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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

SUSAN CONNOR, a single woman,               )       NO. 66162-1-I
                                            )
                      Appellant,            )       DIVISION ONE
                                            )
                      v.                    )
                                            )
RICHARD L. KING and AUDREY J.               )
KING, husband and wife, and the             )
marital community composed thereof,         )       UNPUBLISHED OPINION
                                            )
                      Respondents.          )       FILED: February 6, 2012

       Lau, J.  --  This boundary line dispute between two adjacent property owners 

involves the meaning of a 1974 deed's reference to an "existing fence." The parties 
disagree about whether the "existing fence" described in that deed is a "zigzag" fence1

that currently exists or a "straight" fence that no longer exists.  Because substantial 

evidence supports the court's findings that the fence referred to in the deed was a 

fence that no longer exists and those findings properly support the trial court's 

conclusion that the boundary that most closely represents the original grantor's intent is 

a straight line between points A and B as those two points are described in the 1974 

       1 The parties variously describe the current fence on the ground as the existing
fence, the zigzag fence, irregular fence, meandering fence, or barbed wire fence.  For 
clarity, we use zigzag fence to describe the current fence on the ground. 

66162-1-I/2

deed, we affirm the judgment and conclude Connor's adverse possession claim fails.

                                            FACTS

       At the bench trial, witnesses testified and 54 exhibits established the following 

facts.  Until 1966, the Lorenz family owned and lived on farm property outside Monroe 

in Snohomish County.  The Lorenz property was bordered on the south by Florence 

Acres Road and on the north by Yeager Road.  Judith Lorenz Bosse lived on the farm 

from 1943 to 1966.  She testified that during her time on the property, there was a 

fence that ran in essentially a straight line from the Van Ness property (bordering on 

the west) to the east border of the farm.  The fence was placed along the edge of the 

southernmost pasture of the family farm but below the trees located on what is now 
King's Hill Property.2  

       Bosse testified about a 1965 photograph she took of her father at the farm while 

standing on the Hill Property facing north towards the Farm Property pasture.  In the 

foreground, the photo shows a straight fence located between the hill and the flat land. 

She also indicated the fence location on a 1969 aerial photograph.  She testified the 

fence was along the pasture area below the trees and was as straight as they could 

make it. 

       Raymond and Margaret Nelson bought the entire property from the Lorenz family 

in 1966.  Raymond Nelson's business partner was his brother Vern Nelson, who lived 

       2 We refer to the property on the hill now owned by King as the "Hill Property,"
and the flat farm property now owned by Connor as the "Farm Property." The Lorenz 
family owned one undivided property that encompassed both the Hill Property and the 
Farm Property.
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on the hillside.  Raymond Nelson also testified about the Bosse photograph depicting

her father and the fence.  He testified the fence existed on the property during his 

ownership.  A person riding a horse next to the fence would be in the pasture, not 

amongst the trees located on the hillside, because there were no trees between the 

pasture and the fence.  He also testified that a person could look from one end of the 

fence down to where it ended and see the whole fence from the pasture.  

       In 1974, he negotiated a two-part sale of the property to Homer Roberts.  The 

first part of the sale from Nelson to Roberts included the lower farm land (now the Farm 

Property) and the house on that land.  They also agreed Roberts could later buy the 

upper property (now the Hill Property).  

       In December 1974, the Nelsons conveyed the Farm Property to Roberts, splitting 

the Farm Property and the Hill Property for the first time.  The description in the 1974 

Farm Property Deed retained for Nelson a parcel "lying South of a line running 

Southwesterly from Point 'A' to Point 'B,' said line being an existing fence."  (Emphasis 

added.)  Point B was defined as 300 feet, "more or less," north of Florence Acres Road.  

Ex. 4.  The parties agree this deed controls their dispute.

       Nelson testified that when he sold the Farm Property to Roberts in 1974, a fence 

existed in the approximate location as the fence shown in Bosse's photograph.  He 

further explained that the fence was between the pasture of the Farm Property and the 

trees of the Hill Property as shown in Bosse's photograph.  Nelson testified the fence 

was intended to be the boundary between the Farm Property and the Hill Property.  

       In 1977, Roberts exercised his option to purchase the Hill Property.  Rather than 

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describing the boundary between the Farm Property and the Hill Property as an 

existing fence, the legal description in the 1977 Hill Property Deed describes the 

boundary line as a straight line between two points.  And rather than describing Point B 

at a location "300 feet, more or less" north of the road, the point was located 392 feet 

north of Florence Acres Road.  Ex. 16.

       This conflict between the 1974 and 1977 deeds was carried forward in every 

subsequent conveyance of the two properties.  Nelson testified that before he sold the 

Farm Property, he repaired and replaced portions of the fence along the pasture.  In 

doing so, he tried to straighten the fence but the repaired portions gave it more of a 

contour.  Even so, the fence remained along the pasture.  After the 1977 sale, Roberts 

owned both parcels.

       In 1980, the estate of Homer Roberts (Roberts estate) assigned a one-half 

undivided interest in the Farm Property to Sam and Hazel Roffe.  Since 1975, Sam 

Roffe and Homer Roberts had been partners in a joint venture called "York Farm and 

Land Co."  (York Farm) for the purpose of owning and operating a real estate and a 

horse racing business.  The Roberts estate retained a one-half interest in the Farm 

Property and all of the Hill Property.  In 1987, the Roberts estate conveyed the Hill 

Property to trusts for the benefit of Roberts' children Janelle Roberts Privett and 

Douglas Roberts.  In 1990, the Roberts estate quit claimed its interest in the Farm 

Property to Roffe.  

       The Roffes hired Teyo Santana as their farm manager in the late 1970s.  

Santana lived and worked at the farm for approximately 17 years until Susan Connor 

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purchased it in 1995.  Santana testified no fence existed at the base of the Hill Property 

when he started working at the farm.  He described observing Homer Roberts's father 

run a bulldozer above and below the zigzag fence.  With Roberts's permission, he 

repaired the zigzag fence that ran up the hillside "just enough" to keep animals from 

wandering up the hillside onto Florence Acres Road.  Santana walked Connor around 

the Farm Property before she purchased it.  He walked down the length of the surveyed 

flags attached to the zigzag fence along a straight line at the bottom of the hill.

       Before Connor purchased the Farm Property, the York Farm owners hired 

Harmsen & Associates to survey the Farm Property.  This April 17, 1995 survey (York 

Farm survey) identified encroachments on the eastern property line, but showed no 

encroachment or variation from a straight line demarcating the southern property line.  

The southern boundary of the property is depicted as a straight line between Point B 

located at 300 feet north of Florence Acres Road and Point A near the eastern side of 

the property.  

       Connor's deed was dated September 12, 1995.  Her deed conforms to the 1974 

deed's description of the property boundary as an "existing fence." Ex. 11.  Connor 

testified about her uses of the property to support her adverse possession claim.  

Before moving in, she created a pet cemetery on the hillside.  She built a home 

completed in November 1996.  She testified that within the disputed area between the 

straight line boundary and zigzag fence, she maintained a trail next to the zigzag fence, 

rode her horses frequently in the summer, hiked, walked her dogs, cleared 

blackberries, and put up no trespassing signs.  When Connor discovered surveyors 

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hired by King on the property, she told them to leave and sent them a letter.  When 

they returned and put stakes down, she pulled them up.  She planted shrubs and other 

plants on the hillside and along the creek.  

       The court admitted and considered several professional land surveys.  An 

unrecorded 1989 Harmsen & Associates survey for the Hill Property requested by Key 

Trust Company shows a straight line property boundary.  As noted above, the York 

Farm survey in 1995 shows the boundary as a straight line.  In 2004, a survey of the 

Hill Property performed for King by Jon Pendergraft of NorthStar Land Surveying, Inc.,

identified a straight boundary line between the Hill Property and the Farm Property.  

Pendergraft testified that he never considered the zigzag fence to be the boundary 

fence referred to in the 1974 Farm Property deed because of its condition and his 

historical research supporting the fence's original purpose as "a secondary fence to 

keep the critters out of the road."  RP (Sept. 2, 2010) at 250-51.

       Believing that King's surveyor was finding the wrong boundary points, Connor 

hired Harmsen & Associates, the same surveyors who had performed the York Farm 

survey, to find the existing fence line.  Harmsen surveyors reviewed Pendergraft's 

points and concluded they were in the correct location.  Harmsen owner and surveyor 

Douglas Slager testified that in his opinion what was left of the zigzag fence "was not 

indicative of the property line," and "[t]here was no way it was a straight line, and I 

concluded it was not the fence that was being referred to in the deed." RP (Sept. 1, 

2010) at 144. He also testified that the Harmsen surveying crew saw "an old fence 

going up the hill that was tied to trees" but that "[t]ypically, those are not boundary 

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fences, and our survey crews don't locate those kind of fences as boundaries." RP 

(Sept. 1, 2010) at 142-43.

       After filing suit, Connor hired a new surveyor, Harley Pawley of Alpha 

Subdivision Professionals, Inc. (ASPI). His survey showed the boundary line as the 

zigzag fence, and his trial testimony was consistent with his survey.  But he also 

acknowledged that if a different fence were present in 1974 and constituted the 

"existing fence" referred to in Connor's deed, then that would be the proper boundary.  

       During cross-examination of Connor, the following exchange occurred:

              Q. So why did you hire Harmsen and then work with ASPI to record a 
       different survey?  Why didn't you have Harmsen do the work that ASPI ended up 
       doing?
              [Connor]:  Because Harmsen didn't do what I asked them to do.
              Q. Tell me again what did you ask them to do.
              A.  Locate the line along the existing fence.
              Q. They refused?
              A.   No, they surveyed a straight line between the two points, which isn't 
       what they were supposed to have done.
              Q. In their professional judgment, didn't they conclude that the 
       appropriate boundary line was a straight line?
              A.  I have no idea what Harmsen's professional judgment was, sir.

RP (Sept. 1, 2010), at 48 (emphasis added).

       Developer Richard King bought the Hill Property in 2003.  His deed described a 

point 392 feet north of Florence Acres Road and used the same "straight line"

description as the 1977 deed.  He later had the property surveyed.  His title company 

reviewed the legal description and later recorded two new deeds that changed the 

original dimension from 392 feet to 300 feet north of Florence Acres Road.  

       To prepare the property for development, King hired workers to cut trees that 

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endangered his building area in 2005.  Connor filed a quiet title action against King on 

October 26, 2005, and also alleged adverse possession, timber trespass, and 

damages.  

       After the bench trial, the court entered detailed findings of fact and conclusions 

of law.  It held that the boundary line is a straight line between the undisputed Point "A"

at 425 feet north of Florence Acres Road and Point "B" located 300 feet north of 

Florence Acres Road.  The court rejected Connor's claim that the zigzag fence was the 

fence referred to in the deeds.  The court reformed Connor's deed to remove the 

reference to the existing fence.  The court also dismissed Connor's adverse possession 

and timber trespass claims.  Connor appeals.

       Standard of Review

       When the trial court has weighed the evidence, we review the trial court's factual 

findings for substantial evidence to support them.  We then determine whether the 

findings of fact support the conclusions of law and judgment.  Brin v. Stutzman, 89 Wn. 

App. 809, 824, 951 P.2d 291 (1998).  "'Substantial evidence is evidence in sufficient 

quantum to persuade a fair-minded person of the truth of the declared premise.'"  Brin,

89 Wn. App. at 824 (quoting Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 

819, 828 P.2d 549 (1992)).  There is a presumption in favor of the trial court's findings, 

and the party claiming error has the burden of showing that a finding of fact is not 

supported by substantial evidence.  Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 

Wn.2d 364, 369, 798 P.2d 799 (1990).  We defer to the trier of fact for purposes of 

resolving conflicting testimony and evaluating the persuasiveness of the evidence and 

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credibility of the witnesses.  Boeing Co. v. Heidy, 147 Wn.2d 78, 87, 51 P.3d 793 

(2002).  And an appellate court may not substitute its evaluation of the evidence for 

that made by the trier of fact.  Goodman v. Boeing Co., 75 Wn. App. 60, 82-83, 877 

P.2d 703 (1994).  "The substantial evidence standard is deferential and requires the 

appellate court to view all evidence and inferences in the light most favorable to the 

prevailing party."  Lewis v. Dep't of Licensing, 157 Wn.2d 466, 468, 139 P.3d 1078 

(2006).  We review legal issues de novo.  Goodman v. Goodman, 128 Wn.2d 366, 373, 

907 P.2d 290 (1995).  Unchallenged findings of fact are verities on appeal.  In re Estate 

of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004); see also RAP 10.3(g).  "A conclusion of 

law erroneously described as a finding of fact is reviewed as a conclusion of law.  The 

corollary must also follow; a finding of fact erroneously described as a conclusion of 

law is reviewed as a finding of fact."  Willener v. Sweeting, 107 Wn.2d 388, 394, 730 

P.2d 45 (1986) (citations omitted).

                                          ANALYSIS

       Connor challenges the court's findings that the "existing fence" described in the 
1974 deed was a fence that no longer exists.3 King responds that substantial evidence 

supports the court's findings that a straight line boundary separates the properties.4  

       3 Connor assigns no error to evidentiary rulings by the trial court.

       4 King does not cross appeal.  The court set the boundary of Point B at 300 feet 
north of Florence Acres Road, as described in Connor's deed, not at 392 feet north of 
Florence Acres Road as described in King's original deed.  This benefited Connor and 
is what Connor refers to as the court's decision to "split the baby." Appellant's Br. at 
20.  But it undermines Connor's argument that the court did not construe her deed, 
based on the first in time 1974 deed, as controlling.

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Connor essentially contends that the evidence presented below supports only one valid 

conclusion -- the zigzag fence is the proper boundary line.

       "Interpretation of a deed is a mixed question of fact and law." 5  Hanson Indus., 

Inc. v. County of Spokane, 114 Wn. App. 523, 526, 58 P.3d 910 (2002).  For purposes 

of construing a deed, the parties' intent is a question of fact.  See Hanson Indus., 114 

Wn. App. at 527 (construction of deed); DD & L, Inc. v. Burgess, 51 Wn. App. 329, 335, 

753 P.2d 561 (1988) (in construing description in deed, court should interpret words 

used in light of circumstances of the transaction).  The legal consequences of that 

intent are a question of law.  Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979).  

"Th[e] intent is to be gathered from the language of the deed if possible, but when 

necessary by resort to the circumstances surrounding the entire transaction."  

Thompson v. Schlittenhart, 47 Wn. App. 209, 211-12, 734 P.2d 48 (1987).

       [E]xtrinsic evidence of circumstances that aid in clarifying ambiguities may be 
       considered, whether the ambiguity is patent or latent.  Extrinsic evidence may 
       relate to the circumstances that surrounded the making of the deed. References 
       in a deed to other things, such as to a plat in a land description, are presumed to 
       be to the thing as it existed when the deed was executed and not to a later and 
       different thing. Though the ultimate question is the intent of the parties at the 
       time the deed was executed, a court may consider how they later acted under it, 
       as reflecting their intent at the earlier time.

17 William B. Stoebuck & John W. Weaver, Washington Practice:  Real Estate: 

Property Law § 7.9 at 486 (2d ed. 2004) (footnotes omitted).  "Where a boundary is 

uncertain, it may be established by the best evidence available. . . . Where the 

       5 Connor incorrectly argues in her reply brief that interpretation of a deed is a 
question of law, not of fact.  

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evidence conflicts as to the validity of a monument used to begin the original survey, 

the trial court, as finder of fact, may determine a boundary based on a modern survey."  

Thompson, 47 Wn. App. at 212.

       Connor challenges three findings of fact related to the court's location of the 

boundary described in the 1974 deed:

              1.9  Exhibit 38 is a picture taken by Judy Lorenz Bosse on July 4, 1965.  
       The picture shows the farm as it existed at the time.  The picture, taken from a 
       hill, shows a tractor in the center of the picture, and the picture shows a fence in 
       the foreground.  Ms. Bosse testified that there was in fact a fence at the edge of 
       the pastureland during the time she lived on the property.
              . . . . 
              1.11  The evidence shows that there was a fence at the edge of the 
       pasture.  When the Nelson to Roberts deed referred to a 300 foot Point B and a 
       fence line between point A and point B, the deed was referring to the same 
       fence shown in Exhibit 38.
              . . . . 
              1.23  Based on the testimony of the surveyors, Mr. Santana, Ms. Bosse, 
       and Mr. Nelson, the court finds that a fence did exist somewhere at the edge of 
       the pasture as shown in the photograph from 1965 (Exhibit 38).  That fence was 
       still there in 1974 when Mr. Nelson sold the property.  The exact location of the 
       fence cannot be determined by the court.  In fact, no fence at the edge of the 
       pastureland has been identified or found by any surveyors surveying this 
       property.

       Our review of the record shows, as discussed above, substantial evidence 

supports these findings.  Judy Bosse testified about the fence's location in the 1960s

and said the fence was as straight as they could make it.  She also identified the fence 
from the photographs admitted at trial.6  The original grantor, Raymond Nelson, 

       6 Connor argues this testimony was irrelevant because Bosse moved off the 
property in the 1960s.  ER 401 defines "relevant evidence" as "evidence having any 
tendency to make the existence of any fact that is of consequence to the determination 
of the action more probable or less probable than it would be without the evidence."  
Bosse's testimony that a straight line fence existed in the 1960s made the fact of that 
fence's existence in 1974 more probable than without the evidence.
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confirmed that the same fence was there when he purchased the property in 1966.  

And it was intended to be the boundary between the Farm Property and the Hill 

Property.  He also testified that when he sold to Roberts in 1974, there was a fence "[i]n 

that approximate location." RP (Sept. 2, 2010) at 178.  This was the fence used as the 
property boundary in the 1974 sale to Roberts.7  

       Pendergraft and Slager's testimony and the surveys admitted at trial 

overwhelmingly show the zigzag fence Connor relies on was not the property boundary.  

Pendergraft, a surveyor hired by King, testified that the zigzag fence was "absolutely 

nothing." RP (Sept. 2, 2010) at 248.  This fence was not the fence described in the 

1974 deed, but rather a "fence of convenience." RP (Sept. 2, 2010) at 248.  He based 

his opinion in part on earlier surveys, deeds, and a discussion with the man who told 

him he built the zigzag fence, Vern Nelson Jr.  The zigzag fence was built in the late 

1970s and therefore could not have been referenced in the 1974 deed.  In his opinion, 

he would place the boundary as a straight line and would ignore the call to the fence.  

Slager, a Harmsen & Associates surveyor, agreed with Pendergraft's conclusion.  

       Connor and her surveyor, Harley Pawley, testified.  Connor lacked firsthand 

       7 Connor takes a different view of Nelson's testimony, but the court was entitled 
to weigh the testimony and its findings are supported by substantial evidence.  
Appellate review of a trial court's findings and conclusions is limited to determining 
whether the trial court's findings are supported by substantial evidence and, if so, 
whether the findings in turn support the conclusions of law.  Goodman v. Darden, 
Doman & Stafford Assocs., 100 Wn.2d 476, 483, 670 P.2d 648 (1983).  The finder of 
fact is entitled to make all reasonable inferences from the evidence presented.  Adler v. 
Univ. Boat Mart, Inc., 63 Wn.2d 334, 387 P.2d 509 (1963); Lamphiear v. Skagit Corp.,
6 Wn. App. 350, 493 P.2d 1018 (1972).

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knowledge about the meaning of "existing fence" in the 1974 deed because she purchased 

the Farm Property in 1995.  When Harmsen declined to confirm the zigzag fence was 

the property boundary, Connor hired Pawley.  Pawley concluded that based on the 

deed's call to an existing fence, the current zigzag fence was the property boundary.  

But when asked on cross-examination "if the evidence shows that there was a fence 

along the pastureland in 1974, that's where the proper legal boundaries should be . . . 

," Pawley answered affirmatively.  RP (Sept. 1, 2010) at 96-97.  Pawley also 

acknowledged Santana told him the zigzag fence was not intended to be the property 

boundary.  

       We defer to the trier of fact for purposes of resolving conflicting testimony and 

evaluating the persuasiveness of the evidence and credibility of the witnesses.  Boeing 

v. Heidy, 147 Wn.2d 78, 87, 51 P.3d 793 (2002).  We will not substitute our judgment 

for that of the trial court.  The trial court had the opportunity to evaluate witnesses'

credibility and to consider any timely objections.  The trial court's decision is more than 

adequately supported by the record and we will not second guess the trial court's 

credibility determinations and the persuasiveness of the evidence presented at trial.

       Connor contends that King's witnesses failed to definitively locate the fence as it 

was in 1974.  But the court acknowledged as much in its challenged finding that "[t]he 

exact location of the fence cannot be determined by the court." Finding of Fact (FF)

1.23.  Based on "the best evidence available," Thompson, 47 Wn. App. at 212, the 

court located the boundary from the substantial evidence described above.

       Connor also claims that the court failed to apply the "first deed controls" rule. 

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The record shows that both the parties and the court agreed that the 1974 deed 
controls.8

       Adverse Possession

       Connor argues the court erred by concluding she failed to demonstrate adverse 

possession over the disputed area.  King responds that the evidence supports the 

court's findings and these findings support its conclusions.  

       Adverse possession is a mixed question of law and fact.  Miller v. Anderson, 91 

Wn. App. 822, 828, 964 P.2d 365 (1998).  "We review whether substantial evidence 

supports the trial court's challenged findings and, if so, whether the findings in turn 

support the trial court's conclusions of law and judgment." Harris v. Urell, 133 Wn. 

App. 130, 137, 135 P.3d 530 (2006).  Whether the facts as found establish adverse 

possession is a question of law we review de novo.  Bryant v. Palmer Coking Coal Co.,

86 Wn. App. 204, 210, 936 P.2d 1163 (1997).

       To successfully establish an adverse possession claim, a party must show that 

the possession was (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, 

and (4) hostile for the statutory 10-year period.  Chaplin v. Sanders, 100 Wn.2d 853, 

857, 676 P.2d 431 (1984).  The burden of establishing each element is on the party 

       8 Connor also relies for the first time on appeal on Burgess, 51 Wn. App. at 335-
36 to argue, "When a monument described in a deed does not match the monument on 
the ground, the monument on the ground controls." Appellant's Br. at 22.  Burgess
states that if, "the monument referred to in a deed does not actually exist at the time the 
deed was drafted, but is afterward erected by the parties with the intention that it shall 
conform to the deed, it will control."  Burgess, 51 Wn. App. at 335.  The trial evidence 
here demonstrated that the fence described in the 1974 deed existed at the time, and 
therefore, that fence -- not a later-constructed fence -- controls.

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claiming to have adversely possessed the property.  Anderson v. Hudak, 80 Wn. App. 

398, 401-02, 907 P.2d 305 (1995).  The ultimate test is whether the claimant 

"exercise[d] . . . dominion over the land in a manner consistent with actions a true 

owner would take." ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 759, 774 P.2d 6 (1989).  

Such prescriptive rights are not favored in the law because "they necessarily work 

corresponding losses or forfeitures of the rights of other persons."  Nw. Cities Gas 

Co. v. W. Fuel Co., 13 Wn.2d 75, 83, 123 P.2d 771 (1942).

       Connor challenges the findings relating to when Connor's use of the disputed 

area began.

              1.26 Ms. Connor began to occupy the property in approximately 
       November 1996.  In November, 2005, the parties entered a mutual restraining 
       order prohibiting use and entry on to the disputed area -- including the area 
       between the 392 "straight line" location and the barbed wire fence identified in 
       the ASPI [Alpha Subdivision Pro's Inc.] survey.
              . . . . 
               1.32   Ms. Connor's use after acquiring the property may not have been 
       continuous as there was a one year period where there is no evidence of use.

       Connor argues that the acts constituting adverse possession actually began in 

September 1995 when she purchased the Farm Property, not in November 1996 when 

construction on her home was complete and she moved into the house.  To satisfy the 

10 years required under the statute, Connor's possession must begin by November 

1995 at the latest, which is after she purchased the Farm Property but before her house 

was built (because it is undisputed Connor stopped using the disputed area when the 

court entered the mutual restraining order in November 2005).

       Connor testified she buried animals before building her house.  But not every 

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possession will start the adverse possession statute running.  An adverse possession 

statute begins to run from the time the intruder exercises such dominion over the 

property as to put the true owner on notice of the hostile claim.  People's Sav. Bank v. 

Bufford, 90 Wash. 204, 206, 155 P. 1068 (1916).

       Connor's testimony is unclear about when her use began.  Her attorney asked 

her about "[t]he 15 years that you have used the property." RP (Sept. 1, 2010) at 17.  

The trial occurred in September 2010, 15 years after she purchased the Farm Property.  

But the evidence was unclear whether her use began when she purchased the Farm 

Property or moved into her home.  She never testified that her use began in 1995.  The 

trial court's findings are supported by substantial evidence, and the findings support the 

conclusion her use was insufficient to demonstrate adverse possession for the 10-year 

period mandated by RCW 4.16.020. As discussed above, we decline to reweigh the 

evidence or substitute our judgment for that of the trial court.

       Connor argues she may tack her use to Santana's use.  Santana worked for 

Roffe and maintained the farm for about 17 years prior to Connor's purchase.  The 10-

year statutory period for adverse possession may be computed by tacking a 

predecessor's adverse use if privity exists between them and they have held 

continuously and adversely to the title holder.  Roy v. Cunningham, 46 Wn. App. 409, 

413-14, 731 P.2d 526 (1986).  Connor challenges the court's finding of fact that "Mr. 

Santana's use, which was merely to round up stray animals that wandered up the 

hillside, was not sufficient to meet adverse possession standards." FF 1.33.

       This claim fails because Connor insufficiently demonstrated she used the 

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disputed area from her purchase in September 1995 to November 1996.  Her use and 

Santana's use was not continuous.  Connor's tacking claim also fails because 

substantial evidence supports the court's finding of fact 1.33.  Santana's testimony was 
minimal as to his use of the disputed area.9 He testified he occasionally rounded up 

animals and fixed the fence "just enough."10

       Connor challenges other findings relating to whether her use was actual, open 

and notorious, and hostile.  Given our resolution of her adverse possession claim, we 

need not address her remaining challenges.

       Timber Trespass

       Connor also argues the court erred by dismissing her timber trespass claim.  

"The rules in Washington for awarding treble damages under RCW 64.12.030 and .040 

are well established. . . . A person who willfully or recklessly cuts down and removes 

trees from the land of another is liable to the latter for treble damages."  Seattle-First 

Nat'l Bank v. Brommers, 89 Wn.2d 190, 197, 570 P.2d 1035 (1977) (emphasis added).  

Connor assigns no error to the court's finding that "[t]he timber cutting by Mr. King or 

his wood cutters was all located in an area south of the 300-foot straight property line."  

FF 1.34.  Accordingly, this finding is a verity on appeal and the court properly 

dismissed the timber trespass claim and associated emotional distress claim because 

       9 Connor also argues Santana's use established adverse possession for Roffe 
even before she purchased.  But again, substantial evidence supports the court's 
finding that Santana's use was insufficient for adverse possession standards.  

       10 Because Santana's use was insufficient for adverse possession, we need not 
address whether Roffe could adversely possess part of the Hill Property while the 
Roberts estate owned half of the Farm Property.
                                            -17- 

66162-1-I/18

King cut trees on his own land.

                                        CONCLUSION

       Because substantial evidence supports the trial court's findings and those 

findings support its conclusions of law, we affirm the judgment.

WE CONCUR:

                                            -18-