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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RICHARD CALLAGHAN and                       )
SHARON CALLAGHAN, husband                   )       No. 66655-0-I
and wife,                                   )
                      Appellants,           )       DIVISION ONE
                                            )
              v.                            )       UNPUBLISHED OPINION
                                            )
LINDA A. HADLEY aka LINDA A.                )
MORROW, Trustee of the Linda A.             )
Morrow Trust; JOHN H. HADLEY, JR.,          )
Trustee of the John H. Hadley, Jr. Trust;)
and JOHN H. HADLEY, JR. and LINDA  )
A. HADLEY, husband and wife,                )
                                            )       FILED: June 11, 2012
                      Respondents.          )

       Grosse, J.  --  A party who asserts a boundary line under a theory of 

mutual  recognition and  acquiescence must prove that there is a certain well-

defined line for that boundary.  Here, there is no evidence of a clear line, 

monuments, or other evidence from which one could establish a well-defined 

line.  Accordingly, we affirm.

                                        FACTS

       At issue is the location of the boundary between two properties on

Camano Island.  Richard and Sharon Callaghan (collectively, Callaghan) filed a 

complaint to quiet title under theories of mutual recognition and acquiescence 

and adverse possession.  The trial court rejected their claim as a matter of law 

on cross-motions for summary judgment, and quieted title in favor of the title 

holders, Linda Hadley and John Hadley, Jr., trustees of the Linda A. Morrow  

No. 66655-0-I / 2

Trust and the John Hadley, Jr. Trust (collectively, Hadley).  Almost a year later, 

the trial court upheld on summary judgment Hadley's counterclaim for trespass 

with some restrictions and would not permit Callaghan to amend his pleadings to 

assert a claim for an easement.  Callaghan appeals.

                                      ANALYSIS

       A boundary line that is at odds with the true boundary line revealed by a 

survey may be established through mutual recognition and acquiescence.  As 

our  Supreme Court has made clear in Merriman v. Cokeley,                 "[a]  fence, a 

pathway, or some other object or combination of objects clearly dividing the two 
parcels must exist."1   In Merriman, the court reiterated that a clear dividing line 

must be present in the area of the disputed border, holding that "three widely 

spaced markers . . . set in a thicket of blackberry bushes, ivy, and weeds, did not 
constitute a clear and well-defined boundary."2

       To establish a boundary line by mutual recognition and acquiescence the 

boundary must be "certain, well defined, and in some fashion physically 
designated upon the ground, e.g., by monuments, roadways, fence lines, etc."3  

The owners on each side, and their respective predecessors in interest, must 

1 168 Wn.2d 627, 631, 230 P.2d 162 (2010) (citing Lamm v. McTighe, 72 Wn.2d 
587, 593, 434 P.2d 565 (1967)).
2 168 Wn.2d at 632; see also Scott v. Slater, 42 Wn.2d 366, 368, 255 P.2d 377 
(1953)  (no well-defined boundary established where there was no fence or 
defining point of cultivation on the ground near disputed border), overruled on 
other grounds by Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984); 
Green v. Hooper, 149 Wn. App. 627, 642, 205 P.3d 134 (2009) (retaining wall 
constructed of railway ties insufficient to establish boundary by acquiescence 
where wall ended before disputed area).  
3 Lamm, 72 Wn.2d at 593.

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No. 66655-0-I / 3

have manifested their mutual recognition and acceptance of the line "by their 
acts, occupancy, and improvements with respect to their respective properties."4  

"A party claiming title to land by mutual recognition and acquiescence must 

prove (1) that the boundary line between the two properties was 'certain, well 

defined, and in some fashion physically designated upon the ground' . . .; (2) 

that the adjoining landowners, in the absence of an express boundary line 

agreement, manifested in good faith a mutual recognition of the designated 

boundary line as the true line; and (3) that mutual recognition of the boundary 

line continued for the period of time necessary to establish adverse 
possession."5   The claiming party bears the burden of showing by clear, cogent,

and convincing evidence that both parties acquiesced in the line as a boundary 
for 10 years.6    A claimant cannot establish acquiescence in a boundary line 

through unilateral acts.7    Our courts have long required a mutually respected 

and  definitive line in the area of a disputed border before determining that 
adjoining property owners have acquiesced to an adjusted boundary.8

       Even if all of the declarations were accepted, there is no evidence of a 

clear line of demarcation. In his deposition, Callaghan avers that the previous 

owner of his property showed him the property line with "[g]eneral directions."  

4 Lamm, 72 Wn.2d at 593.
5 Merriman, 168 Wn.2d at 630 (quoting Lamm, 72 Wn.2d at 593).
6 Lilly v. Lynch, 88 Wn. App. 306, 316-17, 945 P.2d 727 (1997) (citing Muench v. 
Oxley, 90 Wn.2d 637, 641, 584 P.2d 939 (1978), overruled on other grounds by
Chaplin, 100 Wn.2d at 861 n.2.
7 Heriot v. Smith (Lewis), 35 Wn. App. 496, 501, 668 P.2d 589 (1983) (citing 
Houplin v. Stoen, 72 Wn.2d 131, 431 P.2d 998 (1967)).
8 Lamm, 72 Wn.2d at 593.

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No. 66655-0-I / 4

Callaghan asserted that his predecessor pointed out that "the property line went 

down the center of the gorge there[,] where the bluff starts.  There was a large-

diameter aluminum pipe in the middle of the gorge that was inactive.  He 

indicated it went down  to the middle of the gorge to the beach."   Callaghan

further stated:

       The recognized common property line between my property and 
       Mr. Berg's property had always been roughly 5 feet east of a swale 
       on the ground that ran North and South.  The line continued down 
       through the center of the gorge, which was marked with an 
       aluminum pipe.

       The evidence presented here does not establish or clearly define the 

asserted property line or refer to any physical demarcation of the line.  

Callaghan attempts to establish the line by reference to a shallow "swale" or 

"ditch," which was caused by a pre-existing drainage line.  That swale was 

covered over when Callaghan installed the new drain line in 1997 to 1998.  

Moreover, the 1997 Callaghan survey clearly showed that the drain line only 

intersected a small portion of Hadley's property, near the second northern-most 

holly tree.  That line is not the same line that Callaghan now appears to claim.  

The drain line in fact is not clearly visible from the surface or the beach, but is 

under overgrown brush, debris, and soil.  In his deposition, Callaghan admits 

that the drain line is covered with heavy vegetation.  This falls far short of what is 

required to establish mutual recognition and acceptance.  It is not "certain, well 

defined, and in some fashion physically designated upon the ground, e.g., by 
monuments, roadways, fence lines, etc."9  

9 Lamm, 72 Wn.2d at 593.

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No. 66655-0-I / 5

       Callaghan raises a variety of issues with the exclusion of certain
declarations because of hearsay or violation of the dead man's statute.1           Even 

considering the evidence presented in those declarations, the evidence is 

devoid of any clear line or demarcation to mark a boundary line different than 

that contained in the survey.     The area claimed here is ill-defined and there is 

nothing consistent to demarcate the boundary.            Callaghan spoke of a path 

leading to the beach, but at the same time admits to its overgrowth.  The parties 

submitted pictures to the court, but on appeal have only provided this court with 

black and white photocopies.  At oral argument, Callaghan presented color 

photographs.  However, none of these photographs show a definitive line.  At 

most there is a slight indentation that can be seen on a small part of the 

property.  But it is not that indentation that Callaghan claims as the boundary;

rather, it is somewhere "roughly" five yards east of it.  It is impossible to tell from 

those pictures with any specificity what the line of demarcation would be on the 

property.  Indeed, the trial court commented on the inadequate pictures in the 

trial record and the difficulty of demonstrating any line.   The presence of a 

physically designated and mutually respected boundary line is crucial to the 
determination of an adjusted border.11 There is simply no such evidence here.

       Callaghan argues that the trial court erred in not permitting him to amend 

his complaint to assert a claim for an easement.  CR 15(a) provides that leave to 

amend a complaint should be "freely given when justice so requires."  A trial 

1 RCW 5.60.030.
11 Merriman, 168 Wn.2d at 630-31.

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No. 66655-0-I / 6

court's denial of a motion to amend is reviewed for an abuse of discretion.  The 

yardstick courts apply is whether the amendment would cause prejudice to the 

nonmoving party.  To determine whether prejudice results, a court considers 

unfair surprise, introduction of remote issues, or potential delay.  If a claim can 

be litigated with the same evidence already in the case, it may be proper for a 
trial court to allow an amendment.12  As this court recently stated, "[A] party who 

does not plead a cause of action or theory of recovery cannot finesse the issue 

by later inserting the theory into trial briefs and contending it was in the case all 
along."13  It would be unfair to permit Callaghan to raise an issue on a claim 

which he failed to present the first time.

       The court noted that Callaghan claimed title to the disputed property 

under the doctrines of adverse possession and mutual agreement and 

acquiescence and no alternative claim for an easement.  Hadley denied those 

claims and countered with a trespass claim.  Callaghan denied the trespass 

claim but did not assert any counterclaim against Hadley.  After considering all 

of the summary judgment motions, the court resolved the issue of title to the 

disputed property and entered final        judgment awarding Hadley title to the 

property with Callaghan having no interest therein.

       Moreover, we note as the trial court did, that in order to remove the 

statute of frauds requirement, Callaghan would have had to prove part 

performance     establishing:    (1) actual and exclusive possession,                 (2) 

12 Kirkham v. Smith, 106 Wn. App. 177, 181, 23 P.3d 10 (2001).
13 Karlberg v. Otten, No. 64595-1-I, slip op. at 7-8 (Wash. Ct. App. April 2, 2012) 
(internal quotation marks omitted) (citation omitted).

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No. 66655-0-I / 7

consideration, and (3) permanent improvement.14          The record before the court 

did not establish those elements and thus there could be no easement.

       Accordingly, we affirm the trial court.

WE CONCUR:

14 Berg v. Ting, 125 Wn.2d 544, 556, 886 P.2d 564 (1995).

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