Anderson v. Hudak

907 P.2d 305, 80 Wash. App. 398
CourtCourt of Appeals of Washington
DecidedNovember 1, 1995
DocketNo. 17787-1-II
StatusPublished
Cited by33 cases

This text of 907 P.2d 305 (Anderson v. Hudak) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Hudak, 907 P.2d 305, 80 Wash. App. 398 (Wash. Ct. App. 1995).

Opinion

Bridgewater, J.

In an adverse possession action, the trial court granted judgment in favor of Anderson. We hold that the planting of a row of trees alone, without some use that is open and hostile, does not satisfy the ele[400]*400ments of adverse possession and that the grant of an easement for tree airspace and maintenance was also improper. We reverse.

Lawrence and Janet Hudak (Hudaks) appeal a judgment entered in a boundary dispute with their neighbor, Delores Anderson (Anderson), that quieted title to a portion of the disputed land in Anderson based upon adverse possession. The Anderson and Hudak properties began as one large parcel owned by Aline Anderson, Anderson’s mother-in-law. Aline’s property, a rectangular parcel of unimproved land in Tacoma, measured 270 feet long from east to west and 60 feet wide from north to south.

In 1960, Aline divided her parcel. Aline retained the westerly 150 feet. She conveyed the easterly 120 feet to Forrest and Delores Anderson, Aline’s son and daughter-in-law. Forrest and Delores then built a home on their parcel. Sometime in the early 1960s, the Andersons planted a line of trees in their backyard on what they thought was their western property line.

In 1977, Aline disposed of her remaining 150-foot long property through two deeds. First, she conveyed the westerly 135 feet to a builder who constructed a house and eventually sold this property to the Hudaks in 1990. Second, she conveyed the remaining 15 feet to Anderson, who had divorced Forrest.

Topographically, the Anderson parcel stands at a higher elevation than the Hudak parcel. Directly west of the line of trees planted by the Andersons lies a roughly 15-foot strip of land standing at the same elevation as the Anderson parcel. At the western end of the 15-foot strip, the land drops sharply to the east, forming a steep bank or ledge.

Anderson thought that through the 1977 conveyance from Aline she acquired the roughly 15-foot strip of land to the west of the trees. A survey conducted by the Hudaks, however, revealed that not only was the 15-foot strip of land on the Hudaks’ property, but the line of trees was actually on the Hudaks’ property as well.

[401]*401In 1991, Anderson filed a complaint to quiet title. She alleged that she owned the disputed land directly west of her property, which included the line of trees and the 15-foot strip to the west of the trees. She contended that she adversely possessed the disputed property continuously from 1977 until trial.

During the bench trial, all evidence focused on the activities of Anderson and her family on the disputed 15-foot strip west of the trees. But no evidence was presented showing that Anderson and her family ever conducted any activities on the trees themselves beyond planting them.

The trial court found that Anderson had not satisfied the elements of adverse possession as to the 15-foot strip west of the trees. But the trial court found that Anderson proved she adversely possessed the trees; the trial court then quieted title in Anderson to an area including the line of trees and extending five feet west of the trees. The trial court also granted Anderson a permanent easement over the Hudaks’ property in airspace for the branches and for "reasonable rights of access on the land to trim, prune, cultivate and maintain the same.”

The Hudaks argue that the trial court erred in finding that the trees satisfied all elements of adverse possession. In order to establish a claim of adverse possession, there must be possession for 10 years that is: (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile. ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989); RCW 4.16.020. The Hudaks argue that Anderson failed to show that her possession was "hostile” as well as "open and notorious.” They also argue that Anderson failed to prove "actual” possession for the statutory period regarding the area extending five feet west of the row of trees.

Because the holder of legal title is presumed to have possession, the party claiming to have adversely possessed the property has the burden of establishing the existence of each element. ITT Rayonier, 112 Wn.2d at 757. Adverse [402]*402possession is a mixed question of law and fact: whether the essential facts exist is for the trier of fact, but whether the facts constitute adverse possession is for the court to determine as a matter of law. Peeples v. Port of Bellingham, 93 Wn.2d 766, 771, 613 P.2d 1128 (1980), overruled on other grounds by Chaplin v. Sanders, 100 Wn.2d 853 (1984). Factual findings will be disturbed on appeal only when they are not sustained by the record. Peeples, 93 Wn.2d at 771.

I

The Hudaks first argue that the acts of Anderson and her family do not amount to "hostile” possession of the line of trees. Hostility does not import enmity or ill-will; rather, it "requires only that the claimant treat the land as his own as against the world throughout the statutory period.” Chaplin v. Sanders, 100 Wn.2d 853, 857, 860-61, 676 P.2d 431 (1984). The nature of possession is determined objectively by the manner in which the claimant treated the land; the claimant’s subjective belief regarding the claimant’s true interest in the land and intent to dispossess or not dispossess another is irrelevant to determine whether hostility has been established. Chaplin, 100 Wn.2d at 861.

Here, the trial court found that "[f]or a period exceeding ten years Plaintiff maintained and cultivated [the trees] as her own . . . .” But the Hudaks correctly point out that Anderson presented no evidence to support the trial court’s finding. At trial, testimony revolved around Anderson’s activities on the strip of land directly west of the trees, not around her activities on the trees themselves. No one testified that Anderson or her family ever watered, pruned, trimmed or cared for the trees. The only evidence regarding activities on the trees themselves was Anderson’s testimony indicating that her husband planted the trees in the early 1960s and that Anderson topped the trees after her dispute with Hudak arose in 1991.

In short, the record is absolutely devoid of any affirma[403]*403tive acts taken by Anderson to maintain and cultivate the trees after they were planted. The record shows that Anderson merely planted the trees in the early 1960s and then only watched them grow for the next 30 years. Sufficient evidence therefore did not exist to support the trial court’s finding that Anderson "maintained and cultivated” the trees as her own.

The issue then becomes whether the planting of a line of trees, without more, shows that a claimant treated the land as her own "as against the world throughout the statutory period.” Chaplin, 100 Wn.2d at 861. Anderson vigorously maintains that her acts constitute hostile possession due to the character and use she made of the land. Basically, she argues that the line of trees served as a fence, enclosing her backyard and requiring little if any maintenance through the years.

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Bluebook (online)
907 P.2d 305, 80 Wash. App. 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-hudak-washctapp-1995.