John W. Lebleu, et ux v. David W. Aalgaard, et ux

FILED
MARCH 24, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JOHN W. LEBLEU and ROLA M. )
LEBLEU, husband and wife, ) No. 32908-9-111
)
Respondents, )
)
v. )
) PUBLISHED OPINION
DAVID W. AALGAARD and LOUELLA )
A. AALGAARD, husband and wife, )
)
Appellants. )
SIDDOWAY, C.J. -In determining whether a person has acquired title to real
property through adverse possession, the fact that he or she was given permission to
occupy land by the true title owner will operate to negate the essential element of
hostility. But in the case of a failed parol agreement to adjust a boundary line, the fact
that the true title owner agreed that his neighbor would own whatever land fell on the
neighbor's side of the agreed line does not negative the element of hostility. As some
authorities have put it, parties can agree to a nonowner's use ofland that is adverse.
Accordingly, while an oral agreement that David Aalgaard reached with the
Aalgaards' former neighbor as to their shared property line is not enforceable, the
existence of that agreement does not detract from the Aalgaards' evidence that following
the 1993 agreement, they adversely possessed an area on which they built a home and
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outbuildings and lived for 20 years. Because the undisputed evidence demonstrates that
the Aalgaards have satisfied the elements of adverse possession to at least some of the
property held of record by John and Rola LeBleu, we reverse the trial court's order
granting summary judgment to the LeBleus and remand for further proceedings
consistent with this opinion.
FACTS AND PROCEDURAL BACKGROUND
In September 1991, Eric and Kim Deno purchased approximately 20 acres of
property in Chattaroy. At that time, their seller-who had retained property to the
north-walked the property with Mr. Deno and showed him the location of the property's
boundary lines.
In June 1993, the same seller sold his remaining parcel north of the Deno property
(also approximately 20 acres) to Dave and Louella Aalgaard. Shortly thereafter, Mr.
Deno and Mr. Aalgaard walked and measured their respective properties and established
a boundary line that Mr. Deno described as
a straight line defined by our agreement as to the location and physical
monuments and features between our respective parcels. The line ran from
a 90° comer then down along the center of a natural gully dividing our
parcels.
Clerk's Papers (CP) at 341. Mr. Deno describes their agreement on the boundary line as
"important," because he planned to assist the Aalgaards in building the home on their
property. Id.
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Following the men's agreement on the property line, the Aalgaards began building
their home "at least 50 feet, if not more from the common boundary line" they had
established. Id. The foundation of the Aalgaards' home was placed with Mr. Deno's
assistance. With the help of Mr. Deno, the Aalgaards finished building their home in
1994. They later installed a water line, a propane tank, a barn, a woodshed, and a shop
on the property, "approximately 30 feet from the agreed boundary line." CP at 308.
In 2012, John and Rola LeBleu bought the property formerly owned by the Denos.
In November 2013, Bruce Larsen ofLandtek LLC was engaged to perform a survey and
discovered that the Aalgaards' home, barn, and shed were located on the LeBleus'
property. In preparing his survey map, he drew "clearing limits," which he describes as
"the area that is out of the woods and appeared to be used by the Aalgaards." CP at 211.
He measured the area as containing approximately 0.61 acres.
The LeBleus brought suit against the Aalgaards a month later, seeking possession
of all the property to which the LeBleus held record title and an injunction requiring the
Aalgaards to remove their improvements. The Aalgaards counterclaimed, asking that the
court quiet title to the disputed property in them based on multiple theories, including
parol agreement, acquiescence, and adverse possession.
Both sides moved for summary judgment, which the trial court granted in the
LeBleus' favor. In ruling on the adverse possession claim, the court reasoned that the.
hostility element could not be shown because the Aalgaards used the property with Mr.
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Deno's permission. The court quieted title in the LeBleus, ejected the Aalgaards, and
ordered them to remove their house, barn, and shed from the property within 30 days.
Upon the Aalgaards' filing of a notice of appeal, the court stayed its order of
ejectment.
ANALYSIS
To establish a claim of adverse possession, a party's possession of property must
be: (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile and
under a claim of right. Chaplin v. Sanders, 100 Wash. 2d 853, 857, 676 P.2d 431 (1984).
All of these elements must exist concurrently for at least 10 years. RCW 4.16.020.
Because courts presume that the holder of legal title is in possession, "the party claiming
to have adversely possessed the property has the burden of establishing the existence of
each element." ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 757, 774 P.2d 6 (1989).
The only element of adverse possession that the LeBleus claim is not established
by the Aalgaards is that of hostility. Hostility "' does not import enmity or ill-will.'"
Chaplin, at 857 (quoting King v. Bassindale, 127 Wash. 189, 192, 220 P. 777 (1923)).
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.
Id. at 860-61.
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The Aalgaards treated the property as their own; they constructed a home and
other significant improvements. "The construction and maintenance of a structure
partially on the land of another almost necessarily is exclusive, actual and uninterrupted,
open and notorious, hostile and made under a claim of right." Draszt v. Naccarato, 146
Wash. App. 536, 542, 192 P.3d 921, (2008) (citing Reitz v. Knight, 62 Wash. App. 575, 582,
814 P .2d 1212 (1991) ). Professor Stoebuck has suggested that the most useful general
test of hostility is whether "[ c]onsidering the character of possession and the locale of the
land, is the possession of such a nature as would normally be objectionable to owners of
such land?" 17 WILLIAM B. STOEBUCK & JOHN w. WEA VER, WASHINGTON PRACTICE:
REAL ESTATE: PROPERTY LAW§ 8.12, at 526 (2d ed. 2004) (citing People's Sav. Bank v.
Bufford, 90 Wash. 204, 155 P. 1068 (1916)). Normally, constructing a home,
outbuildings, and·infrastructure on a neighbor's residential parcel would be highly
objectionable.
In the trial court, the LeBleus successfully invoked the presence in this case of
"permission." But permission to do what? Mr. Aalgaard and Mr. Deno indisputably
reached an agreement in 1993. But before equating an agreement with permissive use
that will negate the element of hostility, one must consider the agreement.
Washington cases hold that permissive use of the sort that will negative hostility
and prevent adverse possession is use based on a personal, revocable license from the
true title owner. E.g., Miller v. Anderson, 91 Wash. App. 822, 829, 964 P.2d 365 (1998);
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Teel v. Stading, 155 Wash. App. 390, 395, 228 P.3d 1293 (2010); Cranston v. Callahan, 52
Wash. App. 288, 294, 759 P.2d 462 (1988) (citing BLACK'S LAW DICTIONARY 1298 (rev.
4th ed. 1968)). If there is no explicit agreement but only unobjected-to use, it is
reasonable to infer a personal revocable license. But where there is an explicit
agreement, it can be agreement to something that is different from "permission" in this
sense. It can be agreement to adverse use, such as an agreement to a permanent boundary
line. 1
A leading treatise explains:
[I]t appears reasonably safe to say that a use is adverse if not accompanied
by any recognition, in express terms or by implication, of a right in the
landowner to stop such user now or at some time in the future. The
recognition of the landowner's right to put an end to the user precludes any
presumption, from his failure to assert such right, that no such right exists.
When the owner undertakes to confer upon another a perpetual right
of user in the land, but fails to do so in a valid manner, as when he makes
an oral grant of an easement, the user of the land by such other in
accordance with the terms of the invalid grant cannot be regarded as
permissive and in subordination to the rights of the landowner, but is in
effect adverse to such rights. Such a case is analogous to that of the
possession of land under an invalid conveyance thereof, which is ordinarily
adverse to the grantor. The user of the land under such circumstances
involves no recognition of any right as remaining in the grantor.
1
We need not address a disagreement over whether the Aalgaards have changed
their position on appeal as to whether Mr. Aalgaard and Mr. Deno were attempting in
1993 to find the actual property lint;, or were simply settling on an agreed line. It does
not matter to our analysis.
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4 HERBERT THORNDIKE TIFFANY, THE LAW OF REAL PROPERTY§ 1196 (3d ed. 1975)
(footnotes omitted).
Washington cases dealing with prescriptive easements are in accord. In Lechman
v. Mills, 46 Wash. 624, 91 P. 11 (1907), the evidence showed that a predecessor owner of
land had verbally granted an easement for a water ditch across his land. The purported
grantee constructed the ditch and then used it in an exclusive, open, notorious and hostile
manner for a period sufficient to acquire a prescriptive right. In rejecting the title
holder's argument that use of the ditch had been permissive, the court observed that
evidence supported the trial court's finding that the agreement made "was not a mere
revocable license or permission to occupy, but that it was intended to operate as a grant."
Id. at 628. Such an agreement could not be equated with permissive use:
[T]he use was not deprived of its adverse character or rendered merely
permissive for the purposes of the statute of limitations, by a showing that it
was preceded by an oral agreement amounting in terms to a grant but void
under the statute of limitations.
"It is generally agreed that use of an easement under claim of right
by virtue of a parol grant, may be adverse so as to give it title by
prescription, although the parol grant itself is void under the statute of
frauds." 22 Am. & Eng. Ency. Law (2d ed. [1902]), p. 1198, and cases
cited.
Id. at 629.
A Washington adverse possession case also illustrates the difference between
agreement to a permissive use and agreement to an adverse use. In Beck v. Loveland, 3 7
Wash. 2d 249, 222 P.2d 1066 (1950), overruled on other grounds by Chaplin, 100 Wash. 2d at
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861 n.2, neighboring landowners, not wanting to incur the cost of a survey, agreed on a
tentative fence line but with the understanding that it was subject to correction by a
survey. The tentative nature of the agreement was decisive in the court's analysis:
[The grantor, Chapman] never varied from his testimony to the effect that
he and his grantee, Powell, never intended that either one of them would
claim any land beyond the north and south center line of the quarter section,
and that the line of the north and south fence which the parties erected was
only tentatively agreed upon as the boundary line between their properties
and was always subject to correction if a survey demonstrated that the fence
was not along the true line referred to in the deed.
Id. at 254. Inasmuch as the mutual permission given was only to occupy and use any
land that fell on the other party's side of the fence until a survey established the true line,
the occupation and use of unowned land was not hostile. When a survey later revealed
that the fence encroached on the land of a successor to one of the parties, he was entitled
to take it down. The court explained that the result would have been different had the
nature of the agreement been different:
In order to prevail in the case at bar, it would be necessary for
appellants, who acquired title to their property in 1947, to show that
Powell, their predecessor in interest, had maintained possession, at least for
a considerable period, of the strip in question while claiming to own it.
This claim is clearly not supported by the testimony, including that of
witnesses called by appellants.
Id. at 259 (emphasis added).
Here, the declarations of Mr. Aalgaard and Mr. Deno do not reveal an agreement
that was tentative and subject to correction by any future survey. Their declarations state
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that they were "establish[ing,]" "agree[ing,]" and "defin[ing]" their common boundary
line. CP at 307, 272. In support of their alternative theory of parol agreement, the
Aalgaards argued to the trial court that they and the Denos were uncertain as to the true
boundary line between their properties, and therefore made a "permanent agreement,
clearly specifying where the boundary line was located." CP at 335. Even the court
observed that the 1993 agreement was more like the foundation of a parol agreement or
acquiescence claim (although those theories failed because the Aalgaards could not prove
a clearly marked boundary) because in a "classic adverse possession case," you wouldn't
have "two parties go out and say, by golly, this is the line." Verbatim Report of
Proceedings (VRP) at 28.
The failure of the parol agreement did not prevent the Aalgaards from acquiring
title by adverse possession to the extent that, for at least 10 years following the oral
agreement, they possessed land on their side of the agreed line exclusively, actually and
uninterruptedly, openly and notoriously, hostilely and under a claim of right. Chaplin,
100 Wash. 2d at 857. Mr. Deno's agreement that the Aalgaards would own whatever fell on
their side of the agreed property line does not negative the element of hostility-
arguably, it strengthens the adverse possession claim. A similar example is offered by
Professor Stoebuck:
Suppose one neighbor says to the other, "I think my fence, and part of my
rockery, shrubbery, and lawn may be over a few feet onto your side," and
the other replies, "Okay." Did one seek, and the other grant, permission?
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If "okay" meant only, "I know you are an adverse possessor," that should,
if anything, strengthen the adverse possession by insuring that it was
"notorious."
17 STOEBUCK ETAL., supra,§ 8.12, at 527. Cf Robertv. Perron, 269 Mass. 537, 169
N.E. 489, 490 (1930) (possession pursuant to an understanding that recognizes no further
right in the owner and amounts to an assurance that owner will not interfere with
possession now or ever, is, for adverse possession purposes, adverse, not permissive);
·accord Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951) (citing Robert, 269
Mass. 537).
The lawyer for the LeBleus nonetheless urged us at oral argument that our view
cannot be reconciled with Granston, Miller and Teel. We disagree.
Granston involved two brothers who knowingly constructed a barn, corral,
driveway and walks on each other's waterfront properties, and were found to have done
so permissively. Because a permissive use ends when the licensor dies (here, the brothers
had passed), the appellate court concluded that rights their children claimed by adverse
possession in large part failed. Moreover, the court held that because the use had been
permissive, testing hostility by whether the permitted user treats the property as his own
(e.g., by building a structure) is not helpful. 52 Wash. App. at 293. "[A] different set of
rules applies when the initial use is permissive." Id.
The critical first step, then, is to determine whether the initial use is permissive. In
Granston, the court noted that a finding of permissive use is supported by evidence of a
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close, friendly relationship or family relationship and found it significant that the
brothers'
affection for each other and completely open, cooperative, and trusting
lifestyles were completely consistent with an implied permission by each to
the other to use his property and the improvements freely.
Id. at 295. The court held that the facts before it demonstrated "a clear, almost
indisputable, case of permissive use." Id.
Here, by contrast, Mr. Deno and Mr. Aalgaard had no preexisting relationship or
family relationship. By the LeBleus' admission, the position of the two men was that
"they did not know where [the boundary line] was so they made a permanent agreement,
clearly specifying where the boundary line was located, which resolved the uncertainty."
Br. of Resp't at 12.
Miller and Teel also involve use of an owner's property that was established to be
permissive at its inception but that neighbors claimed became adverse thereafter-in
Miller, through a change in title, and in Teel, through a distinct change in use. Because
the LeBleus have treated "agreement" in this case as synonymous in every case with
"permissive use," they assume that some distinct, post-1993 notice by the Aalgaards of
adverse use was required but is lacking.
For reasons stated, we reject the premise that Mr. Aalgaard's and Mr. Deno's
initial agreement was that each family would have permissive use of the land on its side
of the agreed line. The undisputed evidence is of an agreement that each family would
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own the land on their side of the agreed line-perpetual, exclusive use, necessarily
adverse. Because the agreement in this case was for mutually adverse use at its
inception, no notice of a distinct change in use was required.
There remains the issue of the proper boundary line between the parties' property
based on the Aalgaards' adverse possession. Mr. Larsen's depiction of "clearing limits"
in his survey is one piece of evidence. But the trial court correctly recognized that the
boundary line established by adverse use remains a question of fact, to be determined
based on the use and occupancy of the character that a true owner would assert in view of
the property's nature and location. VRP at 24-25; Chaplin, 100 Wash. 2d at 861-63.
We reverse and remand for proceedings consistent with this opinion.
WE CONCUR:
Fearing, f
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FEARING, J. ( concurring) - I concur in the ruling and the rationale behind the
ruling of the majority. I write separately to encourage the state legislature or state high
court to renovate and simplify Washington's doctrine of adverse possession. Adverse
possession suffers from archaic and confusing terms. Through the years, the doctrine has
garnered a proliferation of inconsistent and overlapping elements.
As illustrated by this appeal, few legal doctrines cause more confusion than the
doctrine of adverse possession. This confusion arises from a dogmatic attachment to a
four-part test by Washington courts. The four-part test employs antiquated and muddled
words and phrases.
Under Washington case law, the adverse possession doctrine generally
encompasses four elements: (1) open and notorious, (2) actual and uninterrupted,
(3) exclusive, and (4) hostile. Gorman v. City of Woodinville, 175 Wash. 2d 68, 71, 283
P.3d 1082 (2012). The four-part test results from the compulsion of scholars and judges
to make lists of elements and to unnecessarily organize the law. Excessive organization
leads to disorder, since human activity does not lend itself to compartmentalization.
Note that at least two of the elements, (1) open and notorious and (2) actual and
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uninterrupted, have two components with the result that the doctrine actually comprises
six factors. When one adds the requirement of ten years, the doctrine adopts a seventh
element. One Washington decision outlines the doctrine of adverse possession with five
elements: a party must show that her possession of the claimed property was (1) for ten
years, (2) exclusive, (3) actual and uninterrupted, (4) open and notorious, and (5) hostile.
Harris v. Urell, 133 Wash. App. 130, 136, 135 P.3d 530 (2006).
Although not critical, the order of the elements changes from decision to decision.
Courts variously restate the test as: the claimant must show possession that has lasted for
ten years and that is (1) exclusive, (2) actual and uninterrupted, (3) open and notorious,
and (4) hostile. Acord v. Pettit, 174 Wash. App. 95, 103, 302 P.3d 1265 (2013). To prove
adverse possession, the claimant must prove that he possessed the disputed area in a
manner that was (1) exclusive, (2) open and notorious, (3) hostile, and (4) actual and
uninterrupted for the statutory period of ten years. Teel v. Stading, 155 Wash. App. 390,
393-94, 228 P.3d 1293 (2010). The adverse possession doctrine generally encompasses
four elements: (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and
(4) hostile. Gorman v. City of Woodinville, 175 Wash. 2d at 71 (2012).
Other restatements of adverse possession by Washington courts include: the
claimant must show use that was open, notorious, continuous, uninterrupted, and adverse
to the property owner for the prescriptive period of ten years: Cole v. Laverty, 112 Wn.
App. 180, 184, 49 P.3d 924 (2002). This statement of the law separates all elements and
adds the constituents "continuous" and "adverse." The decision does not explain if
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"continuous" means something other than "uninterrupted."
The doctrine of adverse possession formerly required that the claimant take
possession in "good faith" and not recognize another's superior interest. Dunbar v.
Heinrich, 95 Wash. 2d 20, 23, 622 P.2d 812 (1980); Wickert v. Thompson, 28 Wash. App.
516, 518, 624 P.2d 747 (1981), overruled by Chaplin v. Sanders, 100 Wash. 2d 853, 676
P.2d 431 (1984). In Chaplin v. Sanders, 100 Wash. 2d 853, 860-62, 676 P.2d 431 (1984),
the Evergreen State high court discarded the element of good faith. Now the claimant's
subjective belief regarding his or her true interest in the land and his or her intent to
dispossess or not dispossess another is irrelevant to the determination of adverse
possession.
In Shelton v. Strickland, 106 Wash. App. 45, 50, 21 P.3d 1179 (2001), this court
listed an added element of "claim of right" when declaring: to establish ownership of a
piece of property through adverse possession, a claimant must prove that his or her
possession of the property was: (1) open and notorious, (2) actual and uninterrupted, (3)
exclusive, (4) hostile and under a claim of right, (5) for a period often years. Despite this
exposition of the law, the Supreme Court likely eliminated the element "claim of right" in
Chaplin v. Sanders, 100 Wash. 2d at 857, when the court jettisoned good faith as an
element. This court, in Lilly v. Lynch, 88 Wash. App. 306, 312, 945 P.2d 727 (1997),
proclaimed that "a claim of right made in good faith" remains an element of adverse
possession and cites Chaplin v. Sanders for this proposition despite the Supreme Court
decision overruling good faith as an element thirteen years previous.
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Words used to enunciate adverse possession's four elements do not carry their
contemporary, ordinary meanings. "Notorious" erroneously suggests that only Al
Capone or James Traficant can take property by adverse possession. Nevertheless,
"notorious possession," as applied to the adverse holding of land, only means that the
claimant's claim of ownership is evidenced by such acts and conduct sufficient to put a
man of ordinary prudence on notice of the fact that the land in question is held by the
claimant as his own. Skoog v. Seymour, 29 Wash. 2d 355, 362, 187 P.2d 304 (1947),
overruled on other grounds by Chaplin v. Sanders, 100 Wash. 2d 853 (1984). "Hostile"
improvidently suggests that only Attila the Hun or Muammar Qaddafi can claim adverse
possession. Yet, hostility is not personal animosity or adversarial intent. Herrin v.
O'Hern, 168 Wash. App. 305, 310-11, 275 P.3d 1231 (2012). "Exclusive" does not mean
"exclusive" in adverse possession jurisprudence but only exclusive to the extent one
would expect of a titled property owner under the circumstances. Harris v. Urell, 133
Wash. App. at 138 (2006).
Despite being combined into one element the terms "actual" and "uninterrupted"
are distinct concepts. Actual possession is established only if possession is of such a
character as a true owner would make considering the nature and location of the land in
question. Young v. Newbro, 32 Wash. 2d 141, 144-45, 200 P.2d 975 (1948), overruled on
other grounds by Chaplin v. Sanders, 100 Wash. 2d 853 (1984). One could possess
property as the true owner periodically rather than uninterruptedly.
Open and notorious denote distinct concepts. "Open" has many definitions, but
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the meaning befitting adverse possession is: "completely free from concealment: exposed
to general or particular perception or knowledge." WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 1579 (1993). "Notorious" means: "widely and unfavorable
known or discussed for something reprehensible or scandalous or for some negative
quality or trait." WEBSTER'S, supra, at 1545.
Despite discrete meanings, Washington courts unify the two constructs of "open"
and "notorious" as if the words are synonyms. The open and notorious requirement is
met if ( 1) the true owner has actual notice of the adverse use throughout the statutory
period, or (2) the claimant uses the land so that any reasonable person would assume that
the claimant is the owner. Chaplin v. Sanders, 100 Wash. 2d at 863 (1984); Anderson v.
Hudak, 80 Wash. App. 398, 404-05, 907 P.2d 305 (1995). No Washington case
distinguishes between "notorious" and "open."
Hostility remains an element of adverse possession. The element of hostility
became problematic in this appeal. Hostility requires that the claimant treat the land as
his own as against the world throughout the statutory period. Chaplin v. Sanders, 100
Wash. 2d at 860-61; Nickell v. Southview Homeowners Ass 'n, 167 Wash. App. 42, 50, 271
P.3d 973 (2012). Hostility is not personal animosity or adversarial intent, 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 Wash. App. at 311
(2012).
When courts illuminate the meaning of the various elements of adverse
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possession, the meanings correspond. In other words, the elements meld. "Actual"
possession is the exercise of dominion over the land in a manner consistent with actions a
true owner would take. ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 759, 774 P.2d 6
(1989). "Exclusive" is defined similarly to "actual," despite exclusive being an element
distinct from actual. Exclusive possession denotes acts indicative of true ownership
during the statutory period. ITT Rayonier, Inc. v. Bell, 112 Wash. 2d at 759-80 (1989). In
order to be exclusive for purposes of adverse possession, the claimant's possession need
not be absolutely exclusive, but the possession must be of a type that would be expected
of an owner under the circumstances. Harris v. Urell, 133 Wash. App. at 138 (2006);
Crites v. Koch, 49 Wash. App. 171, 174, 741 P.2d 1005 (1987). "Open and notorious"
possession also denotes use of the land as if the claimant is the owner. Chaplin v.
Sanders, 100 Wash. 2d at 863 (1984); Bryant v. Palmer Coking Coal Co., 86 Wash. App. 204,
211-12, 936 P.2d 1163 (1997). "Hostile" requires a showing that the claimant treated the
land as his own for the statutorily required period. Acord v. Pettit, 174 Wash. App. at 104
(2013).
Since all of the four traditional elements of adverse possession lead to the same
end of showing possession of the property as if the true owner, the law would benefit by
streamlining the doctrine. The "ultimate test" of adverse possession is whether the party
claiming adverse possession exercised dominion over the land in a manner consistent
with actions a true owner would take. ITT Rayonier, Inc. v. Bell, 112 Wash. 2d at 759;
Timberlane Homeowners Ass'n, Inc. v. Brame, 79 Wash. App. 303, 309-10, 901 P.2d 1074
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(1995). The doctrine could be encapsulated in one understandable sentence: possession
is adverse when the claimant possesses the property for ten years as the true owner would
and asking no permission for such use. Kunkel v. Fisher, 106 Wash. App. 599, 602, 23
P.3d 1128 (2001). Such a rule may need refinement in individual circumstances, but, for
the most part, the rule suffices. Because of the loose use of words and phrases, the four
to seven habitual elements of adverse possession have unnecessarily led to volumes of
cases explaining the law of adverse possession. The fixed elements do little, if anything,
to add to the core test of adverse possession other than to add a jungle of mumble.
The evidence on appeal shows that appellants Aalgaard, at least for a portion of
the disputed land, possessed the land as the true owner. Dave Aalgaard may have sought
cooperation from Eric Deno to establish the boundary line, but Aalgaard did not ask
permission in the sense that he sought Deno's consent to use Deno's property.
Psychology, history, and case law provide no anecdotes of one neighbor granting another
neighbor permission to build a home in part on the first neighbor's property.
I also question whether the law should protect one who intentionally steals
another's property by exclusive possession over ten years and whether adverse
possession should apply to undeveloped land. Neither of these factors are present here.
The Aalgaards honestly believed they owned the land on which they built improvements,
including their home, and the Supreme Court likely approved the theft of property in the
landmark decision of Chaplin v. Sanders, 100 Wash. 2d 853 (1984). The Aalgaard and
Deno property had previously been designated as residential property and lay in a
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No. 32908-9-111
LeBleu v. Aalgaard
condition of development.
I CONCUR:
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