Opinion
No. 34496-3-II.
April 17, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 01-2-03679-5, Leonard W Costello, J., entered February 7, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Armstrong, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Richard Burke sued his waterfront neighbor, Tyee Yacht Club, Inc., to quiet title by adverse possession or mutual recognition to a strip of land, primarily tidelands, that lies on Tyee's side of the parties' legally described boundary line. Burke appeals the trial court's decision that he failed to establish adverse possession or a mutually agreed on line. With the exception of an approximately 60-square-foot portion of the uplands, created when Burke extended his bulkhead onto Tyee's property, we agree with the trial court that Burke failed to prove either adverse possession or a mutually agreed on line. Accordingly, we reverse the trial court's decision with respect to the approximately 60-square-foot portion created when Burke constructed the new bulkhead and affirm the trial court's decision quieting title to the remaining tidelands in Tyee.
FACTS
Richard Burke owns several adjoining lots fronting Bainbridge Island's Eagle Harbor. Burke's lots 1 and 2, which border each other, include the adjoining second class tidelands of Eagle Harbor to the north. Burke's lots 5 and 6 are directly upland (south) of lots 1 and 2, and each is 60 feet wide on its southern boundary. Tyee owns property that borders Burke's property to the east. Tyee also owns the second class tidelands adjoining its parcel. The platted boundary line between Burke's lots 2 and 5 and Tyee's property has a bearing of approximately 22°.
A 1962 survey lists the boundary line as N 23° 59' 52" E. Tyee's 1980 and 1983 tidelands lease applications with the Department of Natural Resources list the boundary line as N 22° E. A 1997 survey lists the boundary line as S 22° 57' 12" W. A 2001 survey lists the boundary at N 22° 57' 48"
In 1972, Tyee dredged a portion of its tidelands and installed 10 float-mooring piles and a pier for its members' use. Tyee's dredging contractor also drove two additional piles to the east and west of the third-northern-most pier piling "to keep his dredge bucket in line with . . . the envelope of the dredged area." Report of Proceedings (RP) at 22.
In 1979, Burke dredged his tidelands and part of Tyee's tidelands lying east of the area that Tyee dredged in 1972. Burke's dredging contractor removed the piling Tyee's contractor placed on the east boundary of Tyee's dredging envelope. Burke dredged the tidelands to establish the marina on his tidelands, which he currently owns and operates.
Before 1986, a concrete bulkhead fronted the entire north edge of Burke's property and then ran in a generally north-south direction for approximately 11 feet along the eastern border, which Burke shared with Tyee. In 1986, Burke constructed a rock and earth ("riprap") bulkhead to reinforce the old concrete bulkhead. The new bulkhead extended the upland portion of Burke's property approximately 10 feet north (seaward). Burke sought and received Tyee's permission to reinforce the eastern wall of his concrete bulkhead, which required that he place the portions of the riprap bulkhead supporting the eastern wall of his old concrete bulkhead on Tyee's tidelands.
Burke and Tyee have both continuously used the surface water above the tidelands on Tyee's property that Burke dredged. Burke testified that he never objected to Tyee's members navigating their boats on the water over those tidelands.
Fencing has long separated the approximately 200-foot upland portions of Burke's and Tyee's properties. Before trial, Tyee agreed that Burke had adversely possessed a sliver (not more than one foot wide) of the upland property surrounding an approximately 135-foot-long fence line that began at the south end of the shared border. After trial, the court ruled that this fence line, extended to the northeastern corner of Burke's concrete bulkhead, forms the boundary between Burke's and Tyee's upland properties. The line from the south end of the 135-foot-long fence to the northeastern corner of Burke's concrete bulkhead follows a bearing of roughly 23° 34 11".
But the trial court ruled that Burke failed to establish adverse possession of the disputed tidelands, which cover a wedge-shaped area that is approximately six-feet wide at its southern border, the base of the northeast corner of the old concrete bulkhead, and extend north approximately 850 feet and widens to roughly 40 feet at the outer (northern) perimeter of Tyee's tidelands. Specifically, the trial court found that Burke failed to prove that he openly, notoriously, exclusively, and under a claim of right possessed the disputed tidelands for any period of time. The court also concluded that neither Burke's dredging of Tyee's tidelands, nor the dredge pile that Tyee's contractor drove — and Burke's contractor removed — sufficiently established adverse possession or a boundary line by mutual recognition and acquiescence.
The principal question is whether Burke presented sufficient evidence to prove either adverse possession or mutual recognition of the disputed land.
ANALYSIS I. Adverse Possession
The parties disagree as to who owns the tidelands that extend approximately 850 feet north from a 6-foot-wide line at the base of Burke's old concrete bulkhead to an approximately 40-foot-wide line that delineates the outer perimeter of the tidelands parcel. The disputed area lies entirely within Tyee's legal platted boundaries, but Burke argues that he adversely possessed the disputed tidelands for more than 10 years.
An adverse possession claim presents mixed questions of fact and law. Miller v. Anderson, 91 Wn. App. 822, 828, 964 P.2d 365 (1998) (citing Chaplin v. Sanders, 100 Wn.2d 853, 863, 676 P.2d 431 (1984)). The finder of fact determines whether the essential facts giving rise to adverse possession exist. Chaplin, 100 Wn.2d at 863 (citing Peeples v. Port of Bellingham, 93 Wn.2d 766, 771, 613 P.2d 1128 (1980).
We will uphold a trial court's findings of fact if substantial evidence supports those findings. Cent. Puget Sound Reg'l Transit Auth. v. Miller, 156 Wn.2d 403, 419, 128 P.3d 588 (2006). Substantial evidence is evidence that would persuade a fair-minded, rational person of a finding's truth. Miller, 156 Wn.2d at 419 (quoting State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994)). If substantial evidence supports the trial court's factual findings, we then consider whether the trial court drew the proper legal conclusions from the findings — here that the facts are insufficient to establish Burke's ownership of the disputed land by either adverse possession or a mutually agreed on boundary. Chaplin, 100 Wn.2d at 863 (citing Peeples, 93 Wn.2d at 771).
To prove adverse possession, Burke had to show that his possession of the disputed parcel was (1) exclusive, (2) open and notorious, (3) hostile, and (4) actual and uninterrupted for the statutory period of 10 years. RCW 4.16.020(1); ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989) (citing Chaplin, 100 Wn.2d at 857). An adverse possessor must demonstrate that he has possessed the land as a true owner would. ITT Rayonier, 112 Wn.2d at 759 (citing Young v. Newbro, 32 Wn.2d 141, 144-45, 200 P.2d 975 (1948)). The ultimate test is whether the adverse possessor exercises such dominion over the land that the legal owner should recognize that the adverse possessor is treating the land as an owner. ITT Rayonier, 112 Wn.2d at 759; see Peeples, 93 Wn.2d at 773-74, overruled on other grounds by Chaplin, 100 Wn.2d at 861 n. 2.
A. Tidelands Covered by the New Bulkhead
Burke contends that he adversely possessed the tidelands underlying the earth and rock he placed there in 1986 to reinforce the north face of his existing concrete bulkhead. He argues that the trial court erred in failing to grant him title to this portion of the tidelands. The bulkhead essentially extended Burke's yard northward, and a portion of Burke's yard now rests on the new bulkhead.
Tyee argues that we should not consider the argument because Burke failed to raise it below. Tyee maintains that, at trial, Burke did not segregate this particular portion of the tidelands from the rest of the tidelands he claimed and that he did not argue that the small area merited special treatment. Although Tyee acknowledges that Burke argued that the trial court's findings of fact, conclusions of law, and judgment should state that he possessed the riprap bulkhead, Tyee argues that Burke's argument came too late. Burke counters that he did not previously have an opportunity to argue the point because "the [court] had not previously severed 800 cubic feet of [his] front yard." Reply Br. of Appellant at 9. We agree with Burke that he sufficiently raised the argument before the trial court to warrant appellate review.
The issue is legal, whether the undisputed evidence establishes that Burke adversely possessed the roughly 6-by-10-foot corner of his riprap bulkhead.
The riprap bulkhead, when completed, extended the uplands portion of Burke's property approximately 10 feet north from the old bulkhead. To complete construction of the new bulkhead and reinforce the eastern arm of Burke's old concrete bulkhead, Burke sought Tyee's permission to place rocks and earth on the old bulkhead's eastern arm's eastern side. Burke admits that this portion of the new bulkhead lies on Tyee's tidelands property and does not claim possession to that area. Rather, Burke claims that he adversely possessed an approximately 6-by-10-foot portion of the tidelands under the rock bulkhead to the north of his old bulkhead, which lies within Tyee's legal platted boundary lines.
The portion of tidelands that Burke claims he adversely possessed is bounded on the east by a line extending north from the eastern edge of the old concrete bulkhead's eastern arm. In granting Burke title to the upland property that he adversely possessed, the trial court described the width of that portion of the property, at its northernmost point, the old concrete bulkhead, as approximately six feet wide, from east to west, beginning from the northeast corner of the old bulkhead. Burke essentially asks this court to acknowledge that the trial court correctly awarded him a six-foot-wide portion of property, but to hold that the six-foot-wide northern boundary lies approximately ten feet further north than the trial court determined it did.
Tyee argues that Burke did not adversely possess that area because it gave Burke permission to build the rock bulkhead. An adverse possession claimant cannot satisfy the hostility element when the land's true owner, or a predecessor-in-interest, gives the possessor permission to occupy or possess the land. Chaplin, 100 Wn.2d at 861-62.
At trial, Carl Weiss, a Tyee member and former outstation chairman during the time Burke installed the riprap bulkhead, testified:
Q: Now, there is a point when the [concrete] bulkhead, that runs in front of the Burke house and over to the right, stops and takes a 90 degree turn to the south, correct?
A: [Weiss] Right.
. . .
Q: Okay. Now I notice some rock . . . that is stacked up there [citing a photograph in Ex. 1.42B].
A: [Weiss] I see that.
Q: Is that rock that Mr. Burke placed there to the east of the concrete wall?
A: Yes.
Q: And he asked your permission, did he not, to go on to the Tyee property, to place the rock on your property, up against the concrete [bulkhead]?
A: Yes, we saw that to be to our advantage, to have that there.
RP at 52, 57. And Burke testified as follows regarding the conversation he had with Weiss:
Q: Did you have a conversation with Mr. Weiss about [shoring up the old concrete bulkhead]?
A: [Burke] I did.
Q: What did you say to him?
A: Well, I realized that the rocks on the eastern arm of my concrete bulkhead would be on his property. I called him up and I said, "Look, I'm going to put a rock wall in, and the rocks are going to be on your side of my concrete wall. Do you mind if I put them there?" And he said, "No. Go right ahead."
RP at 145-46.
The record shows that Burke asked permission to place the bulkhead rocks only in an area that supported the eastern arm of the old concrete bulkhead. Tyee gave Burke permission to place the rocks to the east of the old bulkhead. And the trial court expressly found that Tyee gave Burke permission to place the large rocks on the "outer face of [the eastern portion of] said concrete bulkhead." Clerk's Papers (CP) at 555.
Since Burke had the new bulkhead built in 1986, he has exclusively, openly, and notoriously, actually and uninterruptedly, possessed the approximately 60 square feet to the north and west of the eastern edge of the old concrete bulkhead. And because Burke held the bulkhead and the yard out as his own, and built the northern portion of the bulkhead without Tyee's permission, his possession was hostile. See Chaplin, 100 Wn.2d at 861-62. Tyee produced no evidence that its members use Burke's rock bulkhead or walk on Burke's extended yard. And Burke testified that he recently had to chase two people off of the bulkhead in the middle of the night after they cut down a steel pole he had installed to mark the northeastern corner of the old bulkhead.
Tyee nonetheless maintains that Burke cannot establish adverse possession because the bulkhead mutually benefited both Burke and Tyee. Tyee cites a case from the common pleas court of Bucks County, Pennsylvania, which cites to Shinn v. Rosenberger, 32 A.2d 747, 749 (Penn. 1943) and Bellamy v. Shryock, 199 S.W.2d 580, 583 (Ark. 1947), in support of its proposition. Tyee fails to identify any Washington case law supporting the position that any encroachment onto the true owner's property that mutually benefits the claimant and the true owner precludes a successful adverse possession claim.
Weis said that Tyee's bulkhead's and Burke's bulkhead's eastern arm were not originally contiguous. Weiss testified that Tyee had to connect its bulkhead to Burke's bulkhead's eastern arm, so that the two ran contiguously, because the bank between their original bulkheads began to slough. He said that he had no problem with Burke building the new bulkhead because Tyee believed the new bulkhead would benefit it as well. Weiss did not explain, however, how the new bulkhead would benefit Tyee. More importantly, no Tyee witness explained how that part of the new bulkhead that lies north of the six-foot-wide strip of the old bulkhead, which the trial court ruled Burke adversely possessed, benefited Tyee.
Because the record shows that Burke adversely possessed the riprap bulkhead that lies north of the upland property that the court determined Burke adversely possessed, we reverse the trial court's decision that the disputed tidelands' southern boundary is the old concrete bulkhead. We hold that the tidelands' southern boundary is the north face of the new riprap bulkhead. Burke is entitled to a judgment quieting title to this portion of his riprap bulkhead.
B. Remaining Tidelands
In addition to the riprap bulkhead, Burke argues that he adversely possessed the tidelands that lie north of the riprap bulkhead between Tyee's legal platted west boundary line (22 ° 57) and a line with a bearing of 26° 24 07 that extends from the eastern edge of the old concrete bulkhead to Tyee's north boundary line. Essentially, Burke claims that because he dredged the disputed tidelands and because he has continuously run a marina over these tidelands for over 10 years, he has established adverse possession of the disputed tidelands.
The trial court, in its finding of fact 7, specifically found that Burke did not "openly, notoriously, exclusively, and under a claim of right, possess the disputed tidelands . . . for any period of time." CP at 556. The trial court's findings as to the elements of adverse possession are actually mislabeled conclusions of law, which we review de novo. City of Tacoma v. William Rogers Co., 148 Wn.2d 169, 192, 60 P.3d 79 (2002) (citing Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986)); see Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003) (citing Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979)).
A single dredging of tidelands constitutes a one-time, non-continuous use that is insufficient to establish adverse possession. See Peeples, 93 Wn.2d at 773. In Peeples, tideland owners sought to quiet title, as against the Port, to disputed tidelands that were bordered by a breakwater to the south, a railroad to the east, a bulkhead to the north, and the Puget Sound to the west. Peeples, 93 Wn.2d at 767-68. The Port claimed that it adversely possessed the land because it dredged the tidelands nearly 20 years earlier and because it constructed a boat launch and accompanying structures on the tidelands approximately four years before the lawsuit.
Peeples, 93 Wn.2d at 769-70.
The Peeples court held that because (1) neither the breakwater nor the bulkhead touched the disputed property, (2) the Port did not restrict access from the easterly side by building a fence or barrier, and (3) the Port did not limit boat access to the property, the Port never had exclusive possession of the disputed tidelands. Peeples, 93 Wn.2d at 773. Moreover, a piling located on the disputed tidelands for moorage did not establish the requisite possession because "mooring of a floating structure on tidelands is not such an open, notorious, and hostile possession as would give notice to an owner that someone was claiming title adversely." Peeples, 93 Wn.2d at 773-74 (citing Bowden-Gazzam Co. v. Kent, 22 Wn.2d 41, 54, 154 P.2d 292 (1944) and Bowden-Gazzam Co. v. Hogan, 22 Wn.2d 27, 40, 154 P.2d 285 (1944)).
While Burke concedes that dredging, on its own, is insufficient to establish possession, he maintains that he continuously used the dredged area to "run a professional marina in these tidelands, accommodating up to 36 vessels, since . . . 1979," and that he never let Tyee members use his marina. Reply Br. of Appellant at 19. Here, the disputed tidelands lie completely within Tyee's legally platted boundary lines. And like the Port's bulkhead and breakwater in Peeples, no portion of Burke's marina physically touches the disputed tidelands. Moreover, any use by Tyee's members of Burke's marina is irrelevant to Burke's alleged possession of tidelands outside of his marina. Finally, like the Port in Peeples, Burke presented no evidence that he has attempted to restrict access to the disputed tidelands. Peeples, 93 Wn.2d at 773.
Burke also claims that he exclusively possessed the portion of the disputed tidelands that is visible when the tide is out. He testified that beachcombers in that area were rare due to the unpleasant nature of the shoreline, inaccessibility, and tides. But Tyee members testified that some of the members' children or dogs occasionally played in the mud and exposed tidelands in the disputed area. One member said that his dog ran there between 1989 and 1994, perhaps once a month.
Burke testified that on the rare occasions that he saw kids playing in the disputed area, he warned them against various dangers, but acted neighborly. He argues that this sort of "neighborly accommodation" is not sufficient to defeat his claim because a true owner normally would act in the same manner. Br. of Appellant at 25. Burke cites Harris v. Urell, 133 Wn. App. 130, 135 P.3d 530 (2006), for support.
In Harris, the court held that an occasional, transitory use by the true owner ordinarily will not preclude an adverse possession claim if the adverse possessor permits the use as a "neighborly accommodation." Harris, 133 Wn. App. at 138 (citing Lilly v. Lynch, 88 Wn. App. 306, 313, 945 P.2d 727 (1997)). But the facts in Harris are distinguishable. There, the adverse possessor had maintained a driveway on the defendant's property for her exclusive use for at least 10 years. Harris, 133 Wn. App. at 134. The claimant allowed a neighbor to use the driveway on one occasion so that a neighbor could cut down a tree, and occasionally allowed neighbors to walk across the disputed property. Harris, 133 Wn. App. at 134. The court held that this neighborly accommodation did not preclude a finding that the adverse possessor had exclusively occupied the land. Harris, 133 Wn. App. at 138-39. Here, Tyee's members used the land more than once, they did not ask Burke's permission to do so, and most importantly, Burke was not using the land in a way that would have put Tyee on notice that he was occupying the disputed tidelands as an owner would. See ITT Rayonier, 112 Wn.2d at 759.
Because Burke cannot show that he possessed the disputed tidelands in an open, continuous, hostile manner for 10 years, the trial court did not err in concluding that he had not proved his adverse possession claim.
II. Mutual Recognition and Acquiescence
Burke next contends that he and Tyee recognized and respected their mutual boundary that runs on a line with a bearing of approximately 26° from the eastern arm of the old concrete bulkhead to a dredge piling that Tyee's dredging contractor installed in 1972 and that Burke's dredging contractor removed in 1979.
The doctrine of mutual recognition and acquiescence supplements adverse possession. Lloyd v. Montecucco, 83 Wn. App. 846, 855, 924 P.2d 927 (1996) (citing 17 William B. Stoebuck, Washington Practice: Real Estate: Property Law § 8.21, at 519 (1995)). To establish a boundary line by mutual recognition and acquiescence, the claming party must show that: (1) the boundary line is certain, well-defined, and in some fashion physically designated upon the ground, for example, by monuments, fence lines, roadways, etc.; (2) in the absence of an express agreement establishing the designated line as the boundary line, the adjoining landowners, or their predecessors in interest, must have in good faith manifested — by their acts, occupancy, and improvement to their respective properties — a mutual recognition and acceptance of the designated line as the true boundary line; and (3) the mutual recognition and acquiescence in the boundary line must last for 10 years. Lamm v. McTighe, 72 Wn.2d 587, 592-93, 434 P.2d 565
The claiming party bears the burden of showing, by clear, cogent, and convincing evidence, that both parties acquiesced in the line for 10 years. Lilly, 88 Wn. App. at 316-17 (citing Muench v. Oxley, 90 Wn.2d 637, 641, 584 P.2d 939 (1978), overruled on other grounds by Chaplin, 100 Wn.2d 861 n. 2). 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)).
A. Well-Defined Line
The line that Burke claims marks the true boundary between his and Tyee's property is well-defined on the upland property; however, there are no monuments or markers that denote a tidelands boundary line. The line follows the eastern edge of the old concrete bulkhead's eastern arm, which is approximately 11 feet long and lies on a bearing of approximately 26°. Burke argues that the tideland boundary falls on an extension or prolongation of this line over the tidelands.
Burke largely bases his mutual acquiescence claim on the fact that, from 1972 to 1979, Tyee's dredging contractor drove a piling marking the western edge of Tyee's dredging envelope in a location that sat on an approximately 26° bearing with respect to the eastern edge of the old bulkhead. Burke argues that the claimed boundary is well-defined because Tyee dredged its tidelands along the eastern edge of the line while he dredged the tidelands to the west of the line.
But no monument, piling, pole, buoy, or any similar marker denoting a physically designated boundary lies on either Tyee's legal platted boundary or the line that Burke claims represents the mutually agreed boundary. Contrary to Burke's assertion, the above-mentioned 60 square feet of riprap bulkhead is not a physically designated, well-defined line on the ground. See Lloyd, 83 Wn. App. at 855 (quoting Lamm, 72 Wn.2d at 592). And while Tyee's dredging contractor drove a piling to mark the western edge of the dredging envelope, Burke offered no evidence that Tyee believed its western boundary ran from the eastern arm of Burke's concrete bulkhead through the piling. In fact, Weiss testified that the dredge piling was not intended to mark Tyee's west boundary. Furthermore, the piling stood for only approximately 7 years, so even if Tyee intended the piling to mark a boundary, it was not in place for the necessary 10 years. See Lilly, 88 Wn. App. at 316-17.
Burke also points to a 1972 drawing that shows 60 feet between the eastern edge of Tyee's proposed dock and the western edge of Tyee's bulkhead, which connects with Burke's concrete bulkhead's eastern arm. He argues that because Tyee's lot is 60 feet wide, as platted, Tyee acknowledged that the boundary between the properties runs along Burke's old bulkhead's eastern arm. Burke then reasons that Tyee acknowledged that the eastern wall of Burke's concrete bulkhead formed the boundary line because Tyee's dock lies 60 feet east and parallel to the concrete bulkhead. Burke's argument is flawed. Burke presented no evidence that either he or Tyee intended the dock to mark Tyee's western boundary line. See Lamm, 72 Wn.2d at 592-93.
The eastern arm of Burke's old concrete bulkhead follows an approximate bearing of 26°.
B. Mutual Recognition and Acceptance
Furthermore, Burke cannot show — by clear, cogent, and convincing evidence — that he and Tyee mutually recognized or acquiesced in his claimed tidelands boundary line. See Lilly, 88 Wn. App. 316-17. Because there is no evidence of an express agreement that the 26° line is the boundary, we look to the parties' actions. Lilly, 88 Wn. App. at 317. To show 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.
Burke never placed any physical barrier on Tyee's tidelands parcel. Thus, Tyee could not express its acquiescence. Rather, the record shows that Tyee never treated Burke's dredging as denoting a boundary line. For instance, Burke argues that Tyee referred to the 26 ° line as the western border of the disputed area in its tidelands lease applications. But Tyee's 1980 and 1983 tidelands lease applications refer to a line bearing of 22 ° as the western border of the area for which it sought the lease. And Burke's 1986 tidelands lease application refers to a line bearing approximately 22 ° as the eastern border of the area he sought to lease. Finally, a 2001 survey shows that Tyee applied for a tidelands lease of an area with a western boundary line bearing of approximately 22 °.
Burke cites Campbell v. Reed, 134 Wn. App. 349, 363, 139 P.3d 419 (2006), for the proposition that "[a] claimant to title by mutual recognition and acquiescence makes out a prima facie case where the adjoining parties in interest have demonstrated by the possessory actions the asserted line of division between them." Reply Br. of Appellant at 14. The Campbell court concluded that the claimant created an issue of fact by showing that stakes in the ground marked the alleged property lines, that both parties used and improved their land according to these lines, and that the acquiescing use continued for at least 10 years. Campbell, 134 Wn. App. at 363-64.
Burke did not make a similar showing. First, no physical markers set the line Burke claims. And Burke did not show that the parties intended to mark the 26° line with the dredging pile or that the pile existed long enough to satisfy the requisite time period to establish mutual acquiescence in a boundary line. Although Burke improved the disputed area by dredging it, both parties used the disputed area without regard to Burke's claimed boundary line. Furthermore, Burke and Tyee engaged in ongoing disputes regarding Tyee's use of the waters in the disputed area.
The trial court did not err in concluding that Burke had not proved a mutually recognized and accepted boundary line.
III. Upland Boundary Extension as Tidelands Boundary
Alternatively, citing Spath v. Larsen, 20 Wn.2d 500, 148 P.2d 834 (1944) and Lloyd, 83 Wn. App. at 856-57, Burke argues that because the trial court found that either Tyee's or Burke's predecessors-in-interest established a common upland boundary between the parties' properties, longstanding Washington precedent compels the conclusion that the upland boundary stretches out across the tidelands on a bearing extending from the upland boundary.
Burke's argument is illogical. Under Burke's rationale, if Burke and Tyee mutually recognized and acquiesced that Burke's property cut into Tyee's property at a 45° angle at the two feet of Burke's property closest to the tidelands, then the tidelands boundary would extend through the tidelands on that 45° line and effectively place most of Tyee's tidelands within Burke's boundary line.
Furthermore, Spath is distinguishable. The court in Spath addressed the question of how courts should set boundaries in tidelands that the state formerly owned when those tidelands did not have set boundaries when the state sold them. Spath, 20 Wn.2d at 502-06. Here, Burke's and Tyee's tidelands parcels had established boundaries when they bought them.
Lloyd undermines Burke's argument. There, we held that although the adverse possession claimants adversely possessed part of the upland property, the trial court erred when it adjusted the tidelands boundary to reflect the uplands boundary because the claimant did not establish adverse possession to the tidelands or establish a boundary through mutual acquiescence and recognition. Lloyd, 83 Wn. App. at 854-56. The claimants in Lloyd had seeded the tidelands with oysters, laid clam nets, and set 40-pound concrete blocks 8 feet out from the bulkhead. Lloyd, 83 Wn. App. at 851. Nonetheless, we held this insufficient to establish a clear and well-defined line to show mutual recognition and acquiescence. See Lloyd, 83 Wn. App. at 856.
Burke's argument that the court's uplands ruling compels a tidelands extension of the same line fails.
In conclusion, we reverse the trial court's judgment as to the Burke's adverse possession claim to the northeast corner of Burke's riprap bulkhead; we remand to the trial court to enter a judgment quieting title to this property in Burke. Otherwise, we affirm the trial court's decision.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J. and QUINN-BRINTNALL, J., concur.