Michael S Pokorny, Etal v. Judd Tree Service ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
December 8, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MICHAEL S. POKORNY and JOETTA No. 52949-1-II
POKORNY, husband and wife and the marital
community composed thereof,
Appellants,
v.
SHOWELL OSBORN and NANCY OSBORN, UNPUBLISHED OPINION
husband and wife and the marital community
composed thereof,
Respondents.
JOHN DOE and JANE DOE 1-5, NATHANIEL
D. JUDD and BETHANIE R. JUDD, husband
and wife and the marital community composed
thereof, d/b/a JUDD TREE SERVICE, a
Washington contractor, JUDDTTS875N2 and
WESCO INSURANCE COMPANY under
bond No. 46-WB033713,
Defendants Below.
CRUSER, J. — Michael and JoEtta Pokorny appeal from the trial court’s order granting
Nancy and Showell Osborn’s motion for summary judgment on adverse possession, the order
quieting title, the order on the Pokornys’ motion for reconsideration, the order dismissing the
Pokornys’ claims, and the order awarding attorney fees and costs to the Osborns. The Pokornys
No. 52949-1-II
argue that (1) the trial court did not have subject matter jurisdiction to address the Osborns’ adverse
possession claim, (2) genuine issues of material fact exist on the adverse possession claim,
precluding summary judgment, (3) the trial court erred in determining the appropriate boundary
line between the two properties following its ruling on the adverse possession claim, (4) the trial
court abused its discretion in denying their motion for reconsideration, (5) the trial court erred in
dismissing their claims upon granting the Osborns’ motion for summary judgment, and (6) the trial
court erred in awarding the Osborns attorney fees.
We hold that (1) the court had subject matter jurisdiction to address the Osborns’ adverse
possession claim, (2) there are no genuine issues of material fact on the Osborns’ adverse
possession claim and the Osborns were entitled to judgment as a matter of law, (3) the trial court
properly drew the boundary between the two properties in accordance with its ruling on the
Osborns’ adverse possession claim, (4) the trial court did not abuse its discretion in denying the
Pokornys’ motion for reconsideration, (5) the trial court did not err in dismissing the Pokornys’
claims, and (6) the trial court did not err in awarding the Osborns attorney fees.
Accordingly, we affirm.
FACTS
I. BACKGROUND
In 2011, Appellants Michael and JoEtta Pokorny purchased a vacation residence located in
Ocean Shores, Washington, (Lot 55) at a foreclosure auction. Respondents Nancy and Showell
Osborn own Lot 54, which is adjacent to and west of Lot 55.
The two properties share a common boundary that runs in a straight line north to south.
Trees, shrubs, native bushes, and other vegetation run along a portion of this boundary line. In
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addition to the trees, salal,1 and other vegetation, two fences — one “[o]ld” and “dilapidated” (“old
fence”), and one built more recently (“new fence”) — extended from the back end of the properties
toward the street. Clerk’s Papers (CP) at 164. The old fence stretched approximately halfway down
the boundary line between Lots 55 and 54. This fence did not enclose the rear portion of Lot 54,
but instead appeared to be a “barrier” between the two properties. Id. The new fence was secured
to the old fence boards along the same north to south line. Unlike the old fence, the new fence fully
enclosed the back portion of Lot 54.
On July 6, 2015, Mr. Pokorny heard someone speaking outside his property and upon
investigating, discovered that Dan Bonnell of Bonnell Tree Technicians was speaking on a cell
phone with Mrs. Osborn regarding the trees and bushes along the boundary line. Bonnell gave Mr.
Pokorny the cell phone so that Mr. Pokorny could discuss the issue with Mrs. Osborn, and Mrs.
Osborn explained that she was considering cutting some of the trees and bushes. Mr. Pokorny
stated that he and his wife like the “‘privacy barrier,’” and that they do not want it cut. Id. at 498.
Mr. Pokorny and Mrs. Osborn came to an apparent agreement that the Osborns would trim the
trees on the boundary line to the eight-foot mark but would not engage in more extensive removal
of the vegetation. The Osborns did not retain Bonnell’s services for the project but instead hired
Judd Tree Service to complete the job.
Prior to this conversation, the Osborns and the Pokornys believed the boundary line
between the two lots ran down the length of the old fence, through the vegetation, and toward the
street. After the conversation with Mrs. Osborn, however, the Pokornys decided they should have
1
Salal is a type of leathery-leaved evergreen shrub in the heather family, native to North America.
It grows up to three to four feet tall. CP at 986.
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the precise location of the boundary line surveyed, and they hired a surveyor, Donald Hurd, PLS,
to uncover the corner monuments that demarcate the property lines. The Pokornys did not inform
the Osborns that they had hired a surveyor. Hurd uncovered the Ocean Shores corner monument
that marked the front boundary between the two properties and placed orange flagged rebar next
to the monument. Hurd was scheduled to return on a different day to complete marking and staking
the remaining corners of the Pokorny property.
However, before the survey was completed, on August 1, 2015, the Osborns clear cut,
rather than trimmed, the trees and salal that they believed were on their side of the property line.
At the time of the cutting, the Osborns were not aware that the Pokornys had engaged a
professional surveyor to determine the precise location of the boundary line between the lots or
that the front corner monument had been unearthed.
The completed survey revealed that Lot 55, the Pokorny lot, extended several feet west
onto Lot 54, past the old and new fence, and past the trees, salal, and other vegetation that the
Osborns had cut. The Pokornys filed suit seeking to quiet title to the disputed strip.
The Osborns hired a separate company to survey the boundary between the lots and this
second survey, completed by Berglund, Schmidt & Assoc., Inc., depicted the same boundary line
as the Hurd survey. Both surveys, thus, indicated that the Pokornys’ lot was larger, and the
Osbornes’ lot was smaller, than what the parties previously believed.
The photograph below depicts the disputed strip, flanked on either side by the line claimed
as the “[a]dverse [p]ossession [l]ine” and the surveyed boundary line:
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No. 52949-1-II
Id. at 594.
II. PRIOR OWNERSHIP AND USE OF LOT 54
The Osborns purchased Lot 54 on July 11, 2007 from Justin Millard. Millard purchased
the property from Richard Walter on November 21, 2006. Walter purchased the home in 1990.
A. WALTER’S USE OF LOT 54 FROM 1990 TO 2006
Walter resided in the house on Lot 54 as a primary residence with his wife and children for
16 years. He and his family eventually moved to Colville, Washington in 2006, though he could
not recall the precise date that they moved out of their home in Ocean Shores. The listing
agreement for the property states that the home was vacant on April 21, 2006.
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When Walter initially purchased the house, he attempted to locate the boundaries of his lot.
He found a galvanized pipe on the back corner on the boundary line between Lot 54 and Lot 55,
and he assumed this galvanized pipe was the back corner marker. Walter was unable to find a
similar galvanized pipe marking the front end of the boundary line, but he did locate a utility
pedestal that he assumed was the front corner marker. Walter stretched a string from the galvanized
pipe to the utility pedestal, and he believed that this line represented the boundary between his
property and Lot 55. Walter’s assumption was also based on his understanding that the prior
owners had established the boundary between Lots 54 and 55 in the same location because they
had cleared a pathway that followed this line.
During his deposition related to this lawsuit, Walter was shown a color version of the above
photograph, and he testified that the yellow line, which is labeled “[a]dverse [p]ossession [l]ine”
in the photograph above in Part I, supra, at 5, was consistent with what he believed was the
boundary line the entire time he lived at the property.
During the entire 16 years that Walter lived on Lot 54, he mowed the lawn up to the
perceived boundary line (the so-called adverse possession line) “at least once a week.” Id. at 887.
Almost immediately after moving in, Walter pruned the trees and salal along this perceived
boundary line “at least once a month” for maintenance, and he pruned larger branches using a
chainsaw once a year. Id. at 889. Walter’s children regularly played in the area of the yard along
the perceived boundary line. And Walter constructed a green house in “very close proximity” to
the rear corner galvanized pipe. Id. at 887.
Sometime after Walter initially purchased the home, he stacked driftwood to create a
wildlife barrier along the perceived boundary line and to create a marker for this boundary. To
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construct the barrier, Walter dug postholes along the line and inserted logs into those holes. As
Walter collected more driftwood over several seasons, the fence grew longer, but he never fully
enclosed the property, and the fence never extended all the way out to the street. In all, the fence
along the perceived boundary between Lots 54 and 55 consisted of less than 20 pieces of driftwood
and extended approximately 15 feet from the back of the property toward the street.
While creating a concrete porch in 1996, Walter used the excess concrete from that job to
pour a concrete pad on the eastern side of the house that extended into the now-disputed strip.
Walter used the concrete pad as a washing area for his vehicles. He did not use the pad as a
designated parking area. Walter also used the area between his house on Lot 54 and the perceived
boundary line to access his backyard with his work vehicles because he kept materials related to
his landscaping business in the back of his property. Sometime before Walter installed the concrete
pad, and due to rain in the winter months, Walter placed two lines of rocks near the concrete pad
to enable his vehicles to reach the back of the property without getting stuck. The rocks tend to
“sink into the sand immediately,” and “don’t last very long.” Id. at 888. But the rocks are still in
place and visible in photographs from 2016. Walter accessed his back yard using this area “daily.”
Id. at 896. Walter did not obtain a permit to build a driveway in that area, nor did he intend
specifically to create a driveway along that side of his house.
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For several years, Walter also owned the lot to the west of his home (Lot 53), which he
used to store most of his landscaping materials.2 Although a majority of Walter’s materials were
stored on the lot to the west for several years, Walter used the area along the eastern boundary line
between Lots 54 and 55 to store additional landscaping materials “[c]ontinuously.” Id. at 888.
For most of the time that Walter owned Lot 54, Lot 55 was a vacant property. Walter did
not see any fences on Lot 55 while the property was vacant. Between 2003 and 2005, Jim Moors
and his business partner Bill Green built a house on Lot 55.
Sometime after the house on Lot 55 was built, according to Walter’s recollection, the
owners of Lot 55 constructed a cedar slat fence that extended approximately 20 feet from the
galvanized pipe toward the street.3 Walter took down his driftwood barrier when the owners of Lot
2
The Pokornys assert that Walter owned the lot to the west of his home and used that lot to park
his vehicles and store his business supplies “during most of the years he lived at Lot 54.” Br. of
Appellants at 8. The Pokornys’ assertion appears to be mistaken because Walter stated that he
bought Lot 53 sometime in 2004 or 2005, and that he owned the property for “a short time.” CP at
887. There is no evidence in the record supporting the Pokornys’ assertion, even construing all
reasonable inferences in the light most favorable to the Pokornys.
3
Walter submitted two declarations in this case, one for the Pokornys and one for the Osborns. In
the declaration for the Pokornys, Walter stated that on the date he sold his property in 2006, “there
was no fence in the back yard of my home or along the boundary between my lot and the lot now
owned by the Pokorny family.” CP at 250. But in Walter’s second declaration completed for the
Obsorns, Walter stated that he “did not have a memory of this fence when [he] was presented with
the declaration the Pokornys asked [him] to sign” but that he now believes the fence was there
when he sold his home to Millard. Id. at 514. During his deposition, Walter admitted that when he
was given the first declaration he did not “do a thorough check of [his] memory,” but that as the
lawsuit progressed and he was given the second declaration he “remembered new facts that [he]
hadn’t remembered at the time of the first declaration.” Id. at 904-05. Walter maintained that he
was “absolutely sure” there was a cedar slat fence when he sold the house, and that the fence was
placed along what he perceived as the boundary between Lots 54 and 55. Id. at 891. In any event,
photographs of the disputed area confirm the existence of two fences along the line labeled adverse
possession. Moreover, the parties do not disagree that at some point, there was a partial cedar slat
fence along the adverse possession line.
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55 put up the cedar slat fence. Although Walter did not specifically discuss the boundary line
between the two properties with either owner of Lot 55, he pointed out the galvanized pipe marker
to one of the owners. The owner had been aware of the marker’s location. Walter also saw one of
the owners extend a line from the galvanized pipe to designate where the cedar slat fence would
be built. Walter continued to regularly prune his side of the vegetation on the perceived boundary
line as he had when he initially purchased Lot 54, and the owners of Lot 55 pruned the other side.
B. MILLARD’S USE OF LOT 54 FROM NOVEMBER 21, 2006 TO JULY OF 2007
Millard purchased Lot 54 from Walter through a broker in November of 2006. When
Millard bought the property, he saw “an old cedar fence,” that was in “rough shape.” Id. at 914.
He believed that the boundary between Lot 54 and Lot 55 ran the length of this fence and extended
through a strip of bushes and trees in a straight line toward the street. During his deposition, Millard
was shown the same photograph as Walter from Part I, supra, at 5, which depicted two lines of
rope on either side of the disputed area. Millard, like Walter, identified the yellow line that ran
from the old fence, through the middle of the strip of vegetation, toward the street as what he had
believed represented the eastern boundary between his lot and Lot 55.
Millard and his wife used the concrete pad originally poured by Walter to park vehicles on
the eastern side of the house “[e]very now and then,” when they had guests visiting. Id. at 915.
Millard stored construction materials that he used in his work as a contractor in the back yard of
Lot 54. To reach the materials in the back, Millard drove vehicles across the concrete pad that was
originally poured by Walter “[a]ll the time,” meaning “[a] couple times a week.” Id.
Shortly before Millard sold the property to the Osborns, Millard built a new fence that
completely enclosed the back yard. The Obsorns asked that Millard construct the fence as a request
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No. 52949-1-II
of closing. Millard fixed the new fence posts to the old fence posts and relied on the location of
the old fence to determine where the new fence should be placed.
C. THE OSBORNS’ USE OF LOT 54 FROM JULY OF 2007 THROUGH PRESENT
The Osborns purchased their home in July of 2007 through a broker. When they purchased
the home, they had no concern regarding precisely where the boundary line between Lot 54 and
Lot 55 was located. At that time, the old fence was still in place and extended approximately
halfway between the back end of their property toward the street in front. The Osborns believed
that the old fence line represented the eastern boundary of their property.
Since purchasing their home, the Osborns maintained the grassy area up to the old fence
line by mowing the grass and pruning and cutting the trees and salal. The Osborns completed this
landscape maintenance work on their own, or they occasionally hired professional yard services
to complete the projects. The Osborns also “regularly” parked their cars in the disputed strip and
used the same area to access the backyard. Id. at 340.
III. PRIOR OWNERSHIP AND USE OF LOT 55
Lot 55 was vacant until James Moors and Bill Green partnered to build a house on the
property. Prior to that time, the vacant lot was mainly covered by brush with “perhaps a stunted
Spruce or two.” Id. at 255. Moors sold the home to Anthony and Karen Woodbeck on September
19, 2005. The Pokornys later purchased the home during a foreclosure auction on April 20, 2011.
A. MOORS’S USE OF LOT 55 FROM 2003 TO 2005
Moors and Green formed a joint venture to construct a house on Lot 55 in February of 2003
when they applied for a clearing and building permit for the lot. Moors went out to inspect the
property sometime in 2003, shortly after he first became involved in the project. At that time, an
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No. 52949-1-II
“old rickety” partial fence was visible through the trees. Id. at 958. This fence was on the western
side of Lot 55, the side bordering Lot 54, and it ran north to south.
When shown a photograph of the old fence during his deposition, Moors confirmed that this
was the fence he saw in 2003.4 Id. at 959. Moors assumed that the property line was somewhere
close to this fence. When shown the photograph copied above in Part I, supra, at 5, at a deposition,
Moors testified that the yellow rope “shows where the—the property line looks like it should be,
and it lines up with the fence.” Id. at 959-60.
Moors recalled seeing Walter’s pickup truck parked in the back yard on occasion, though
he could not recall specifically seeing Walter drive a truck into his back yard. Moors also recalled
seeing “tracks in the side of the house that was like a driveway.” Id. at 960.
B. THE WOODBECKS’ USE OF LOT 55 FROM 2005 TO 2010
The Woodbecks purchased Lot 55 in 2005 to use as a rental property. Karen Woodbeck
was a project manager for construction companies and she holds a general contractor’s license in
Washington State.
When Woodbeck first visited the property with her real estate agent sometime in the
summer of 2005, she recalled seeing a fence in “very poor” condition on the western boundary
4
Moors stated in an earlier declaration that “[t]o the best of [his] recollection,” he could not
remember a fence on either Lot 55 or 54 when he sold Lot 55 to the Woodbecks. CP at 257. When
asked about his declaration at a later deposition, Moors explained that since he completed the
declaration, he had done “[a] lot of thinking,” and after “going over and over it” in his memory,
he recalled that there was an old fence along the western boundary of Lot 55. Id. at 962. Regardless,
multiple photographs confirm the existence of two adjacent fences, and the parties do not disagree
about the existence of these fences.
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No. 52949-1-II
that ran from the back of the property towards the street. Id. at 950. Between the street and the end
of the fence was a “bunch of natural vegetation and bushes.” Id. at 934.
Upon being asked to identify what she had then believed was the boundary line between
the two properties in the photograph copied in Part I, supra, at 5, Woodbeck identified the yellow
line that ran from the old fence toward the utility pedestal labeled adverse possession line.
Woodbeck never entered the disputed area while she owned the property. She believed that if she
had hypothetically wanted to cut the vegetation west of the alleged adverse possession line, she
would have had to obtain permission from the owner of Lot 54.
When the Woodbecks purchased the house, Woodbeck asked Green to construct a garage
with a small studio in the back. Woodbeck understood, in her experience as a general contractor,
that an accessory structure like the garage and studio must be set back five feet from the property
line and that nothing can be built within that space.
Green set stakes to mark where the foundation for the garage would be poured, and he set
additional stakes along the perceived boundary line between Lots 54 and 55. To ensure that there
was a sufficient setback, Woodbeck measured the distance between the stake that Green set along
the perceived boundary line and the planned location of the garage.
C. POKORNYS’ USE OF LOT 55 FROM 2011 THROUGH PRESENT
Mr. Pokorny first visited the property on Lot 55 approximately three weeks before he and
his wife purchased the home at a foreclosure auction in April of 2011. Mr. Pokorny intended to do
a brief inspection of the property to see what kind of shape it was in prior to bidding on it, and he
noticed the wooden fence that sat on the line between Lots 54 and 55 was “[w]eathered” and
“aged.” Id. at 967.
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No. 52949-1-II
Immediately after they purchased the property, the Pokornys began to clean trash that was
left by the individuals who had previously rented the home from the Woodbecks. The Pokornys
cleaned cans, bottles, broken toys, dead branches, and a tire from the salal and trees between Lots
54 and 55. Mr. Pokorny walked around to the Osborn side of the hedge while cleaning to get at
debris in the vegetation. This cleaning project took perhaps one or two weekends to complete.
After the initial cleaning project, the Pokornys regularly maintained the salal and other
shrubbery that would creep into their driveway, but they never cut into the salal or trees in the
barrier between Lots 54 and 55. On occasion, and often following a windstorm, the Pokornys
would pick up branches that fell from their oversized evergreen onto the Osborn side of the trees
and salal, but they did not trim or cut any of the bushes and shrubs from the Osborn side.
During Mr. Pokorny’s first visit to the property, before the Pokornys purchased the home
at the auction, he assumed the property line between Lots 54 and 55 was located somewhere in the
tree barrier and followed the line of the old fence. In the three or four months after the Pokornys
purchased the property, they attempted to find the corner markers by using a metal detector in front
of the vegetation on their lot and the Osborn lot and in the back corner where the old and new
fence were connected. The Pokornys did so because they thought that it would be prudent to know
the precise boundary of their property. The metal detector did not reveal any corner markers. On
a separate occasion, the Pokornys had a plat map showing the lots in the cul-de-sac, as well as ball
of twine and a 100-foot tape measure. They intended to use the plat map to determine the distance
between the relative locations of the corner markers. The Pokornys were, again, unsuccessful in
determining precisely where the boundary lines of their property were located at that time. The
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No. 52949-1-II
Pokornys did not discover the true boundary line between their lot and the Osborn lot until they
retained Hurd to conduct a professional survey following the cutting.
The Pokornys used their vacation property approximately one or two weekends a month,
depending on their schedules. In 2013 and 2014, they used the property less frequently, sometimes
staying for only one weekend per month, or going a month without any visits. The Pokornys never
stayed at the house for an entire week.
During some of the Pokornys’ visits, the Osborns were also spending time at their own
vacation home. On occasions when the two couples’ visits to Ocean Shores overlapped, the
Pokornys never saw the Osborns engage in yard maintenance, use the space in between their house
and the old fence and vegetation, or park cars in that area. Mr. Pokorny did not recall seeing the
Osborns use that same space for storage.
IV. PROCEDURAL HISTORY
The Pokornys filed suit on February 25, 2016, seeking an order of ejectment, a declaratory
judgment confirming their fee simple ownership, and to quiet title to the disputed strip. In addition,
the Pokornys’ suit alleged trespass, timber trespass, and sought damages. In answering the
Pokornys’ complaint, the Osborns filed counterclaims seeking a declaratory judgment and to quiet
title to the disputed strip in themselves, alleging that they owned the strip through adverse
possession, mutual recognition and acquiescence, or estoppel in pais.
The Pokornys were the first to move for partial summary judgment on November 9, 2016,
arguing that the trial court should dismiss the Osborns’ mutual acquiescence and recognition and
adverse possession counterclaims. The Osborns filed a cross motion for summary judgment
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arguing that they have acquired title to the disputed property through adverse possession. The
superior court denied both motions.
The Osborns filed a motion for partial summary judgment for a second time on March 9,
2017, arguing that since their last motion, they obtained declarations from prior owners of the
properties that eliminated any remaining questions of fact on their adverse possession claim. The
trial court denied this motion.
On May 14, 2018, the Pokornys again filed a motion for partial summary judgment, seeking
an order of ejectment and to quiet title to the disputed strip, arguing that the trial court should
dismiss the Osborns’ counterclaims on adverse possession, mutual recognition and acquiescence,
estoppel in pais, and declaratory judgment. The Osborns responded by renewing their motion for
partial summary judgment on their adverse possession claim on June 5, 2018.
The trial court held a hearing on the motions on July 16, 2018. On September 18, 2018, the
trial court granted the Osborns’ motion for partial summary judgment and denied the Pokornys’
motion for partial summary judgment. The trial court explained that “[i]t is undisputed” that by at
least September of 2005, “when Woodbeck purchased Lot 55, there was a boundary fence in the
back yard.” Id. at 1171. The trial court also explained that the concrete slab and rocks that Walter
placed in the ground are evidence of regular use of the disputed strip, and that such use satisfied
the elements of adverse possession “long before [September] 2005.” Id. Lastly, the trial court ruled
that the Osborns were entitled to tack their use of the property onto their predecessors in interest.
The Pokornys filed a motion for reconsideration, which the trial court denied. The Osborns
moved to dismiss the Pokornys’ claims in light of the trial court’s ruling on their motion for partial
summary judgment. The trial court granted the Osborns’ motion. The trial court also ordered the
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Pokornys to pay the Osborns’ attorney fees. Lastly, the trial court quieted title to the disputed area
in the Osborns’ favor, free and clear of any claim to the same by the Pokornys, and it amended the
legal description of their respective lots accordingly.
The Pokornys appeal the order quieting title, the order granting attorney fees and costs, the
order dismissing their claims, the order on their motion for reconsideration, and the order granting
the Osborns’ motion for partial summary judgment on adverse possession.
DISCUSSION
I. SUMMARY JUDGMENT STANDARD
We review a trial court’s decision to grant summary judgment de novo. Lakey v. Puget
Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013). We conduct the same inquiry as
the trial court and will affirm an order of summary judgment if there are “no genuine issue[s] of
material fact and the moving party is entitled to judgment as a matter of law.” Lakey, 176 Wn.2d
at 922; CR 56(c). “‘A genuine issue of material fact exists when reasonable minds could differ on
the facts controlling the outcome of the litigation.’” Ehrhart v. King County, 195 Wn.2d 388, 409,
460 P.3d 612 (2020) (quoting Dowler v. Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 485, 258
P.3d 676 (2011)). The facts and all reasonable inferences drawn therefrom are viewed in the light
most favorable to the nonmoving party. Lakey, 176 Wn.2d at 922.
The Osborns argue throughout their brief that our task on review is to determine whether
substantial evidence supports the trial court’s findings on each element of adverse possession.
They are mistaken. The Pokornys appeal from summary judgment, and de novo is the appropriate
standard of review. See id.16
No. 52949-1-II
II. SUBJECT MATTER JURISDICTION
The Pokornys claim that the superior court lacked subject matter jurisdiction to alter the
property boundaries between Lots 54 and 55 because the designated legislative body within the
city of Ocean Shores has exclusive authority to amend plats under RCW 58.17.215. The Pokornys
assert that under this statute, the Osborns were required to first exhaust administrative remedies
by seeking to amend the plat by submitting a request to the city or to Grays Harbor County prior
to raising their adverse possession counterclaim before the superior court.
The Osborns respond that the superior court had original jurisdiction over this action
because the claims raised involved title to and possession of real property. The Osborns contend
that the superior court does not gain or lose subject matter jurisdiction over a claim based on the
action or inaction of a party. The Osborns further counter that they were not required to submit an
application to amend the subdivision from the city prior to raising their adverse possession
counterclaim because RCW 58.17.215 does not apply to this case and because no court has ever
imposed such a requirement on a party seeking to quiet title through adverse possession.
The Pokornys characterize their argument as a challenge to the superior court’s subject
matter jurisdiction to decide the Osborns’ adverse possession claim. However, the Pokornys’
contention is actually a challenge to the superior court’s authority to enter a particular order. We
disagree with the Pokornys; RCW 58.17.215 did not divest the superior court of authority to quiet
title to the disputed strip in the Osborns because that statute does not apply to this case.
A. LEGAL PRINCIPLES
A court must have subject matter jurisdiction to decide a case. In re Estate of Reugh, 10
Wn. App. 2d 20, 43, 447 P.3d 554 (2019), review denied, 194 Wn.2d 1018 (2020). An order
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entered by a court that lacks subject matter jurisdiction is void. Angelo Property Co., LP v. Hafiz,
167 Wn. App. 789, 808, 274 P.3d 1075 (2012). Lack of subject matter jurisdiction may be asserted
for the first time at any point in the proceedings, including on appeal. In re Marriage of
McDermott, 175 Wn. App. 467, 479, 307 P.3d 717 (2013).
A court’s authority or power to rule in a certain way is a distinct issue from whether a court
has subject matter jurisdiction. In re Marriage of Buecking, 179 Wn.2d 438, 447-48, 316 P.3d 999(2013). The Supreme Court has clarified that “[s]ubject matter jurisdiction refers to a court’s ability
to entertain a type of case, not to its authority to enter an order in a particular case.” Id. at 448. If
the court has subject matter jurisdiction to address the type of case, “‘then all other defects or errors
go to something other than subject matter jurisdiction.’” ZDI Gaming, Inc. v. Wash. State
Gambling Comm’n, 173 Wn.2d 608, 618, 268 P.3d 929 (2012) (internal quotation marks omitted)
(quoting Marley v. Dep’t of Labor & Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994)).
B. THE SUPERIOR COURT HAD SUBJECT MATTER JURISDICTION TO ADDRESS ADVERSE
POSSESSION
Here, the matter before the superior court primarily involved the Pokornys’ and the
Osborns’ competing assertions of title to a disputed strip of real property. Under article IV, section
6, the Washington Constitution explicitly sets forth the superior court’s original jurisdiction “in all
cases at law which involve the title or possession of real property.” The Osborns’ adverse
possession claim, as part of the broader property dispute between the neighbors, is a type of
controversy that falls squarely within the superior court’s original jurisdiction as set forth by the
Washington Constitution. Const. art. IV, § 6.
Notably, the Pokornys do not claim that the superior court lacks subject matter jurisdiction
to decide adverse possession claims or boundary disputes as a general matter. Instead, they argue
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that the superior court here did not have jurisdiction to rule in favor of the Osborns on their adverse
possession claim because in so doing, the superior court altered the boundary lines in their
subdivision contrary to RCW 58.17.215, which requires an individual seeking to alter a
subdivision to first submit an application to a legislative authority.
The Pokornys’ assertion that the superior court lacked jurisdiction depends on the trial
court ultimately ruling in favor of the Osborns on their adverse possession claim. Had the trial
court determined instead that the Osborns did not acquire title to the disputed strip through adverse
possession, then the boundary lines would not have been altered and the Pokornys’ subject matter
jurisdiction claim is defeated. Consequently, although the Pokornys frame their contention as a
matter of the superior court’s subject matter jurisdiction, the issue is properly construed as whether
RCW 58.17.215 divests the superior court of authority to amend a boundary line in a subdivision
where the party seeking to amend the boundary did not first submit an application to the
appropriate legislative authority.
C. THE SUPERIOR COURT HAD AUTHORITY TO AMEND THE BOUNDARY LINE BETWEEN THE
OSBORN AND POKORNY PROPERTIES
RCW 58.17.215 does not apply to this case and, therefore, does not divest the superior
court of authority to decide the adverse possession claim because the adverse possession claim
involved a boundary line adjustment between two platted lots and did not result in the creation of
additional lots. RCW 58.17.215 provides in pertinent part,
When any person is interested in the alteration of any subdivision or the altering of
any portion thereof, except as provided in RCW 58.17.040(6), that person shall
submit an application to request the alteration to the legislative authority of the city,
town, or county where the subdivision is located.
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No. 52949-1-II
Under RCW 58.17.215, an application to the legislative authority is not required if the alteration
involves,
[a] division made for the purpose of alteration by adjusting boundary lines, between
platted or unplatted lots or both, which does not create any additional lot, tract,
parcel, site, or division nor create any lot, tract, parcel, site, or division which
contains insufficient area and dimension to meet minimum requirements for width
and area for a building site;
RCW 58.17.040(6).
The Pokornys rely on RCW 58.17.215 to assert that the superior court did not have
authority to amend the boundary between Lots 54 and 55. The Pokornys contend that the RCW
58.17.040(6) exception incorporated into RCW 58.17.215 does not “authorize[] a Washington
court to do anything,” and that therefore it does not render the procedural prerequisite in RCW
58.17.215 inapplicable. Appellants’ Reply Br. at 11. This contention is without merit.
RCW 58.17.040(6) is an exception to the application submission requirement described in
RCW 58.17.215. It follows that if the exception described by RCW 58.17.040(6) applies to the
subdivision alteration in this case, the Osborns were under no obligation to first apply to the local
legislative authority prior to raising their adverse possession claim. The exception to this statute
need not separately grant the superior court authority to alter boundary lines.
RCW 58.17.040(6) applies. In adjusting the boundary between Lots 54 and 55, two platted
lots, the superior court did not create any additional lots or tracts. Therefore, the Osborns were not
required to seek approval from a legislative authority for this type of alteration. See RCW
58.17.215; RCW 58.17.040(6).
The superior court had subject matter jurisdiction to address the Osborns’ adverse
possession claim and the authority to resolve the adverse possession claim in the Osborns’ favor.
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No. 52949-1-II
III. ADVERSE POSSESSION
A. LEGAL PRINCIPLES
Under the doctrine of adverse possession, a person may acquire legal title to another’s land
if they use the land for at least 10 years in a manner that is (1) hostile, (2) actual and uninterrupted,
(3) open and notorious, and (3) exclusive. Gorman v. City of Woodinville, 175 Wn.2d 68, 71, 283
P.3d 1082 (2012) (quoting ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989)). To
satisfy the 10-year requirement, the party claiming adverse possession may rely on the use of a
predecessor in interest. Acord v. Pettit, 174 Wn. App. 95, 103, 302 P.3d 1265 (2013). The burden
of proving each element of adverse possession falls on the claimant. Maier v. Giske, 154 Wn. App.
6, 18, 223 P.3d 1265 (2010).
Once the elements of adverse possession have been satisfied for 10 years, title to the
property vests automatically in the adverse possessor. Gorman, 175 Wn.2d at 72. There is no need
to file a quiet title action in recognition of this fact. Id. at 74. The adverse possessor is not required
to quiet title to the property in order to convey the interest they have acquired through adverse
possession. Nickell v. Southview Homeowners Ass’n, 167 Wn. App. 42, 51, 271 P.3d 973 (2012).
B. ANALYSIS
The Pokornys claim that the trial court erred in granting summary judgment in favor of the
Osborns because genuine issues of material fact exist as to several of the elements of adverse
possession. In particular, the Pokornys argue that the Osborns’ use and their predecessors’ use was
not hostile, actual and uninterrupted, or notorious for the statutory period. The Pokornys do not
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No. 52949-1-II
address whether there are genuine issues of material fact as to the exclusive use element of adverse
possession.5
The Osborns contend that title to the disputed strip vested in Walter sometime in the year
2000. The Osborns argue that Walter’s use of the strip was hostile, actual and uninterrupted,
exclusive, and open and notorious.
We agree with the Osborns that there are no genuine issues of material fact and that the
Osborns are entitled to summary judgment as a matter of law on their adverse possession claim.
Title vested in Walter approximately 10 years after he purchased the property because his use of
the disputed strip satisfied each element of adverse possession.
1. HOSTILE USE
a. Legal Principles
To establish hostile use, the adverse claimant must “‘treat the land as his own as against
the world, throughout the statutory period.’” Ofuasia v. Smurr, 198 Wn. App. 133, 144, 392 P.3d
1148 (2017) (internal quotation marks omitted) (quoting Nickell, 167 Wn. App. at 50). The
claimant’s subjective belief regarding his or her interest in the land is inconsequential; the
claimant’s treatment of the land is the only relevant consideration. Maier, 154 Wn. App. at 19.
If a claimant receives either express or implied permission from the true owner to use the
property, hostile use cannot be established because “permissive use is inconsistent with making
5
In their reply brief, the Pokornys reassert prior arguments regarding notorious and hostile use in
response to the Osborns’ statement that the Pokornys did not challenge the trial court’s finding
regarding exclusive use. However, because the standard of review is de novo, regardless of the
Pokornys’ failure to address the element, we must determine whether a genuine issue of material
fact exists as to this element as well. See Lakey, 176 Wn.2d at 922.
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No. 52949-1-II
use of property as would a true owner.” Teel v. Stading, 155 Wn. App. 390, 394, 228 P.3d 1293(2010). Permissive use may be inferred “when it is reasonable to assume ‘that the use was
permitted by sufferance and acquiescence.’” Miller v. Anderson, 91 Wn. App. 822, 828, 964 P.2d
365 (1998) (quoting Granston v. Callahan, 52 Wn. App. 288, 293, 759 P.2d 462 (1988)).
b. Analysis
Walter maintained the property up to the perceived boundary line in a manner sufficient to
establish hostile use for the statutory period. We have previously held that an adverse claimant
established hostile use where the claimant, “cleared away brush and wild shrubbery,” and
“landscaped, mowed, and maintained the area continuously.” Lingvall v. Bartmess, 97 Wn. App.
245, 254, 982 P.2d 690 (1999). Although planting trees without maintaining them might not be
sufficient evidence of hostile use, Anderson v. Hudak, 80 Wn. App. 398, 404, 907 P.2d 305 (1995),
planting trees, mowing, and maintaining the area around the trees is sufficient. Lingvall, 97 Wn.
App. at 254.
Here, in Walter’s 16 years residing on Lot 54 with his family, he regularly mowed the lawn
and pruned the trees along the so-called adverse possession line depicted in the photograph. Walter
made physical changes to the disputed area by pouring the concrete pad in 1996 and by laying the
lines of rocks to better enable his vehicles to reach the back yard of the property. Walter also
continuously used the area as a place to store his landscaping materials. Shortly after purchasing
the lot, Walter erected the driftwood barrier along the boundary line that grew in size over several
seasons as he collected more driftwood. Although the driftwood barrier consisted of less than 20
pieces, did not enclose the yard, was intended as a barrier for wildlife rather than humans, and did
23
No. 52949-1-II
not extend down the entire boundary line, its construction nevertheless reflects treatment of land
consistent with that of a true owner. See Ofuasia, 198 Wn. App. at 144.
In addition, when Moors and Green began developing Lot 55 in 2003, Walter was still
residing on Lot 54. Moors recalled seeing rock tracks that looked like a driveway in the disputed
strip as well as Walter’s truck parked in the backyard. Moors testified that he had assumed, while
he was developing the property, that the boundary between Lots 54 and 55 was along the adverse
possession line as depicted in the photograph in Part I, supra, at 5.
Woodbeck purchased Lot 55 in 2005, while Walter still resided on the Lot 54. She also
identified the adverse possession line as what she believed was the boundary between the two lots.
She testified that if she had hypothetically wanted to cut vegetation in the area west of the adverse
possession line, she would have had to obtain permission from the owner of Lot 54. Finally, shortly
after purchasing the property, when Woodbeck asked Moors and Green to construct a garage and
studio attachment, Woodbeck ensured that the location of the addition met the five-foot boundary
line setback requirement. She measured the distance for the addition against the adverse possession
line. Taken together, these undisputed facts establish hostile use.
The Pokornys contend that these facts are insufficient to establish hostile use and that a
genuine dispute of material fact remains as to the hostile use element because (1) none of the
owners of Lot 54 used the strip in a manner that would overcome presumptions of permissive use,
and (2) the Osborns made statements that either recognized the Pokornys’ superior title to the strip
or alternatively, that raised an issue of credibility, precluding summary judgment. We disagree.
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No. 52949-1-II
i. Presumptions of Permissive Use
The Pokornys contend that summary judgment was improper because the trial court failed
to address applicable presumptions that the Osborns were required to overcome in order to
establish hostile use. But the “presumptions” on which the Pokornys rely do not apply to this case.
For instance, the Pokornys rely on Scheller v. Pierce County, to argue that there is a
freestanding presumption that an adverse claimant’s possession of disputed property is subordinate
to that of the true owner “‘until a distinct and positive assertion of a right hostile to the owner, and
brought home to him’” transforms a “‘friendly holding into one of an opposite nature.’” Br. of
Appellants at 32 (quoting 55 Wash. 298, 301-02, 104 P. 277 (1909)).6 The Pokornys’ assertion is
incorrect to the extent that it implies that in order to establish hostile use, an adverse claimant is
required to evince a subjective intent to dispossess the true owner of the property. The Supreme
Court has expressly rejected this requirement and held that the only relevant consideration in
determining hostility in an adverse possession claim is whether the claimant “treat[s] the land as
his own as against the world.” Chaplin v. Sanders, 100 Wn.2d 853, 860-61, 676 P.2d 431 (1984).
Any traditional presumptions inconsistent with this description of hostile use no longer apply. Id.
at 861.
The Pokornys also claim that when land is open and vacant, use of that land is presumed
permissive and the adverse claimant has a higher burden of proving otherwise. They argue that
because Lot 55 was vacant until September 2005, the presumption of permissive use was operative
6
Scheller is also inapposite because the claimant in that case sought to convert a license, which
was an express initial permissive use, into a prescriptive easement. 55 Wash. at 301-02. The
language the Pokornys excerpt in their brief refers to the claimants’ burden of proving that the
permissive use terminated and has become adverse.
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No. 52949-1-II
until that time. The Pokornys are correct in that in the context of prescriptive easements, in some
circumstances, including where land is “‘vacant, open, unenclosed, [and] unimproved,’” a
claimant must overcome a presumption of permissive use. Nickell, 167 Wn. App. at 52 (quoting
Nw. Cities Gas Co. v. W. Fuel Co., 13 Wn.2d 75, 83, 123 P.2d 771 (1942)). However, the Pokornys
have not identified any adverse possession cases wherein the court applied this presumption. In
Nickell, we declined to apply the presumption to an adverse possession claim in part because the
land at issue was in a “medium-intensity residential environment,” and also because “although the
law disfavors prescriptive easements, no such disfavor applies to adverse possession of actual
land.” 167 Wn. App. at 52.
Finally, the Pokornys identify a presumption of permissive use that arises “when it is
reasonable to assume ‘that the use was permitted by sufferance and acquiescence.’” Miller, 91 Wn.
App. at 828 (quoting Granston v. Callahan, 52 Wn. App. 288, 294, 759 P.2d 462 (1988)). The
Pokornys do not describe any facts that lead to a reasonable inference of neighborly sufferance
and acquiescence, but they nevertheless claim that this presumption applies to this case and that
the Osborns have failed to overcome it. In addition, this presumption applies to “enclosed or
developed land cases” involving prescriptive easements. Gamboa v. Clark, 183 Wn.2d 38, 44, 348
P.3d 1214 (2015). As the Pokornys recognize, Moors and Green did not begin to develop Lot 55
until 2003, and the Lot was vacant until 2005. The presumption of neighborly sufferance and
acquiescence could not apply until that time. See id. And this case involves a claim of adverse
possession, not a prescriptive easement. Because the title vested as to the disputed strip during
Walter’s ownership of Lot 54, several years before Moors and Green began developing the
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No. 52949-1-II
adjoining lot, and this case involves a claim of adverse possession, this presumption does not
apply.
ii. The Obsorns’ Statements
The Pokornys argue that the Osborns made several comments, including (1) stating that
the “‘[o]ld [f]ence’” belonged to Woodbeck in an email, (2) seeking “permission” from the
Pokornys to trim the trees in the disputed area to eight feet, (3) asking the Pokornys for permission
to allow their painters to cross the disputed area, and (4) offering to purchase the disputed strip,
that negate hostile use because they can be interpreted as recognizing superior title to the property
in the Pokornys. Br. of Appellants at 34. Alternatively, the Pokornys claim the latter three
statements at least raise an issue of credibility that cannot be resolved in summary judgement. We
disagree with both arguments.
Because title to the disputed strip vested automatically in Walter on expiration of the 10-
year period, and his interest to the strip was conveyed to subsequent owners, statements that the
Osborns made approximately 15 years later are irrelevant and do not undermine evidence of
Walter’s hostile use. See Gorman, 175 Wn.2d at 72, 74. The Pokornys’ credibility claim fails for
the same reason. Because title vested in Walter sometime in the year 2000, whether the Osborns
made statements that could be interpreted as indicating that they did not own the disputed strip
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No. 52949-1-II
many years later is not material to the issue of Walter’s hostile use. See Laguna v. Wash. State
Dep’t of Transp., 146 Wn. App. 260, 266, 192 P.3d 374 (2008).7
2. ACTUAL AND UNINTERRUPTED
a. Legal Principles
To acquire title to property by adverse possession, the claimant must have actual and
uninterrupted possession of the disputed property for the statutory period. Ofuasia, 198 Wn. App.
at 143. “To interrupt adverse possession, there must be actual cessation of the possession.” Id. at
144. Once title has been acquired by an adverse possessor upon expiration of the 10-year period,
there is no need for a subsequent title holder to perfect the interest in a quiet title action, and the
interest is automatically conveyed. Gorman, 175 Wn.2d at 74.
If, however, the statutory period has not expired, a claimant may “tack” his or her use to
that of a predecessor in interest provided that there is a “reasonable connection between the
successive occupants that will raise their claim of right above the status of wrongdoer or
trespasser.” Ofuasia, 198 Wn. App. at 144. “Where there is privity between successive occupants
holding continuously and adversely to the true title holder, the successive periods of occupation
may be tacked to each other to compute the required 10–year period of adverse holding.” Roy v.
Cunningham, 46 Wn. App. 409, 413, 731 P.2d 526 (1986).
7
The Pokornys’ claim that the Osborns’ statements demonstrate that the Osborns recognized the
Pokornys’ superior title to the strip, defeating the hostile use element of adverse possession, is
without merit. The Osborns never claimed that they, as opposed to the Pokornys, owned the old
fence. Disclaiming ownership of the old fence is distinct from recognizing the Pokornys’ title to
the strip of property west of the old fence. In addition, the remaining statements were made after
the tree cutting incident either in an effort to settle the dispute or to maintain the status quo while
the dispute regarding the strip was adjudicated.
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No. 52949-1-II
b. Analysis
The Pokornys claim that the Osborns have failed to establish continuous possession of the
strip because Walter “abandon[ed]” the property 203 days before he sold it to Millard, and Millard
vacated the property for 68 days before it was sold to the Osborns. Br. of Appellants at 35. The
Pokornys assert that these breaks in occupancy constitute actual cessation of possession
interrupting the statutory period. The Pokornys claim that at minimum, the issue of whether these
breaks are significant enough to interrupt possession should be submitted to the finder of fact.
The Osborns contend that because title automatically vested in Walter, and there is no
dispute that he had actual and uninterrupted possession of the property between 1990 and 2006,
this element of adverse possession is satisfied. In the alternative, the Osborns claim the periods of
vacancy between selling the property do not constitute cessation of possession.
Because Walter lived on the property for longer than 10 years, his use of the strip during
this time was actual and uninterrupted. Shortly after Walter purchased Lot 54, he attempted to
uncover the boundary between his Lot and Lot 55. Since that time, Walter assumed that the
boundary line ran between his back corner monument and the utility pedestal. Walter’s use of the
property up to that boundary line was consistent for the 16 years he lived on Lot 54. There is no
evidence that Walter’s possession was interrupted. The Pokornys’ contention regarding the periods
during which the property was unoccupied between Walter’s sale of the property to Millard, and
Millard’s sale of the property to the Osborns is therefore immaterial and does not create a triable
issue of fact.
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No. 52949-1-II
3. OPEN AND NOTORIOUS USE
a. Legal Principles
To establish the open and notorious use element of adverse possession, the evidence must
demonstrate “use consistent with ownership.” Acord, 174 Wn. App. at 104. That is, use and
occupancy of the disputed property must “be like that of a true owner, considering the land’s nature
and location.” Id. A claimant can satisfy the open and notorious element by showing either that
the title owner had actual notice of the adverse use throughout the 10-year period or that the
claimant used the land such that any reasonable person would have thought they owned it. Ofuasia,
198 Wn. App. at 143-44.
In Riley v. Andres, we held that the use of a disputed strip of land was open and notorious
where the adverse claimants planted flowers, maintained the landscaping by watering and pruning
plants, spreading beauty bark, and pulling weeds, and that those uses were typical for the land’s
nature and location. 107 Wn. App. 391, 397, 27 P.3d 618 (2001). In Acord, the court concluded
that the adverse claimants’ actions in cutting trees and firewood were “consistent with the character
and nature of the property” as forested property, demonstrating open and notorious use. 174 Wn.
App. at 109.
b. Analysis
The Pokornys argue that genuine issues of material fact persist as to the open and notorious
use element of adverse possession because the disputed strip was actually on Lot 55, which was
vacant. Thus, they assert that more evidence of open and notorious use is required than the “[o]ld
[f]ence,” the concrete pad, the rocks in the driveway, and Walter’s storage of landscaping materials
on the disputed strip. Br. of Appellants at 39. The Osborns respond that every owner used the
30
No. 52949-1-II
disputed strip like a true owner, considering the land’s nature and location, thereby demonstrating
open and notorious use. We agree with the Osborns that Walter’s use was open and notorious for
the statutory period.
Relying on Hunt v. Matthews, the Pokornys assert that “[g]reater use of a vacant lot would
be required to be notorious to an absentee owner than to one occupying the land who would
observe an offensive encroachment daily.” Br. of Appellants at 38 (quoting 8 Wn. App. 233, 237,
505 P.2d 819 (1973) (overruled on other grounds by Chaplin, 100 Wn.2d at 861)). There, the court
held that to demonstrate open and notorious use of a lot, a claimant’s use “must be made with
sufficient obtrusiveness to be unmistakable to an adversary, not carried out with such silent civility
that no one will pay attention.” Hunt, 8 Wn. App. at 236.
The Pokornys claim that Walter’s use does not satisfy the standard set forth in Hunt because
there is no evidence that anyone ever saw the landscaping materials he stored on his property, and
pruning vegetation and installing rocks and boulders that disappear into the sand likewise does not
warn the true owner of a potentially offensive encroachment. However, the fact that there is no
evidence that someone actually saw Walter’s landscaping materials stored along the boundary does
not negate the fact that had someone seen the material, it would have been sufficiently obtrusive
so as to establish open and notorious use. See id. Moreover, beyond maintaining the landscape,
mowing the area up to the boundary line, and placing rocks, Walter also poured a concrete pad
which permanently altered the landscape, and he erected a partial barrier of driftwood along the
boundary line. Considered individually these actions might not be sufficient to establish open and
notorious use of vacant land, but taken together, they go beyond acts “carried out with such silent
civility that no one will pay attention.” See id.31
No. 52949-1-II
The Pokornys argue that the trial court erred in relying on the old fence as evidence of open
and notorious use because the fence was dilapidated, and it did not enclose the property. However,
the trial court did not actually rely on the old fence as evidence of open and notorious use. Instead,
the trial court’s discussion of the fence in its ruling was limited to describing the fence as a common
reference point marking the boundary between Lots 54 and 55. Even if the trial court relied on
evidence regarding the old fence, we are not bound by the trial court’s reasoning on review of an
order granting summary judgment. Lakey, 176 Wn.2d at 922.
There is no genuine dispute of material fact regarding Walter’s open and notorious use of
the disputed strip. His use and occupancy of the disputed property was consistent with that of a
“true owner, considering the land’s nature and location.” Acord, 174 Wn. App. at 104. Walter used
the land in a manner such that any reasonable person would have thought that he owned it. Ofuasia,
198 Wn. App. at 143-44.
4. EXCLUSIVE POSSESSION
a. Legal Principles
Exclusive possession is established when the claimant possesses the disputed property as
an owner would. Crites v. Koch, 49 Wn. App. 171, 174, 741 P.2d 1005 (1987). Possession need
not be “absolutely exclusive,” but it must “be of a type that would be expected of an owner under
the circumstances.” Id. Important considerations include, “what use an owner would make,” which
is informed by “the nature and location of the land.” Id.b. Analysis
The Pokornys do not address this element of adverse possession. But the Osborns argue
that other than the Pokornys, none of the owners of Lot 55 ever challenged Walter’s, Millard’s, or
32
No. 52949-1-II
the Osborns’ possession of the disputed strip. The Osborns claim that the record does not
demonstrate any evidence that someone other than the Osborns or their predecessors in interest
used the disputed property.
The Osborns’ and their predecessors’ use of the disputed strip was exclusive. Aside from
Mr. Pokorny’s deposition testimony wherein he stated that when he first purchased Lot 55, he
spent approximately two weekends cleaning out debris from the trees and salal between the lots
left by Woodbeck’s renter, and that he occasionally retrieved branches that fell from the evergreen
in his yard onto the Osborns’ side of the perceived boundary line, there is no evidence that any
other individual used the disputed property. There is also no evidence in the record that someone
other than Walter used the disputed strip during the statutory period in which title to the strip vested
in Walter. For that 10-year period, undisputed facts demonstrate that Walter possessed the property
in a manner expected of an owner under the circumstances. See id.There is no genuine dispute of material fact as to any of the elements of adverse possession.
Title to the strip vested in Walter and was conveyed to his successors in interest. The Osborns are
entitled to summary judgment on their adverse possession claim.
IV. BOUNDARY LINE DETERMINATION
A. LEGAL PRINCIPLES
To determine where a boundary line exists when deciding an adverse possession claim,
“[t]he court need not find a ‘blazed or manicured trail’ establishing the disputed boundary; rather,
the court may project a line between objects where it is reasonable and logical and the claimant’s
use of the land was open and notorious.” Riley, 107 Wn. App. at 396 (quoting Lloyd v. Montecucco,
83 Wn. App. 846, 853–54, 924 P.2d 927 (1996)). The court also need not determine the precise
33
No. 52949-1-II
square yard possessed by the adverse claimant in order to establish a boundary, but it may instead
“create a penumbra of ground around areas actually possessed when reasonably necessary to carry
out the objective of settling boundary disputes.” Lloyd, 83 Wn. App. at 853-54.
B. ANALYSIS
The Pokornys contest the trial court’s decision to set the boundary on the line extending
from the rear corner monument, through the position of the old fence, through the trees, salal, and
other vegetation, down to the street in front of the property. They assert that the trial court
improperly relied on the old fence when determining the location of the boundary line because
there was no mutual agreement between the parties establishing the fence as the boundary, the
fence did not exclude the abutting owner, and most importantly, there was “profound confusion
among the witnesses as to what fence existed or when it existed.” Br. of Appellants at 44. In
addition, the Pokornys argue that the trial court erred when it extended the boundary line through
the trees and salal in a straight line from the Osborns’ fence down to the street because including
this area is not reasonably necessary to settle the boundary dispute.
The Osborns respond that the trial court’s determination of the boundary line was proper
because it was consistent with the impression of every prior owner of Lot 54 or Lot 55 and with
the nature and character of the adverse use. We agree. The trial court did not err in locating the
boundary line using the old fence line as a marker and extending the line to its logical end at the
street.
The Pokornys rely on Thomas v. Harlan, 27 Wn.2d 512, 178 P.2d 965 (1947), to assert that
in order to establish the old fence as a boundary line, the Osborns were required to demonstrate an
agreement with the Pokornys that this fence represented a boundary between their lots. However,
34
No. 52949-1-II
Thomas involved a boundary dispute where the parties asserted that a fence represented a boundary
line on the basis of mutual recognition and acquiescence. 27 Wn.2d at 519. To establish a boundary
on a theory of mutual recognition and acquiescence, an agreement as to the boundary is required.
Id. But here, the boundary dispute was resolved under a theory of adverse possession and no such
agreement is necessary.
The Pokornys further claim that a fence cannot establish a boundary unless it is effective
in excluding the abutting owner, relying on Wood v. Nelson, 57 Wn.2d 539, 541, 358 P.2d 312(1961). This inquiry is relevant for determining when the existence of a fence constitutes prima
facie evidence of hostile possession up to that fence. Id. But this rule does not preclude a trial court
from using a fence as a boundary marker where adverse possession has been established up to that
fence by other facts. The trial court here used the old fence as a boundary marker rather than as
evidence of hostile use.
Finally, the Pokornys contend that the fence cannot be used to establish a boundary
between the lots because unresolved questions remain regarding what the fence consisted of, when
the fence was built, and who constructed the fence. However, a court may delineate a boundary
between objects where it is reasonable and logical, and the claimant’s use of the land was open
and notorious. Riley, 107 Wn. App. at 396. Open and notorious use of the land going up to the
fence was established on other facts as discussed above. In addition, it is undisputed that Walter,
Millard, the Osborns, Moors, Woodbeck, and the Pokornys each recognized that the fence existed,
testified to its location, and described their impression (at least initially) that this fence represented
the boundary to the lots. The fence, therefore, represents a “reasonable and logical” marker for the
purpose of illustrating the boundary between the lots.
35
No. 52949-1-II
The Pokornys separately assert that, even if they accept the fence as a boundary marker,
there is no “reasonable explanation” for extending the adverse possession line from the end of the
fence, all the way through the middle of the trees and salal, down to the street. Br. of Appellants
at 45. The Pokornys would have the trial court terminate the boundary line where the old fence
ends and quiet title to the Pokornys in the remaining portion of the disputed strip as designated by
the survey. However, courts are entitled to delineate a boundary as is reasonably necessary to settle
boundary disputes. Lloyd, 83 Wn. App. at 853. A court may project a straight line between objects
and avoid a jagged boundary. Id. at 853-54. The Pokornys’ construction would result in a jagged
line that prevents the Osborns from accessing and making use of the property they acquired title
to through adverse possession. Consequently, the trial court did not err in following the long-
accepted boundary between the two lots to establish the adverse possession line.
V. DENIAL OF THE MOTION FOR RECONSIDERATION
A. LEGAL PRINCIPLES
A trial court’s decision on a motion for reconsideration will only be reversed if the trial
court abused its discretion. Rivers v. Wash. State Conf. of Mason Contractors, 145 Wn.2d 674,
685, 41 P.3d 1175 (2002). “‘A [trial] court abuses its discretion when its decision is manifestly
unreasonable, or exercised on untenable grounds or for untenable reasons,’ namely, when the court
‘relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong
legal standard, or bases its ruling on an erroneous view of the law.’” Kelley v. Centennial
Contractors Enterprises, Inc. 169 Wn.2d 381, 386, 236 P.3d 197 (2010) (alteration in original)
(quoting Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483, 494, 145 P.3d 1196 (2006)).
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B. ANALYSIS
The Pokornys argue that the trial court abused its discretion when it denied their motion
for reconsideration because it failed to consider applicable law regarding presumptions of
permissive use that applied to the Osborns’ adverse possession claim. The Pokornys assert that
this alleged failure constitutes an erroneous view of the law. In effect, the Pokornys reassert claims
raised in their argument pertaining to the hostile use element of adverse possession.
We disagree, because as discussed above, the presumptions of permissive use do not apply
to this case. Moreover, the Pokornys do not provide any evidence that the trial court declined to
consider the presumptions.
VI. DISMISSAL OF THE POKORNYS’ CLAIMS
The Pokornys argue that because the trial court erred in granting the Osborns’ motion for
summary judgment, the trial court likewise erred in dismissing their remaining claims on that basis.
We disagree because the trial court did not err in granting summary judgment in favor of the
Osborns. As explained above, dismissal of the Pokornys’ claims, which were all predicated on a
claim of title to the strip and the trees and shrubs that grew on the strip, was proper.
VII. ATTORNEY FEES BELOW
The Pokornys ask that we reverse the trial court’s order awarding attorney fees to the
Osborns. They assert that because the Osborns are not entitled to summary judgment, they are not
the prevailing party below and they are not entitled to attorney fees pursuant to RCW 7.28.083(3).
Because the trial court did not err in granting the Osborns’ motion, the trial court likewise did not
err in awarding attorney fees.
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VIII. ATTORNEY FEES ON APPEAL
Both parties request attorney fees on appeal. In an action asserting title to real property by
adverse possession, RCW 7.28.083(3) authorizes an appellate court to award costs and reasonable
attorney fees to the prevailing party “if, after considering all the facts, the court determines such
an award is equitable and just.” See also Workman v. Klinkenberg, 6 Wn. App. 2d 291, 308-09,
430 P.3d 716 (2018).
It is equitable and just in this case to award the Osborns attorney fees on appeal as the
prevailing party. The Osborns did not initiate the lawsuit but raised adverse possession as a
counterclaim in their defense, and the Osborns have successfully defended the trial court’s order
granting summary judgment on that claim. We award the Osborns attorney fees associated with
this appeal in an amount to be determined by a commissioner of this court.
CONCLUSION
We hold that the trial court had subject matter jurisdiction to address the Osborns’ adverse
possession claim, as well as authority to resolve the claim in their favor. We further hold that the
Osborns are entitled to summary judgment because there are no genuine disputes of material fact
as to any of the elements of adverse possession. We also hold that the trial court properly
determined the boundary between the two lots based on the position of the old fence and other
evidence. Finally, the trial court did not err in its order on the motion for reconsideration, order on
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dismissal of the Pokornys’ claim, and order awarding attorney fees. We award the Osborns their
reasonable attorney fees on appeal.
Accordingly, 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 in accordance with RCW 2.06.040,
it is so ordered.
CRUSER, J.
We concur:
LEE, C.J.
GLASGOW, J.
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