IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PAUL M. BENTON and CHARLENE No. 87215-0-I BENTON, husband and wife, DIVISION ONE Appellants,
v. UNPUBLISHED OPINION
WILLIAM E. PETERSON, a single person,
Respondent.
SMITH, C.J. — Paul and Charlene Benton and William Peterson share a
property boundary line in Rockford, Washington. Paul and the predecessor to
Peterson’s property, Gene Smith, erected a fence between the properties before
Peterson acquired the land. In 2018, Peterson bought the property formerly
owned by Smith. In 2020, Peterson hired a surveyor to conduct a land survey
and discovered part of his property extended beyond the fence. Peterson then
removed the fence. The Bentons sued Peterson, alleging adverse possession
and trespass and filed a lis pendens. Peterson counterclaimed, asserting
trespass and clouding title. The trial court found in Peterson’s favor and awarded
fees. The Bentons appeal, claiming the trial court applied the wrong standard of
analysis and incorrectly decided the adverse possession claim. We affirm. No. 87215-0-I/2
FACTS
Paul and Charlene Benton1 and William Peterson own neighboring
properties in Rockford, Washington. Paul has lived on the Benton property for
close to 70 years and became the owner in 2002 after inheriting title from his
mother. Charlene moved onto the property in 1977. Peterson purchased the
adjacent property in 2018. Peterson’s property was previously owned by Gene
Smith.
Sometime in the 1970s, Paul and Smith agreed to build a wire fence
between their properties. At the time, the city owned the property on which the
fence was built. In 1980, the city vacated the road by ordinance. Between the
time the fence was erected and Peterson purchased the property, the property
had transferred ownership three times.
In 2020, Peterson hired a land surveyor to perform a survey of his
property. The property had also been surveyed in 2002. Both surveys provided
the legal boundary of the respective properties, showing the property line
between Peterson’s and the Bentons’ properties as 15 feet closer to the Bentons’
property than the fence. After the survey, Peterson approached Paul about
removing what was left of the fence.2 At trial, Paul testified he told Peterson he
could not remove the fence. In contrast, Peterson testified Paul told him he could
When necessary, we refer to the parties by first name to avoid 1
confusion. 2 The Bentons and Peterson had differing opinions on the state of the
fence at the time of removal. Paul testified, “the last I remember it was in pretty decent shape,” while Peterson testified the fence was essentially non-existent.
2 No. 87215-0-I/3
take down the fence. Another individual present for this conversation also
testified Paul told Peterson he could remove the fence. Following this
conversation, Peterson removed the remnants of the fence. The Bentons
initiated a complaint against Peterson, asserting quiet title based on adverse
possession and a claim for damages due to trespass. The Bentons also filed a
lis pendens on the property. Peterson counterclaimed alleging trespass and
clouding of title.
At trial, the Bentons argued adverse possession, wrongful trespass, and
mutual recognition and acquiescence, though they had not pleaded mutual
acquiescence in their complaint. Paul testified the fence was built to serve as a
boundary line and keep Smith’s goats contained. Both Paul and Charlene
testified they used the property up to the fence line as a garden until the previous
year. They said they mowed and tilled the area every two weeks and collected
vegetables and flowers. But, the Bentons produced no pictures of the garden or
fence, nor did they provide any other evidence the garden existed or that they
maintained the property to the fence line. Other than the Bentons’ testimony, no
evidence at trial established the fence was meant to serve as a boundary as
opposed to a barrier.
The trial court found no credible evidence existed establishing the fence
was intended to be or recognized as a boundary, as opposed to a barrier, by
Smith or any subsequent owners of the land. Furthermore, no evidence existed
to support a conclusion that the fence was maintained or used after it was
constructed. The court noted that multiple witnesses testified the fence was in
3 No. 87215-0-I/4
disrepair and most of it was gone. The trial court also did not find the Bentons’
testimony about their maintenance of the property credible. The court
emphasized the lack of photo evidence and Paul and Charlene’s conflicting
testimony as to the location of the garden.
The court concluded the Bentons failed to establish adverse possession
and trespass. The court also noted that, because the Bentons did not plead
mutual acquiescence, it was not properly before the court. But even if it were,
the court determined the Bentons did not meet their burden of proof. The court
found in favor of Peterson on his clouding of title claim, but denied his claim for
trespass. The court awarded Peterson attorney fees and costs. The Bentons
appeal.
Analysis
Standard of Review
“Where the facts in an adverse possession case are not in dispute,
whether the facts constitute adverse possession is for the court to determine as a
matter of law.” ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 758, 774 P.2d 6
(1989). We review questions of law de novo. Happy Bunch, LLC v. Grandview
N., LLC, 142 Wn. App. 81, 88, 173 P.3d 959 (2007).
If a party contends a finding of fact was improperly made, the party must
include a separate assignment of error for each challenged finding, including a
reference by number. RAP 10.3(g). We only review a claimed error if it is
“included in an assignment of error or clearly disclosed in the associated issue
pertaining thereto.” RAP 10.3(g). We accept unchallenged findings of fact as
4 No. 87215-0-I/5
verities on appeal. Caffrey v. Chem-Ionics Corp., 69 Wn.2d 641, 643, 419 P.2d
809 (1966).
The Bentons do not challenge any findings of fact on appeal; therefore, we
accept the trial court’s findings of fact as true.
Adverse Possession
The Bentons contend they have established adverse possession over the
disputed property. Peterson maintains the Bentons failed to prove all of the
required elements. We agree with Peterson.
To establish a claim of adverse possession, a party must show
possession is “(1) open and notorious, (2) actual and uninterrupted, (3) exclusive,
and (4) hostile.” ITT Rayonier, 112 Wn.2d at 757. Because the holder of legal
title is the presumed owner, “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. The party asserting adverse possession must
establish each element by a preponderance of the evidence. Teel v. Stading,
155 Wn. App. 390, 394, 228 P.3d 1293 (2010). To succeed, the party must show
that it has met all four elements for at least 10 years.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PAUL M. BENTON and CHARLENE No. 87215-0-I BENTON, husband and wife, DIVISION ONE Appellants,
v. UNPUBLISHED OPINION
WILLIAM E. PETERSON, a single person,
Respondent.
SMITH, C.J. — Paul and Charlene Benton and William Peterson share a
property boundary line in Rockford, Washington. Paul and the predecessor to
Peterson’s property, Gene Smith, erected a fence between the properties before
Peterson acquired the land. In 2018, Peterson bought the property formerly
owned by Smith. In 2020, Peterson hired a surveyor to conduct a land survey
and discovered part of his property extended beyond the fence. Peterson then
removed the fence. The Bentons sued Peterson, alleging adverse possession
and trespass and filed a lis pendens. Peterson counterclaimed, asserting
trespass and clouding title. The trial court found in Peterson’s favor and awarded
fees. The Bentons appeal, claiming the trial court applied the wrong standard of
analysis and incorrectly decided the adverse possession claim. We affirm. No. 87215-0-I/2
FACTS
Paul and Charlene Benton1 and William Peterson own neighboring
properties in Rockford, Washington. Paul has lived on the Benton property for
close to 70 years and became the owner in 2002 after inheriting title from his
mother. Charlene moved onto the property in 1977. Peterson purchased the
adjacent property in 2018. Peterson’s property was previously owned by Gene
Smith.
Sometime in the 1970s, Paul and Smith agreed to build a wire fence
between their properties. At the time, the city owned the property on which the
fence was built. In 1980, the city vacated the road by ordinance. Between the
time the fence was erected and Peterson purchased the property, the property
had transferred ownership three times.
In 2020, Peterson hired a land surveyor to perform a survey of his
property. The property had also been surveyed in 2002. Both surveys provided
the legal boundary of the respective properties, showing the property line
between Peterson’s and the Bentons’ properties as 15 feet closer to the Bentons’
property than the fence. After the survey, Peterson approached Paul about
removing what was left of the fence.2 At trial, Paul testified he told Peterson he
could not remove the fence. In contrast, Peterson testified Paul told him he could
When necessary, we refer to the parties by first name to avoid 1
confusion. 2 The Bentons and Peterson had differing opinions on the state of the
fence at the time of removal. Paul testified, “the last I remember it was in pretty decent shape,” while Peterson testified the fence was essentially non-existent.
2 No. 87215-0-I/3
take down the fence. Another individual present for this conversation also
testified Paul told Peterson he could remove the fence. Following this
conversation, Peterson removed the remnants of the fence. The Bentons
initiated a complaint against Peterson, asserting quiet title based on adverse
possession and a claim for damages due to trespass. The Bentons also filed a
lis pendens on the property. Peterson counterclaimed alleging trespass and
clouding of title.
At trial, the Bentons argued adverse possession, wrongful trespass, and
mutual recognition and acquiescence, though they had not pleaded mutual
acquiescence in their complaint. Paul testified the fence was built to serve as a
boundary line and keep Smith’s goats contained. Both Paul and Charlene
testified they used the property up to the fence line as a garden until the previous
year. They said they mowed and tilled the area every two weeks and collected
vegetables and flowers. But, the Bentons produced no pictures of the garden or
fence, nor did they provide any other evidence the garden existed or that they
maintained the property to the fence line. Other than the Bentons’ testimony, no
evidence at trial established the fence was meant to serve as a boundary as
opposed to a barrier.
The trial court found no credible evidence existed establishing the fence
was intended to be or recognized as a boundary, as opposed to a barrier, by
Smith or any subsequent owners of the land. Furthermore, no evidence existed
to support a conclusion that the fence was maintained or used after it was
constructed. The court noted that multiple witnesses testified the fence was in
3 No. 87215-0-I/4
disrepair and most of it was gone. The trial court also did not find the Bentons’
testimony about their maintenance of the property credible. The court
emphasized the lack of photo evidence and Paul and Charlene’s conflicting
testimony as to the location of the garden.
The court concluded the Bentons failed to establish adverse possession
and trespass. The court also noted that, because the Bentons did not plead
mutual acquiescence, it was not properly before the court. But even if it were,
the court determined the Bentons did not meet their burden of proof. The court
found in favor of Peterson on his clouding of title claim, but denied his claim for
trespass. The court awarded Peterson attorney fees and costs. The Bentons
appeal.
Analysis
Standard of Review
“Where the facts in an adverse possession case are not in dispute,
whether the facts constitute adverse possession is for the court to determine as a
matter of law.” ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 758, 774 P.2d 6
(1989). We review questions of law de novo. Happy Bunch, LLC v. Grandview
N., LLC, 142 Wn. App. 81, 88, 173 P.3d 959 (2007).
If a party contends a finding of fact was improperly made, the party must
include a separate assignment of error for each challenged finding, including a
reference by number. RAP 10.3(g). We only review a claimed error if it is
“included in an assignment of error or clearly disclosed in the associated issue
pertaining thereto.” RAP 10.3(g). We accept unchallenged findings of fact as
4 No. 87215-0-I/5
verities on appeal. Caffrey v. Chem-Ionics Corp., 69 Wn.2d 641, 643, 419 P.2d
809 (1966).
The Bentons do not challenge any findings of fact on appeal; therefore, we
accept the trial court’s findings of fact as true.
Adverse Possession
The Bentons contend they have established adverse possession over the
disputed property. Peterson maintains the Bentons failed to prove all of the
required elements. We agree with Peterson.
To establish a claim of adverse possession, a party must show
possession is “(1) open and notorious, (2) actual and uninterrupted, (3) exclusive,
and (4) hostile.” ITT Rayonier, 112 Wn.2d at 757. Because the holder of legal
title is the presumed owner, “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. The party asserting adverse possession must
establish each element by a preponderance of the evidence. Teel v. Stading,
155 Wn. App. 390, 394, 228 P.3d 1293 (2010). To succeed, the party must show
that it has met all four elements for at least 10 years. RCW 4.16.020.
A party can satisfy the first element—open and notorious—by showing
either “ ‘(1) that the title owner had actual notice of the adverse use throughout
the statutory period or (2) that the claimant used the land such that any
reasonable person would have thought he owned it.’ ” Happy Bunch, 142 Wn.
App. at 89 (quoting Riley v. Andres, 107 Wn. App. 391, 396, 27 P.3d 618 (2001)).
The “hostility” element does not require “personal animosity or adversarial intent,
5 No. 87215-0-I/6
but instead connotes that the claimant’s use has been hostile to the title owner’s,
in that the claimant’s use has been akin to that of an owner.” Herrin v. O’Hern,
168 Wn. App. 305, 311, 275 P.3d 1231 (2012).
The Bentons fail to prove their possession of the property was adverse by
a preponderance of the evidence. Beyond their own testimony, the Bentons did
not present any evidence at trial to show Smith, or any subsequent owners of the
property, had actual notice of their use. Additionally, the Bentons provided no
evidence that the land was continuously and exclusively used for a 10-year
period. Despite testifying a garden was on the property for 50 years, the Bentons
did not offer any evidence, such as pictures or testimony from neighbors, to
prove the existence and maintenance of a garden. Even Paul’s and Charlene’s
testimonies about where the garden was located were conflicting.
No evidence in the record shows the Bentons exclusively maintained the
fence for the required statutory period. When Peterson moved onto the
neighboring property and conducted a survey of the land, the fence was
practically nonexistent. In fact, the Bentons’ testimony was the only evidence
presented to establish that the fence was built in the 1970s. And their testimony
fails to prove that they maintained the fence as a property boundary at all, much
less for the entirety of the required period.
The Bentons claim their evidence is sufficient because Peterson presents
no evidence to contradict their testimony that Paul and Smith built the fence as a
boundary line or that they maintained the property. But Peterson does not bear
the burden of proof. The Bentons, as the party asserting adverse possession,
6 No. 87215-0-I/7
must establish all elements by a preponderance of the evidence. Because they
fail to do so, we affirm.
Mutual Recognition and Acquiescence
The Bentons next assert they have established title to the property
through mutual recognition and acquiescence. But, they failed to plead the issue
below.
RAP 2.5(a) states the court may refuse to review any claim of error which
was not raised at trial, with limited exceptions. A party may raise an issue for the
first time on appeal if the issue addresses a lack of trial court jurisdiction, a failure
to establish facts upon which relief can be granted, or manifest constitutional
error.
Here, the Bentons did not plead mutual recognition and acquiescence
before the trial court and, because the issue is not one a party may raise under
RAP 2.5(a), we decline to address the issue.
Attorney Fees
Lastly, both parties request attorney fees on appeal. Because the
Bentons’ request is not supported by law and Peterson prevails on appeal, we
grant Peterson attorney fees.
The Bentons request fees under RAP 18.9(a). Under RAP 18.9(a), a
court may sanction a party for violation of the rules or filing a frivolous appeal.
The Bentons provide no argument as to how Peterson violated any rules or filed
a frivolous appeal. In fact, Peterson did not the file the appeal at issue here.
Accordingly, we decline to award the Bentons fees.
7 No. 87215-0-I/8
Peterson requests fees under RAP 18.1, RCW 4.28.328(3), and
RCW 7.28.083(3). Under RAP 18.1(a), applicable law may grant a party the right
to recover reasonable attorney fees or expenses on review. A party requesting
fees under RAP 18.1 must provide argument and citation to authority “to advise
the court of the appropriate grounds for an award of attorney fees as costs.”
Stiles v. Kearney, 168 Wn. App. 250, 267, 277 P.3d 9 (2012). RCW 4.28.328(3)
provides a claimant in a lis pendens action “is liable to an aggrieved party who
prevails in defense of the action . . . for actual damages caused by filing the lis
pendens, and in the court’s discretion, reasonable attorneys’ fees and costs
incurred in defending the action”. Similarly, under RCW 7.28.083(3), this court
has discretion to award reasonable attorney fees to the prevailing party in an
adverse possession action.
Because Peterson is the prevailing party in an adverse possession claim,
we award him reasonable attorney fees.
We affirm.
WE CONCUR: