Curley v. Mountford
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 23170-1-II
Title of Case: James Curley, App.
v.
Paul & Lynnae Mountford, Res.
File Date: 07/09/1999
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Kitsap County
Docket No: 95-2-03158-9
Judgment or order under review
Date filed: 03/13/1998
Judge signing: Hon. Jay B. Roof
JUDGES
------
Authored by J. Dean Morgan
Concurring: Karen G. Seinfeld
Elaine M. Houghton
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Anna M. Laurie
Sanchez Paulson etal
4110 Kitsap Way Ste 200
Bremerton, WA 98312
Counsel for Respondent(s)
Charles K. Wiggins
Attorney At Law
241 Madison Ave N
Bainbridge Is, WA 98110
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JAMES CURLEY, No. 23170-1-II
Appellant,
v.
PAUL C. MOUNTFORD and LYNNAE B. UNPUBLISHED OPINION
MOUNTFORD, husband and wife,
Filed:
Respondents.
MORGAN, J. -- James Curley sued Paul and Lynnae Mountford to quiet title in
a small triangle of beach and tidelands. The trial court awarded title to
the Mountfords on the basis of adverse possession. We affirm.
Curley has owned lot 1 since 1968. His mother owned it before that.
According to a survey, lot 1 includes the disputed triangle of beach and
tidelands.
Since acquiring lot 1, Curley has rented it to tenants. He has
visited it about twice a month to do maintenance and yard work.
From 1963 to 1976, Philip Jann owned lot 35, which adjoins lot 1 to the
east. Like lot 1, it is a beachfront lot. Jann moored a buoy in front of
the property and picked oysters on the beach. He also placed tires on the
beach in an apparent effort to grow oysters. He believed that lot 35
included the disputed triangle.
In 1976, Jann sold lot 35 to the Mountfords. The Mountfords already owned
and resided on lot 34, a beachfront lot immediately east of lot 35, and
they incorporated lot 35 into their existing grounds. Like Jann, they
believed that lot 35 included the disputed triangle.
From 1976 to at least 1986, the Mountford family1 used the beach and
tidelands in front of lots 34 and 35, including the disputed triangle.
According to the trial court's findings of fact, Paul Mountford installed a
swimming platform from spring until fall every year; he dumped yard waste
at low tide; he maintained the beach continuously by cleaning up debris;
the Mountford family had bonfires and picnics on the beach; and Paul
Mountford used the beach for skeet shooting during hunting season.
In late 1987 or 1988, Curley and the Mountfords began disagreeing over who
owned the disputed triangle. On October 12, 1995, Curley filed suit to
quiet title. The Mountfords responded by claiming adverse possession. On
March 10, 1998, after a bench trial, the trial court accepted the
Mountfords' claim of adverse possession and entered judgment accordingly.
Curley raises three issues on appeal. (1) Did the Mountfords fail to prove
the actual, exclusive, and hostile elements of adverse possession because
"they did not show that their uses of the disputed tidelands were
sufficiently permanent and non-permissive?" (2) Did the Mountfords fail to
prove the exclusive element of adverse possession because "they did not
show that their uses of the disputed tidelands were not matters of public
right, under the Public Trust Doctrine?" (3) Did the Mountfords fail to
prove the hostile element of adverse possession because "they did not show
that the adverse uses in question actually took place on {Curley's}
property?"2
I.
Curley first claims that the Mountfords failed to prove the actual,
exclusive, and hostile elements of adverse possession because "they did not
show that their uses of the disputed tidelands were sufficiently permanent
and non-permissive."3 We disagree.
A person claiming adverse possession has the burden of showing possession
that is (1) open and notorious, (2) actual and uninterrupted, (3)
exclusive, and (4) hostile and under a claim of right made in good faith.4
These elements must exist concurrently for a period of at least 10 years.5
Whether known facts amount to adverse possession is a question of law
reviewed de novo.6 Whether disputed facts exist is reviewed for
substantial evidence.7
Although Curley now contends that the Mountfords failed to prove the
actual, exclusive and hostile elements of adverse possession, he did not
contest the actual possession element at trial.8 Accordingly, we review
whether the Mountfords' possession was (a) exclusive and (b) hostile.9
a. Exclusive possession.
Curley contends that the Mountfords' possession was not exclusive for the
statutory period because other people commonly used the beach, and because
he was visiting the property twice per month. The test of exclusive
possession is whether the claimant exercised dominion over the land in a
manner consistent with the actions a true owner would take.10 The evidence
needed to meet this test will vary according to the nature, character,
locality and ordinary uses of the property in issue.11 The test may not be
met by evidence showing shared occupancy, yet it may be met by evidence
showing that the claimant permitted others to use the property as a
"neighborly courtesy" consistent with custom and practice in the community.12
In other words, "occasional, transitory use by the true owner usually will
not prevent adverse possession if the uses the adverse possessor permits
are such as a true owner would permit a third person to do as a 'neighborly
accommodation.'"13
In Lilly, the court addressed whether the evidence of exclusive possession
was sufficient. The disputed property was a boat ramp lying between the
parties' properties. According to the true owner, the adverse possessor
could not prove exclusive possession because the adverse possessor had
permitted the true owner to use the boat ramp. Finding a question of fact,
the court held that the adverse possessor would not be precluded from
proving exclusive possession merely because he had treated the true owner
as a friendly neighbor.
In Frolund, the court addressed factual circumstances similar to those
here. Each party claimed a wedge of waterfront property between their
beachfront lots. The court said:
{T}he evidence reveals that the children of the parties, as well as those
of other neighbors, played about and over the various neighborhood beach
areas with no more than the usual parental approval and restraint, and that
the parties themselves occasionally, socially, and casually visited back
and forth, and sometimes assisted one another in the performance of various
work projects, e.g., beaching the swimming raft for winter storage. Such
conduct, under the circumstances, denotes neighborliness and friendship.
It does not amount to a subordination of defendants' adverse claim to the
disputed wedge . . . .{14}
In ITT Rayonier, by way of contrast, the court addressed the use of
tidelands on which the adverse possessor had moored his houseboat. The
true owner had also moored his houseboat on the same property, for a period
longer than the adverse possessor. Although the adverse possessor had made
some improvements, his "shared and occasional use of the property simply
did not rise to the level of exclusive possession indicative of a true
owner for the full statutory period."15
Viewed in the light most favorable to the Mountfords,16 the evidence
produced at trial shows that the Mountfords possessed the disputed triangle
in the same manner as an owner would ordinarily possess beachfront
property. They used the triangle to moor a swimming raft, for picnics and
parties, for the disposal of yard waste, and for skeet shooting. They
cleaned it of debris. Curley did not use it often enough to create a
shared occupancy situation. We find no error in the trial court's ruling
that the Mountfords proved exclusive possession.
b. Hostile Possession.
Noting that beachfront owners normally allow everyone to use "everyone
else's beach," Curley argues that he impliedly permitted the Mountfords to
use the disputed triangle. As a result, he says, their use was not
hostile.
The Supreme Court discussed the hostility element in Chaplin v. Sanders.17
It said:
The "hostility/claim of right" element of adverse possession requires only
that the claimant treat the land as his own as against the world throughout
the statutory period. The nature of his possession will be determined
solely on the basis of the manner in which he treats the property. His
subjective belief regarding his true interest in the land and his intent to
dispossess or not dispossess another is irrelevant to this determination.
{Citation omitted.} Under this analysis, permission to occupy the land,
given by the true title owner to the claimant or his predecessors in
interest, will still operate to negate the element of hostility.
Viewed in the light most favorable to the Mountfords, the evidence
produced at trial supports inferences that the Mountfords treated the land
as their own for the statutory period; that they believed the triangle was
part of their property; and that they used it as a true owner would have.
Accordingly, we find no error in the trial court's ruling that the
Mountfords proved their use was hostile rather than permissive.
II.
Curley next claims that the Mountfords failed to prove the exclusivity
element of adverse possession because "they did not show that their uses of
the disputed tidelands were not matters of public right, under the Public
Trust Doctrine."18 We disagree.
When land is periodically submerged and exposed by the tide, riparian
owners may prevent others from trespassing on it while it is exposed.19 The
public, however, has the right to use the water over it while it is
submerged.20 The public trust doctrine "prohibits the State from disposing
of its interest in the waters of the state in such a way that the public's
right of access is substantially impaired, unless the action promotes the
overall interests of the public."21
Curley argues that when the Mountfords used the water over the disputed
triangle for swimming and boat mooring, they were exercising their rights
as members of the public, and not adversely possessing. The record
supports inferences either way, although we agree with the trial court that
the inference favoring adverse possession is stronger. Here, then, the
public trust doctrine does not alter the analysis already set forth.
III.
Lastly, Curley contends the Mountfords failed to prove the hostility
element of adverse possession because they failed to show that they
actually used the disputed triangle. This is really a claim that the
Mountfords did not actually possess, and that element was not contested
below.22 Additionally, it is disposed of by findings of fact XI, XIV, XV,
XVII, to which no error is assigned on appeal; being verities, they
establish that the Mountfords' various uses of the property took place in
the disputed triangle.23 Finally and most importantly, the Mountfords'
testimony supports the trial court's findings.
In conclusion, we hold that the record supports each element of adverse
possession, and that the trial court did not err by ruling as it did.
Affirmed.
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.
Morgan, P.J.
We concur:
Seinfeld, J.
Houghton, J.
1 The Mountfords had four children that ranged in ages from 3-13 when, in
1970, they moved into their residence on lot 34. The children had many
friends who used the beach and the tidelands in the summers.
2 Appellant's Brief at 2.
3 Appellant's Brief at 2, 12.
4 ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989);
Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984); Lilly v.
Lynch, 88 Wn. App. 306, 312, 945 P.2d 727 (1997).
5 RCW 4.16.020; Chaplin, 100 Wn.2d at 857; Lynch, 88 Wn. App. at 312.
6 ITT Rayonier, 112 Wn.2d at 758; Peeples v. Port of Bellingham, 93 Wn.2d
766, 771, 613 P.2d 1128 (1980), overruled on other grounds, Chaplin, 100
Wn.2d at 862; Bryant v. Palmer Coking Coal Co., 86 Wn. App. 204, 210, 936
P.2d 1163, review denied, 133 Wn.2d 1022 (1997).
7 Bryant, 86 Wn. App. at 210.
8 Clerk's Papers at 24-25; Clerk's Papers at 79.
9 RAP 2.5(a); Wilson v. Steinbach, 98 Wn.2d 434, 440, 656 P.2d 1030 (1982);
Peoples Nat'l Bank v. Peterson, 82 Wn.2d 822, 829-30, 514 P.2d 159 (1973).
10 ITT Rayonier, 112 Wn.2d at 759; Lilly, 88 Wn. App. at 313.
11 ITT Rayonier, 112 Wn.2d at 759; Frolund v. Frankland, 71 Wn.2d 812, 817,
431 P.2d 188 (1967), overruled on other grounds, Chaplin, 100 Wn.2d at 862.
12 See ITT Rayonier, 112 Wn.2d at 758-59; Frolund, 71 Wn.2d at 818-19;
Lilly, 88 Wn. App. at 313-14.
13 Lilly, 88 Wn. App. at 313 (quoting 17 William B. Stoebuck, Washington
Practice-Real Estate: Property Law sec. 8.19 at 516 (1995)).
14 Frolund, 71 Wn.2d at 818-19.
15 ITT Rayonier, 112 Wn.2d at 759-60.
16 Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 261, 840 P.2d 860 (1992) (in
determining the sufficiency of the evidence, we view the facts in the light
most favorable to the prevailing party below); Bott v. Rockwell Int'l, 80
Wn. App. 326, 328, 908 P.2d 909 (1996).
17 100 Wn.2d at 860-62.
18 Brief of Appellant at 17.
19 Wilbour v. Gallagher, 77 Wn.2d 306, 314-15, 462 P.2d 232 (1969).
20 Wilbour, 77 Wn.2d at 315.
21 Weden v. San Juan County, 135 Wn.2d 678, 698-99, 958 P.2d 273 (1998)
(quoting Rettkowski v. Department of Ecology, 122 Wn.2d 219, 232, 858 P.2d
232 (1993)); Ralph W. Johnson et al., The Public Trust Doctrine and Coastal
Zone Management in Washington State, 67 WASH. L. REV. 521, 524 (1992)).
22 RAP 2.5(a); Wilson, 98 Wn.2d at 440; Peoples Nat'l Bank, 82 Wn.2d at 829-
30.
23 Davis v. Dep't of Labor and Indus., 94 Wn.2d 119, 123, 615 P.2d 1279
(1980); In re Burkland's Estate, 8 Wn. App. 153, 155, 504 P.2d 1143, review
denied, 82 Wn.2d 1002 (1973).