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].