Burkey v. Baker

492 P.2d 563, 6 Wash. App. 243, 1971 Wash. App. LEXIS 1259
CourtCourt of Appeals of Washington
DecidedDecember 30, 1971
Docket419-2
StatusPublished
Cited by9 cases

This text of 492 P.2d 563 (Burkey v. Baker) 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
Burkey v. Baker, 492 P.2d 563, 6 Wash. App. 243, 1971 Wash. App. LEXIS 1259 (Wash. Ct. App. 1971).

Opinion

Petrie, C.J.

This is a boundary line dispute. Defendants, Baker, hold record title to the north 100 feet, and plaintiffs, Burkey, hold record title to the south 100 feet of the north 200 feet of a tract of property in Pierce County, the western boundary of which is the government meander line on Henderson Bay. The boundary in dispute, therefore, *244 is the common east-west boundary line between Baker on the north and Burkey on the south.

In 1966 each party hired his own surveyor to run this common line. With minor exceptions, not at all material to this appeal, there is agreement as to the survey line. Baker has insisted that the survey line is the true boundary and that it conforms to his understanding of a prior survey run in 1947. Burkey has insisted, on the other hand, that Baker is estopped from denying that the true line is represented by a “line” of evergreen trees planted by Baker’s son-in-law in 1956. Burkey filed a complaint to quiet title to the land in dispute and sought to have the court establish the common boundary fine pursuant to his understanding of the line. Baker denied the material allegations and asked the court to establish the surveyed line as the true boundary. The trial court accepted Burkey’s contention and divested Baker of a triangular parcel of land (approximately 35 feet of waterfront property). This appeal followed.

Baker has assigned error to six findings of fact entered by the trial court. It requires clear, cogent and convincing evidence to estop an owner out of a legal title to real property, Tyree v. Gosa, 11 Wn.2d 572, 119 P.2d 926 (1941); Arnold v. Melani, 75 Wn.2d 143, 449 P.2d 800 (1968). In our review to ascertain whether or not there is substantial evidence to support the challenged findings, we must be cognizant that evidence which is “substantial” to support a preponderance test may not be sufficient to support the requirements for a test requiring clear, cogent and convincing evidence. In re Estate of Reilly, 78 Wn.2d 623, 479 P.2d 1 (1970). Nevertheless, our review of the record leads us to conclude that there is substantial evidence to support all of the trial court’s findings. Our search narrows, therefore, to whether or not the facts support the trial court’s conclusion that Baker is estopped to deny the common boundary fine is the line of trees planted in 1956.

In order that there be no question as to the precise facts *245 upon which we base our decision, we set forth in full the material facts as found by the trial court:

4.
That the defendants acquired their beach property in 1948 and proceeded to develop and improve the same by clearing trees and brush, constructing and expanding from time to time their cabin, installing lawns, terraces, flower beds, shrubs, outdoor fireplace, dock facilities, badminton court, and other substantial improvements to such extent that in 1959 their property had an appearance of being completely developed and in use. That in 1956, along the south side of their badminton court, and as a windbreak therefor, defendants planted a line of evergreen trees, and generally totally improved and cleared the area north of such line of trees, and correspondingly made no improvements of any nature south thereof until sometime in 1965 or 1966 after plaintiffs and defendants became involved in the present boundary line dispute.
5.
That at the time plaintiffs were considering the purchase of the beach property just south of defendants’ property, plaintiffs noted the substantial improvements made by defendants north of said line of trees, and also noted the generally unimproved character of the property south thereof, which contained only an incomplete cabin, an ill-defined and overgrown roadway, the balance of the property being covered by trees and brush.
6.
That just prior to completing the purchase of their beach property the plaintiff, Louis J. Burkey, inquired of the defendant, Gene S. Baker, concerning the location of the common boundary line between their respective properties, and was informed by the defendant, Gene S. Baker, that such boundary line was within a foot or two of the line of trees planted along side of the badminton court. That on several subsequent occasions after plaintiffs purchased the property, the defendant, Gene S. Baker, confirmed the location of the common boundary line as being within a foot or two of the line of trees, and on one or more occasions these conversations were overheard by plaintiffs’ sons, Patrick and Michael Burkey, and by their employee, LaVeme Koehler.
*246 7.
The Court finds that after purchasing the property in. 1959, the plaintiffs immediately undertook the improvement thereof, and in the winter or early spring of 1960 installed a wooden bulkhead along the entire water front of their property, and up to a point coinciding with a line extended to the water’s edge through the line of trees planted by defendants. The Court also finds that within the disputed area the plaintiffs also installed a drain field north of their cabin; constructed and maintained over the drain field a portable tent platform for the childrens’ tents or for lawn furniture; constructed and maintained a boat ramp, boat hoist and storage area just over the north end of the bulkhead, and on different occasions tried to plant grass in the area north and west of their cabin and in the area now claimed by defendants.
8.
The Court finds that the trees planted by the defendants along side the badminton court were planted more in a line than in a group; that such line of trees generally paralleled the clearly improved areas belonging to the defendants, and that such line of trees also ran generally parallel to the property lines claimed by those owning property immediately south of plaintiffs’ property.
9.
The Court finds that the plaintiffs purchased their tract of beach property and subsequently developed and improved the same in reliance upon the statements of the defendant, Gene S. Baker, concerning the location of their common boundary line. The Court further finds that plaintiffs were entitled to rely upon such statements by the defendant, Gene S. Baker, particularly where such statements were consistent with the apparent development of other beach properties to the south. The Court further finds that relying upon such statements concerning the location of their common boundary line, the plaintiffs expended substantial sums of money to build a bulkhead up to such boundary line and to install a septic tank and drain field in the disputed area.
10.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Merriman v. Cokeley
152 Wash. App. 115 (Court of Appeals of Washington, 2009)
Lilly v. Lynch
945 P.2d 727 (Court of Appeals of Washington, 1997)
Roy v. Cunningham
731 P.2d 526 (Court of Appeals of Washington, 1986)
Magart v. Fierce
666 P.2d 386 (Court of Appeals of Washington, 1983)
Fralick v. Clark County
589 P.2d 273 (Court of Appeals of Washington, 1978)
Vermette v. Andersen
558 P.2d 258 (Court of Appeals of Washington, 1976)
Fitzgerald v. Neves, Inc.
550 P.2d 52 (Court of Appeals of Washington, 1976)
Federal Way Disposal Co. v. City of Tacoma
527 P.2d 1387 (Court of Appeals of Washington, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
492 P.2d 563, 6 Wash. App. 243, 1971 Wash. App. LEXIS 1259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkey-v-baker-washctapp-1971.