Opinion
No. 57837-5-I.
September 17, 2007.
Appeal from a judgment of the Superior Court for Skagit County, No. 02-2-00436-1, Michael E. Rickert, J., entered February 10, 2006.
Affirmed by unpublished per curiam opinion.
This is a boundary dispute between Rosemary Richey and Harold and Cheryl Pitts. After a bench trial, the court entered judgment in favor of Richey. The Pitts challenge several of the court's findings of fact and its conclusion that previous owners of the Pitts' property and Richey fixed the boundary by parol agreement. After reviewing the record, we are satisfied that the challenged factual findings are supported by substantial evidence and support the court's conclusion regarding the boundary. Accordingly, we affirm the judgment in favor of Richey.
FACTS
In 1994, Rosemary Richey became involved in a property dispute with her neighbors to the north, Mark Marquette and Michele Russell, after Richey began digging ditches to install services for her property. Richey settled her dispute with Marquette and Russell by, among other things, agreeing on a boundary line. They marked the boundary by installing a fence and planting trees where a preexisting fence had been located. Richey thereafter continued using the property on her side of the line to rent out space for trailers. Marquette and Russell sold their property to the Jensens in 1996, who in turn sold the property to Harold and Cheryl Pitts in 2000. In 2001, after the Pitts had the property surveyed, they removed the existing fence, installed a new fence forty feet to the south in accordance with the survey, and began collecting rent for the trailer spaces.
Marquette and Russell were married when they owned the property, but by the time of trial had dissolved their marriage and Russell was using her original name. We refer to her as Michele Russell throughout this opinion for the sake of clarity.
Richey sued to quiet title and obtain the rental income. The Pitts counterclaimed for title and earlier rental income. After a bench trial in December 2002, the trial court entered findings of fact and conclusions of law determining that the boundary agreed to by Richey and the Marquettes was the property line and awarding Richey the rents collected by the Pitts. In February 2003, the court denied the Pitts' motion to reconsider, and in February 2006, based on the earlier rulings, the court entered judgment quieting title to the disputed property in Richey. This appeal followed.
Following the 2003 award of back rent, the Pitts filed a notice of appeal in this court under cause number 51971-9-I. The Pitts failed to timely file a statement of arrangements and the appeal was dismissed and mandated in October 2003. The Pitts filed a motion to recall the mandate. That motion was denied in January 2004. After this appeal was filed, Richey filed a motion to dismiss, arguing that further appellate review was barred because of the earlier appeal. A commissioner of this court denied Richey's motion, reasoning that the Pitts' earlier appeal was premature because the decision regarding rent did not dispose of all claims before the trial court and therefore was not final. See Puget Sound Bulb Exch. v. Metal Bldgs. Insulation, Inc., 9 Wn. App. 284, 288, 513 P.2d 102 (1973); Schiffman v. Hanson Excavating Co., 82 Wn.2d 681, 686, 513 P.2d 29 (1973). Richey did not move to modify the commissioner's ruling.
ANALYSIS
The doctrine of "parol agreement" is one of several legal theories that may allow real property boundaries to be adjusted contrary to boundaries set forth in title documents. See Lamm v. McTighe, 72 Wn.2d 587, 591, 434 P.2d 565 (1967) (listing boundary theories: (1) adverse possession, (2) parol agreement between adjoining landowners, (3) estoppel in pais, (4) location by common grantor, (5) mutual recognition and acquiescence). See also 17 William B. Stoebuck § John W. Weaver, Washington Practice: Real Estate: Property Law § 8.21, at 544-49 (2d ed. 2004). Unlike the doctrine of adverse possession and similar theories, parol agreement does not require the passage of a ten-year period. Lamm, 72 Wn. 2d at 593. Instead, the requirements are:
(1) There must be either a bona fide dispute between two coterminous property owners as to where their common boundary lies upon the ground or else both parties must be uncertain as to the true location of such boundary; (2) the owners must arrive at an express meeting of the minds to permanently resolve the dispute or uncertainty by recognizing a definite and specific line as the true and unconditional location of the boundary; (3) they must in some fashion physically designate that permanent boundary determination on the ground; and (4) they must take possession of their property by such occupancy or improvements as would reasonably give constructive notice of the location of such boundary to their successors in interest; or (as an alternative to (4) above), (4a) bona fide purchasers for value must take with reference to such boundary.
Johnston v. Monahan, 2 Wn. App. 452, 457, 469 P.2d 930 (1970).
The Pitts challenge the trial court's findings as to the first and fourth elements and its conclusion that the requirements of a parol agreement were met. We review the trial court's factual findings for sufficiency of the evidence, and its legal conclusions de novo. See Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986) (we review findings for sufficiency of the evidence, and conclusions de novo, regardless of how they are designated).
Accordingly, to the extent the trial court's "conclusions" regarding the dispute about the boundary and the existence of the boundary fence during subsequent transfers of Marquette's and Russell's property were actually factual findings, we review those determinations for sufficiency of the evidence.
Bona Fide Dispute
The Pitts first contend that there was insufficient evidence to show the first required element for a parol agreement, a bona fide dispute. They correctly note that while Russell testified that she believed the correct property line was at a certain location because of her familiarity with the plat map and measuring techniques, Richey did not directly testify that she believed the property line was in a different location. In addition, while Richey, Russell and Marquette testified there was a dispute, their testimony could be interpreted as referring to Richey digging trenches on Marquette and Russell's property without permission. The Pitts thus contend that the evidence shows only that Russell and Marquette intended to make a gift of the property in the absence of a bona fide dispute, which necessarily fails as violative of the statute of frauds.
Our review of findings of fact to determine whether they are supported by substantial evidence is deferential, however. Callecod v. Wash. State Patrol, 84 Wn. App. 663, 676 n. 9, 929 P.2d 510 (1997). We must accept the trial court's "views regarding the credibility of witnesses and the weight to be given reasonable but competing inferences." Freeburg v. City of Seattle, 71 Wn. App. 367, 371-72, 859 P.2d 610 (1993) (quoting State ex rel. Lige § Wm. B. Dickson Co. v. County of Pierce, 65 Wn. App. 614, 618, 829 P.2d 217 (1992)). After the Pitts raised their argument on reconsideration, the trial court expressly reasoned that Richey's testimony that Marquette approached her and "wanted to agree" on the property line, paired with Richey's use of the property for rental purposes even though Russell believed it was hers and Marquette's, led to an inference that Richey genuinely believed she owned the land. This was a reasonable inference to draw from the evidence. Viewing the record in the light most favorable to Richey, as we must, Harrison Mem'l Hosp. v. Gagnon, 110 Wn. App. 475, 485, 40 P.3d 1221 (2002); Young v. Dep't of Labor § Indus., 81 Wn.App.123, 128, 913 P.2d 402 (1996), we conclude that substantial evidence supports the court's findings regarding a dispute about the property line.
Constructive Notice to Subsequent Purchasers
The Pitts also contend that the trial court erred in concluding that the fourth element of a parol agreement, constructive notice to successors in interest, was satisfied. They specifically assign error to the trial court's findings that at the time of every transfer of Marquette and Russell's property, a fence along the agreed boundary was in existence, focusing particularly on the transfer from Marquette and Russell to the Jensens. The Pitts' cite Nora Jensen's testimony that there was no fence when they purchased the property, and Russell's testimony that she believed the fence was in existence when the Jensens inspected the property, but was partially removed when they took possession. The Pitts, however, overlook Marquette's unequivocal testimony to the contrary.
While the Pitts have also formally assigned error to the court's finding that the chain link fence was in existence at the time of the transfer from the Jensens to the Pitts, they devote no argument to that contention and the evidence supporting that finding was uncontroverted.
According to Marquette, the fence was in place both when the Jensen's inspected the property and when they took possession, and he and Russell removed no part of the fencing when they left the property. Moreover, he specifically notified Mr. Jensen that the fence established the property line:
Q: What was your participation in that sale, what do you recall transpiring between yourself and the Jensens, if anything?
A: They come [sic] and inspected the property. I showed her husband the line, and I said this is the way they stay, where the trees are, where the fences are, that's the way they stay, because we had problems with Rosemary [Richey] before, went through all this with them. I didn't want them to have any problems either, and where the fence line was.
Q: You told the Jensens where all of these lines had been agreed upon?
A: Yes, I did.
. . . .
Q: You very clearly made known to Mr. Jensen that the fence line was the boundary?
A: Right.
The trial court, as finder of fact, was entitled to credit Marquette's testimony over the testimony of Russell or Nora Jensen. Further, as with the evidence regarding the fence, substantial evidence supported the court's findings regarding Richey's use of the disputed property by renting out trailer spaces at the time of each transfer of the property. In addition, the Pitts have not assigned error to the trial court's findings regarding the trees planted to help establish the boundary that were still in existence when the Pitt's took possession. Those findings are accordingly treated as verities. Davis v. Dep't of Labor § Indus., 94 Wn.2d 119, 123, 615 P.2d 1279 (1980).
We note that Russell testified that Marquette would have a superior recollection about the discussions with the Jensen's regarding the boundary and fence line.
Given the evidence regarding the fence, the trees, and Richey's overt use of the property by renting out trailer spaces, we cannot fault the trial court's findings and conclusions regarding the element of use of the property to convey constructive notice of the agreed boundary to Marquette and Russell's successors in interest.
Piotrowski v. Parks, 39 Wn. App. 37, 691 P.2d 591 (1984). Because, for the reasons stated above, we conclude that substantial evidence supported the court's findings regarding constructive notice, it is unnecessary to address the Pitts' contentions regarding alternative element "4(a)." See Johnston v. Monahan, 2 Wn. App. at 457.
In sum, while the evidence was vigorously contested and partly inferential, it was nonetheless substantial and supported the challenged findings. The trial court's conclusions of law regarding the establishment of a boundary by parol agreement follow from its findings of fact. We accordingly affirm.