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].

Facts:

General:

  • 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.”

Issue:

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

Rule & Decision:

Swanson, Judge.

Community Allowed Courtesies are Non-Exclusive – [T]he type of use made by the appellants [TH Defendants – Kile] — occasional parking of equipment and crossing — was a type of use permitted by the community as neighborly courtesy. Allowing such use would be expected of an owner and appellants’ use of the southern part for such purposes did not vitiate the exclusivity of Crites’ possesssion. See, e.g., Russell v. Gullett, [285 Or. 63, 589 p.2d 729, 730- 31 (1979)] (use of clothsline on disputed property by owner did not render use by adverse possessor nonexclusive since allowing neighbors to use clothesline would be a use expected of an owner). (p. 175-76).

Munson and Gren, JJ., concur.

Justice Smiles’ Thoughts: 

The [infamous] landmark case of Chaplin v. Sanders – which threw out subjective intent as a means of attempting to separate whether deisisin was wrongful or mistaken expressly indicates that permission still operates to void adverse possession. Permission – which incidentally can not be thrust onto a putative adverse possessor – but which is valid when acknowledged by that same individual comes in three flavors. The highest order is permission which is offered and accepted. The second order is verbal permission which is also offered and accepted. This too is valid, but as is often the case in law, its about as worthwhile as the paper its written upon. The lowest order is tacit permission which is offered as a Neighborly Accommodation.

The court’s indication of permissive use here appears to be dicta. But, it does help to demonstrate that law operates within culture confines. Fortunately, for AP – Plaintiff Crites those confines meant that the title holder’s use was considered permissive and as a result Crites use of the southern portion of land was deemed an exertion of his superior right to it.

As I have remarked in my post — Hostile & Exclusive: Are these Really Distinct Elements — in  my humble opinion are theoretically hostile and exclusive are opposite sides of the same coin. Notwithstanding, my humble opinion only offers a framework for better understanding the ins and outs of these elements. When courts look at exclusive, they are looking at the element generally with respect to excluding everyone.

So, if your case requires it, consider attempting to use permission as a wedge both to attack both an adverse possession claimants elemental claims of purported hostile and exclusive use.gray-small.png