Barry Kirkwood V. James Joseph Nelson

• Court: Court of Appeals of Washington
• Decided: May 26, 2026
• Docket: 88166-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BARRY KIRKWOOD, an unmarried man, No. 88166-3-I

Respondent, DIVISION ONE

v. UNPUBLISHED OPINION

JAMES JOSEPH NELSON and SUMER D. NELSON, husband and wife,

Appellants.

BUI, J. — Barry Kirkwood and James and Sumer Nelson (collectively

Nelson) bought adjacent property from a common grantor. Kirkwood assumed

the fence was the boundary line and filed suit to quiet title. After a bench trial, the

court entered judgment based on the common grantor doctrine, establishing the

fence as the boundary line rather than the boundary described on the deed. On

appeal, Nelson challenges the application of the common grantor doctrine, the

exclusion of evidence, and the dismissal of their ejectment counterclaim. We

affirm.

FACTS

John and Kimball Wheaton (collectively Wheaton) owned property in

Moses Lake, Washington, which they divided into separate parcels, Lot 6 and Lot

7. A wooden fence ran along the entire length of the southern boundary of Lot 6

separating the two lots. Bordering the fence on the Lot 6 side, was a horse-riding No. 88166-3-I /2

pasture, another pasture, poplar trees, and next to the trees was a house. On

both sides of the fence in the pasture, there were two standalone poplar trees.

On April 20, 2018, Wheaton sold Kirkwood the northern lot, Lot 6.

Wheaton retained Lot 7 but later sold it in July of 2018 to Nelson.

The horse-riding pasture’s four corners were surrounded by fencing

affixed with light poles and sprinklers serving as lighting and irrigation for the

pasture. The light control switches were in the shop located southwest of the

home, and the valves to operate and maintain a shared irrigation system

between the two lots were located on the northernly boundary of Lot 7.

Kirkwood acquired Lot 6 by statutory warranty deed recorded on June 25,

2018. The deed contained a description of Lot 6 by metes and bounds and did

not mention the fence or any structures thereon.

Before purchase, Kirkwood and Wheaton entered into an easement

agreement. The easement granted Kirkwood the ability to maintain and repair the

irrigation supply line located on Lot 7’s northern property for approximately 10

feet. The valves to operate and maintain the irrigation system were located on

Lot 7. The well that supplies the water for the irrigation system was located on

Lot 6. Kirkwood depended on this irrigation system for water to his pasture and

his property, and the purpose of the easement was to “maintain[] and repair[] the

irrigation supply line.”

According to the real estate listing of Lot 6, the property was described as

having a “fenced pasture,” which at the time of purchase, consisted of a fence

that enclosed the entire pasture area, and the wood fence still exists today.

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Kirkwood testified when he purchased the property, he could see fencing

enclosing his entire pasture and the horse-riding area.

In July of 2018, Wheaton sold Nelson the southern lot, Lot 7, which the

fence separated from Lot 6. The fence ran the length of the northern boundary of

Lot 7, which was barren, excluding a couple shrubberies. Prior to purchase,

Nelson testified he knew the fence was on his property but did not say anything

to Kirkwood or Wheaton. He “thought he could figure it out with [Kirkwood].”

The Nelsons acquired Lot 7 by statutory warrant deed recorded on July 2,

2018. Lot 7 was described by metes and bounds, and there was no mention of a

fence or any other structure. The Nelsons believed the statutory deed

established the boundary line, which was denoted by a row of poplar trees and “a

series of monuments.” Lot 7 was a bare lot, and it was irrigated with water and

irrigation lines coming from Lot 6.

Sometime around July 2018, Nelson told Kirkwood the fence was on

Nelson’s property and wanted it moved. Kirkwood obtained a survey, and it

revealed that the fence was encroaching approximately 8 to 10 feet northernly

into Lot 7. The disputed portion did not incorporate fixtures such as light poles,

irrigation control valves, frost-free faucet, horse shed, or watering trough.

Kirkwood filed a complaint against Nelson quieting title by adjusting the

boundary line under the common grantor doctrine. He also brought claims of

trespass and reformation of the easement. Nelson counterclaimed for declaratory

judgment, ejectment, and trespass and waste.

At the bench trial, the court heard testimony from real estate broker Edda

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Sievers, Kirkwood, and James Nelson. Wheaton did not testify. The court found

in favor of Kirkwood, concluding that the southernmost surface of existing fence

represented the property boundary, rather than the line described in the deed.

The court entered a judgment and directed Kirkwood and the Nelsons to

complete and submit a Segregation/Boundary Line Adjustment Application to the

Grant County Planning Department. The trial court denied Nelson’s

counterclaims.

Nelson timely appealed.

ANALYSIS

Nelson contends the ownership of the disputed strip of land that lies on

Lot 7’s northwest corner and south of Lot 6’s horse-riding pasture, should be

established by the deed line rather than through boundary by common grantor.

We disagree.

Generally, a bona fide purchaser of an interest in real property is entitled

to rely on record title. Levien v. Fiala, 79 Wn. App. 294, 299, 902 P.2d 170

(1995). However, a common grantor can “establish[ ] an ‘on the ground’

boundary line between” tracts of land sold to separate parties “that is binding on

the common grantees,” even when the deed describes a different boundary.

Thompson v. Bain, 28 Wn.2d 590, 593, 183 P.2d 785 (1947). The line will also

be binding on grantees if “the land was sold and purchased with reference to the

line, and that there was a meeting of the minds as to the identical tract of land to

be transferred by the sale.” See Kronawetter v. Tamoshan, Inc., 14 Wn. App.

820, 826, 545 P.2d 1230 (1976).

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A meeting of the minds does not require a formal or specific agreement.

Thompson, 28 Wn.2d at 592. Rather, agreement or meeting of the minds

between the common grantor and the original grantee may be shown by the

parties’ manifestations of ownership after the sale. Winans v. Ross, 35 Wn. App.

238, 241, 666 P.2d 908 (1983) (citing Thompson, 28 Wn.2d at 592).

Application of the common grantor doctrine presents two questions: “(1)

was there an agreed boundary established between the common grantor and the

original grantee, and (2) if so, would a visual examination of the property indicate

to subsequent purchasers that the deed line was no longer functioning as the

true boundary?” Pendergrast v. Matichuk, 186 Wn.2d 556, 564, 379 P.3d 96

(2016) (citing Winans, 35 Wn. App. at 240–41).

Nelson argues substantial evidence does not support Kirkwood and

Wheaton had a meeting of the minds that the fence line constituted the boundary

of the disputed land. We disagree.

We review the trial court’s decision following a bench trial to determine

“whether the findings of fact are supported by substantial evidence and whether

those findings support the conclusions of law.” 224 Westlake, LLC v. Engstrom

Props., LLC, 169 Wn. App. 700, 705, 281 P.3d 693 (2012). The substantial

evidence standard is satisfied if there is sufficient evidence “to persuade a

rational, fair-minded person of the truth of the finding.” Hegwine v. Longview

Fibre Co., 162 Wn.2d 340, 353, 172 P.3d 688 (2007) (quoting In re Est. of Jones,

152 Wn.2d 1, 8, 93 P.3d 147 (2004)). If that standard is satisfied, we will not

substitute our judgment for that of the trial court even if we might have resolved

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disputed facts differently. Green v. Normandy Park Riviera Section Community

Club, Inc., 137 Wn. App. 665, 689, 151 P.3d 1038 (2007) (citing Sunnyside Valley

Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)). Neither party

challenges the trial court’s findings of facts, thus, they are verities on appeal.

Jones, 152 Wn.2d at 8.

Here, both Kirkwood and Nelson are grantees of Wheaton, the original

grantor. Kirkwood, who acquired his property prior to Nelson, maintains he and

Wheaton had the necessary meeting of the minds that Lot 6 extended to the

fence. To support this, Kirkwood points to fixtures on or surrounding the fence,

his improvements to the disputed strip, and the Wheaton’s demonstration of how

to utilize fixtures, as well as his 15 years of use of the property up to, including,

and beyond the fence. Nelson asserts that Kirkwood had no such agreement with

Wheaton because Wheaton created an easement for the irrigation supply line,

located at or under the fence.

The parties do not dispute that Wheaton, as their common grantor,

conveyed their respective parcels as separate properties divided by a fence. It is

also undisputed that Kirkwood’s horse-riding pasture was surrounded by four

corners of fencing affixed with light poles and sprinklers solely for the benefit and

use of the pasture. The controls of the light fixtures were in the shop, which was

on Lot 6, which Wheaton taught Kirkwood to operate. And that throughout his

ownership, in addition to maintaining the sprinkler and light systems, Kirkwood

added various improvements to the disputed strip, such as the telephone light in

the back by the horse-riding arena, the frost-free faucet by the shed, also called

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the horse shelter, the irrigation control valves, the main irrigation valve and the

water trough.

Rather, it appears, Nelson is arguing that if Kirkwood and Wheaton

believed the fence was the boundary line, the easement agreement for irrigation

supply would be unnecessary because the irrigation supply line is on or about the

fence line. However, Kirkwood’s use of the irrigation system indicates otherwise.

The easement agreement permits Kirkwood to go 10 feet into the northern

boundary of Lot 7. Kirkwood testified that the irrigation box to control the irrigation

line for Lot 6 is roughly 10 feet south of the fence, which he regularly used and

maintained, until he later cut the feeder line at the valve box to separate the

irrigation systems. Therefore, the location of the irrigation box, and Kirkwood’s

use of the system without interference from the owner of Lot 7, further supports

Kirkwood and Wheaton had a meeting of the minds that the fence was the

boundary line.

A visual examination of the property also gave notice that the fence

served as the true boundary. Nelson contends that pins located underground that

were referenced in the record title and the poplar trees put Kirkwood on notice

that the boundary line was not the fence, and Kirkwood was put on notice that he

independently should verify the boundaries by the addendum to purchase and

sale agreement. Winans rejected a similar argument that because parties

purchased lots by legal description, there was no agreement between them as

grantees that the fence was the boundary. Winans, 35 Wn. App. at 241–42. The

court held as long as “substantial evidence supports the conclusion that the

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fence provided notice to subsequent purchasers that it was the boundary,” this

boundary would bind those purchasers. Winans, 35 Wn. App. at 242.

Here, the fence visually cut the property in half. The fence enclosed two of

the four corners of the horse-riding pasture and aligned with the trees

surrounding the home located on Lot 6. Property south of the fence was barren,

excluding a few shrubberies. Contrastingly, the pins referenced by Nelson are

not visible from the aerial image of the property. Kirkwood testified that he was

not made aware if the pins were located when he had the property surveyed. The

two poplar trees located on Lot 6 also do not clearly denote a boundary line;

neither do the two poplar trees on Lot 7 which mirror those on Lot 6. Wheaton

sold two adjacent properties separated by an unambiguous visual boundary—a

fence.

Therefore, substantial evidence supports the trial court’s conclusion that

Wheaton and Kirkwood had a “meeting of the minds” as to the fence being the

boundary between the two lots.

Nelson further contends the trial court erred in excluding evidence and

testimony about what Wheaton told Kirkwood about the fence. We disagree.

Nelson sought to admit, through cross examination of Kirkwood, Kirkwood’s

response to interrogatory 14, which asked to indicate any conversation Kirkwood

had with Wheaton “regarding the property which you claim is subject to the

‘Common Grantor’ doctrine.” Kirkwood’s response to the interrogatory was “the

Wheatons said they thought the boundary line was at the fence, but they weren’t

sure.” Nelson argued the statement was not hearsay because “[i]t’s being offered

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to show [the effect of Wheaton’s statement on Kirkwood,] that there was no belief

that the fence was the boundary line.” The trial court ruled that the statement was

offered for the truth of what Wheaton told Kirkwood.

On appeal, citing to Thompson v. Peninsula Sch. Dist. No. 401, 1 Nelson

argues that the statement is “relevant to show the state of mind of the listener.”

At trial, Nelson argued an “effect on the listener” hearsay exception; on appeal,

Nelson argues “state of mind of the listener” exception. We may refuse review

any claim of error that was not raised in the trial court. RAP 2.5(a).

Even if the trial court erred in excluding the statement, there is still

substantial evidence to support the court’s conclusion there was a “meeting of

the minds.” Regardless whether Wheaton represented they were unsure if the

fence was the boundary line, no formal, specific, or separate contract as to the

boundary lines is necessary. See Winans, 35 Wn. App. 241 (citing Thompson, 28

Wn.2d at 592). Additionally, as discussed supra, there is substantial evidence

supporting that Wheaton and Kirkwood agreed the fence was the boundary

between the two lots.

In conclusion, substantial evidence supports the trial court’s conclusion

that Wheaton and Kirkwood had a meeting of the minds that the fence was the

boundary, and the visual examination of the property indicated to subsequent

purchasers that the deed line was no longer functioning as the true boundary.

Given our decision that the trial court did not err in applying the common

grantor doctrine, the trial court also did not err in dismissing Nelson’s

1 77 Wn. App 500, 503, 892 P.2d 760 (1995).

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counterclaim for ejectment.

We affirm.

WE CONCUR: