Crites v. Koch – Case Review

Crites v. Koch49 Wn.App 171, 741 P.2d 1005 (Div. III, 1987.08.06) – [Cause No. 7898-1-III] upholds the Whitman County Trial Court’s decision to quiet title by adverse possession to plaintiff Crites to land south of an access road, but reversed the trial court’s decision to also award a Crites a prescriptive easement to land north of this access road in favor of title holder defendants Kile [and ostensibly defendants Koch as well though the opinion never refers to them].



  • Land Type: Agricultural
  • Water Feature: Not Specified
  • Taxes Paid by AP: Not Specified, Unlikely

Chain of Title: 

  • TH – Defendant Kile: 1930s Johnson Family –> Kile Family [and Koch Family(?)] in 1984.
  • AP – Plaintiff Crites: Pre-1970s county road widening –> time of suit.

Disputed Property Generally:

Black Acre” [is] a parcel of land encompassing approximately 7/100 of an acre. … Black Acre forms the southeast corner of a quarter section owned since the early 1930s by [TH defendant predecessor] the Johnson family. Don Crites owns and farms the quarter section immediately to the south of the Johnson property. Members of the Kile family farm the quarter section immediately to the east of Crites’ property. Consequently the Kile property abuts on Black Acre at the southeast corner. (p. 172).

Disputed Property Specifically:

Black Acre is separated from the rest of the [TH Defendant predecessor] Johnson property by County Road no. 3000. originally constructed in the 1930s. Sometime during the 1970s, the county raised, widened, and blacktopped the road. Robert Johnson sold land on both sides of the road to the county for this purpose. At the same time, the county constructed an “approach” off the road, raising the adjoining edge of Black Acre to facilitate vehicle access to and from the property. [1] A vehicle access path now bisects the property. (P. 172 -73).

[Justice Smiles’ Comment: It is unfortunate that the opinion fails to specify what direction this bisection formed by the vehicle access path runs. However, it is assumed to be east-west thereby creating a northern portion of land for which a prescriptive easement was claimed and a southern portion for which adverse possession was claimed.]

Regular Uses:

The [title holder appellants] used Black Acre as [A] shortcut to reach nerby fields and as a place to [B] park equipment occasionally but never farmed the property. Crites apparently farmed the entire parcel until the county road was widened in the 1970s. After the access was constructed, Crites continued to [2] farm the southern part of Black Acre, approximately to the point where the vehicle path crossed the property. (p. 173).

Courtesy Uses: 

When plowing, Crites would [Z] “trip the plow,” i.e., raise it, so as not to leave a ditch that would interfere with the use of Black Acre as a shortcut to neighboring fields. Crites, who planted and harvested the parcel in the same manner as his own property, never discussed his use with the Johnsons. According to Crites, the [TH – Defendant] appellants’ use of Black Acre never conflicted with his farming; similarly, appellants acknowledged that Crites’ farming had never restricted their use of Black Acre. All of the witnesses agreed that it was customary for farmers to cross their neighbors’ land, with or without permission, as long as such use did not adversely affect the crops.”

Sufficiency of Adverse Possession Claim:

Whether there are sufficient facts to uphold Plaintiff Crites prescriptive rights to land south of the access road for which the trial court recognized he had gained ownership by adverse possession.


Triffling Encroachments” by TH Doesn’t Nullify AP’s Exclusive Use –  Triffling encroachment s by an owner on land held adversely does not render the claimant’s use nonexclusive. See 3 Am.Jur.2d, .. at 175; cf. Danner v. Bartel, 21 Wash.App. 213, 584 P.2d 463 (1978)(title owner’s exercise of nonpossessory right of entry by maintaining drainage ditch not inconsistent with findings that adverse possessor had “exclusive” possession), … (p. 175).


Swanson, Judge.

The appellants testified that they refraind from parking on or driving across the southern part when it was seeded. It was undisputed that Crites’ farming never interfered with the appelants’ use of Black Acre. As noted by the trial judge in his oral opinion, the appelants’ use of the southern part of Black Acre was “very, very slight.”

Crites’ use of the southern part of Black Acre thus differed fundamentally in scope and substance from the use made by the appellants. Consequently, appellants’ slight and occasional use of the southern part, which occurred in deference to Crites’ intensive use, does not constitute shared occupancy. … Substantial evidence therefore supports the trial court’s finding that Crites’ possession of the southern part of Black Acre was exclusive. (p. 175).

Munson and Gren, JJ., concur.

Justice Smiles’ Thoughts: 

Adverse Possession Element Rankings:

  • Actual Notice: High (5)
  • Constructive Notice: Low (1)
  • Hostile: Above Average (4)
  • Exclusive: Above Average (4)
  • Continuous: High (5)
  • 10 Year Stat Period: Met (5)
  • Overall THAP Sufficiency: AP (4)

This is another good example in which use on the ground is more important than what the record of title says in a book somewhere.

This also clearly shows the idea the inter-workings of hostility operating as a superior right and as such if the land is normally used by the owner in this way while still allowing neighborly accommodations, the flip side of hostility – exclusivity – is not sufficient to overturn an adverse possessor’s superior use.

[Note: With minimal touches, this is a republication of an original blog post of 2014.07.28]

Thompson v. Schlittenhart – Case Review

Some boundary dispute cases involve a little bit more than the parties’ contrary claims of adverse possession and quiet title to the recorded real property. No, sometimes the professionals can make bank by engaging in a contest in which one of them will ultimately end up the butt of the joke. [1]

That’s what happened in Thompson v. Schlittenhart. [2]

Basically, the common grantors made an original goof such that the legal descriptions which ought to have met at an adjoining line did not.

The first surveyor – hired by Thompson – did everything he could to figure the mess out but ultimately acknowledged that there was imperfect closure of the survey after examining:

the deeds of the surrounding properties, the conveyances of the Thompsons’ predecessors in interest, an unrecorded plat referred to in the Thompsons’ deed, monuments on the ground and county road maps to determine the intent of the initial common grantors.

Now, I don’t know if this surveyor charged extra for all that work. But, I suspect there is a high likelihood that this “meal” was “prix fixe” – i.e. flat fee – and so the matter became an intellectual puzzle to be solved at his honor.

At any rate, this first surveyor ultimately figured that the adjoining property line was probably along a barbed wire fence which had been in place since 1953 as opposed to the chain link fence 12 feet “inside” it which Thompsons themselves had built in 1969.

Tough schlitz to the Schlittenharts who were now pronounced not to have owned the “DMZ” between these two fences?

Heck no! On their behalf in came surveyor two … and let’s see how that worked out. To wit, surveyor two:

[E]xamined much the same information and used the same procedure as [surveyor I], but determined that the county road to the east of both properties was 60 feet wide rather than 40 feet wide and used the calls exactly as they were found in the Thompsons’ deed. … Because his survey would make the southern boundary of the Thompsons’ and Schlittenharts’ properties not a straight line, [surveyor II] did not believe that his survey reflected the intent of [the common grantors], but saw his duty as faithfully following the description in the Thompsons’ deedEmphasis added. [3]

‘What we’ve got here is failure to communicate. Some men you just can’t reach.” [4]

Surveyor 2.0 is pejoratively called a “deed staker”. He ‘slaps down the math’ and then tells people something along the lines of: ‘Gosh, you better go get an attorney. This is a mess!’

In this matter it turned out that Thompsons decided not to wait for that to happen; they initiated suit against Schlittenharts.

So, the trial court made its determination that the first surveyor knew what he was doing and as such the Thompsons prevailed. So of course then Schlittenharts appeal.

The appellate court offered a logical series of rules for determining Grantor’s Intent.

That information makes this case extremely valuable as guidance for surveyors [and attorneys] seeking to do their jobs right when the language in the deed just doesn’t fly.

As a result, the appellate court upheld the decision that the first surveyor knew what he was doing.

The appellate court then went on to recognize the trial court’s finding that the “DMZ” between the two fences had not been used exclusively by either party. [5]

Apparently, both parties had advanced claims of adverse possession in case declaratory relief of the line didn’t play to their favor.

The upshot was that Schlittenharts hadn’t adversely possessed for failure of exclusivity and Thompsons had failed simply because “[a] person cannot adversely possess his own property.”

And then we find out one last thing: “The Schlittenharts raise several other issues on appeal which were not raised at trial. These issues will not be considered. RAP 2.5(a).” [6]

In other words, the attorney dripped needless ink all over the appellate brief in a vain attempt to fashion arguments which simply could not be reviewed.

So what should we make of all this?

IMHO, someone should put a boot in both of Schlittenharts’ hired hands’ booties!

Bottom line, don’t be a “Schlitthead” and hire an idiot surveyor and then compound matters by then hiring a stupid lawyer.

Assuming you want to do things correctly, you can start along the right trail by instead taking Justice Smiles’ Initial Assessment [HERE].

[1] See [HERE].

[2] 47 Wn.App. 209, 734 P.2d 48 (1987). See [HERE].

[3] As a not so incidental aside, isn’t it curious that the two surveyors could deviate by 20′ as to the width of a county road? Folks, is it possible that the second surveyor might have done just a tad more due diligence vis-à-vis county records so as not to place his head up a situate where the sun doesn’t shine.

[4] See [HERE].

[5] Thompsons continued to mow the grass within the “DMZ” created by the original barbed wire fence and the later built chain link fence. What the Schlittenharts did in that area is not specified in the appellate opinion.

[6] See RAP 2.5 [HERE].

Roy v. Cunningham – Case Review

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.



  • 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.


  • 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.


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.]

Wells v. Miller – Case Review

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 [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].