gray-large.pngRoy v. Cunningham, 46.Wn.App.409, 731 P.2d 526 (1986.12.30) – [Cause No: 7208-8-III] – upholds the Yakima County Superior Court – [Case No: 83 2-01530-7] liability trial decision of Judge Jo Anne Alumbagh in favor of adverse possessors, Plaintiffs Roy, et al, yet remanded for redetermination damages for which title holder, Defendants Cunningham, et al, were to be liable.



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

Chain of Title:

  • TH – Isreal – Lot 1: Unspecified other than Allen Isreal, Trustee of Cunningham Childrens.
  • TH – Cunningham – Lot 2: Unspecified except as contract purchasers including 2 marital communities existing “after September 15, 1982” – the date of their portion of second portion of fence removal. (p. 411).
  • TH – Meyers – Lots 3 & 4: Unspecified except Robert & Sandra’s marital community in existence “in August 1980” – the month of the initial portion of fence removal. Id.
  • AP – Roy: Mr. Mondor owned the land for 14 to 16 years before the 1974 sale to Mr. Agnew who was Roys’ immediate predecessor selling the eastern property which adjoined the other four lots to Roy under contract in 1977. (p. 413).

Identified Boundaries: The title line of eastern lots 1 – 4 had a fence which “for at least 20 years prior to its [1980 (Robert Meyers) and subsequently the 1982 (Cunninghams)] removal represented and was used as a “well marked and defined boundary between the real property lying west and east of said fence.” (p. 412)

Important Facts: 

The fence had been in existence and used to contain livestock for well over the prescriptive period before Roys predecessor in interest Mondor became aware that its location was beyond his titled boundary lines. Mondor testified he told Agnew of the issue at the time Mondor sold the property to Agnew.


“[W]hether a presumption of permissive use arises where a fence is used to contain livestock.” (p. 411).


Permission Nullifies Hostility – “Permission to occupy the land, given by the true title owner to the claimant or his predecessors in interest, will operate to negate the element of hostility in an adverse possession claim. Chaplin v. Sanders, 100 Wn.2d 853, 861-62, 676 P.2d 431 (1984).” (p. 411).

Fence’s Actual Use Trumps Original Purpose –“The nature of the actual use, rather than the original purpose for constructing the fence is controlling.” (p. 412).

No Presumption of Permission if Fence’s Purpose is Unknown – “[W]here the original purpose for the fence is unknown, no presumption of permission arises.” (p. 412).


Majority Opinion Authored by Thompson, J.

Pasturage use up to a fence of original unknown purpose (and presumably also unknown origin) was here considered hostile for the purpose of adverse possession. There was no testimony identified which indicated use was permissive. 

McInturff, A.C.J. and Yencopal, J. Pro Tem., concur.

Justice Smiles’ Opinion:

The Achilles Heel of Adverse Possession is permission because it nullifies the element of hostility. Here there was simply no evidence to which the appellate court pointed in order to validate the claim of permission. OK!

Yet, the adverse possession claimant is the one who has the burden of proof to show satisfaction of all of the elements. This fence appears to have precluded exit of Mondors’ cattle. Is that really hostile? Why or why not? As a clue, is it possible the focus on the fence is misplaced?gray-small.png