The Seattle Boat Show is now running through the end of February 3. Be brave enough to venture to those boats at South Lake Union and I suspect you will find it worth the effort. Heck, while your at it take in the Museum of History and Industry (MOHAI) at its new location at South Lake Union too.
Now I don’t want to at all discourage you from making your nautical dreams a reality. In other words, if you identify a vessel you find worthy – buy it! Just know that if your vessel requires moorage, you might want to clarify that you actually have access rights before you go ahead. Why?
Lilly v. Lynch, 88 Wn.App. 306 (Div. II 1997) is a case which is instructive.
Ms. Lilly sued her neighbor Mr. Lynch regarding a boat ramp running along disputed land between their two properties. Counsel for Ms. Lilly apparently determined that a targeted rifle shot of one claim would not be as effective as a shotgun approach to the try-all trial. So claims of Adverse Possession, Estoppel [in Pais], and Mutual Recognition & Acquiescence were all claimed. Result?
Trial court through all of it out as rubbish on a motion for summary judgment advanced by Mr. Lynch. Of course, Ms. Lilly appeals.
So, what the Div. II court of appeals reviewed was a case in which:
- For 20 years the “successive owners of both properties believed” that the boat ramp was part of the Lilly property;
- Owners of what became the Lynch property used it with permission from owners of the Lilly property;
- There is a boundary wall beyond the boat ramp served as the divider;
- Lynch’s predecessor Smith would use the ramp to launch his boat;
- Lynch’s predecessor Smith would also sometimes leave the boat on the ramp overnight with permission;
- Lilly’s predecessor Bergers later purchased and parked their boat on the ramp for about four years without complaint from Lynch’s predecessor Smith who had to then launch around the boat;
- Lilly’s septic system is under the boat ramp;
- “Believing the boat ramp was hers, she extensively remodeled her home, building a wrap-around deck over a portion of the ramp [presumably fairly shortly after her home purchase in 1990]; But here is where she Ms. Lilly appears to have done herself in …
- She landscaped to the north [beyond the presumed boundary] wall.
A recent survey revealed that the actual boundary is just south of the boat ramp’s south wall. Thus, Lynch is the true titleholder to the ramp. The survey also revealed that a portion of Lilly’s house, deck, and storage shed are on the Lynch property.
Hmm? Ms. Lynch appears to have hoisted herself upon her own petard. No wonder her counsel thought it best to try to confuse the court with three claims of action.
So let’s think it through.
Estoppel [in Pais] – The maxim here is to receive equity, one must do equity. While not stated, I suspect this is what the trial court thought of this claim. However, the appellate court dismissed this claim on the basis that (a) Lynch sent a letter to Lilly indicating that three previous owners all believed the boundary wall served as the boundary and (b) she was not misled by the idea that the boundary wall was not hers when she started to landscape beyond the boundary wall.
So, here the court basically told Lilly that Estoppel was a dead letter.
Mutual Recognition & Acquiescence – Court of Appeals determined that summary judgment on this claim was premature if looking at all the facts in the most favorable light for Lilly. The language given by the court is telling:
This court has consistently held that where boundaries have been defined in good faith by the interested parties, and thereafter for a long period of time acquiesced in, acted upon, and improvements made with reference thereto, such boundaries will be considered the true dividing line and will govern, and whether the lines as so established are correct or not becomes immaterial.
Here though, I would like to raise three points. First, Mutual Recognition & Acquiescence, albeit its consistency of holdings, is rarely used and thus the contours of its jurisprudence is extremely slight. Second, Mutual Recognition & Acquiescence requires a burden of proof which is higher than that used for Adverse Possession – clear, cogent, and convincing v. a preponderance of the evidence respectively. Finally, Mutual Recognition & Acquiescence requires looking into the subjective intent (in this case noted as “good faith”) of both the title holder and the adverse possessor. However, adverse possession in the watershed case of Chaplin v. Sanders removed subjective intent, which incidentally up until its holding in 1984 only regarded what was in the mind of the adverse possessor.
Adverse Possession – Court of Appeals here, like Mutual Recognition & Acquiescence above, remanded this cause of action for the trial court to hear. The rationale for doing so was based on a failure to show that Lilly had exclusively owned the ramp, based on Lynch’s attempt to quiet the title of the ramp in his own name based on the survey.
By itself, I find this to be very interesting stuff. Next time, I am going to take this case into a hypothetical land in which RCW 7.28.083 is up and running at the time of its filing. That ought to be a kick!