Any lawyer who wants to “Geek Out” on civil procedure will have a heyday with Thor v. McDearmid.
This case explore the ins and outs of Washington’s Deadman’s Statute – RCW 5.60.030.
In doing so it parses concepts related to the definitions of “statements”, “parties in interest”, and “waiver” and “offers of proof” within its context.
Once finished beating that “horse”, the case review moves on to explain the intricacies in establishing a “resulting trust” as distinguished from a “constructive trust.”
Heck, even though it is probably hard to figure out “who’s who in the zoo” without going to the reporter because the familial relations between these combatants portrayed in an image is omitted (just as is often the case with survey exhibits which I have previously griped about [HERE]), we can readily intuit the virtually certain use of a litigation guarantee.
But, when we get right down to the nub of the adverse possession question this case is a no-brainer.
Here’s the facts for these 1,280 acres – i.e. (virtually) 2 square miles – of land held in co-tenancy.
 McDearmid’s children used the land “from time to time” for recreational purposes.
 McDearmid paid taxes for a straight stretch of 22 years (and somewhat intermittently thereafter).
 “The land was sometimes leased for cattle grazing […].”
Well, here’s what you have to know about adverse possession …
In those situations in which there is either an express easement or a co-tenancy (which is to say situations in which different parties have an interest in the title to the same real property), the only way to secure a victory by adverse possession is through “OUSTER.”
Ouster, which has a “clear, unequivocal, or convincing” [as I supposed distinguished from “clear, cogent, and convincing”] burden of proof is a virtually unobtainable standard of of conduct. Moreover, not only does the ouster have to occur to put the other title holder’s no notice, the resulting situation has to then stay in effect for the statutory period of generally 10 years per RCW 4.16.020.
The court explains this by looking back at precedential authority and then it notes something else:
They and their successors [the respondents opposed to McDearmid] enjoyed the use of the property at will for 40years, just as did Ms. McDearmid. The fact that Ms. McDearmid may have used it more is insufficient to prove ouster.
Now back up to that first sentence! This is where the “needle” completely trashes this “LP track.”
Folks, have we forgotten that adverse possession requires exclusive use? … Why yes indeed it does.
In fact, this might be used as the “counter-clockwise” approach to understanding ouster.
In cases in which there is an easement (or here co-tenancy), one can not claim some sort of “prescriptive use” in an attempt to “move the needle” as to ownership percentage in some sort of half-measured manner.
No, instead it requires an all-out push!
Believe me, if you are experiencing the “all-out push” which is required for an ouster, you won’t be sitting on your rights for 10 years grinning and bearing it.
Whether its your neighbor or your family, if you feel your rights to your land are not being honored take a moment to fill out Justice Smiles’ Initial Assessment. It’s free and it’s [HERE].