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 propety lying west and east of said fence.” (p. 412).

Specific Facts: “Here, the trial court ruled that, although the original purpose for constructing the fence was unknown, for at least 20 years prior to its removal the fence represented and was used as a “well marked and defined boundary between the real property lying west and east of said fence”. Testimony at trial indicated a difference of opinion by certain prior owners as to their understanding of the purpose of the fence. The Meyerses, et al, argue that statements made by a prior owner, Willis Mondor, to the Roys’ immediate predecessor, Don Agnew, establish objective indicia of the use of the land. Specifically, Mr. Mondor testified that, prior to the 1974 sale to Mr. Agnew, he had a southern portion of the property surveyed; he knew the fence was beyond is actual eastern boundary line; he informed Mr. Agnew of these facts; and told Mr. Agnew “that [Mr. Mondor] was selling him according [to] the legal description. The the land was there someplace. If it was inside the fence, all right, and if it wasn’t, it was up to him to get it”. Mr Mondor testified he owned the property for at least 14 to 16 years prior to the sale to Mr. Agnew and he used the entire area up to the fence for grazing purposes.” (p. 412-13).


“[W]hether express declarations of a prior owner that he does not know exactly where his boundary line is with regard to the disputed land will negate the “hostility/claim of right” element of adverse possession.” (p. 412).


Land’s Objective Treatment Controls – The hostility/claim of right element requires only that the claimant “treat the land as his own as against the world throughout the statutory period”. Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984). The claimants’ subjective belief and intent to dispossess or not dispossess another are not relevant to this determination. Chaplin, at 861.


Majority Opinion Authored by Thompson, J.

 [T]h evidence indicates Mr. Mondor and his successors treated the land up to the fence as their own as against the world. That essential fact was correctly determined by the trial court, and we conclude Mr. Mondor’s statemts were merely expressions of irrelevant subjective beliefs.” (p. 413).

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

Justice Smiles’ Opinion:

Is subjective intent and subjective belief the same thing? The court here uses the later whereas the former is what was used in Chaplin v. Sanders. As subjective intent seems to be the formation of thoughts upon which actions are or are planned to be taken, perhaps beliefs are subsumed in its definition and this is a completely moot point.

Notwithstanding, according to Mondor’s testimony which appears to have been afforded credibility, Mr. Agnew purchased the property knowing that there was a cloud on title (i.e. Agnew ‘bought into the problem.’) With this knowledge, one would think – based on the elasticity of the market demand at the time of Mondor/Agnew purchase and sale – Agnew received a discount for the risk.

That risk may be divided into two parts. One part is the risk that one may not own the property based on fact and law – the merits. The other part is the risk associated with having tp seek to have a legally perfected boundary recognized by the neighbors – if seeking to do things peacefully – or by the courts – if wanting to do things painfully.

Some people are in a better position to accept these risks. Was Mr. Agnew? Separately, the case did not mention whether or not Mr. Agnew forwarded the information about fence uncertainty on to Roys. If he had, would it have made any difference to case results. This seems to be an important question – at least now that we have seller’s disclosure Form 17 – as it is a representation to purchasers which serves to carve out an exception to the seller’s statutory warranty deed. So, this raises the question should – if he could have – Roy have named Agnew as a defendant?

Legal procedure allows the inconsistency of “pleading in the alternative.” If Roys also named Agnew, would the results have been any different? Finally, if subjective intent had not been thrown out by Chaplin v. Sanders two years earlier – incidentally a year before this case was decided at trial – would it have been appropriate for the appellate court to decide to overrule?gray-small.png