Thompson v. Schlittenhart, 47 Wn.App. 209, 734 P.2d 48 (Div. I, 1987.03.18) – [Cause No: 17041-4-I] – upholds (a King County [Superior] Trial Court decision regarding a quiet title matter brought by Thompsons against the Schlittenharts who unsuccessfully claimed adverse possession to legal descriptions which overlap.
- Land Type: City/Suburban
- Water Feature: Not Specified
- Taxes Paid by AP: Not Specified, Unlikely
Chain of Title:
- TH – Thompson: Elmer & Jane Conger –> V.J. Wade in 1936.09 –> Thompson in 1953.
- AP – Schlittenhart: Elmer & Jane Conger –> Lulu Conger in 1923.05 –> Schlittenhart in 1971.
An overlap of the boundary line descriptions apparently created at the time of subdivision of the original property owned by Elmer and Jane Conger identified in the case specifically as follows:
The description in the [AP – Shlittenhar’s predecessor] Lulu Conger deed begins at a point some 1400 feet southeast of the Congers’ property, describes all of the Congers’ property and then excepts out a parcel from the southeast corner. The description of this exception begins at the southeast corner of the Congers’ property. The description in the [TH – Thompson’s predecessor] V.J. Wade deed begins at the same poiint as the [AP – Shlittenhar’s predecessor] Lulu Conger deed and does not coincide exactly with the description of the exception in the Lulu Conger deed. Consequently, the boundary line between the properties was not the same in both deeds. Emphasis Added. (p. 210).
Uses & Activities:
[Alphabetic Fact Support AP Claimant Schlittenhart – Numeric Supports TH Claimant Thompson]
“In 1969, the Thompsons [A] built a chain link fence inward from the  barbed wire fence some 12 feet on the west and 4 feet on the north. The [B] Thompsons continued to  mow the grass up to the barbed wire fence line.” (p. 210).
Initial Survey for Thompson:
In 1979, the City of Auburn widened the street on the east of both properties. The Thompsons had their property surveyed by William Baumgras, wo concluded that the true boundary of the Thompsons’ property was approximately along the barbed wire fence line. Baumgras first determined that the Thompsons’ deed did not establish the true boundary because it did not coles and the courses were incomplete and inconsistent. In particular, he could not determine whether the southeast corner of the Thompsons’ property was on the county road or just slighly west of it. He then examined the deeds of the surrounding properties, the conveyances of the Thompsons’ predecessors in interest, an unrecorded plat referred to in the Thompsons’ deed, monuments on the ground and county road maps to determine the intent of the initial commond grantors, the Congers. Emphasis added. (p. 211).
Second Survey for Schlittenharts:
The Schlittenharts did not agree with Baumgras’s survey so, in 1980, they had the Thompsons’ property surveyed by Robert McKiddy. McKiddy examined much the same information and used the same procedure as Baumgras did, but determined that the county road to the east of both properties was 60 feet wide rather than 40 feet wide and used the calls exactly ast they were found in the Thompsons’ deed. McKiddy’s survey placed the boundary 15 feet south and 5 feet east of where Baumgras’s survey placed it. Because his survey would make the southern boundary of the Thompson’s and Schlittenharts’ properties not a straight line, McKiddy did not believe that his survey reflected the intent of the Congers, but saw his duty as faithfully following the description in the Thompsons’ deed. Emphasis Added (p. 211).
“[W]hether the [AP claimant] Schlittenharts established their ownership of the disputed parcel by adverse possession.” (p. 212).
Adverse Possession Requires Exclusive Use – “One of the elements of a claim of adverse possession is that the possession be exclusive. Chaplin v. Sanders, 100 Wash.2d 583, 857, 676 P.2d 431 (1984).” (p. 212).
“The trial court’s findings that both parties used this area, and thus the [AP-Claimants] Schlittenharts’ use was not exclusive, is supported by substantial evidence.” (p. 212).
Ringold, Acting C.J., and Coleman, J., concur.
Justice Smiles’ Thoughts:
Generally, one must show a minimum of one fact indicative of use and a fact indicative of the line. In this case the line that the court determined to adopt was a pre-existing barbed fence line beyond a cyclone fence line built by the owners who were there first between these parties. Notably, the Thompsons were not the first owners between themselves and the Schlittenharts’ predecessor Lulu Conger who had lived on her parents real property and quite likely in their house for almost 50 years.
Notice that the Thompsons lived with the barbed wire fence in place for 15 years and then decided only two years before Lulu Conger moved out to replace it with a chain link fence which they decided not to replace on the barbed wire fence line, but instead pull back and instead continue to mow up to the barbed wire fence line.
That’s odd behavior which I have already started to analyze at the bottom of the Thompson v. Schlittenhart – Grantors’ Intent post. Obviously the Thompsons could not foresee that Lulu Conger was going to soon sell. If they had, it would have been in their best interest to wait until just before she was going to sell and indicate that they would be more than happy to build the fence on the property line at that time.
Of course, Thompsons may have decided (to argue) that they simply didn’t want to pay for the added cost of the fence to cover the additional length. If so, do you think they may have later regretted such a decision.
At any rate, the court determined pulling back the fence and still mowing the gap prevented exclusive use. What would be really interesting to know is whether or not Estoppel was one of the “several other issues on appeal which were not raised at trial.” (p. 213).
That seems like a lost opportunity. If it had been considered, it may have made a difference as to how discovery was conducted. This in turn may very well likely have revealed that there had been a survey performed by Thompsons not long before they built their chain link fence.
If so, per Chaplin v. Sanders this ought not to make a difference … except it might be that Lulu Conger’s health had been failing and this could be argued to have been a neighborly accomodation. If so, the court would have been able to decide for Schlittenharts based on the fact that their predecessor permissively allowed it.