and that was only during the first year after he purchased it. As for the emus, Maryanski testified in his declaration that he only ever saw them on the other side of interior cross-fencing on Barnett's property, and never on the disputed property. Maryanski further testified that Barnett never cultivated the property or performed any maintenance on it, and that he never observed Barnett do any mowing.
Resolving disputes and drawing inferences in Maryanski's favor, a finder of fact could reasonably conclude that Barnett effectively engaged in no maintenance or improvement of the disputed property. A finder of fact could also conclude Barnett's use of the property for pasturage was limited to allowing some other neighbors' horses onto the property in 1991 and keeping between two and five emus from 2002 through 2006, which could get onto the disputed land but usually stayed behind other fencing on the interior of Barnett's property. See Skov v. MacKenzie-Richardson, Inc., 48 Wn.2d 710, 715, 296 P.2d 521 (1956) ("occasional grazing" insufficient to establish boundary by acquiescence). While Barnett's children drove all-terrain vehicles over the disputed land, that was apparently only incidental to driving over Barnett's six-acre parcel, and Barnett acknowledged it probably occurred just once a month. There was no evidence that this infrequent use was noisy, harmful, disrespectful, or in any other way, a use to which a friendly neighbor would not possibly consent.
Other evidence, including the timing of the fence's construction, the parties' initial uncertainty about the accuracy of the property description and location of the boundary line, and Maryanski's lack of use of the property west of the fence over the years, is similarly susceptible to more than one interpretation. In short, the record does not establish the necessary clear and convincing proof as a matter of law that both parties acquiesced in the 1990 fence line as the true boundary.
The only case Barnett properly cites to argue that the parties' use and improvement of the property was necessarily sufficient to establish acquiescence, Lilly, does not help him here. Lilly held only that evidence regarding installation of a fence, a rock wall and routine mowing to a perceived property line created a factual issue regarding a boundary by acquiescence, not that it established acquiescence as a matter of law. 88 Wn. App. at 317-18.
As Maryanski notes, Barnett attempts to cite two other cases on of his response brief, but one of these citations is obviously incomplete as it does not provide a case name, and the other is clearly an improper citation to an unpublished case from this court. See GR 14.1(a).
Given the disputed evidence and the competing inferences that can be drawn from the undisputed evidence, summary judgment in favor of Barnett on the theory of mutual recognition and acquiescence was improper.
Barnett alternatively asks us to affirm by relying on the theory of adverse possession that the trial court declined to employ. But there are material issues of fact that preclude this approach as well.
To establish ownership of property through adverse possession, a claimant must prove that his or her possession of the property was: (1) hostile and under a claim of right; (2) exclusive; (3) actual and uninterrupted; and (4) open and notorious; (5) for a period of 10 years. Chaplin, 100 Wn.2d at 857.
The hostility element requires that the claimant treat the land as his or her own as against the world. Chaplin, 100 Wn.2d at 860-61. The issue is whether the original owner was or should have been aware and informed that his or her interest was challenged. Hunt v. Matthews, 8 Wn. App. 233, 237, 505 P.2d 819 (1973) overruled on other grounds by Chaplin, 100 Wn.2d at 861 n. 2. The most useful general test of hostility is: "Considering the character of possession and the locale of the land, is the possession of such a nature as would normally be objectionable to owners of such land?" 17 William B. Stoebuck, Washington Practice, Real Estate: Property Law § 8.12, at 526 (2004).
The record regarding the nature of the property and the locale is scant, apart from the fact that it was generally used, when used at all, as pasturage. Given the inferences that can be drawn from the fact that the parties apparently sometimes allowed other neighbors to use their land for grazing or pasturage without charge, it cannot be said as a matter of law that Barnett's pasturing of the horses or emus necessarily rose to the level that would be objectionable to a reasonable owner. And there is no showing that the Barnett family members' occasional passage over the property in recreational vehicles was anything that would not be tolerated by friendly neighbors. This record does not establish, as a matter of law, the hostility element necessary for adverse possession. See ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 760, 774 P.2d 6 (1989). Accordingly, we need not consider whether the other elements of adverse possession were satisfied.
The trial court correctly declined to grant summary judgment to Barnett on the theory of adverse possession.
We reverse and remand for trial.