Court of Appeals Division I
State of Washington
Opinion Information Sheet
| Docket Number: |
66195-7 |
| Title of Case: |
James R. Herrin, Appellant V. Ellen O'hern, Respondent |
| File Date: |
05/14/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Whatcom County Superior Court |
| Docket No: | 09-2-01269-1 |
| Judgment or order under review |
| Date filed: | 10/29/2010 |
| Judge signing: | Honorable Charles Russell Snyder |
JUDGES
------
| Authored by | Ronald Cox |
| Concurring: | Michael S. Spearman |
| Anne Ellington |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | Patrick Michael Hayden |
| | Attorney at Law |
| | Po Box 454 |
| | Sedro Woolley, WA, 98284-0454 |
Counsel for Respondent(s) |
| | Robert Michael Tull |
| | Langabeer & Tull PS |
| | Po Box 1678 |
| | Bellingham, WA, 98227-1678 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JAMES R. HERRIN, a single man, and ) No. 66195-7-I
REBECCA HERRIN, as her separate )
property, ) DIVISION ONE
)
Appellants, )
)
v. )
)
ELLEN O'HERN, a single woman, ) PUBLISHED
)
Respondent. ) FILED: May 14, 2012
)
)
Cox, J. -- A party who originally uses property with the permission of its
owner and who later claims ownership by adverse possession has the burden of
proving that the owner terminated permissive use of the property.1 The relevant
viewpoint for determining whether and when permissive use terminates is that of
the owner who granted permission.2
Here, James Herrin and Rebecca Herrin claim adverse possession to
property whose record title owner is Ellen O'Hern. There is a genuine issue of
1 Miller v. Anderson, 91 Wn. App. 822, 829, 964 P.2d 365 (1998).
2 Id.
No. 66195-7-I/2
material fact whether the former owners of the property revoked permissive use
of it by a December 1993 deed to James Herrin and others. If so, the hostility
element of adverse possession arguably commenced at the time of that deed.
Thus, hostile use of the property, one of the necessary elements of adverse
possession, arguably began more than 10 years before the commencement of
this action. We reverse and remand for further proceedings.
Howard and Janet Rothenbuhler formerly owned the two adjoining parcels
of property in Acme that are involved in this case.3 The Herrins now own the
southwest parcel, on which a farmhouse sits. O'Hern owns the northeast parcel,
consisting of a field, barn, and acreage, which borders the southwest parcel on
its northern and eastern sides.
James Herrin married Julia Reed, the Rothenbuhlers's daughter, but the
marriage ended. In 1988, the Rothenbuhlers allowed Herrin to move into the
farmhouse, and he became the caretaker of both the northeast and southwest
parcels. By a deed of gift dated December 14, 1993, the Rothenbuhlers
conveyed the farmhouse to Herrin and his two children. James Herrin and
Rebecca Herrin, father and daughter, now own this property.
Ellen O'Hern acquired the northeastern parcel, which formerly belonged
to her parents, the Rothenbuhlers, by deed from her father's estate in December
2003, following his death in June 2001.
O'Hern holds record title to the property. It is on the southwest portion of
3 For clarity, this opinion refers to Howard and Janet Rothenbuhler by
their first names.
2
No. 66195-7-I/3
her property and consists of a garage, surrounding land, and additional land
within a fence. The record shows this property has always been used by the
owners of the farmhouse property now owned by the Herrins.
In 2008 or 2009, a survey disclosed that the property now in dispute
encroached on the northeastern parcel. Nothing in this record shows that
anyone was aware of the encroachment before the survey.
In May 2009, the Herrins commenced this action to quiet title to the
disputed property. They claimed that they acquired title by adverse possession.
They also advanced other theories that are not relevant to this appeal. O'Hern
counterclaimed to quiet title, to terminate use, and to eject the Herrins.
O'Hern moved for summary judgment. For purposes of that motion only,
she conceded that the adverse possession elements of actual, open,
continuous, and exclusive use existed. But she contended that the hostility
element was not met because the Herrins's use was permissive. She argued
that permissive use of the disputed property commenced in 1988, when Herrin
took on his duties as caretaker of both the northeast and southwest parcels.
Relying on Miller v. Anderson,4 she argued further that such permissive use did
not terminate until her father's death in 2001. Thus, according to her, less than
10 years elapsed between that date and this action. The trial court granted
O'Hern's motion and denied the Herrins's motion for reconsideration.
The Herrins appeal.
4 91 Wn. App. 822, 827, 964 P.2d 365 (1998).
3
No. 66195-7-I/4
PERMISSIVE USE AND HOSTILITY
The Herrins argue that there is a genuine issue of material fact whether
permissive use of the disputed property terminated in December 1993. If so,
hostile use of the property began at that time, commencing the 10-year period
required to establish adverse possession. We hold that there is a genuine issue
of material fact whether the former owner of the disputed property revoked
permissive use in December 1993.
In a summary judgment motion, the moving party bears the initial burden
of showing the absence of an issue of material fact.5 If the moving party is a
defendant and meets this initial showing then the inquiry shifts to the party with
the burden of proof at trial, the plaintiff.6 If the plaintiff fails to show the
existence of an element essential to his case, and on which he will bear the
burden of proof at trial, then summary judgment is proper.7 In effect, there can
be no genuine issue as to any material fact because failure to prove an essential
element of the nonmoving party's case necessarily renders all other facts
immaterial.8 In responding to the summary judgment motion, the plaintiff cannot
5 Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
6 Id.
7 Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986)).
8 Id. (quoting Celotex, 477 U.S. at 322-23).
4
No. 66195-7-I/5
rely on the allegations made in his pleadings, but must set forth specific facts
showing that there is a genuine issue for trial by affidavits or as otherwise
provided by Civil Rule 56(e).9
This court reviews de novo a summary judgment order, viewing the
evidence and all reasonable inferences therefrom in the light most favorable to
the nonmoving party.10
As this court stated in Miller, the adverse possession doctrine arose in
order to assure the maximum utilization of the land, encourage the rejection of
stale claims, and quiet titles.11 But courts will not permit the "theft" of property by
adverse possession unless the owner had notice and an opportunity to assert
his or her right.12 Therefore, there is no presumption in favor of the adverse
holder because possession is presumed to be subordinate to the true owner's
title.13
Adverse possession requires 10 years of possession that is (1) exclusive,
(2) actual and uninterrupted, (3) open and notorious, and (4) hostile.14 "The
9 Id. at 225-26.
10 Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995).
11 Miller, 91 Wn. App. at 827 (quoting Roy v. Cunningham, 46 Wn. App.
409, 412, 731 P.2d 526 (1986)).
12 Id.
13 Id. (quoting Muench v. Oxley, 90 Wn.2d 637, 642, 584 P.2d 939 (1978),
overruled on other grounds by Chaplin v. Sanders, 100 Wn.2d 853, 861 n.2, 676
P.2d 431 (1984)).
14 Id. at 827.
5
No. 66195-7-I/6
'hostility/claim of right' element of adverse possession requires only that the
claimant treat the land as his own as against the world throughout the statutory
period."15 Hostility is not personal animosity or adversarial intent, but instead
connotes that the claimant's use has been hostile to the title owner's, in that the
claimant's use has been akin to that of an owner.16
Permission to occupy the land, as given by the true title owner to the
claimant, will negate the hostility element.17 This means that use of the land with
the true title owner's permission cannot be hostile.18 Therefore, "'a different set
of rules applies when the initial use is permissive.'"19 The party claiming
adverse possession bears the burden of proving that permission terminated.20
"Because permission is personal to the grantor and cannot extend beyond that
person's ownership, the relevant viewpoint for determining when permissive use
terminates is that of the party granting the permission."21
Adverse possession is a mixed question of law and fact.22 Whether the
15 Chaplin, 100 Wn.2d at 860-61.
16 Id. at 857-58; Malnati v. Ramstead, 50 Wn.2d 105, 108, 309 P.2d 754
(1957).
17 Miller, 91 Wn. App. at 828 (citing Chaplin, 100 Wn.2d at 861-62).
18 Id.
19 Id. (quoting Granston v. Callahan, 52 Wn. App. 288, 293, 759 P.2d 462
(1988)).
20 Id. at 829.
21 Id.
22 Peeples v. Port of Bellingham, 93 Wn.2d 766, 771, 613 P.2d 1128
6
No. 66195-7-I/7
essential facts exist is for the trier of fact, but whether the facts constitute
(1980), overruled on other grounds by Chaplin, 100 Wn.2d 853.
7
No. 66195-7-I/8
adverse possession is for the court to determine as a matter of law.23
Here, it is undisputed that the Herrins's use of the disputed property was
permissive at its inception when Herrin worked as its caretaker. And it is also
true that permissive use may terminate when the servient estate has changed
hands through death or alienation.24 But these principles do not end our inquiry.
The proper inquiry, as this court stated in Miller, is whether any act after the
grant of permission terminated permissive use such that hostile use arose.25
There is a presumption that the Herrins's use of the disputed property
continued with the Rothenbuhlers's permission, especially given their friendly
and familial relationship.26 On summary judgment, the Herrins had the burden to
show that there was a genuine issue of material fact rebutting that presumption.
Viewing the evidence in their favor, as we must, they did so.
In his declaration opposing summary judgment, James Herrin testified that
the garage on the disputed property was always used exclusively by the owner
of the farmhouse property. The garage is only accessible from the farmhouse's
driveway, and the single garage door faces the farmhouse and driveway. He
further testified that he has used that garage and driveway for storage and
parking since he acquired ownership in 1993.
23 Anderson v. Hudak, 80 Wn. App. 398, 401-02, 907 P.2d 305 (1995)
(citing Peeples, 93 Wn.2d at 771).
24 Miller, 91 Wn. App. at 829.
25 Id.
26 Granston, 52 Wn. App. at 294.
8
No. 66195-7-I/9
He also testified that the fences that the survey shows encroach on
O'Hern's parcel are attached to the garage. They bar access to the garage from
O'Hern's parcel to the northeast. And he testified to his activities inside that
fence and around the garage.
The Herrins also submitted two additional declarations in opposition to
the motion, one from Reed and one from Neal Rothenbuhler, the
Rothenbuhlers's son.27 Neal's declaration states:
. . . I can say with certainty that until the location the legal
description for James Herrin's property was revealed by a survey
which I obtained in 2008-09, no one knew that the garage and
fences surrounding the property were outside his legal description.
I have never heard this issue raised by anyone prior to obtaining
the survey -- neither by James Herrin, my father Howard
Rothenbuhler, nor my sister Ellen O'Hern.
It was generally accepted by all parties that the garage was
owned by whomever owned the house, and that the fences were
the property boundaries for James Herrin's property. . . .
. . . .
. . . The fact is that no one knew the location of the garage
and fence lines until the survey was completed, and prior to the
survey, everyone presumed that they belonged to the owner of the
house, currently James Herrin.[28]
Reed's declaration makes similar statements:
. . . At no time prior to a 2008-09 survey, to my knowledge
did anyone question that the land inside the fence lines around the
house, and the garage, belonged to the owner of the house. . . .
The general understanding of everyone, including my father if he
even thought about it, was that the land inside the fence, and
particularly the garage, belonged to the owner of the house, who is
now James Herrin. It was not an issue -- it was just commonly
27 For clarity, this opinion refers to Neal Rothenbuhler by his first name.
28 Clerk's Papers at 92-93.
9
No. 66195-7-I/10
understood.
. . . .
. . . [O'Hern's] argument that our father and she (apparently
alone) knew the garage was on other property but out of affection
remained silent and let James Herrin use it with implied consent, is
simply not true based on my personal knowledge and experience.
(If my father knew the garage was not on James Herrin's property
he would probably have given it to him by deed, and if Ellen knew,
she would have documented the fact that his use was with her
permission.).[29]
It is undisputed that the Rothenbuhlers conveyed the house to James
Herrin and others by a deed of gift dated December 1993. It is also undisputed
that the legal description in this deed describes the farmhouse property that the
Herrins own. But the deed does not include the contiguous disputed property
that evidence shows was always used with the farmhouse.
Whether the December 1993 conveyance terminated permissive use of
the farmhouse property is undisputed. It did, by operation of law. That is
because permissive use cannot extend beyond ownership.30
The question for trial is whether this conveyance also terminated
permissive use of the adjoining disputed property, which was always used in
connection with the farmhouse property described in the deed. As we stated
earlier in this opinion, the relevant viewpoint for making this determination is the
owner who gave permission in the first instance. In this case, there is no
evidence to show that the Rothenbuhlers distinguished between the farmhouse
29 Id. at 94-95.
30 Miller, 91 Wn. App. at 829.
10
No. 66195-7-I/11
property and the disputed property on which the garage is located. To the
contrary, the evidence is that no one knew that the record title line divided them.
Thus, the finder of fact could conclude, on the basis of the December 2003 deed
as well as other evidence that may be developed for trial, that the Rothenbuhlers
also revoked permissive use of the disputed property in December 1993. This
would have begun the hostile use necessary to establish adverse possession.
O'Hern argues that the Herrins presented no evidence that permissive
use of the disputed property was terminated. To the contrary, we just discussed
how the evidence does just that.
Next, O'Hern argues that Reed's and Neal's declarations only indicate
that they were "unaware of any discussions ever, by anyone, regarding the use
of the disputed property." Therefore, "they present no evidence that the
permissive use was ever revoked." This is a reasonable interpretation of the
declarations. But taking them in the light most favorable to the Herrins, they
indicate that the Rothenbuhlers revoked permissive use of both the property
described in the deed as well as the disputed property. Therefore, O'Hern's
characterization of the declarations does not support the grant of summary
judgment.
O'Hern argues that under Miller, revocation of permissive use could only
occur on the sale of the servient estate, with clear notice of revocation, or with
an obvious change in use that terminates the permission. She argues that the
Herrins have not produced evidence of any of these events. She is mistaken.
11
No. 66195-7-I/12
In Miller, landowner Shaw gave implied or express permission to his
neighbor Tuttle to leave a fence on his property.31 Tuttle sold the lot to Clark five
years later.32 Clark, in turn, sold it to Miller.33 Shaw sold his lot 13 years later to
Anderson.34 A survey performed during Miller and Anderson's ownerships
revealed the true property line.35 The trial court quieted title in Miller based on
adverse possession.36 It concluded that Tuttle's use was permissive, but that the
permission was revoked as a matter of law by Tuttle's sale to Clark.37
On appeal, Miller argued that Tuttle's sale to Clark ended the permissive
use because permission is a revocable, personal, non-assignable license that
terminates upon the sale of either estate.38 The court reasoned that a landowner
who gives permission to another to use his land should not be required to
"monitor any and all transfers of his neighbor's estate to insure that his
permission is not extinguished."39 The court reversed, holding that "absent
31 Miller, 91 Wn. App. at 824.
32 Id.
33 Id.
34 Id.
35 Id.
36 Id.
37 Id.
38 Id. at 829.
39 Id. at 830.
12
No. 66195-7-I/13
revocation, only the sale of the servient estate, clear notice, or obvious change
in use terminates permission."40
In contrast to Miller, here there is a genuine issue of material fact whether
the Rothenbuhlers revoked permissive use of the disputed property when they
conveyed the adjoining property by deed in December 1993. This conveyance
occurred when no one distinguished between the farmhouse property described
in the deed and the contiguous disputed property where the garage used with
the farmhouse was located. If revocation occurred then, the hostility element of
adverse possession commenced at that time and it is immaterial when the
servient estate was conveyed. As stated in Miller, such factors are only
considered in the absence of revocation of permission.41
Moreover, the question of notice to the owner revoking permissive use is
not the same in this case as in Miller. The Rothenbuhlers had actual notice of
the conveyance to the Herrins of the property in the deed. Because there is no
evidence that they treated the disputed property differently from the property
described in the deed, they also had notice of the beginning of hostile use. For
these reasons, Miller is not dispositive.
Finally, O'Hern argues that the Herrins are attempting to shift the burden
of proof to the servient estate owner to prove that permissive use has not been
revoked. Specifically, she claims that the Herrins argue that, by his gift, Howard
is presumed to know that the Herrins claimed ownership of the disputed property
40 Id. at 832 (emphasis added).
41 Id.
13
No. 66195-7-I/14
by adverse possession. This mischaracterizes the Herrins's argument.
The Herrins argue that there is a genuine issue of material fact whether
the Rothenbuhlers revoked permissive use of the disputed property when
conveying the farmhouse property in December 1993. This argument does not
require any shifting of the well-established burden of proof from the party
claiming adverse possession to the servient estate owner.
DEADMAN'S STATUTE
The Herrins argue that O'Hern's testimony that Howard Rothenbuhler
implicitly consented to the use of the garage and fenced yard violates the
Deadman's Statute, RCW 5.60.030. For the following reasons, it is unnecessary
for us to resolve this issue in this appeal and we decline to do so.
The Herrins made a similar point in their briefing below. But they did not
move to strike any portions of O'Hern's declaration. O'Hern did not
substantively address the argument below, and the trial court made no ruling in
its summary judgment order. In short, there is no ruling on this issue for this
court to review.
We also note that our analysis is based on evidence submitted by others:
James Herrin, Neal Rothenbuhler, and Julia Reed. Thus, there is no reason for
this court to address the admissibility of O'Hern's testimony in this appeal.
Accordingly, we do not decide whether or to what extent testimony by
O'Hern or others may be barred by the Deadman's Statute.
14
No. 66195-7-I/15
STATUTORY ATTORNEY FEES
Both sides seek statutory attorney fees based on Rule of Appellate
Procedure 18 and RCW 4.84.080. The Herrins are entitled to the statutory
award for prevailing in this appeal.
We reverse and remand for further proceedings.
WE CONCUR:
15
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