Stokes v. Kummer – Case Review

Stokes v. Kummer is a case which reveals a divide different than most adverse possession cases. Instead of a dispute over a portion of land along the edge of two neighbors’ real property, this case regards ownership of land in its totality.

As to the divide then, we have a conflict between people who have lived and maintained this rather barren land situate to the east with owners of record title who live to the west of the Cascade Mountain divide.

As indicated in the opinion, one of these West of Cascades residing plaintiffs “visited the property shortly after she acquired it and was thoroughly unimpressed.” Moreover, this particular plaintiff never even got out of her car to walk the land.

Well, even though this rather scrubby agricultural land upon which wheat was grown only every other year was the land upon which local Defendants Kummer had sought to eke out their existence, the plaintiffs wanted it.

So, when the litigation fires were “Stokesed” by plaintiffs seeking to put them off the land, Kummer defended and won.

They were able to show these indicia of wheat farming during productive years.

  • Reseed the Fields
  • Sray for Weeds
  • Harvest with a Combine
  • Plow under stubble (when soil moisture allowed)

During fallow years Kummers performed these activities.

  • Plow
  • Cultivate
  • Fertilize
  • Seed

As to arguments, there is some chatter as to whether or not there was permissive use. In one instance this was put down as a result of failure as to privy – i.e. notice – of a contract between other parties … as opposed to lack of privity.

Another interesting rule which came from this is that if someone who has initially collected money on property and later doesn’t has the duty to check it out and eject for fear of losing the property. I don’t practice landlord/tenant law. But, this speaks to the idea of adverse possession operating as a statute of limitations – one of its primary operational reasons.

Permission failing such that hostility was yet present, the plaintiffs only recourse was an attack on notice.

The fact that most didn’t even attempt to take notice didn’t serve to assist their claim.

But most tellingly, the Division III court closed out its opinion by quoting the surveyor who said of the land:

“It’s either field or sagebrush.”

As a result, though it may have been difficult for the holders of record title to discern what may or may not be going on with the land, the rule from Chaplin was applied.

“The use and occupancy of the property need only be of the character that a true owner would assert in view of its nature and location.”

In cases like these, Justice Smiles strength remains discerning how the law as applied to the facts will likely drive a legal conclusion. Though we may have to supplement facts through conversation with surveyors, to get a head start on whether the case is even worth pursuing at all start by taking this Initial Assessment [HERE].

Lloyd v. Montecucco: Projecting Property Lines Along Land is Fine; Into Tidal Waters is a Different Story


Lloyd v. Montecuco, 83 Wn. App. 846 (Div. II 1996) is a waterfront case which helps to identify the extent to which definitive (boundary) lines must be demonstrated in order to achieve adverse possession. The case is informative with respect to adversely possessed property boundaries both on land and out into the water.

Background Facts:

Thurston County’s Eld Inlet bounds both properties to the west and as such these properties can be classified as exurban. The dispute was over an 11 foot encroachment of [1] a bulkhead and [2] portion of a cyclone fence [3] “on a bluff overlooking [the title holders’ lot]”.

These fixtures had been placed by the Montecucos the same year that they purchased their property in 1971. Significantly, these facts were attested to by the neighbor of this land from 1955 to 1986 – Mr. Shoblom.

Other claimed adverse uses by the Montecucos included: [4] mowing grass outside the fence perimeter; at one point [5] the adverse possessors also keeping of a garden outside the perimeter; [6] the adverse possessors’ planting and harvesting of “seven stumps, several of which lie on [the steep bank of the title holder]” and [7] the seeding of oyster beds beyond the meander line within another portion of the disputed area.

The Lloyds purchased their property in 1989 and soon afterward brought an action to quiet title against the Montecuccos. The Montecuccos defended on theories of (a) adverse possession, (b) mutual recognition and acquiescence; (c) estoppel; and (d) further claimed that the Lloyd’s suit was “frivolous and without merit.”

Procedural Facts:

The trial judge granted the Montecuccos summary judgment for that portion of the land which was marked by the fence (and typography) above the steep embankment running easterly from the bulkhead away from Eld Inlet.

However, the trial judge indicated that the line was unclear from the fence corner down through the steep embankment and out to the meander line and originally sought to allow the trial to proceed to determine the proper course of that line. On Montecucos’ motion for reconsideration, the trial judge relented. The Lloyds appealed and had their case reviewed de novo as is normal for all appeals of a summary judgment.

The trial court analyzed three components of the boundary line: Uplands, Tidelands, and Oysterlands. Specifically, the court indicates in a footnote: “the upland tract includes the surface land up to the bulkhead [Facts 1-5]; the tidelands includes the tract bound by the bulkhead and the meander line [Facts 1 & 6]; the oysterlands refers to the tract waterward of the meanderline [Fact 7].”

Uplands Analysis:

The court quickly determined that Lloyds failed here and stated: “The Lloyds fail to create a genuine issue of material fact by claiming that they could not see the fence or the maintained area from their house, or by claiming that the root of a lone rhubarb plant in the abandoned garden was younger than 10 years old.”

Yet the Lloyds contended this was also not proper because the trial court had provided a straight line whereas actual possession “would be more fairly represented by a jagged line.” This gave rise to a RULE (at least within the jurisdiction of appellate division II).

Courts may create a penumbra of ground around areas actually possessed when reasonably necessary to carry out the objective of settling boundary disputes [and as such affirmed a legal tenet from Frolund v. Frankland, 71 Wn.2d 853 (1984) by paraphrasing that] … courts will project boundary lines between objects when reasonable and logical to do so.

Tidelands Analysis:

Here, the appellate court determined that there was not sufficient notice of use to survive a summary judgment under the theory of adverse possession. The court then went on to explore mutual recognition and acquiescence as an alternative claim by the Montecucos.

Citing Lamm v. McTighe, 72 Wn.2d 587 (1967), the court reiterated:

(1) The line must be certain, well defined, and in some fashion physically designated upon the ground, e.g., by monuments, roadways, fence lines, etc.; (2) in the absence of an express agreement establishing the designated line as the boundary line, the adjoining landowners, or their predecessors in interest, must have in good faith manifested, by their acts, occupancy, and improvements with respect to their respective properties, a mutual recognition and acceptance of the designated line as the true boundary line; and (3) the requisite mutual recognition an acquiescence in the line must have continued for that period of time required to secure property by adverse possession.

In its analysis, the court then found while the second and third elements were satisfied particularily by the aid of Mr. Shoblom’s testimony. However, there was not a well-defined line due to “the Montecuccos’ placement of errant concrete blocks, intermittent moorage, and seeding of oysters and clams”.

This meant that the first element of Mutual Recognition & Acquiescence was not proved. So, with regards to the tidelands boundary line demarcation the “trial court erred in extending the line from the northwest corner of the bulkhead to the meander line.”

Oysterlands Analysis:

Finally the submerged lands beyond the meander line, (see WAC 322-30-106(37) and Manual of Surveying Instructions 2009 p. 190 for clarification of definition) in this instance were claimed to be owned by both parties because patent to the land was provided directly from the federal government to an original owner prior to the Washington’s statehood. [Whereas patents after statehood did not automatically allow this right.]

The upshot was that potentially both owners had access to the oysterlands as described in relevant part of the legal description of the Lloyd’s property: “Together with tidelands suitable for the cultivation of oysters lying in front of, adjacent to and abutting upon [the Lloyd’s Lot] … between the north and south lines thereof extending westerly to the westerly line of tract conveyed by the State of Washington … [in a specific] deed dated August 19, 1901.”

While the parties both acknowledged that the case Spath v. Larsen, 20 Wn.2d 500 (1944) would control, the appellate court noted a more fundamental issue – the other “specific deed” (used to determine the line as indicated in the immediately preceding paragraph) was never put into evidence. As such the appellate court was not in a position to determine how the case could be applied to the facts. The appellate remanded this oysterlands portion for the further proceedings. Notably, attempts at reconsideration and a subsequent petition to Washington’s Supreme Court were both denied.


I sure hope that those eleven feet and the oysters at stake were worth it to these parties. Why? Because despite the fact that this case was determined at summary judgment, you can be darn sure that their inability to resolve this issue ended up costing them both several tens of thousand of clams.justice-smiles-blue.png

If you want to prevent yourself from needlessly shelling out a lot of clams start by taking Justice Smiles’ Initial Assessment [HERE].

Anderson v. Hudak – Case Review

I abhor the practice of pleading in the alternative because it turns a trial into a “try-all.” That stated, Anderson v. Hudak is a case which gives me pause to consider the validity of “complimentary pleading.”

The background facts of this case are fairly simple. In 1960, Aline Anderson had her parcel of 270′ X 60′ subdivided. In doing so, she granted the eastern 120′ X 60′ to her son Forrest and daughter-in-law Delores Anderson. They in turn built a house together on the property.

This couple then planted a line of trees 15′ East of the steep embankment the higher ground upon which Aline retained a 150′ X 60′ parcel for herself.

Critically, the opinion states that the Andersons planted these trees along what they … “thought was their western property line.”

In 1977, Aline sold out completely by two more conveyances. The first was to a developer who eventually built a house upon the western 135′ X 60′ parcel to the Hudaks. The second was a conveyance to then divorced Delores of a 15′ X 60′ strip of land in the middle.

All seems to have been going fine for 14 years until Hudak’s not long after their 1990 purchase hired a surveyor who opined that the Hudak’s “owned” – read instead “were the holders of record title” – apparently from their western line all the way to the treeline – not their eastern embankment ledge.

The trial court decided for Anderson, but the appellate court reversed.

The higher court offers the rule: “[P]lanting of a row of trees, without some use that is open and hostile, does not satisfy the elements of adverse possession … .

It then indicated that Delores Anderson had not testified as to any use. Here, I will add that failure to testify as to use by extension ought to mean that there wasn’t any testimony which would satisfy the element of exclusivity.

So, beyond testifying as to use – assuming there were facts to illustrate this – to make this a viable case of adverse possession, what “complimentary pleading” would have been appropriate?

I think this is a case which could have been a rare case in which Grantor’s Intent would have carried Delores to victory.

Here’s the storyline which I see emerging …

Delores is the dutiful daughter-in-law who stuck by her ex-husband’s mother – Forrest is notably completely out of the picture.

To reward Delores for her faithfulness, Aline “intended” to grant her the additional real property between the treeline and the embankment of 15′ by 60′.

Both comically and tragically, the legal description for this 15′ X 60′ strip instead of lying west of the treeline actually runs to the east.

As a result, though since Chaplin v. Sanders adverse possession disallows an inquiry as to the claimant of adverse possession’s “subjective intent” – i.e. did the claimant of adverse possession mean to possess or not – this case would have allowed an inquiry as to the Grantor’s Intent of Aline!

In that the lower court had found Delores the more credible litigant, I highly suspect if she had made this pleading the appellate court would not have reversed. What a shame!

If you have a case for which you are of the mind to know how best to plead and proceed, take a moment to fill out this Initial Assessment [HERE].

Timberlane Homeowners Association, Inc. v. Brame – Case Review

Timberlane HOA, Inc. v. Brame is a textbook case both with respect to procedure and merit, EXCEPT …

Unlike the opinion itself, I am going to first look at the merits of adverse possession and then review this idea of standing.

Overall, this is a pretty clear case in which someone who had purchased property which as to its “ground truth” was indicative of a boundary certain due to the “TOTALITY” of fence enclosure.

Somehow the HOA discovered that a fence replaced along its original course was not coincident with the line of record title and through its attorney sent a letter to Brame to properly replace it along the correct line. Brame apparently wasn’t keen on doing this and so the HOA followed-through with a lawsuit.

After presumptively a full exchange of discovery, the parties then noted the calendar for cross summary judgment. This is important.

Essentially, with a cross summary judgment the court receives motions for each of the parties in which the content points to the folks on the other side of the ‘legal line of dispute’ to indicate there is no way that the other side can win … so let’s it here.

Each party then gets a chance to respond to the other side’s arguments.

Finally, each party gets a chance to reply to the other parties’ response.

So again, double motion, double response, double reply.

This means the judge gets to look at 8 documents. That’s kind of like North, South, East, and West … along with NE, SE, SW, and NW – all the compass points are covered.

You would think the judge would get it right. But, here the appellate court determined that not to be the fact.

As facts, those supporting adverse possession were as follows:

  • Full Enclosure Fence
  • Distinct Difference of Land Use
  • Tree and bush plantings
  • Children Playing w/in Yard
  • Patio

So how is it possible that the judge got this wrong?

Easy, the judge was persuaded by legal argument suggesting it appropriate to apply the legal rule from the easement [not adverse possession (?)] case Burkhard v. Bowen.

Well, the appellate court determined that on the merits that wasn’t going to be the case.

But, instead of just going straight in and attack the decision solely on the legal merit alone, the appellate court gets itself mired in a bunch of nonsense about standing.

The court sprays ink all over the page as to why the HOA doesn’t have standing.

Without standing, the HOA does not have the legal ability to bring this lawsuit against Brame.

Now as a theoretical construct, let’s think this through…

If no one is empowered to enforce property rights then by extension no one owns those property rights. Right?

But, the converse of this is likely that Brame would not have anyone to bring this suit against if the plaintiff … unless the HOA commons are to otherwise be subject to a land rush (a possibility which is not likely the intended consequence of this decision.)

Bottom line, all this standing argumentation just sufficiently clean for me. There must be some other purpose.

So, what I suspect is really going on here is that the appellate court is seeking to neuter an overzealous group of HOA members.

HOA members who quite likely were seeking to use the shield of a collective influence the HOA provides in order to “protect and project” their personal interests.

As a not incidental aside, this “protection and projection” of personal interests can often be much less about legal disputes and instead are about seeking to get one’s neighbors to simply submit.

So, my read is that the appellate court determined that it didn’t want to see such a pedantic legal action from the HOA and sought to telegraph this point.

The end result? A rare reversal of the lower court’s summary judgment decision.

Who was the biggest winner? I would have to say it was Brame predecessor in interest Holly Laggart.

But for a decision against the HOA, she would have been chained to this case all the way through trial and if Brame failed against the HOA it is quite possible that Holly would need to pucker up.

Whether your boundary conflict is one in which you are a current neighbor or you are the predecessor in interest – i.e. you sold your property to one of the neighbors who are now fighting – protect yourself by taking the Justice Smiles Initial Assessment [HERE].



Selby v. Knudson – Case Review

If I’ve said it once, I’ve said it a thousand times … a picture tells a thousand words! See [HERE].

Selby v. Knudson is a case which is difficult to comprehend without diving into the reporter to actually get the “picture” – i.e. plat maps.

Unfortunately, today I am not going to allocate the time to run over to the law library to get that picture and so I am going to muddle on.

Oh, you don’t like that. OK, go find yourself an elevator firm in Seattle or Bellevue’s CBD where they pay good money to showcase reporters … which their lawyer’s never [ehr,] “often” review thereby completely worth their firm’s spend on rent.

At any rate, let’s just get down to brass tacks.

First, let’s figure out the players.

Selby – check. First sentence of the decision states: “William and Darlene Selby brought this action to quiet title to a 15.15-foot strip of land located at the eastern terminus of Crown Street in Walla Walla.” Moreover, “[t]he Selbys own the lot which abuts the strip on the north.”

Ziskas – i.e. “Charles and Jane Doe” – check. These are the folks for whom the lower court had “rejected … the claim that the intent of the persons who subdivided this area in 1906 … was to extend [Crown Street] to the western boundary of what is now the Ziskas’ property.”

Stop right there damn it! Could we please be clear that this regards Ziskas’ recorded property.  Ok, resuming …

Nixons – check. “In 1901, Kate and Edward Nixon recorded the plat of Garden City Heights Addition in Walla Walla.”

City of Walla Walla – check. “On June 2, 1992, the Selbys brought this action against the Ziskas, the City of Walla Walla, the Nixons, and others.”

OK, we’re ready to rock and roll … right?

> Ah, Mr. Zierman, is possible that you are forgetting somebody?

Come on don’t bother me, I’m trying to post out a blog before I get “eclipsed” by this weekend. Ha,ha, ha, get it … “eclipsed”!

> Um, no I’m serious here Mr. Zierman, I think you better go back to your list of as you call it … “players.”

Why? What am I missing?

> Could you please tell me and your audience who was defendant Knudson?

Ahhhhh … Ahhhh … Ummm ?… No! Knudson is not important. Must be um, um, one of those “others” … you should know by now, that’s very technical legal jargon – “others.”

I mean heck, the Nixons have put on 91 years since they recorded this plat and Selby’s aren’t leaving them alone … why shouldn’t they just go out there and throw a name in their pleading which OBVIOUSLY the court doesn’t believe to be of sufficient import to indicate. Knudson, Fruitson, Blutson, Chewtson, Zuitson … does it really matter? Of course it doesn’t! His name is “Milton Knudson” … It’s not Milton Bradley!

Alright, Now look right here at footnote 1. What does it say? Read it!!!

> Mr. Zierman, I would be be most pleased to read it. Yet, I kindly request that you please do not use that tone with me.

[Snarl …]

OK Mr. Zierman, here, … here goes. Ahm, Footnote 1:

“An order of default against the Nixons and others was entered on September 8, 1992. A stipulated order of default against the City of Walla Walla was entered on October 13, 1992.”

Good! … Now what that CLEARLY means is there was notice by publication against the Nixons who would have been no less than 109 years of age at the commencement of this lawsuit and for some reason they decided … NOT TO SHOW UP!

You following, my math right. Capacity at 18 plus 91 years … right?

> O … O … OK, Mr. Zierman, but again … could you please lower your voice.

Hold on! You’re not getting the point. You see at least the City of Walla Walla had the decency to show the court some respect.

Sure, they didn’t have any skin in the game and could have stayed home like the Nixons, but did they? Heck no!

Knudson? Shoot for all I know they were dismissed from this action for failure of service in the first place … others is others, OK!

> OK, Mr. Zierman, I, I, .. I get your point. Please just tell me the answer.

The answer is this pal.

Step 1: Selby’s simply wanted to quiet title to their land. You with me so far.

Step 2: Selby’s get litigation guarantees on every affected adjoiner and sue everyone on those list(s).

Step 3: Nobody gives a hoot … the land has been used by the Selby family since 1946 – which is 46 years. And what type of use did they have? The laundry list includes:

  • Beekeeping
  • Use of a “full-size Red Cross tent”
  • Fencing
  • Parking
  • “Gathering and Burning Wood” (Now, that’s a bonfire … . See [HERE].)
  • Children’s games of Play
  • Planting Flowers … and
  • Cutting Grass

Step 4: Waste the next 6 months preparing for trial (Incidentally, that’s extremely quick. King County Scheduling is a full year).

Step 5: Win at trial in front of a judge that somehow didn’t get the memo that the Washington Supreme Court in Chaplin eliminated the need for Selby’s to even make their adverse possession claim “in good faith under a claim of right” … certainly because the attorney didn’t bother to raise this point … along I suspect with hiring a surveyor to testify as an expert witness. And finally …

Step 6: Waste another 2+ years defending against an appeal.

Was it worth it? I don’t know.

I do know this much too though … this Division III appellate court though getting to the right answer … still wasn’t unanimously clear as to how.

No, then you have Judge Schulteis jumping in seeking with a concurring opinion to determine this case based on whether the City of Walla Walla still owned this land in its “proprietary” not “governmental” capacity. Gosh, whether that distinction had been vitiated or not at the time of this decision, I don’t know. I’m going home.

Just know this, if you want to get to conclusionary predictions get your survey ready for a Justice Smiles review and fill out this Initial Assessment [HERE].