2i1111 ' OV 2 t° ' ; l : 23
STi ° SEl6 i :iTG 1
BY\ SiFilo\: ,
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON WASH
DIVISION II
MARK L. BUBENIK and MARGARET M. No. 44689 -8 -II BUBENIK, husband and wife, UNPUBLISHED OPINION Appellants,
v.
THOMAS J. MAUSS and KAROL K. MAUSS,
Respondents.
BJORGEN, J. — Mark and Margaret Bubenik challenge the trial court' s judgment and
related findings of fact and conclusions of law denying their adverse possession and mutual
recognition and acquiescence claims to a parcel of land disputed by them and their neighbors,
Thomas and Karol Mauss. The Bubeniks also appeal the trial court' s decision to fix the boundary
between the two parcels, claiming that the trial court erred by granting the Mausses relief that they
did not seek. We hold that substantial evidence supports the trial court' s findings of fact, and that
those findings support the court' s conclusions of law on adverse possession and mutual recognition
and acquiescence. We also hold that the Bubeniks waived any challenge to the trial court' s
resolution of the disputed boundary. We affirm. No. 44689 -8 -II
FACTS
In 1979, the Bubeniks bought land on Henderson Bay in Gig Harbor from William and
Florence Bell. Although the Bubeniks did not commission a survey of the parcel when they
bought it, Mark walked the land with William. William showed Mark a nail and metal spike
along the bulkhead marking the property' s boundaries with the adjacent parcels, the James
Niquette property to the northeast, and what is now the Mauss property to the southwest. The distance between these markers measured 88 feet, a distance corresponding exactly to the legal
description of the property' s ocean frontage.2 At the property' s southern end, William also
identified an upland property marker, an orange ribbon tied to the branches of a camellia bush on , the upland side of the houses on what are now the Bubenik and Mauss properties. William
claimed that a line drawn through the southern metal spike and the ribbon in the camellia bush
formed the property boundary between the two parcels.
The Mausses bought their parcel in 1981. Like the Bubeniks, they did not survey their
property when they bought it. The legal description of the Mauss parcel states that its border with Henderson Bay extends 87 feet.3
1 We use the first names of the Bubeniks, Mausses, and Bells for clarity. We intend no disrespect.
2 The legal description of the Bubenik parcel uses the " meander corner" as its origin. Clerk' s Papers ( CP) at 229. The meander corner marks the junction between the upland properties and the tidelands on the bay. See BLACK' S LAW DICTIONARY 1069 ( 9th ed. 2009) ( definition of meander line "). The dispute at issue in this appeal arises because the meander corner no longer
exists and the parties differ on how to account for that reality.
3 The legal description of the Mauss parcel also uses the no longer existing meander corner as its origin point.
2 No. 44689 -8 -II
The border between the Bubenik and Mauss properties crosses several physical features.
Nearest the bay lies what the parties call the " shared lawn." Verbatim Report of Proceedings
VRP) ( Jan. 10, 2013) at 46. This lawn extends well into both the Bubenik and Mauss
properties. Over the years both parties have mowed this lawn, although they now share the cost
of.a lawn service. The Mausses installed a lawn sprinkler system that extends across what the
Bubeniks believed to be the legal boundary between the properties. Near the bay side of the
shared lawn is a maple tree. The Bubeniks have historically tended the tree and some plantings
they made at its base, although Karol Mauss occasionally weeded underneath the tree. Upland from the shared lawn is a garden area. The garden contains numerous flowers
and flower bushes maintained by the Bubeniks, many of which the Bubeniks planted. The Mausses, their son, and their employees also garden in the area.
Further upland from the garden is a gravel area. The Bubeniks claimed at trial that they
weeded the gravel on their side of what they believed to be the boundary line two or three times
a year. The Mausses hired a company to spray the gravel on their side of the ostensible
boundary with herbicide once a month; Mark testified that this company only sprayed across the
boundary to his side accidently.
In 1995, the original log bulkhead shared by the Niquette, Bubenik, and Mauss properties
began to rot. The three families agreed to replace the bulkhead with a new concrete one
constructed in the same place.
Niquette, Mark, and Thomas walked the bulkhead and measured their ocean frontage
using their property' s legal descriptions and the northeastern beginning of the bulkhead as a starting point. According to Mark, the legal description of the Niquette' s ocean frontage,
3 No. 44689 -8 - II
approximately 101 feet, corresponded to the distance between the beginning of the bulkhead and
the metal spike that William had claimed marked Niquette' s property boundary with the
Bubeniks' land. According to Mark, the legal description of his 88 feet of ocean frontage also
corresponded to the distance between the two markers that William had shown him when Mark
bought the property. Mark also claimed that the men measured the length of the bulkhead
between the southwesterly metal spike and the bulkhead' s southwestern end and that this
distance, 87 feet, corresponded to the legal description of the Mauss parcel' s oceanfront
property.
For his testimony, Thomas swore that he did not remember the men taking any
measurements during the conversations about replacing the bulkhead, did not see the markers
that Mark claimed marked the property boundary during the discussions, and did not believe that
he was fixing the legal definition of his property.
The Bubeniks and the Mausses arranged to have a contractor build stairs into the new
concrete bulkhead. The parties agreed to share the cost of the stairs equally. Mark stated that the
parties agreed to center the stairs on the property line he claims so that the southern metal stake
marked the midpoint of the new stairs. Thomas claimed that the parties located the stairs based
on his ease of getting his boat in and out of the water rather than based on the property boundary. In 2009, the Mausses began building a deck on the southwestern side of their property.
The owner of the neighboring property expressed concern that the deck encroached on his land. At that point, Thomas commissioned a survey to determine his property' s boundaries. The
survey, which Thomas recorded with the county, indicated that the Mauss property actually
4 No. 44689 -8 -II
encompassed the entirety of the bulkhead stairs and 17 feet of what the Bubeniks believed to be
their oceanfront property boundary.
The Bubeniks filed suit, seeking to obtain title to the portion of the Mauss property
marked by what they considered the historical property boundary, the line defined by the metal stake at the center of the bulkhead staircase and the ribbon in the upland camellia bush. The
Bubeniks asserted that they had adversely possessed the land at issue and asked the trial court to
quiet title to the land in them. Alternatively, they claimed that the Mausses had adjusted the
boundary through mutual recognition and acquiescence. The Bubeniks also prayed for
declaratory relief, asking the trial court to " delineat[ e] the property line between the parties' Bubeniks] by the court." Clerk' s properties to be created by [ a survey commissioned by the or
Papers ( CP) at 6.
The trial court heard the matter sitting without a jury. The Bubeniks and the Mausses
testified about their use and maintenance of the disputed areas and their knowledge, or lack of
knowledge, about boundary markers between their properties. Mark, Thomas, and Niquette
testified to their discussions concerning the bulkhead replacement and the accompanying
measurements.
Both sides offered into evidence the surveys they had commissioned to demarcate the
boundaries of their properties. When the Bubeniks asked their surveyor about the accuracy of
the survey that the Mausses recorded to establish his property boundary, he testified that " I won' t say that theirs was inaccurate," given that any surveyor would need to estimate to the best of his
or her ability where the no longer existing meander corner was. Verbatim Report of Proceedings VRP) ( Jan. 10, 2013) at 96.
5 No. 44689 -8 - II
During closing argument, the trial court asked the Mausses, " On your interpretation, the
ultimate ruling was that the survey done by [ land surveyors] AHBL, does correctly establish the between the Is that d be asking the to do ? "4 VRP ( Jan. 16, boundary line parties. what you' court
2013) at 464. The Mausses responded, " Yes. The testimony was that AHBL is the only
recorded survey." VRP (Jan. 16, 2013) at 464. The Bubeniks responded that the Mausses had
that the line drawn the AHBL survey the appropriate line." VRP failed to show by marked "
Jan. 16, 2013) at 469.
The trial court entered findings of fact and conclusions of law denying the Bubeniks'
claims for relief on both the adverse possession and mutual recognition and acquiescence claims
and dismissing those claims with prejudice. The trial court found that the Bubeniks had failed to satisfy any elements of either claim. The trial court also concluded that the Mausses' survey marked the correct property boundary. Based on the Bubeniks' payment for half of the steps built into the bulkhead, the trial court found that the Mausses impliedly granted the Bubeniks and
their heirs and assigns a " non- exclusive and perpetual pedestrian easement" to use the stairs.5 CP at 199. The trial court entered a final judgment in accordance with its findings and
conclusions, and the Bubeniks appealed.
ANALYSIS
The Bubeniks claim that the trial court erred in denying and dismissing with prejudice
their adverse possession and mutual recognition and acquiescence claims and by resolving the
4 The AHBL survey was commissioned by the Mausses and recorded with the county.
5 Both parties had prayed in their respective pleadings for " fu therxelief as the court may deem just and equitable." CP at 6; see CP at 22.
6 No. 44689 -8 -II
property boundary along the lines of the Mausses' survey. Because the trial court' s findings are
supported by substantial evidence and in turn support its conclusions that the Bubeniks did not
exclusively possess the disputed property, we disagree.
The Bubeniks largely base their appeal on the evidence they introduced in support of
their claims. However, where the parties try a cause " to the court sitting without a jury, the
findings of fact made by the trial court cannot be disturbed ... if there be substantial evidence to
support such findings," even if we could have or would have found differently if we had acted as
the trier of fact. Lamm v. McTighe, 72 Wn.2d 587, 589, 434 P. 2d 565 ( 1967). To determine if
substantial evidence supports the trial court' s findings, we look for " evidence sufficient to
persuade a rational, fair -minded person" of the truth of the findings in the record and " review all
reasonable inferences in the light most favorable to the prevailing party." Newport Yacht Basin
Ass 'n of Condo. Owners v. Supreme Nw., Inc., 168 Wn. App. 56, 63 -64, 277 P. 3d 18, review
denied, 175 Wn.2d 1015 ( 2012); Jensen v. Lake Jane Estates, 165 Wn. App. 100, 104, 267 P. 3d
435 ( 2011). If the trial court' s findings of fact have substantial supporting evidence, we review
de novo the trial court' s conclusions of law to determine if its findings support those conclusions.
Newport Yacht Basin Ass 'n, 168 Wn. App. at 63, 64.
I. ADVERSE POSSESSION
The Bubeniks first contend that the trial court erred in concluding that they had not
satisfied any of the elements of adverse possession for the disputed parcel. We hold that the Bubeniks failed to carry their burden of proving at least one of the elements, exclusive
possession, and affirm the trial court.
7 No. 44689 -8 -II
The doctrine of adverse possession allows a claimant to obtain legal title to real property
through possession of the property. Gorman v. City of Woodinville, 175 Wn.2d 68, 71, 283 P. 3d
1082 ( 2012). The claimant must show " possession 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). Because the law presumes that the title holder possesses the property, a
claimant asserting adverse possession of a parcel bears the burden of proving the concurrent
existence of each of these elements over the statutory period by a preponderance of the evidence.
ITT Rayonier, 112 Wn.2d at 757. In these circumstances, that period is 10 years. See 17
WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE: PROPERTY
LAW § 8. 19, at 516 ( 2d ed. 1995). The exclusive possession element of adverse possession does
not require the claimant to prove his or her possession was " absolutely exclusive." Lilly v.
Lynch, 88 Wn. 306, 313, 945 P. 2d 72 ( 1997) ( emphasis in original). " An `occasional, App.
transitory use by the true owner ' permitted by the claimant as a "` neighborly accommodation '
does not nullify a claimant' s showing of exclusive possession. Lilly, 88 Wn. App. at 313 quoting 17 STOEBUCK, supra, § 8. 19, at 516). However, a title owner' s use of disputed property
in a manner " indicat[ ing] ownership" is incompatible with the claimant' s attempt to show
exclusive possession and will defeat an adverse possession claim. Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, 217, 936 P. 2d 1163 ( 1997). This reflects one commentator' s assessment
that
p] robably the most meaningful application of the requirement of exclusive possession is that the adverse possessor cannot share occupation with the true owner. This rests upon the basis that in law that possession is exclusive by its nature, and the owner, if on the land, can alone have it.
8 No. 44689 -8 -II
WILLIAM B. STOEBUCK, THE LAW OF ADVERSE POSSESSION IN WASHINGTON, 35 WASH. L. REV.,
at 53, 72 ( 1960).
The trial court found that the Bubeniks and the Mausses shared maintenance of the lower
lawn, that the Mausses installed the lower lawn sprinkler system that they alone control that
extends across the boundary the Bubeniks claim, and that the Mausses or their employees
performed maintenance near the maple tree and in the garden area on the Bubenik side of the
Bubeniks' claimed boundary. Testimony at trial supported each of these findings. E.g. VRP
Jan. 10, 2013) at 46 ( discussing shared lawn maintenance); VRP ( Jan. 14, 2013) at 229 -30
same); VRP ( Jan. 14, 2013) at 247, 267 -69, 279 ( discussing the Mausses' installation of the new
sprinkler system); VRP ( Jan. 15, 2013) at 366 -68 ( same); ( Jan. 10, 2013) at 58 -60 ( discussing
how the Mausses' gardeners worked on the Bubenik side of the boundary the Bubeniks are
attempting to claim); VRP ( Jan. 14, 2013) at 246 ( discussing the Mausses' son' s garden
maintenance); VRP (Jan. 16, 2013) at 420 -24 ( discussing Karol' s weeding on the Bubenik side
of the boundary the Bubeniks are claiming). We hold that substantial evidence supports the
findings.
The trial court' s findings concerning the Mausses' use of the disputed area support its
conclusion that the Bubeniks did not have exclusive possession of that area. ITT Rayonier, 112
Wn.2d at 758 -60 ( shared use of disputed land defeated a claim of exclusive possession); Scott v.
Slater, 42 Wn.2d 366, 369, 255 P. 2d 377 ( 1953), overruled on other grounds by Chaplin v.
Sanders, 100 Wn. 2d 853, 676 P. 2d 431 ( 1984) ( shared cultivation and maintenance of disputed
land defeated claim of exclusive possession); Thompson v. Schlittenhart, 47 Wn. App. 209, 212,
9 No. 44689 -8 -I1
734 P. 2d 48 ( 1987) ( mowing the shared lawn by both parties to a dispute defeated a claim of
exclusive possession).
The Bubeniks nevertheless argue that the trial court erred in concluding that they lacked
exclusive possession because it did so based solely on the collective maintenance for the shared
lawn.6 The Bubeniks assert that this agreement, which concerned a tiny portion of the land at
issue, does not contradict that they exclusively maintained the larger portion of the disputed land.
This argument, however, ignores the trial court findings, supported by evidence, that the
Mausses or their employees also used the upland portions of the Mauss parcel claimed by the
Bubeniks. This use, together with the shared use and maintenance of the lawn, defeats any claim
of exclusive possession of the disputed parcel by the Bubeniks. Scott, 42 Wn.2d at 369; see
Thompson, 47 Wn. App. at 212; Bryant, 86 Wn. App. at 217.
Because the trial court' s findings are supported by substantial evidence, and because
those findings support the trial court' s conclusions that the Bubeniks did not exclusively possess
the disputed property, we affirm the trial court' s denial of the Bubeniks' adverse possession
claim.
6 The Bubeniks raise a number of legal arguments as to why they exclusively possessed the disputed parcel in their reply brief. While responsive to the Mausses' briefing, the Mausses' briefing pointed out the Bubeniks' failure to carry their burden of showing error. The Bubeniks' reply briefing therefore raises arguments properly part of an opening brief, and we consider these arguments waived by the failure to raise them there. Ives v. Ramsden, 142 Wn. App. 369, 396, 174 P. 3d 1231 ( 2008); RAP 10. 3( c).
7 The Bubeniks challenge a number of the trial court' s findings related to their adverse possession claim. Because we affirm the trial court based on the Bubeniks' failure to establish exclusive possession, our disposition of this case addresses or makes irrelevant the Bubeniks' challenge to findings 2, 25, 36, 37, 38, 42, 43, 44, 45, and 46.
10 No. 44689 -8 -II
II. MUTUAL ACQUIESCENCE
Alternatively, the Bubeniks argue that the trial court erred in denying their claim that the
Mausses had mutually recognized or acquiesced to the boundary they claimed. Again, we
affirm.
Under the doctrine of mutual recognition and acquiescence, if
adjoining property owners occupy their respective holdings to a certain line for a long period of time, they are precluded from claiming that the line is not the true one, the theory being that the recognition and acquiescence affords a conclusive presumption that the used line is the true boundary.
Lamm, 72 Wn.2d at 592. To show title to land by mutual recognition and acquiescence, a party
must show by clear, cogent, and convincing evidence
1) that the boundary line between two properties was certain, well defined, and in fashion physically designated upon the ground, e. g., by monuments, some
roadways, fence lines, etc.; ( 2) that the adjoining landowners, in the absence of an
express boundary line agreement, manifested in good faith a mutual recognition of the designated boundary line as the true line; and ( 3) that mutual recognition of the boundary line continued for the period of time necessary to establish adverse possession ( 10 years)."
Merriman v. Cokeley, 168 Wn.2d 627, 630 -31, 230 P. 3d 162 ( 2010) ( quoting Lamm, 72 Wn.2d
at 593).
The trial court found that the Mausses did not see, and otherwise lacked knowledge of,
the steel stake in the ground near the bulkhead or the orange ribbon in the camellia bush that the
Bubeniks claim marked their claimed property boundary. Substantial evidence supports this
finding, since both the Mausses testified to this effect.
Further, the trial court found the Mausses' testimony credible, and that finding is not
susceptible to attack on appeal. Faust v. Albertson, 167 Wn.2d 531, 538, 222 P. 3d 1208 ( 2009).
The trial court also found that "[ t] he landscape and topography of the two properties is such that
11 No. 44689 -8 -II
the lawn and garden areas between the homes flow together without any designation of where
one ends and the other begins." CP at 195. Substantial evidence also supports this property
finding. The claimed property boundary crosses garden and lawn areas undivided by any type of physical barrier or sign of division, natural or artificial. The trial court' s findings support its
conclusion that the Bubeniks failed to show the claimed boundary was sufficiently marked and
certain. See Merriman, 168 Wn.2d at 631 -32. Their mutual recognition and acquiescence claim
fails on the first element of such a claim.
The trial court also found that the Mausses never treated the Bubeniks' proposed
boundary as the true one. Substantial evidence supports these findings. The Mausses both
testified that they never agreed to the boundary proposed by the Bubeniks, even when fixing the location of the stairwell in the new bulkhead. Again, the trial court accepted this testimony as
credible and we defer to such a finding. The trial court also found, as discussed above, that the
Mausses engaged in lawn maintenance and gardening activities across what the Bubeniks now
claim as the property boundary. Based on these findings the trial court could permissibly
conclude that the Mausses had not shaped their acts in accordance with the boundary the
Bubeniks claim. The trial court' s findings support its conclusion that the Mausses never
12 No. 44689 -8 -II
expressly agreed or impliedly acquiesced to the Bubeniks' proposed boundary. The Bubeniks' mutual acquiescence claim also fails on the second element.8°9
III. QUIET TITLE
Finally, the Bubeniks contend that the trial court erred by fixing the property boundary between their parcel and the Mausses' and quieting title to the Mausses up to that boundary. The
Bubeniks argue that the Mausses sought no affirmative relief from the trial court, so the trial
court' s resolution of the discrepancies between the surveys offered by the parties deprived them
of property without notice.
We disagree with the Bubeniks' argument. Their complaint requested that the trial court
delineat[ e] the property line" between their property and the Mauss' property, CP at 6, giving them notice that the trial court might do so. Because their complaint authorized the trial court to
fix the property boundary on a line " created ... by the court," CP at 6, they have waived any
right to complain about the court having done so. Schroeder v. Excelsior Mgmt. Grp., LLC, 177 Wn.2d 94, 106, 297 P. 3d 677 ( 2013) ( quoting Bowman v. Webster, 44 Wn.2d 667, 669, 269 P. 2d 960 ( 1954)) ( defining waiver).'°
8 The Bubeniks also challenge a number of the trial court' s findings related to their mutual recognition and acquiescence claim. As discussed above, we find substantial supporting evidence for the relevant portions of findings 15, 19, 27, 29, 30, 31, 39, 40, and 42. We must reject the Bubeniks' challenge to findings 20 and 28 as unreviewable, since they concern the trial court' s credibility determinations. We find substantial evidence to support the remainder of the challenged findings related to the mutual recognition and acquiescence claim.
9 The Bubeniks ask us to review the trial court' s credibility determination in finding 28 as inconsistent with finding 51. The Bubeniks' challenge is based on arguments about their subjective intent. The trial court' s findings concerned the Mausses' subjective intent. There is no inconsistency.
1° Accordingly, we decline to address the Bubeniks' challenge to findings 47 and 49. 13 No. 44689 -8 -II
III. ATTORNEY FEES
The Bubeniks do not request attorney fees. The Mausses request attorney fees under
RCW 7. 28. 083( 3), RAP 18. 1, and RAP 18. 9. We deny their request.
RCW 7. 28. 083( 3) allows for an award of attorney fees to "[ t] he prevailing party in an
action asserting title to real property by adverse possession" where the award " is equitable and just." However, RCW 7. 28. 083( 3) only applies to actions filed after July 1, 2012. LAWS OF
2011, ch. 255, § 2. While the Mausses have prevailed, the Bubeniks filed their suit several
months before the effective date of RCW 7. 28. 083( 3). We therefore deny the Mausses' request
for attorney fees under RCW 7. 28. 083( 3).
RAP 18. 9 authorizes an award of attorney fees where a litigant pursues a frivolous claim
on appeal. Such an award is appropriate where we "[ are] convinced that the appeal presents no
debatable issues upon which reasonable minds might differ, and that the appeal is so devoid of
merit that there is no possibility of reversal." Advocates for Responsible Dev. v. W. Wash.
Growth Mgmt. Hearings Bd., 170 Wn.2d 577, 580, 245 P. 3d 764 ( 2010). We hold that the
Bubeniks' appeal was not so devoid of merit that there was no possibility of reversal. There are
debatable issues about several of the elements of their adverse possession claim. Consequently,
we decline to award the Mausses attorney fees under RAP 18. 1 and 18. 9. CONCLUSION
We affirm the trial court' s denial of the Bubeniks' adverse possession and mutual
recognition and acquiescence claims, because we find substantial supporting evidence for the
findings of fact properly used to conclude the Bubeniks failed to satisfy necessary elements of
their claims. We decline, based on waiver, to reach the merits of the Bubeniks' challenge to the
14 No. 44689 -8 -II
trial court' s decision to quiet title in the Mausses, and we deny the Mausses' request for attorney
fees.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it
is so ordered.