Paul Michel, Et Ano, V. City Of Seattle

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
PAUL MICHEL and ANN MICHEL, ) No. 82073-7-I
husband and wife; JOHN W. MERRIAM ) consolidated with
and BRENDA K. WALKER, husband ) No. 82074-5-I
and wife, )
)
Respondents, )
)
v. )
)
CITY OF SEATLE, a Washington ) PUBLISHED OPINION
municipality, d/b/a SEATTLE CITY )
LIGHT, )
)
Appellant. )
)
VERELLEN, J. — When the legislature enacted RCW 7.28.090, it shielded
municipal “lands held for any public purpose” against being taken by adverse
possession. The common law rule of nullum tempus occurrit regi (no time runs
against the king) shields only those lands used in a governmental capacity and is
narrower than this statutory immunity because RCW 7.28.090 prevents the loss of
municipal lands actually being used or planned for use to provide any direct or
indirect benefit to the public.
The trial court granted summary judgment against the City of Seattle (City)
and allowed portions of its land to be taken by adverse possession. It concluded
the land could be taken by adverse possession because it was used for a
proprietary purpose and so was not held in a governmental capacity. The trial
court should have applied the broader statutory “held for any public purpose” test.
No. 82073-7-I/2
On de novo review, we conclude that the City holds title to the entirety of
tract 44 and that RCW 7.28.090 applies and shields the disputed property from
adverse possession by the homeowners.
Therefore, we vacate the trial court’s order and remand for further
proceedings in accordance with this opinion.
FACTS
In the early 1900s, the Wenzlers and the Mehlhorns owned tract 44, a long,
100-foot wide lot adjacent to Echo Lake in Shoreline, as appears below. In 1905,
they executed a “right of way deed” in favor of the Seattle-Everett Interurban
Railway Company, letting it use tract 44 as a railway. 1 If tract 44 stopped being
used as a railway, then ownership would revert to the original owners and their
heirs or assigns. Over the next 25 years, ownership of tract 44 changed
numerous times. In 1939, it stopped being used as a railway. In 1945, it was
conveyed to the Puget Sound Power & Light Company. And in 1951, Puget
Sound Power & Light conveyed tract 44 to the City, which managed the tract
through Seattle City Light.
By 2018, the lots adjacent to tract 44 had been subdivided and developed.
Married couples, the Michels2 and the Merriams3 (homeowners), lived on
neighboring lots between Echo Lake and tract 44. The homeowners’ fenced front
1 Clerk’s Papers (CP) at 445.
2 Paul and Ann Michel.
3 We refer to John Merriam and Kaye Walker as “the Merriams,” which the
trial court did as well.
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No. 82073-7-I/3
yards, the disputed properties, are located in tract 44. The nearest street runs
along tract 44. A map appears below, identifying the homeowners’ properties and
tract 44.
In June of 2018, the City sent a letter to the Michels stating their fence and
other “encroachments” on tract 44 had to be removed.4 It sent a similar letter to
the Merriams in October of 2018. The Michels and the City did not negotiate a
solution. In November, the City removed most of the Michels’ fence. The
4 CP at 174.
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No. 82073-7-I/4
homeowners filed separate quiet title actions against the City, alleging they
possessed their fenced front yards. The City counterclaimed in each case,
seeking to quiet title and eject the homeowners. The cases were consolidated.
During discovery, the homeowners learned of the restrictive 1905 right-of-
way deed and moved for partial summary judgment on the City’s ability to claim
ownership of tract 44 by deed. The court agreed, dismissing the City’s
counterclaims except to the extent they were based on adverse possession by the
City.5
Following discovery, the parties filed amended complaints. The Michels
brought claims for adverse possession, quiet title, and for a prescriptive easement
for access against the City and all putative owners. 6 They also brought claims for
trespass and conversion against the City. The Merriams brought claims for
adverse possession and for a prescriptive easement for access against the City
and all putative owners. The City brought claims for adverse possession against
the homeowners and against any heirs or assigns of the original owners of
tract 44.
The parties filed cross motions for summary judgment. The City argued
that it took the entirety of tract 44 by adverse possession and that RCW 7.28.090
barred the homeowners from adversely possessing the disputed property because
it was using the land for a public purpose. The homeowners contended that the
5 The City does not seek review of this decision.
6
Because the 1951 conveyance was ineffective, the heirs and assigns of the
Wenzlers and Mehlhorns were joined as defendants. Most did not appear. The
sole heir/assign who actively litigated is not a party to this appeal.
4
No. 82073-7-I/5
City did not take their fenced yards by adverse possession because it “has never
occupied or even used [them]”7 and that the City’s land was not shielded from
adverse possession because, as a matter of law, a municipality providing utility
services is not acting in a governmental capacity.
The court concluded that the City adversely possessed tract 44 as of 1961,
except for the disputed properties.8 It concluded the City had not held tract 44 in a
governmental capacity, so RCW 7.28.090 did not shield it from being adversely
possessed. The court held the Merriams took title to their disputed property in
1963, and the Michels took title to their disputed property in 1974. It also granted
both homeowners prescriptive easements for access.9 The City filed a motion for
reconsideration, which the court denied.
The City appeals.
ANALYSIS
When parties file cross motions for summary judgment, questions of law
determine the outcome if there are no genuine issues of material fact. 10 We
engage in de novo review of the trial court’s rulings.11 Determinations by the trial
7 CP at 1220.
8 CP at 1395.
9 CP at 1395-96.
10Tiger Oil Corp. v. Dep’t of Licensing, State of Wash., 88 Wn. App. 925,
929-30, 946 P.2d 1235 (1997).
11Lakehaven Water & Sewer Dist. v. City of Fed. Way, 195 Wn.2d 742, 752,
466 P.3d 213 (citing Watson v. City of Seattle, 189 Wn.2d 149, 158, 403 P.3d 1(2017); Okeson v. City of Seattle, 150 Wn.2d 548, 78 P.3d 1279 (2003)), affirmed,
195 Wn.2d 742 (2020).
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No. 82073-7-I/6
court are not entitled to any deference.12
The core question raised on appeal is whether the City is shielded by
RCW 7.28.090 from the homeowners’ claims of adverse possession to their
fenced yards, the disputed portions of tract 44.13 The homeowners argue the
statute is inapplicable because of its narrow scope or because the City did not use
tract 44 for a public purpose. But, as a preliminary matter, we address the
homeowners’ contention that the City never acquired ownership of the disputed
properties.
The homeowners challenge the City’s claim that it acquired title to the
disputed properties by adverse possession as of 1961. Specifically, they argue an
adverse possessor has actual and exclusive possession of a disputed property
only when they have actual, physical possession,14 and the City “never established
exclusive possession of the portions of [tract] 44 occupied by the Michels and the
Merriams and their predecessors” because it “never possessed the area inside the
[homeowners’] fence line.”15 The homeowners do not dispute that the City took
title to the rest of tract 44 by adverse possession.
A person claiming adverse possession under RCW 4.12.020 must prove
they “possess[ed] the property for at least 10 years in a manner that is ‘(1) open
12 Brinkerhoff v. Campbell, 99 Wn. App. 692, 699, 994 P.2d 911 (2000).
13 The homeowners do not dispute that the City adversely possessed the rest
of tract 44. Michel Resp’t’s Br. at 25.
14 Merriam Resp’t’s Br. at 24.
15 Michel Resp’t’s Br. at 25.
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and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile.’” 16 The
homeowners’ narrow arguments challenge only the elements of actual and
exclusive possession.17
The homeowners misconstrue the meanings of “possession” and
“exclusive,” and they cite no authority requiring physical occupation of the entirety
of a disputed property to prove “actual” and “exclusive” use. While “it is not
possible to be in adverse possession without physical occupation,”18 “[t]he ultimate
test is the exercise of dominion over the land in a manner consistent with actions a
true owner would take.”19 “Adverse possession must be as exclusive as one
would expect of a titled property owner under the circumstances.”20 “[T]he
exclusivity element means that an adverse possessor may not share possession
of the area claimed with the true owner and, though less critical, not too much with
third persons who are there without the adverse possessor’s consent.”21
The City has maintained a continuous physical presence on tract 44 since
1951, using it for electrical distribution with power poles. Nothing shows the City
16Gorman v. City of Woodinville, 175 Wn.2d 68, 71-72, 283 P.3d 1082(2012) (quoting ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989)).
17 The homeowners’ arguments are expressly limited to whether the City
lacked physical possession and control over the entirety of tract 44. Michel Resp’t’s
Br. at 23; Merriam Resp’t’s Br. at 28-30.
18
17 W ILLIAM B. STOEBUCK AND JOHN W. WEAVER, W ASHINGTON PRACTICE:
REAL ESTATE: PROPERTY LAW § 8.9, at 517 (2d ed. 2004).
19 ITT Rayonier, 112 Wn.2d at 759.
20Harris v. Urell, 133 Wn. App. 130, 138, 135 P.3d 530 (2006) (citing Crites
v. Koch, 49 Wn. App. 171, 174, 741 P.2d 1005 (1987)).
21 17 STOEBUCK AND W EAVER, supra, § 8.19, at 541 (emphasis added).
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No. 82073-7-I/8
shared possession of tract 44 with the “true owners,” the Wenzlers, the Mehlhorns,
and their heirs or assigns. The City consented to third persons’ uses of tract 44 for
road access, recreation, parks, and trails. Although possession of tract 44 was not
literally exclusive, as the homeowners would require, the record shows the City
managed the land as a true owner would under the circumstances.
Tract 44 is a 100-foot wide parcel that cuts off the Michels’ and Merriams’
properties from the road. In 1951, the City took possession of and actively
managed the uses of tract 44. It granted permits, charging only a nominal fee, to
the homeowners’ predecessors for use of tract 44 to garden and access the road.
The temporary permits issued in the 1950s and 1960s did not prohibit the
construction of fences, driveways, or temporary structures, such as a shed. The
City required that it be allowed to access the homeowners’ property within tract 44
“at all reasonable times” to ensure compliance with the permitted uses.22 And, as
discussed in more detail below, the City managed other third parties’ access to
and uses of tract 44, including lake access, fishing, and other recreation.
From 1951 to 1961, the City physically occupied tract 44 and exercised
exclusive control over it, managing third parties’ uses. The City exercised
dominion and control over the entirety of tract 44 as a true owner would. Because
the City took the entirety of tract 44, including the portions within the homeowners’
fence lines, the trial court erred by concluding the City did not take title to the
disputed properties.
22 CP at 754.
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No. 82073-7-I/9
Next, we turn to the core question: Whether the City was shielded from the
homeowners’ claims that they adversely possessed the disputed areas after the
City took title to all of tract 44.
We review issues of statutory interpretation de novo.23 Statutes are
interpreted to “‘ascertain and carry out the [l]egislature’s intent.’”24 If a statute’s
meaning is plain and unambiguous, “then the court must give effect to that plain
meaning as an expression of legislative intent.”25 “To interpret a statute’s plain
language, we examine the text of the statute, ‘as well as the context of the statute
in which that provision is found, related provisions, and the statutory scheme as a
whole.’”26 We interpret statutes to avoid unlikely, strained, or absurd
consequences.27
In Washington, adverse possession primarily applies through statutes of
limitation, and courts have worked out the elements of the doctrine as “a kind of
23
Kiely v. Graves, 173 Wn.2d 926, 932, 271 P.3d 226 (2012) (citing Lake v.
Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010);
Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369(2003)).
24
Cent. Puget Sound Reg’l Transit Auth. v. WR-SRI 120th N. LLC, 191
Wn.2d 223, 233, 422 P.3d 891 (2018) (quoting Dep’t of Ecology v. Campbell &
Gwinn, L.L.C., 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)).
25
Campbell & Gwinn, 146 Wn.2d at 9-10 (citing State v. J.M., 144 Wn.2d
472, 480, 28 P.3d 720 (2001)).
26
Cent. Puget Sound Reg’l Transit Auth., 191 Wn.2d at 234 (internal
quotation marks omitted) (quoting State v. Larson, 184 Wn.2d 843, 848, 365 P.3d
740 (2015)).
27
In re Wieber, 182 Wn.2d 919, 927, 347 P.3d 41 (2015) (citing Kilian v.
Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002)).
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No. 82073-7-I/10
judicial gloss on the statutes of limitation.”28 Most claims of adverse possession
are based upon RCW 4.16.020, which creates a 10-year limitations period.29
There are also two statutes that authorize adverse possession claims with a
seven-year limitation period: RCW 7.28.07030 and RCW 7.28.080.31 Another
statute, RCW 7.28.090, immunizes certain government lands against a claim of
adverse possession. RCW 7.28.090 provides, “RCW 7.28.070 and 7.28.080 shall
not extend to lands or tenements owned by the United States or this state, nor to
school lands, nor to lands held for any public purpose.”32
The homeowners argue that because they claim to have adversely
possessed tract 44 under the 10-year limitations period set by RCW 4.16.020,
RCW 7.28.090 is inapplicable.33 The homeowners’ interpretation is not
persuasive.
28
17 STOEBUCK AND W EAVER, supra, §§ 8.1-8.2, at 505-07; see Gorman, 175
Wn.2d at 76 (“[A]s it has developed in our state, the doctrine [of adverse
possession] is not entirely a creature of the common law.”) (Madsen, J., concurring).
29 17 STOEBUCK AND W EAVER, supra, § 8.2, at 506-07.
30 The “payment of taxes” statute allows adverse possession if, for seven
years in addition to meeting the common law elements, the possessor “(1) has
‘color of title,’ (2) has paid all taxes levied on the land for seven successive years,
and (3) believes in ‘good faith’ that he has title. Id. at 507.
31 The “vacant land statute” is unusual in that it is not an adverse possession
statute, and the statute is unavailable if the person possesses the land. Id. at 508.
“To prevail under this section, the claimant must (1) have color of title, (2) be in
good faith, and (3) pay all taxes assessed for seven successive years; and of
course (4) the land must be ‘vacant and unoccupied.’” Id.
32 (Emphasis added.)
33 Michel Resp’t’s Br. at 33-37; Merriam Resp’t’s Br. at 12-15.
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No. 82073-7-I/11
The legislature expressly directed that RCW 7.28.090 “be liberally
construed for the purposes set forth” in it.34 Courts have applied this liberal
construction directive by concluding RCW 7.28.090 applies even when a plaintiff
does not rely on either RCW 7.28.070 or .080. In Skinner v. McCrackan, the
Supreme Court concluded RCW 7.28.090 limited the plaintiff’s claim for betterment
damages under RCW 7.28.160 because the United States held title to the land
when many of the improvements were made, and a claim for betterment damages
requires the ability to claim adverse possession of the improved land.35 Similarly,
in Pioneer National Title Insurance Company v. State, this court relied on
RCW 7.28.090 to conclude a claim for betterment damages could not be made
against the state.36 Neither case implicated RCW 7.28.070 or .080. Courts have
also concluded RCW 7.28.090 prohibits prescriptive easements from lying against
government-held land, even though easements are not mentioned in
RCW 7.28.070 or .080.37
34 RCW 7.28.100.
35 93 Wash. 43, 45-46, 159 P. 977 (1916). Technically, the court held Rem.
Rev. Stat. § 790 limited the claim for betterment damages brought under Rem. Rev.
Stat. § 797. Id. at 45. But because those laws are substantively identical to their
current counterparts, we refer to the current statutes.
36 39 Wn. App. 758, 695 P.2d 996 (1985).
37 E.g., Williams Place, LLC v. State ex rel. Dep’t of Transp., 187 Wn. App.
67, 98, 348 P.3d 797 (2015) (“‘[P]rescriptive easements do not lie against the
state.’”) (alteration in original) (quoting Northlake Marine Works, Inc. v. State, Dep’t
of Nat. Res., 134 Wn. App. 272, 291 n.12, 138 P.3d 626 (2006) (citing
RCW 7.28.090)).
11
No. 82073-7-I/12
Kiely v. Graves also supports a broad reading of RCW 7.28.090.38 In Kiely,
the Supreme Court concluded “RCW 7.28.090 precluded adverse possession of” a
public alley in Port Orchard “while it was held for a public purpose.”39 Two
neighboring families, the Kielys and the Graveses, lived adjacent to a public
alley.40 The Kielys’ house encroached on a portion of the alley.41 In 2008, the
Graveses made an agreement with Port Orchard to take possession of the entire
alley. In 2009, Port Orchard vacated the alley and conveyed it to the Graveses.42
The Kielys filed a complaint against the Graves family alleging adverse possession
of the alley.43
The Kielys argued that they possessed the entire alley and that
RCW 7.28.090 did not apply because Port Orchard possessed an easement
only.44 The Graveses argued that “RCW 7.28.090 precludes adverse possession
of land owned by the government.”45 The court agreed with the Kielys that the
municipality had held an easement and not fee simple title.46 But it broadly
interpreted the phrase “lands held for any public purpose” as covering public
easements dedicated for a public thoroughfare, thereby “barring adverse
38 173 Wn.2d 926, 271 P.3d 226 (2012).
39 Id. at 927-28.
40 Id. at 928.
41 Id.42 Id. at 929.
43 Id.44 Id. at 930.
45 Id.46 Id. at 935.
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No. 82073-7-I/13
possession claims against the property.”47 Because “[a] party may not claim
adverse possession of property held or controlled by a municipality for public
use”48 and the Kielys’ use of the alley “interfered with the public’s potential or
actual use of the easement[,] RCW 7.28.090 prohibited the Kielys from obtaining
title to the alley through adverse possession.”49 Neither RCW 7.28.070 nor .080
were the basis for adverse possession claims at issue in Kiely.
The liberal construction required of RCW 7.28.090 reveals the legislature’s
intent to broadly shield qualifying land from any form of adverse possession.
Other than their narrow interpretation of the statute, the homeowners cite no
contrary authority. And adopting the homeowners’ interpretation would undermine
the purpose of RCW 7.28.090. If a plaintiff met the requirements in
RCW 7.28.070, the “payment of taxes” statute, to adversely possess land held for
a public purpose but waited until the 10-year limitations period ran, then they could
avoid RCW 7.28.090 by bringing their claim under RCW 4.16.020. The legislature
would not intentionally undermine one enactment with another.50 Recognizing the
broad scope of RCW 7.28.090 harmonizes it with RCW 4.16.020. Because the
legislature intended to broadly shield government-held land, RCW 7.28.090 can
47 Id. at 936.
48
Id. at 935-36 (citing Gustaveson v. Dwyer, 83 Wash. 303, 304-05, 145 P.
458 (1915)).
49 Id. at 940.
50
See Wieber, 182 Wn.2d at 927 (statutes are interpreted to avoid unlikely or
absurd consequences) (citing Kilian, 147 Wn.2d at 21).
13
No. 82073-7-I/14
apply to adverse possession claims brought against a government entity under
RCW 7.28.070, .080, or RCW 4.16.020.
Because RCW 7.28.090 can apply, the question is whether it applies here.
The statute prohibits any claim of adverse possession against “lands held for any
public purpose.” The issue is how to identify land “held for any public purpose.”
RCW 7.28.090 was enacted in 1893 and has remained substantively
unchanged since then.51 At the time, the common law rule nullum tempus occurrit
regi was held to apply to certain government-owned land in the United States,
preventing adverse possession by ensuring the limitations period never ran.52
States were divided over whether this rule shielded municipalities.53 In 1905, our
Supreme Court relied upon the common law to state “[t]he general rule that a party
cannot acquire title by adverse possession to property held by a municipality in its
governmental capacity for public purposes,” concluding a street held by a
51 See Kiely, 173 Wn.2d at 935 (“RCW 7.28.090 has remained unchanged
during all times relevant to this case” from 1908 through 2012.) (citing Brace &
Hergert Mill Co. v. State, 49 Wash. 326, 95 P. 278 (1908)); see also LAWS OF 1893,
ch. 11 § 5 (“The [equivalents to RCW 7.28.070 and .080] shall not extend to lands
or tenements owned by the United States or this state, nor to school lands, nor to
lands held for any public purpose.”).
52 See, e.g., United States v. Thompson, 98 U.S. 486, 25 L. Ed. 194 (1878)
(explaining the common law rule meant state statutes of limitation could not run
against the United States without its consent); Almy v. Church, 18 R.I. 182, 26 A. 58(1893) (relying on the common law rule to conclude a public road held by a town
could not be taken by adverse possession); City of Ft. Smith v. McKibbin, 41 Ark. 45(1883) (concluding the common law rule shielded the state only and not
municipalities); Leet v. Rider, 48 Cal. 623 (1874) (applying common law rule to
conclude a street in Sacramento could not be taken by adverse possession).
53 See Almy, 26 A. at 59-60 (listing cases and noting the division between
states).
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municipality could not be adversely possessed.54 Over time, this generated
discussion of a “rule” allowing adverse possession of government property held in
a “proprietary capacity.”55 But scholars question the extent to which this “rule” is
actually established:
In repeated dictum, the Washington State Supreme Court has
said that it is possible to obtain title to lands owned by cities,
counties, and other governmental entities below the state level in a
“proprietary capacity.”[56] While the supreme court has not identified
what is a proprietary capacity [for purposes of adverse possession],
a decision of the Washington State Court of Appeals has. It held that
land owned by an irrigation district but not actually used for its
ditches or works was “proprietary” and subject to adverse
possession.[57]
We seek to avoid sinking into the governmental versus proprietary “‘quagmire that
has long plagued the law of municipal corporations’” created by the “willy-nilly
labeling of municipal activities” through the “[m]indless [a]pplication of [l]abels.” 58
54Town of W. Seattle v. W. Seattle Land & Improvement Co., 38 Wash. 359,
363-64, 80 P. 549 (1905) (citing BYRON K. ELLIOTT & W ILLIAM F. ELLIOTT, THE LAW OF
ROADS AND STREETS § 883, at 968-69 (2nd ed. 1900); JOHN F. DILLON,
COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS § 675, at 803-04 (4th ed.
1890); Ralston v. Town of Weston, 46 W. Va. 544, 33 S.E. 326 (1899)).
55See, e.g. Gustaveson, 83 Wash. at 305-06 (considering an issue of
adverse possession by posing “the vital question here to be: Does the county hold
land, acquired by purchase at tax sale for want of another purchaser, in a
governmental capacity, as distinguished from a proprietary capacity?”).
56 (Citations omitted.)
57
17 STOEBUCK AND W EAVER, supra, § 8.8, at 516 (citing Kesinger v. Logan,
51 Wn. App. 914, 756 P.2d 752 (1988)).
58Hugh D. Spitzer, Realigning the Governmental/Proprietary Distinction in
Municipal Law, 40 SEATTLE U.L. REV. 173, 202 (2016) (quoting Indian Towing Co. v.
United States, 350 U.S. 61, 65, 76 S. Ct. 122, 100 L. Ed. 48 (1955)).
15
No. 82073-7-I/16
We do not need to label land uses as “proprietary” or “governmental” to
decide whether RCW 7.28.090 shields municipal lands from claims of adverse
possession. When the legislature enacted RCW 7.28.090, it chose to shield
sovereign government entities—the United States and Washington state—as well
as “lands held for any public purpose.” And it mandated that RCW 7.28.090 “be
liberally construed.”59 Unlike the common law rule of nullum tempus, this statutory
immunity is not based upon sovereignty alone and does not merely stop the
limitations period from running. The legislature went beyond the common law,
barring the taking of “lands held for any public purpose” by adverse possession. It
did not fashion the statute in terms of the troublesome “governmental” versus
“proprietary” dividing line.
With this background in mind, we determine the plain meaning of “lands
held for any public purpose” by looking to the statute’s context, related provisions,
and overall scheme.60
RCW 7.28.090 immunizes certain government-held property from adverse
possession. The doctrine of adverse possession ensures the maximum utilization
of land, encourages the rejection of stale claims, and promotes quiet titles.61 The
doctrine of governmental immunity against adverse possession also promotes
stable ownership and land use because its absence “would encourage
59 RCW 7.28.100.
60 Cent. Puget Sound Reg’l Transit Auth., 191 Wn.2d at 234.
61 Chaplin v. Sanders, 100 Wn.2d 853, 859-60, 676 P.2d 431 (1984).
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No. 82073-7-I/17
encroachments . . . and hinder public use.”62 Municipal governments hold land for
the benefit of the public,63 and immunizing certain municipal property against
adverse possession eliminates the risk of permanent injury to the public from the
careless civil servant who fails to monitor boundaries.64
In accordance with these goals, the statutory phrase “lands held for any
public purpose” means land actually used or planned for use in a way that benefits
the public as shown by the benefits flowing directly or indirectly from governmental
ownership of the particular property. To be shielded by the statute, the
municipality must show some advancement of the public’s wellbeing from any part
of the property. This is a fact-specific, reality-based inquiry that recognizes a
single parcel owned by a government entity can serve multiple uses providing
different public benefits, regardless of whether those uses are traditionally
classified as “governmental” or “proprietary.”65 We do not decide the outer bounds
62 Kiely, 173 Wn.2d at 940.
Id. at 937 (citing State ex rel. York v. Bd. of Comm’rs, 28 Wn.2d 891, 898,
63
184 P.2d 577 (1947)).
64Gorman, 175 Wn.2d at 73 (citing LAWS OF 1986, ch. 305, § 100; Bellevue
Sch. Dist. No. 405 v. Brazier Constr. Co., 103 Wn.2d 111, 114, 691 P.2d 178(1984)); see Thompson, 98 U.S. at 489 (“In a representative government, where the
people do not and cannot act in a body, where their power is delegated to others,
and must of necessity be exercised by them, if exercised at all, the reason for
applying these [governmental immunity] principles is equally cogent.’”). This risk is
more than hypothetical here because, as amicus Washington State Association of
Municipal Attorneys explains, public utility districts, which are municipal
corporations, manage approximately 35,000 miles of electric distribution and
transmission corridors in Washington.
65Indeed, counsel for the homeowners agree proprietary functions of
government can provide public benefits. Wash. Court of Appeals oral argument,
Michel v. City of Seattle, No. 82073-7-I (Sept. 30, 2021), at 21 min., 10 sec. through
17
No. 82073-7-I/18
of what actual or planned uses could provide public benefits, but we note that
abandoned or forgotten lands put to no actual or planned use at all do not provide
public benefits.66
The homeowners argue land used for electrical distribution lines cannot, as
a matter of law, be held for a public purpose.67 They rely upon a case about
municipal taxing authority, Okeson v. City of Seattle,68 for support. In Okeson, the
Supreme Court stated, “A city’s electric utility serves a proprietary function of the
government.”69 The City contends land used for electrical distribution lines is, as a
matter of law, held for a public purpose. It relies upon a condemnation case,
Central Puget Sound Regional Transit Authority v. WR-SRI 120th North LLC, for
support.70 There, the Supreme Court stated, “‘The generation and distribution of
electric power has long been recognized as a public use by this court.’”71
Neither standard is apt here. The power to tax is distinct from the power to
condemn, and neither addresses government immunity from adverse possession.
21 min., 20 sec., https://www.tvw.org/watch/?clientID=9375922947&eventID=
2021091164&startStreamAt=1260&stopStreamAt=1285&autoStartStream=true.
66 See Sisson v. Koelle, 10 Wn. App. 746, 751, 520 P.2d 1380 (1974)
(holding that land held by a county but “abandoned and forgotten” and “never
devoted to any use, public or otherwise,” could be adversely possessed).
67 Merriam Resp’t’s Br. at 18-20; Michel Resp’t’s Br. at 37-41.
68 150 Wn.2d 540, 78 P.3d 1279 (2003).
69
Id. at 550 (citing Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 694,
693, 743 P.2d 793 (1987)).
70 191 Wn.2d 223, 422 P.3d 891 (2018).
71
Id. at 247 (quoting Carstens v. Pub. Util. Dist. No. 1 of Lincoln County, 8
Wn.2d 136, 143, 111 P.2d 582 (1941)).
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Indeed, our Supreme Court recently explained that when applying the government
immunity doctrine, courts should look to the context of the specific case and apply
the rules relevant to the area of law under consideration.72 Thus, we apply the
standards set by the legislature in RCW 7.28.090 to determine whether tract 44
was held for a public purpose and shielded from adverse possession.
The undisputed record shows tract 44 has long been used for recreation.
When the City took possession in 1951, it allowed temporary permits for adjacent
property owners—including the Merriams’ predecessors—to use tract 44 for
gardening and additional yard space.73 By 1954, a fish screen had been installed
on tract 44 by the Washington Department of Game to maintain the trout stocked
in Echo Lake for fishing.74 At least as early as 1963, the City let sportsmen and
“hundreds of children and teenagers” use tract 44 like a park to access Echo Lake
for fishing and swimming.75 A 1972 letter from the City to the Department of Game
states its support for a “continuing program of maintaining a fishery in Echo
Lake.”76 In 1973, the City and King County entered into a “permit agreement”
providing for the creation of a public park along tract 44.77 The agreement
authorized “recreational purposes,” including “picnicking, swimming, bicycling, and
72 Lakehaven, 195 Wn.2d at 764-65.
73 CP at 847.
74 CP at 643.
75 CP at 626-28.
76 CP at 642.
77 CP at 116.
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No. 82073-7-I/20
such outdoor recreational activities as are appropriate for a neighborhood park.”78
And in 2001, the City signed a memorandum of understanding with King County
and the city of Shoreline to dedicate a continuous area of tract 44 for use as part
of the Interurban Trail.79
Tract 44 has also been used by the City to supply utility services to the
public. Since it took possession in 1951, the City has used the property for
electrical distribution lines.80 In 1976, the City designated part of tract 44 to
“construct, reconstruct and maintain” a water main.81
Lands are “held for any public purpose” under RCW 7.28.090 when their
actual or planned uses directly or indirectly benefit or advance the public’s
wellbeing. The public has been benefitting from the City’s uses of tract 44 since it
took possession in 1951. The City has used its land to provide the public
electricity and water. The City has used its property for public parkland and
recreation, including swimming, fishing, picnicking, and bicycling. Because these
uses have provided direct and indirect benefits to the public’s wellbeing, the City
78 CP at 116.
79 CP at 921.
80See CP at 123-29 (deed purporting to convey tract 44 to the City, which
included a transmission line right of way for an existing power line); CP at 921
(memorandum of understanding between Shoreline, King County, and the City to
create the Interurban Trail, noting the “primary purpose of [tract 44] is for the
transmission and distribution of electricity).
81 CP at 706-08.
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held tract 44 for a “public purpose” under RCW 7.28.090.82 RCW 7.28.090
applies.
Therefore, we conclude the City is the owner of tract 44 in its entirety and
that RCW 7.28.090 barred the homeowners from taking any of it by adverse
possession.83 We vacate the trial court’s order and remand for further
proceedings in accordance with this opinion.
WE CONCUR:
82
Because this standard is more protective of government property than the
common law rule, property shielded by the common law would be shielded by
RCW 7.28.090 as well.
83
The homeowners request attorney fees from this appeal under RAP 18.1
and RCW 7.28.083(3). Because they do not prevail, we deny their request.
21