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).


“[W]hether the Roys may tack adverse use of the property by their predecessors in interest … in order to satisfy the element of 10 years’ adverse possession … Mr. Mondor did not intend to convey any interest in the disputed property. His only intent, as stated, was to convey the property described in the Mondor-Agnew contract [per its legal description].” (p. 414).


Taking – “Where there is privity between successive occupants holding continuously and adversely to the true title holder, the successive periods of occupation may be tacked to each other to complete the required 10-year period of adverse holding. RCW 4.16.020; El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 856, 376 P.2d 528 (1962)(citing Buchanan v. Cassell, 53 Wn.2d 611, 335 P.2d 600 (1959)).” (p. 413-14).


Majority Opinion: McInturff, J.

[Part I ] “The doctrine of privity has been broadly construed to be the “judicial recognition of the need for some reasonable connection between successive occupants of real property so as to raise their claim of right above the status of the wrongdoer or the trespasser”. Howard v. Kunto, 3 Wn.App. 393, 400, 477 P.2d 210 (1970), overruled on other grounds in Chaplin v. Sanders, supra at 861 n. 2. [Part II] Just as intent of the adverse possessor is irrelevant to the determination of the element of hostility, it likewise will not bar the application of privity to successors through documentary conveyances. This is particularly true in light of the rule allowing tacking when an adversely possessed strip is physically “turned over” in connection with the conveyance of adjoining land the possessor owns.” (p. 414).

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

Justice Smiles’  Thoughts:

Privity of contract means the only people who can enforce its terms are the signors to the contract. A covenant is a contractualal term which because it is included in a recording which emphasises that subsequent owners of the real property – be them successors in interest, heirs, or assigns – are bound to the benefits, the detriments or both to which the signors to the covenant are to be bound. The former runs vertically within the chain of title alone. The later runs horizontally with others who are not otherwise owners of the land, but who oftentimes – though certainly not always – has adjoining land.

Part I quotes from the pre-Chaplin case of Howard v. Kunto to indicate: “judicial recognition of the need for some reasonable connection between successive occupants of real property so as to raise their claim of right above the status of the wrongdoer or the trespasser”. Yet, in a post-Chaplin world, as Part II indicates, this is “irrelevant.” The court here indicates that regardless of whether Roys predecessor in interest Mondor had intended or had not intended to “pass over” the land to Roys immediate predecessor in interest Agnew, that action occured when the property was sold to Agnew.

As indicated at Justice Smiles’ Thoughts for the post Roy v. Cunningham – Boundary Uncertainty Declaration Mondor sold to Agnew with a cloud on title which probably meant that the value of the property had been discounted somewhat. Notwithstanding, because of tacking Agnew and then Roys were able to assert their rights to the land because of tacking to have it recognized as theirs through adverse possession.

There is a potential question which is not squarely addressed in this case other than to indicate that the land had been marked by the fence and used for pasturage for 20 years. That question is whether by tacking one passes that which one owns or whether one passes the right to add up the time against one’s neighbor.

In other words, Mondor may have perfected his right of ownership by adverse possession to all of the land and sold that perfected right along with the disclaimer that despite perfection, there has not be recognition. But what if Mondor hadn’t yet perfected his right adverse possession right and announced that he wasn’t certain where the boundary line was? The question of how tacking flows through under that circumstance is not decided in this case.

Attempting to shave it most close to the legal line, what if Mondor hadn’t perfected his title in adverse possession and instead of saying to Agnew ‘the land’s there somewhere, it’s up to you to get it’ he said: ‘I had a survey done right after I first bought the property, found that there was land beyond my titled bounds and have always thought I had been using it permissively.’

The answer to that seems to be that the very subjective nature of permissive use as identified between adjoining property owners would need to be explored instead of how tacking operates horizontally along the chain of title. Interestingly, the whole idea of a strip being ‘turned-over’ by tacking is considered a given, whereas determining whether or not there was permission is not. Provided Roys was not informed of the risks regarding whether he owned the land or not, isn’t he in a more fragile position than Agnew. Should that fact assist to further tip the scales in Roys favor or is having a hard and fast rule about tacking the best approach? Why or why not?gray-small.png