gray-large.pngThompson 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.

Facts:

General:

  • 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.

Disputed Property:

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 – Shlittenhart’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 point 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 [1] barbed wire fence some 12 feet on the west and 4 feet on the north. The [B] Thompsons continued to [2] 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 common 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).

Issue:

Whether there were sufficient facts to demonstrate Defendants Schlittenharts – and so too Plaintiffs Thompson’s – separate claims of adverse possession were valid.

Rules:

Adverse Possession Requires Exclusive Use – “A person cannot adversely posses against his own property.” (p. 213). 

Decision:

Williams, Judge.

“The trial court essentially concluded that the Thompsons are the record owners of this parcel. … The judgment is affirmed.” (p. 213). 

Ringold, Acting C.J., and Coleman, J., concur.

Justice Smiles’ Thoughts: 

  • Actual Notice: Moderate (2)
  • Constructive Notice: Mixed (3)
  • Hostile: Moderate (2)
  • Exclusive: Not (2)
  • Continuous: Used by TH (2)
  • 10 Year Stat Period: Met [by TH] (1)
  • Overall THAP Sufficiency: TH (2)

Burden of Proof: Both parties claimed adverse possession, but Thompsons were at the property first. The fact that there was a fence – which upon the other side – the Thompsons continued to regularly mow their grass. The Schlittenharts, who very well may have purchased their property without any knowledge of the barbed wire fence, ought to have wondered what was going on when the Thompsons would come around the cyclone fence and mow up to the barbed wire fence line.

If they had complained early enough, perhaps they would have been able to claim that when they purchased their real property, they were under the impression that they owned right up to the chain link fence.

In this case, ten years – the statutory period – with the chain link fence and the barbed wire fence down before commencement of the suit. Oddly, if this case had been decided at summary judgment and thus would have been reviewed de Novo – i.e. with the completely fresh eyes of the appellate court instead of after trial only for “an abuse of the trial court’s discretion”, Schlittenharts may have had a better shot at a win.

Finally, although I think this case could have gone the other way, under current adverse possession law, either party could have identified the barbed wire fence as the line of occupation and thus – barring tolling by Lulu Conger – as the boundary and sought to have the court validly recognize it as such for 10 years from the date that it was removed. 

Why? Because the barbed wire fence had been in place since 1936. Each party could claim adverse possession up to it and would have won. The only unsettled question is who actually owned the fence? Because the court determined that it was the Grantors’ Intent to use it to separate the properties, in the absence of facts contradicting, wouldn’t the court decide that the fence is owned in equal parts by both parties?

If so, then Thompsons removal of the fence, without Lulu Conger’s express permission might have been waste. Yet, if the barbed wire fence had been in place for over 30 years, is it really that bad that the Thompsons may have just decided to get rid of it? Presumably not. But, one without asking one never knows if one’s neighbor has some sort of special – seemingly unfathomable – attachment.

What’s more unfortunate is that there are attorneys who will take on a case which may be as trite as that as a litigation pit bull. Obviously, I have very little – as in absolutely no – respect for attorneys that pull that kind of nonsense. But, I suppose they are entitled to chase after every milk bone they can get after … despite the banality of it all.gray-small.png