gray-large.pngCrites v. Koch, 49 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 [2] to 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.”


“[Whether] the trial court’s findings that [AP – Plaintiff] Crites’ use of the southern portion of Black Acre was exclusive.”


Shared Occupancy is Generally Not Exclusive – Generally, shared occupancy of disputed property by the adverse possessor and the title owner precludes “exclusive” possession. Cf. Scott v. Slater, 42 Wash.2d 366, 369 255 P.2d 377 (1953), overruled in part on other grounds, Chaplin v. Sanders … . (p. 174).

Absolute Exclusivity Not Necessary – In order to be exclusive for purposes of adverse possession, the claimant’s possession need not be absolutely exclusive. Rather, the possession must be of a type that would be expected of an owner under the circumstances. Russell v. Gullett, 285 Or. 63, 589 P2d 729, 730-31; 3 Am.Jur.2d [Adverse Possession] §75, at 171 [1986].” (p. 174).

Exclusivity Considers Likely Land Use of an Owner – [T]he possession must be of a type that would be expected of an owner under the circumstances. Important to a consideration of what use an owner would make are the nature and location of the land. Chaplin v. Sanders, supra 100 Wash.2d [853] at 863, 676 P.2d 431. (p. 174). 


Swanson, Judge.

Crites testified without contradiction that he had continuously farmed Black Acre, i.e., planted, harvested, rotated, and sold corps in the same manner as his adjoining land for at least 15 years. … The appellants [TH- Defendants Kile] testified tha they refrained from parking on or driving across the southern part when it was seeded. It was undisputed that Crites’ farming never interfered with the appellants’ use of Black Acre. As noted by the trial judge in his oral opinion, the appellants’ 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. (p. 174 – 75). 

Munson and Gren, JJ., concur.

Justice Smiles’ Thoughts: 

No quibbles with the decision here. However, the court later states: “Decisions cited by appellants in which the exclusivity requirement was not satisfied because the owner and the adverse possessor shared occupancy of the disputed property are distinguishable. The owner’s use in these decisions was substantially greater and more similar to the use made by teh adverse possessor than in the instant case.”

Great, would it have been that hard for the appelate court to tell its clerk to list those cases so that the legal line could have been better identified? Clearer lines creates less liklihood for future confusion. Appellate decisions have stare decisis effect. So considering the generally recognized statistic that perhaps only 1% of cases actually go to trial and that a smaller percentage of those cases are then appealed, why shouldn’t the appellate court throw out a few more crumbs so lawyers can better advise prospective litigants as to their rights upfront instead of forcing them to spend $10s of thousands?gray-small.png