IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GARY D. CORPRON and SUSAN M. o too CORPRON, a married couple, No. 69565-7- 3>30 -o
Respondents, DIVISION ONE <-or UNPUBLISHED OPINIQfel O
LEIGH M. KELLOGG, a single individual, CD o— and RUTH M. PELAN, a single individual,
Appellants. FILED: April 14, 2014
Appelwick, J. — The Corprons sued Kellogg seeking quiet title to a narrow,
triangular shaped strip of land on the Corprons' property. Kellogg counterclaimed
seeking quiet title based on adverse possession. The trial court concluded that Kellogg
failed to prove the elements of adverse possession and quieted title to the Corprons.
We affirm.
FACTS
Respondents Gary Corpron and Susan Corpron own a five acre parcel of real
property in Arlington, Washington. The Corprons have lived on the property
continuously since September 11, 2003, when they purchased it from Evelyn Dorsett.
Dorsett owned and occupied the property from approximately March 4, 1987 until the
time of sale.
Appellants Leigh Kellogg and Ruth Pelan1 own the five acre parcel of real
property immediately west of the Corprons' property. Kellogg purchased the property
on October 26, 2004 from Mark Selvig. Kellogg lived on the property from the time of
1 We refer to the appellants collectively as "Kellogg." Pelan does not live on the property; she holds only an equitable mortgage, because she helped Kellogg with the down payment for the property. No. 69565-7-1/2
purchase until 2012, when she began renting it to a third party. Selvig lived on the
property from approximately 1999 to 2004. Selvig purchased the property from Michael
Van Putten, who lived on the property from approximately 1995 to 2000. During that
period, Lori Takaki, who is Selvig's sister and Van Putten's ex-wife, also lived on the
Kellogg property.
The dispute between Kellogg and the Corprons arises from a long, narrow
triangular strip of land that sits entirely on Corprons' property (the disputed area). The
disputed area runs north and south near the boundary separating the two properties,
angling east as it extends northward—forming the triangle shape. The area is
approximately 453 feet long, a few feet wide at the southern end, and 24.9 feet wide at
the northern end. It does not extend all the way to either the northern or the southern
boundary of the parties' properties.
Before 1995, Dorsett built a wood post and lattice fence in the disputed area
(wood/lattice fence). The fence does not run directly along the property line, but rather
angles east as it extends north. Dorsett later added cedar slats to the fence and her
son, Darold Anderson, extended the cedar fence southward an additional length. The
wood/lattice fence is a "hanging" fence, which means it allows easy access from one
side of the fence to the other and between the parties' properties. The fence runs only
about one-third of the total length of the parties' boundary line.
Dorsett initially built and maintained the wood/lattice fence as a privacy barrier
and screen for odor and dust between the properties. Testimony at trial indicated that
the fence was not originally built or used to demarcate the property line. However, as
time went on, subsequent owners viewed the wood/lattice fence as the border line No. 69565-7-1/3
fence. The wood/lattice fence is still in place, though a portion has fallen down in recent
years.
In May 1995, Van Putten installed a wire gauge and post fence in the disputed
area (Van Putten fence). The Van Putten fence ran immediately adjacent to the
western side of the wood/lattice fence, but extended an additional 122 feet north of the
wood/lattice fence. Van Putten originally built and used the fence to contain horses and
keep those horses off the wood/lattice fence. The Van Putten fence enclosed the
disputed area and prevented passage from one side to the other.
In February 2005, the Corprons removed the portion of the Van Putten fence that
extended north of the wood/lattice fence. The trial court found that the Corprons did not
ask permission to remove the fence, but Kellogg would have given permission had they
done so.
In 2007, Kellogg installed a wood post and electric fence in the disputed area
(Kellogg fence). The fence parallels the wood/lattice fence, but extends farther north
than the wood/lattice fence. The Kellogg fence remained in place at the time of trial.
The Corprons also later installed fencing in the disputed area to the west of the
wood/lattice fence. Kellogg removed that fencing without the Corprons' permission.
On October 8, 2010, the Corprons filed a complaint against Kellogg seeking quiet
title to the disputed area and damages. The Corprons asserted that Kellogg had
erected fences encroaching on their property. They requested that Kellogg be ejected
and permanently enjoined from entering their property. No. 69565-7-1/4
Kellogg answered and admitted that the Corprons were the recorded owners of
the disputed area. However, Kellogg counterclaimed, alleging adverse possession of
the land and seeking an order of quiet title.
At trial, the court heard oral testimony from the Corprons, Kellogg, expert
surveyor Robert Huey, Van Putten, Takaki, Anderson, and Selvig.
On October 15, 2012, the trial court entered findings of fact and conclusions of
law, including the following challenged finding:
5. Historic Use and Maintenance of Disputed Area. The testimony and exhibits admitted at trial showed neither Kellogg nor her predecessors used, maintained or kept a line fence in the Disputed Area for any consecutive ten-year period. More specifically, at trial, the evidence showed the following regarding the historic use of the Disputed Area:
a. Van Putten/Takaki. From approximately May 1995 to 2000, Van Putten and Takaki kept horses on the Kellogg Real Property and in the Disputed Area. After approximately 2000, no one kept animals in the Disputed Area.
From approximately 1999-2000, Van Putten mowed a small patch of grass near the Southeastern corner of the Kellogg Real Property. A portion of that grass was located in the Disputed Area.
As discussed herein, in May of 1995, the Van Putten Fence was installed, but the portion extending northerly of the Wood Lattice Fence was removed February of 2005.
Neither Van Putten nor Takaki otherwise regularly used or maintained the Disputed Area during Van Putten's ownership of the Kellogg Real Property.
b. Selvig. From approximately 2003 to 2004, Selvig mowed the small patch of grass near the Southeastern corner of the Kellogg Real Property, a portion of which was located in the Disputed Area. Selvig also, on a single occasion in approximately 2003 or 2004, removed saplings from the Kellogg Real Property, some of which were in the Disputed Area. No. 69565-7-1/5
Except as stated above, between 1999 and 2004, Selvig did not otherwise use or maintain the Disputed Area. Selvig did not: (1) keep horses or other animals; (2) add to or maintain any fencing; (3) install any improvements; and or (4) weed, in the Disputed Area. There was no continuous use of the Disputed Area from the time Van Putten and Takaki occupied the Kellogg Property to the time Selvig occupied that Property. During Selvig's ownership of the Kellogg Property, apart from the maintenance in 2003 and/or 2004 described above, the Disputed Area became and remained overgrown with weeds and brush.
c. Use bv the Corprons. The Corprons testified at trial they regularly used and maintained the Disputed Area from 2003 to 2010 and that, during that period, they mowed, weeded, removed debris (including tree branches), raked and removed rocks. Kellogg's testimony at trial indicated she used the Disputed Area and did not observe the Corprons using that Area from Spring 2005 until 2010. The Court found neither Party's testimony persuasive by a preponderance of the evidence and specifically found the Corprons' position on the this [sic] issue to lack credibility.
d. Kellogg. When Kellogg purchased her Real Property in 2004, the Disputed Area was unmaintained and overgrown with weeds and brush. Kellogg did nothing to maintain the Disputed Area until approximately six months after she purchased that Property.
The trial court concluded that Kellogg failed to meet her burden of proving
adverse possession, because Kellogg and her predecessors' possession of the
disputed area was not "1) exclusive, 2) actual and uninterrupted, 3) open and notorious,
and/or 4) hostile and under a claim of right, during any continuous 10-year period." The
court concluded that the Corprons removed a portion of the Van Putten fence in
February 2005, less than 10 years after its installation in May 1995. Once the Van
Putten fence was removed, only a hanging fence was left, which allowed easy access
from either side. Thus, the trial court concluded, Kellogg failed to show exclusive
possession over a 10-year period.
The trial court further concluded that even if the Corprons had not removed the
Van Putten fence, Kellogg's adverse possession claim would still fail. The court No. 69565-7-1/6
reasoned that Kellogg and her predecessors "failed to use, possess or maintain the
Disputed Area in the manner of a true owner over the required 10-year period." The
use and maintenance of the disputed area by Van Putten, Takaki, and Selvig—keeping
horses, periodically mowing a small patch of lawn, and removing saplings once—did not
last for any continuous 10-year period and was insufficient to be actual, open, and
notorious. Because of breaks in use and maintenance of the disputed area between
Van Putten and Selvig, and then between Selvig and Kellogg, the trial court held that
there was no continuous adverse possession of the land.
The trial court quieted title to the disputed area in the Corprons and ejected
Kellogg from the land. It also entered a judgment awarding the Corprons $400 for the
fencing that Kellogg removed. It further awarded the Corprons $200 in statutory
attorney fees and $634 in statutory costs.
Kellogg appeals the trial court's findings of fact and conclusions of law, as well as
the judgment.
DISCUSSION
When the trial court enters findings of fact and conclusions of law, our review is
limited to determining if the findings of fact are supported by substantial evidence and if
the findings of fact support the conclusions of law. Douglas v. Visser, 173 Wn. App.
823, 829, 295 P.3d 800 (2013). Substantial evidence is evidence sufficient to persuade
a fair-minded, rational person of the truth of the declared premise. Jd, We view the
evidence and reasonable inferences from the evidence in the light most favorable to the
prevailing party. Jensen v. Lake Jane Estates, 165 Wn. App. 100, 104, 267 P.3d 435
(2011). Though the trier of fact is free to believe or disbelieve any evidence presented No. 69565-7-1/7
at trial, appellate courts do not hear or weigh evidence, find facts, or substitute their
opinions for those of the trier of fact, ]d. at 104-05. Unchallenged findings are verities
on appeal. IcL at 105.
Adverse possession is a mixed question of law and fact. Miller v. Anderson, 91
Wn. App. 822, 828, 964 P.2d 365 (1998). To establish ownership of a piece of property
through adverse possession, the claimant's possession must be: (1) exclusive, (2)
actual and uninterrupted, (3) open and notorious, and (4) hostile. ITT Ravonier, Inc. v.
Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989). Each of these necessary concurrent
elements must exist for the statutorily prescribed period of 10 years. RCW 4.16.020(1).
The party claiming adverse possession bears the burden of proving each element by a
preponderance of the evidence to overcome the presumption of possession in favor the
legal title holder. Bell, 112 Wn.2d at 757; Teel v. Stading, 155 Wn. App. 390, 394, 228
P.3d 1293 (2010).
I. Hostile Possession
Kellogg argues that the trial court erred in considering the purpose and manner in
which Kellogg and her predecessors used the disputed area. Kellogg contends that the
Van Putten fence was a boundary line fence. Relying on Wood v. Nelson, 57 Wn.2d
539, 358 P.2d 312 (1961), she argues that this constitutes prima facie evidence of
hostile possession, and so the actual use of the disputed area is irrelevant.
In Chaplin v. Sanders, the Washington Supreme Court held that the hostility
element of adverse possession "requires only that the claimant treat the land as his own
as against the world throughout the statutory period." 100 Wn.2d 853, 860-61, 676 P.2d
431 (1984). Thus, the nature of the claimant's possession "will be determined solely on No. 69565-7-1/8
the basis of the manner in which he treats the property." Id at 861. This is an objective
determination based on the claimant's use of the land. Anderson v. Hudak. 80 Wn.
App. 398, 402, 907 P.2d 305 (1995). The claimant's subjective belief regarding his true
interest in the land and his intent to dispossess the legal title holder is irrelevant to that
determination. Chaplin, 100 Wn.2d at 861.
Therefore, the manner in which Kellogg's predecessors used the disputed area is
plainly relevant to Kellogg's adverse possession claim. What does not matter is their
subjective intent to dispossess Dorsett or the Corprons of legal title to the disputed area.
Under Chaplin, the trial court properly considered evidence of use in evaluating
Kellogg's adverse possession claim.
The Wood court recognized that a fence is the usual means to exclude strangers
and establish dominion and control characteristic of ownership. 57 Wn.2d at 540.
There, the defendants claimed that a wire fence was used to confine animals and was
never intended to mark the property line, and so it did not establish adverse possession.
Id. The trial court rejected this assertion, because the fence ran parallel to the true
boundary line for the entire length of the property. Id. The appellate court agreed and
held that "[wjhere a fence purports to be a line fence, rather than a random one, and
when it is effective in excluding an abutting owner from the unused part of a tract
otherwise generally in use, it constitutes prima facie evidence of hostile possession up
to the fence." Id at 541.
The Van Putten fence is distinguishable from the fence at issue in Wood. Van
Putten and Takaki built and used the fence to contain their horses and keep the horses
off the wood/lattice fence. Kellogg does not challenge the trial court's finding to this
8 No. 69565-7-1/9
effect, so it is a verity on appeal. The record is also clear that the disputed area does
not extend the entire length of the boundary line, or even reach the northern or southern
boundary of the properties. Nor does the disputed area run parallel to the actual
boundary line—instead it angles east as it extends northward.
Therefore, this case is not on all fours with Wood. Kellogg's facts do not
establish a prima facie case of hostile possession under Wood. Furthermore, even if
we were to hold that the animal fence established prima facie hostile possession for
Kellogg, not all of the other elements of adverse possession were established.
II. Actual Use and Uninterrupted Possession
Kellogg argues that the trial court failed to consider evidence of use that occurred
prior to construction of the Van Putten fence—specifically, Van Putten's land clearing
and grading activities in the disputed area in February 1995. Relying on Frolund v.
Frankland, 71 Wn.2d 812, 431 P.2d 188 (1967), overruled by Chaplin, 100 Wn.2d at
861 n.2, Kellogg contends that these grading activities "unfurled the flag" of hostile
ownership and began the 10-year adverse possession period before Van Putten built
the fence in May 1995.2
The general test of actual possession is whether the claimant's use and
occupancy of the land is "'of the character that a true owner would assert in view of [the
land's] nature and location.'" Chaplain, 100 Wn.2d at 863 (emphasis omitted) (quoting
Krona v. Brett, 72 Wn.2d 535, 539, 433 P.2d 858 (1967), overruled by Chapin, 100
2 Being overruled by Chaplin as to the claimant's subjective intent to use the land, the vitality of Frolund is in doubt and is of limited use to us. However, we note that whether grading commences adverse possession is a question of fact, not a question of law. No. 69565-7-1/10
Wn.2d 861 n.2); 17 William B. Stoebuck & John W. Weaver, Washington Practice:
Real Estate: Property Law § 8.9, at 518 (2d ed. 2004).
Some activities that Washington courts have held to establish actual possession
of rural land include: building a fence and cultivating up to it; clearing land, constructing
and occupying buildings, and planting orchards; farming, pasturing, planting an orchard,
and building irrigation ditches; and maintaining a partial fence and annually cutting
brush. 17 Stoebuck & Weaver, supra, § 8.10, at 520-21. Conversely, the following
activities have been held not to amount to actual possession of rural or semi-rural land:
having an old, dilapidated fence in an unused strip overgrown with trees and brush;
maintaining an irregular fence of poles and brush, taking timber, and once planting
cabbages; and maintaining a fence intended to be a cattle fence and not a line fence.
17 Stoebuck & Weaver, supra, § 8.10, at 521.
The facts here are most similar to the latter group of cases. Van Putten and
Takaki built and used the Van Putten fence to contain horses and keep the horses off
the wood/lattice fence. They used the fence in this manner from May 1995 until they
moved out in 2000. Takaki testified that neither she nor Van Putten repaired or
maintained the fence after they built it.
Selvig then lived on the Kellogg property from 1999 to 2004.3 During that time,
Selvig once removed saplings from the disputed area. He also mowed a small patch of
grass partially in the disputed area sometime during 2003 or 2004. Otherwise, Selvig
explained, he "didn't use that space." He testified that he did not repair the Van Putten
3 Selvig, Takaki, and Van Putten all lived on the property together in 1999 and 2000.
10 No. 69565-7-1/11
fence during his tenure. Nor did he keep animals, install any improvements, weed, or
garden in the disputed area. Selvig recalled the disputed area being overgrown with
brush and trees while he lived on the property.
When Kellogg bought the property in October 2004, she found the disputed area
overgrown with tall grasses and brush—consistent with Selvig's testimony that he did
not use the area. Kellogg did not use the disputed area until May or June 2005. Thus,
substantial evidence in the record supports the trial court's finding of only sporadic
rather than continuous use in the disputed area.
Moreover, even if grading alone is sufficient to "unfurl the flag" of adverse
possession, Kellogg failed to show by a preponderance of the evidence precisely when
in February 1995 Van Putten began grading activities. In his pretrial deposition, Van
Putten testified that he began constructing the fence in May 1995. After he was
deposed but before trial, Van Putten developed a romantic relationship with Kellogg.
On direct examination at trial, Van Putten testified that he began a finish grade of the
disputed area in February 1995. He further testified that he began constructing the
fence around March 1995. Confronted with this conflicting testimony on cross-
examination, Van Putten stated that "I think I previously said March earlier this
afternoon, March, May. I'll stick with May." Van Putten admitted that it was tough to
remember the exact date 17 years later, but recalled that he built the fence in "late
spring, early summer."
The trial court did not make a finding about the grading activities. We presume
that the lack of a finding on this issue is a negative finding against Kellogg, because she
bears the burden of proof. Taplett v. Khela, 60 Wn. App. 751, 760, 807 P.2d 885
11 No. 69565-7-1/12
(1991). Given Van Putten's imprecise testimony, Kellogg failed to establish that Van
Putten began grading activities 10 years before the Corprons removed a portion of the
Van Putten fence in February 2005.4
All this evidence supports the trial court's conclusion of law that Kellogg and her
predecessors failed to "use, possess or maintain the Disputed Area in the manner of a
true owner over the required 10-year period." We hold that Kellogg's adverse
possession claim fails.
^/t&rt/y IA~ WE CONCUR:
^SlirVU , (_
4 Kellogg also argues that the trial court should have projected a boundary line where the original Van Putten fence still exists, because that portion of the fence has been in place for more than 10 years. This argument fails. The use and maintenance of the disputed area by Kellogg and her predecessors was not actual, uninterrupted, or hostile for 10 years, regardless of the continuing existence of a portion of the Van Putten fence. Furthermore, the record does not show that Kellogg argued this theory of lesser encroachment below, so the trial court was not in a position to fashion an intermediate remedy. There is no error.