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).

Particular Facts:“The relevant language in the Roy letter read:

As we advised you, we do not intend to acquiesce in such conduct and accordingly unless the fence is replaced to its original location within ten (10) daysl we intend to initiate the necessary legal proceedings to quiet title to the property in question and for damages. We hope that will not be necessary. (p.415-16).


“[W]hether the Roys are estopped from asserting their claim 3 years after originally threatening suit.” (p. 414).


Estoppel:”A boundary by estoppel arises when one owner erroneously represents to the other that their common boundary is along a certain line; and the second owner, in reliance, builds encroaching improvements or takes other detrimental action. The party making the representations is estopped to deny them and the boundary is in effect shifted accordingly.” (p. 415).Estoppel’s Burden of Proof:”The party seeking to establish equitable estoppel must prove the follwing by clear, cogent and convincing evidence: (a) and admission, statement, or act inconsistent with the claim afterward aserted: (2) action by the other party on the faith of such admission, statement, or act; and (3) injury resulting from allowing the first party to contradict or repudiate. Arnold v. Melani, 75 Wn.2d 143, 147, 437 P.2d 908[.]” (p.415). Silence Not an Abandonment Declaration:”Failure to sue immediately after an assertion of a possessory interest in land does not amount to a representation that a claim has been abandoned.” (p. 416).


Majority Opinion: McInturff, J.

 “It can be reasonably be concluded the Roys did not deem a lawsuit necessary until after September 1982 when the Cunninghams … also moved their fence to the true boundary line. Bearing in mind the period of time during which a person may legally bring a lawsuit after a cause of action arises regarding real property, failure to sue immediately after an assertion of a possessory interest in land does not amount to a representation that a claim has been abandoned. Moreover, the Meyerses’ subsequent improvements and conveyances despite actual notice of the Roys claim were undertaken without the requisite “right to rely”. Estoppel was therefore not established. (p. 416 with emphasis added).

Concurring Judges: Green, C.J. and Munson, J.

Justice Smiles’ Thoughts:

Great analysis by the court! The only complaint – and this is NOT a mere quibble – is the use of the term true boundary line is the boundary line to which the court recognized that Roys and their predecessors in interest had adversely possessed. The line which the court did not adhere to was the line which the surveyor had revealed – the titled (boundary) line. If the several defendants were able to quiet title to the titled boundary line it can be considered the true boundary line. But, that didn’t happen here. So, the appellate court’s lack of linguistic precision forwards the commonplace misconception that title lines and boundary lines are (necessarily) the same. While they may be, any time the adverse possession claimant prevails, they are not.gray-small.png