Wells v. Miller opens with one of the best written overviews of any Washington adverse possession cases. [1]

Larry L. Wells appeals a summary judgment which quieted title in Jerry and Betty Miller to a vacated county road right of way. The principal issues is whether a claim of adverse possession commences when a county road is vacated by operation of law or when formally declared by county commissioners as vacated. We hold it commences when the road is vacated by operation of law.

“Well, that’s done and dusted isn’t it … .” [2]

Not so fast!

Now it’s true that in 1965 Millers had started to use the disputed property and by 1968 had in place such a sufficient number uses that under normal circumstances there would be no question as to whether or not they would secure their claim of adverse possession. [3]

But, the law of adverse possession doesn’t allow possession to run against government property.

So, the question which was before this appellate court was essentially a review of the contours of difference with respect to actual and constructive notice as determined within the context between perfected and recognized rights.

As stated the obvious ground truth was that Millers owned the disputed land.

However, because there had been a dedication of the land to the government the property (rights) ought not to have been able to have been adversely possessed. That was the argument which the appellate court reviewed for Wells.

With little more than citation to a few cases and a footnote, the appellate court determined a law from 1890 – which had been overturned in 1909 and later codified by the statute RCW 36.87.090 in 1963 which itself was based on a sessions law back to 1937 – did not have any effect in this case. [4] Really?!?

The upshot of this reasoning was that the appellate court concurred with the trial court’s summary judgment disposition of the matter in Millers’ favor on the basis that formal – i.e. “recognized” – vacation of Railroad Street by the county commissioners in 1982 was not the point which started the clock.

Instead, because the land – though dedicated – was never opened, the county’s property rights had “reverted” to the adjoining property owners. Interestingly, that particular date of reversion is not specified.

Noteworthy, in the very last paragraph we find what I believe to be an extremely telling line.

Mr. Wells’ principal contention is that the Millers failed to possess the right of way in an adverse manner when they rented property east of the right of way boundary. We disagree. (Emphasis added).

It seems to me that this additional argument MIGHT add quite a bit more as fences don’t always serve to mark boundaries. Also, there is no mention as to whether the various indicia of adverse possession cross the center line of the vacated street or not. Regardless, it looks like the appellate court MAY have been keen to sweep things under the rug.

So, did Larry Wells get railroaded? Not necessarily. But, it appears to me at least that there is one critical lesson to learn here. It is this.

Though one has the right to an appeal as a matter of law, one better very carefully determine whether it is worthwhile to exercise that right. [4]

I intuit that a number of appellate courts don’t want to encourage review of boundary dispute matters.

Basically, except for the disputants themselves, most people think: “For crying out loud! Why all the rumpus?”

Sure, the (half) width of a roadway along the back of one’s yard is probably fairly significant, but in that it had been used that way for so darn long … who really cares. Perhaps the appellate court thought the whole darn thing was harmless error if there was an error to be had at all.

But why don’t we go back three years before this decision to when Wells decided to file against Miller and let me ask you this.

Do you think it might have been worthwhile for Wells to hold back a bit and really try to both determine the odds of winning at litigation and attempting to work it out with neighbors Miller?

Your darn tootin’ he should have. And guess what else, that 1/2 width of roadway along the backyard was probably the most expensive piece of land per sq.ft. that Millers ever “purchased” too!

—

So, if you want to better understand your case before you blindly march into a war which may or may not be to your fighting advantage, why don’t you just go ahead and take Justice Smiles’ Initial Assessment [HERE].

—

[1] 42 Wn. App. 94, 708 P.2d 1223. See [HERE].

[2] See http://www.nbc.com/saturday-night-live/video/mick-jimmy-backstage/2869237?snl=1. [HERE].

[3] Claimants of adverse possession Millers had used the disputed property as: (1) a driveway and (2) parked motor vehicles upon it; (3) cleared brush; (4) constructed a fence; and (5) built a garage partially within it.

[4] RCW 36.87.090. See [HERE].

[5] RAP 2.2(1). See [HERE].