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).

Assumed Uses: [1] Raising Crops.

Identified Boundaries:

The title line of eastern lots 1 – 4 had a [1] 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).

Noteworthy Fact:

 AP-Mondor indicated he had a survey performed and it didn’t match with the title line, but there was no testimony indicating that this information was disclosed by AP-Agnew to AP-Roys.

Sufficiency of Title Holder to Adverse Possession (“THAP”) Issue:

Whether there are sufficient facts to demonstrate Plaintiffs Roy claim of adverse possession is valid.


Majority Opinion: McInturff, J.

“Because the parties agree the legal description utilized by the trial court must be changed since it included property not at isue, we remand for a redetermination of damages consistent with the amended property description. All other issues are affirmed.” (p. 417).

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

Justice Smiles’  Thoughts:

Adverse Possession Element Rankings:

  • Actual Notice: High (5) 
  • Constructive Notice: Undeterminable (3)
  • Hostile: High (5)
  • Exclusive: High (5)
  • Continuous: High (5)
  • 10 Years Stat Period: Met (5)
  • Overall THAP Sufficiency: AP (5)

Damages: This case only indicates there was a fence. A fence which was destroyed. That might have been the a reason for (some of) the damages. But, the fact damages were to be dependent on a revised property description is strongly indicative of the fact that the property was being used for agricultural purpose. Would it matter whether those agricultural uses were for pasturage or raising crops.

Coases’ Indifference: Curiously, Coase has demonstrated economically regardless as to whether the burden was on the “farmer” or the “cowman” ultimately the use of the land goes to its highest purpose. This is interesting because it suggests that Washington would either be a “free range state” or a “crop state.” This in turn would assist to determine a default if the land was used for one purpose on one side of the fence and the other purpose on the other side of the fence. But, if the use is the same on both sides of the fence, barring the fact that Roys land is much larger and more efficiently used does it really matter in the grand scheme of things who wins.

Raising Crops is Assumed Use: Unless terribly mistaken, Washington is not a “free range state” and unless there is some sort of formula that I don’t know of for readily calculating how much land is needed for the purpose of pasturage and that calculation was delimited by the reduction in land here, I am determined to guess that the agricultural use here was for raising crops.

Likert Scaling: Despite this fact, I have scored this case in the same way I have with Wells v. Miller which is certainly a pasturage case. If my likert scale was not simply 1 – 5, but instead 1 – 7 though and I did have confirmation that this is indeed cropland, I would likely score this case as a 7 for actual notice whereas Wells v. Miller would receive a 6.

Actual v. Constructive Notice: When comparing these two cases, the only area in which I do have a difference currently is with respect to constructive notice. Here, we simply do not know. So, unless this was just skipped over because actual notice is deemed sufficient when there is a fence in place … and some use up to the fence, then whereas Wells v. Miller would have gone the other way, here we would have had a remand.

Well and good, well and good, my dear reader … along with why this long analysis?

Well, this is to prove a point. Use on the ground is the way people interact with their own land, their neighbors land, as well as their neighbors. So if we are going to take the two resultant parts of the element “Open and Notorious”, between “Actual Notice” and “Constructive Notice” when analogizing to a car crash … which one is the Suburban and which one is the Yugo?

Timing of Claim: Finally, timing might have potentially prevented Roys from bringing a claim against Agnew for breach of contract, but isn’t it more likely that Roys would have wanted to refrain from bring that action as the only benefit he would gain from it would be damages instead of recognition of adverse possession of the land. In that we have no facts presented regarding Agnew’s say in all of this, it seems if Roy didn’t have Mondor’s testimony, Roys’ claim would very likely have been a non-starter.gray-small.png