Wells v. Miller, 42 Wn.App. 94, 708 P.2d 1223 (1985.11.07) – [Cause No: 6370-4-III] – upholds Stevens County Superior Ct – [Case No. 82 2-00037-8] – decision by Judge Larry M. Kristianson which granted summary judgment to adverse possessors, Defendants Miller and thereby denied title holder of record, Plaintiff Wells.

Facts:

General:

  • Land Type: Exurban
  • Water Feature: Not Specified
  • Taxes Paid by AP: Not Specified

Chain of Title:

  • TH – Wells: In 1981, Larry L. Wells acquired his property. 
  • AP – Miller: Since 1965, Jerry and Betty Miller have owned and occupied their property.

Disputed Property:

A gap created by the right of way to a vacated county road. Millers’ property is to the west of the vacated county road and claim to the right of way’s eastern line.

Uses:

  • Title Holder, Plaintiff Wells: None Specified
  • Adverse Possessor, Defendant Miller: “Since 1965 Millers have used the disputed property as a [1] driveway and [2] parking area for motor vehicles.” (p. 96) “In 1968, Millers … [3] built a garage which extended onto the right of way.” Id.

Identified Boundaries: 

  • TH – Wells: The 1902 dedicated – but never opened – county road called Railroad Street adjoins Wells property and is within the addition which otherwise locates his property.
  • AP – Miller: Though their property is outside the addition which dedicates Railroad Street … in 1968, the Millers [1] cleared the brush and [2] constructed a fence. (p. 96).

Adverse Possession Sufficiency Review:

Whether there are sufficient facts to demonstrate Defendants Millers’ claim of adverse possession is valid.

Decision:

Majority Opinion: McInturff, J.

“The objective character of the Millers’ possession of of the right of way constituted adverse possession for at least a 10-year period. The Millers’ uncontroverted affidavits established that they constructed a board fence along the eastern boundary of the right of way in 1968.” (p. 99)

Concurring Judges: Green, C.J. and Munson, J.

Justice Smiles’  Thoughts:

Adverse Possession Element Rankings: 

  • Actual Notice: High (5)
  • Constructive Notice: Slight (2)
  • Hostile: High (5)
  • Exclusive: High (5)
  • Continuous: High (5)
  • 10 Years Stat Period: Met (5)
  • Overall THAP Sufficiency: AP (5)

Bonus Questions for Attorneys: 

Sufficiency of the Adverse Possion claimant Millers’ Actual Notice is threatened by the Title Holder’s Constructive Notice. This raises the question of what is more important that which people actually see on the ground or that which is in the records. Here, the title holder “Bought into the Problem.” In such an instance is it reasonable for the title holder who hasn’t attempted to fix the problem prior to purchase to gain the land? What if the roles had been reversed and the title holder’s predecessor in interest had attempted to correct the problem before sale to the adverse possessor but for some reason was unable to fully eliminate the cloud on title? In such a case would it be fair to have the adverse possessor eject the title holder within ten years of purchase. If yes, then so long as the title holder recognized and bore the risk, wouldn’t it be acceptable? Alternatively, would the title holder in this reversed scenario need to receive a Quit Claim Deed (“QCD”) from the Adverse Possesion Claimant? Would the QCD need to be recorded?

[Note: With minimal touches, this is a republication of an original blog post of 2014.06.20.]