                                                           Filed
                                                     Washington State
                                                     Court of Appeals
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                      Division Two

                                         DIVISION II                                     September 22, 2015


    DENNIS SEVERSON, a single person and                             No. 45596-0-II
    KENNETH D. UPHOFF and CHRISTINE S.
    BURNELL, husband and wife,

                                Respondents,                   UNPUBLISHED OPINION

         v.

    BRAD A. CLINEFELTER and SUZANNE
    CLINEFELTER, husband and wife,

                                Appellants.

        BJORGEN, A.C.J. — Brad and Suzanne Clinefelter appeal the trial court’ s judgment

quieting title to a strip of land in their neighbors, Dennis Severson, Kenneth D. Uphoff, and

Christine S. Burnell. The trial court concluded that Uphoff and Burnell (collectively Uphoff),

owners of one parcel, as well as Severson, owner of another, had adversely possessed the

disputed strip, which lies between their parcels and the Clinefelters’ in a vacated street right-of-

way. The Clinefelters assign error to a number of the trial court’ s findings of fact and

conclusions of law, contending that (1) a 1983 stipulation by predecessors in interest to the

Clinefelters, Severson, and Uphoff, resolving litigation involving the same strip, precluded

Severson’ s1 and Uphoff’ s claims and (2) the evidence does not establish adverse possession by

either Severson or Uphoff. Because we hold that (1) the 1983 stipulation is not binding on



1
  The Clinefelters contend in assignment of error 10 that the stipulation precludes both
Severson’ s and Uphoff’ s adverse possession claims, but with their reply brief state that they are
only arguing that Uphoff is bound by the stipulation. We follow the assignment of error and take
the Clinefelters to contend that both Severson’ s and Uphoff’ s claims are precluded by the
stipulation.
No. 45596-0-II


Severson or Uphoff and (2) the evidence establishes adverse possession by Severson and by

Uphoff’ s predecessors, we affirm.

                                                FACTS

          The disputed strip of land in this appeal is located in the western half of a 50-foot wide

former right-of-way platted in 1899 as “ Swan Street,” running north and south. We refer to the

entire 50-foot wide former right-of-way as “ Swan Street” and to its western half as the “ disputed

strip.” 2 Clerk’ s Papers (CP) at 62-63. The Clinefelters’ parcel lies to the west of Swan Street,

directly across from Uphoff’ s and part of Severson’ s parcels, which lie to the east of Swan

Street. The Uphoff parcel lies immediately south of Severson’ s.

A.        Severson’ s Property Interest

          Severson bought his parcel in 1977 from Ted Thompson, who also had owned the future

Clinefelter and Uphoff parcels. Severson testified that he and Thompson thought an old fence

running down the west side of the former right-of-way was the boundary between Thompson’ s

parcel, now the Clinefelters’, and Swan Street, not necessarily the boundary of Severson’ s

parcel.

          After purchasing the property, Severson cleared most of Swan Street up to about two feet

from the old fence along the west side of the former right-of-way, including most of the disputed

strip. Severson also at times kept a boat in the disputed strip, although the record is not clear for

how long. He also put in a driveway on the eastern, undisputed half of Swan Street side to

provide access to the Uphoff’ s parcel. Severson kept the entire Swan Street area, including the



2
  Swan Street was vacated five years after it was platted by operation of the nonuse provision of
the Road Laws of 1890, Laws of 1889-90, chapter 14, section 32, at 603. See Real Progress,
Inc. v. City of Seattle, 91 Wn. App. 833, 837-39, 963 P.2d 890 (1998) (discussing the application
of the nonuse provision to platted streets in unincorporated areas).


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No. 45596-0-II


disputed strip, mowed almost up to the old fence, except for a 50-foot diameter semicircular

berm around a large fir tree, mostly on the west side of the street but extending past the Swan

Street center line, that he “ left untouched.” 1 Verbatim Report of Proceedings (VRP) at 93-95.

B.     Uphoff’ s Property Interest

       Uphoff bought their parcel, immediately south of Severson’ s, in December 2003, and

moved onto it a few months later. As noted, Severson had regularly mowed and maintained the

portion of Swan Street adjacent to Uphoff’ s parcel up to the old fence, including most of the

disputed strip. Uphoff took over the mowing and maintenance from Severson, and at some point

planted a garden very close to the old fence. Kenneth Uphoff testified that he believed he and

Burnell owned the adjacent portion of Swan Street up to the old fence, but admitted that, once he

learned about it, he did not actually know where Swan Street was and that it “was a question in

his] mind.” 1 VRP at 220-22.

       After Uphoff moved onto his parcel, Clinefelters built a gate in the old fence across from

Uphoff’ s parcel, near the garden. Kenneth Uphoff testified that, before building the gate, Brad

Clinefelter asked him for permission to do so, and Uphoff replied, “ Yeah, no problem.” 1 VRP

at 183. Brad Clinefelter testified that he and his wife decided to put in the gate in order to access

the Uphoff’ s property, as well as to get to the public road via Swan Street, and denied having

asked Uphoff’ s permission.

       Shortly before this litigation began, Uphoff had Brad Clinefelter build a chicken coop

slightly east of the old fence, in the disputed strip. The chicken coop was designed, per Uphoff’ s

instructions, so it would not be a permanent fixture. After this dispute arose, but prior to trial,

Severson and Uphoff moved the chicken coop east, toward the Uphoff parcel and out of the

disputed area.



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No. 45596-0-II


C.        Clinefelters’ Property Interest

          The Clinefelters bought their parcel in 2000. They generally accessed their property from

the portion of Nolton Road that runs along the west edge of their parcel, before it turns east and

runs along the north edge of their parcel. Brad Clinefelter testified that he and his wife

sometimes walked on Swan Street to access the portion of Nolton Road that runs north of their

parcel.

          Shortly after buying the property, the Clinefelters repaired the dilapidated barbed wire

fence running along the eastern part of their parcel and the western edge of Swan Street.

Severson testified at trial that Thompson, who continued to own the Clinefelters’ parcel for many

years after Severson bought his parcel, “ always said that . . . the fence was the boundary line.”

1 VRP at 41.

D.        The 1983 Stipulation

          As a result of the chicken coop events, Uphoff began researching Swan Street and

discovered that in 1983, the Thompson estate, which then still owned the Clinefelters’ parcel,

sued James and Florence Hubbard, predecessors in interest to Uphoff’ s parcel, regarding the

portion of Swan Street between the two parcels. Those parties resolved the dispute by

stipulation, which provided in relevant part:

          4.      As a result of the vacation of Swan Street both the plaintiff and defendants
          are owners of the one-half of Swan Street abutting their respective properties.
          5.      Both plaintiff and defendants each grant to the other a permanent easement
          for drainage, ingress, egress and utilities over, across and under that portion of
          Swan Street owned by each party.
          6.      Both parties agree that the roadway presently in existence on a portion of
          Swan Street shall remain in its present location but any future utilities shall be put
          in on the side of the roadway owned by the party obtaining the utilities and that any
          roads constructed in the future shall be constructed down the center line of Swan
          Street and an equal distance on each side of the center line.
          7.      The parties agree that neither shall use the other parties’ half of vacated
          Swan Street or the open part of Swan Street for parking or storage or in any other

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No. 45596-0-II


        manner not reasonably related to the exercise of the parties’ rights to drainage,
        ingress, egress and utilities.

CP at 9-10. The executor of the Thompson estate, the Hubbards, and the Jefferson County

prosecuting attorney signed the stipulation, which purports to “be binding upon the heirs,

successors and assigns of the parties hereto.” CP at 10. It was never recorded or reduced to a

judgment. In 1985, the Jefferson County Superior Court dismissed the lawsuit on the court

clerk’ s motion, for want of prosecution.

        The Clinefelters first learned of the stipulation when Uphoff gave them a copy of it.

Severson, Florence Hubbard’ s brother-in-law, knew about the lawsuit and resulting stipulation

all along, but did not tell Uphoff or the Clinefelters.

        In early 2011, the Clinefelters hired licensed professional surveyor Eric Olson, an

acquaintance of Brad Clinefelter’ s, to survey their parcel. Olson’ s survey located the center line

of Swan Street about 17 feet east of the old fence, which was about 6.5 feet east of where

Severson believed it to be. Thus, according to the Olson survey, Uphoff’ s garden was on the

Clinefelters’ side of Swan Street, in the disputed strip.

        Shortly after Severson and Uphoff learned where Olson had located Swan Street, they

filed this lawsuit, seeking to quiet title to the west half of Swan Street, up to the old fence, in

each adjacent to their respective real properties. The complaint stated causes of action for

adverse possession, based on use of the disputed strip by Severson, Uphoff, and Uphoff’ s

predecessors in interest.3




3
 The complaint also included a breach of contract claim based on the 1983 stipulation, but
Severson and Uphoff abandoned that claim prior to trial.

                                                   5
No. 45596-0-II


E.     Trial

       At trial, in addition to the facts described above, witnesses testified to the use of Swan

Street by previous owners of the Uphoff and Clinefelter parcels. Florence Hubbard testified that

she purchased Uphoff’ s parcel in 1977. She also testified that she built a greenhouse in the

disputed area in 1983, but removed it a few years later in 1985 or 1986. In addition to a

greenhouse, she kept a small garden all the time that she was there. The garden and the

greenhouse were on Swan Street about 3 to 10 feet from the old fence. She testified further that,

although there was no gate in the old fence, Thompson sometimes came over it into Swan Street.

She sold her property to Douglas Kronquist in 1990.

       Hubbard testified that Kronquist used the property “ as a garbage dump” and “ let the

garden go.” 1 VRP at 123. According to Hubbard, Kronquist did not store anything in Swan

Street, except possibly his car, but used it for ingress and egress. Hubbard testified that, in 1992,

when Paul and Elaine Myers bought the parcel, there was nothing in the disputed area, which

was open and cleared. The Meyers also used Swan Street for ingress and egress, but Hubbard

did not know if they maintained a garden or anything else in the disputed area. The Myers sold

the parcel to Uphoff in 2003. Severson’ s recollection largely agreed with Hubbard’ s, but

Severson also testified that Kronquist maintained the Hubbards’ garden “[ s]omewhat,” 1 VRP at

26-30, and that the Myers kept up the garden.

       Uphoff testified that when they bought the property in 2003, there was a garden in the

corner of the disputed strip and an 18-foot trailer also in the disputed area. Uphoff also testified

that there was a water trough that had always been there “ next to the old fence” in the disputed

strip. 1 VRP at 178.




                                                  6
No. 45596-0-II


       Severson and Uphoff vigorously disputed the accuracy of the Olson survey, suggesting

that Olson deliberately skewed the result to benefit the Clinefelters and that the proper center line

of Swan Street lay about six-and-a-half feet west of Olson’ s markers. They called an expert who

criticized the methods Olson employed.

       The trial court ruled in favor of Severson and Uphoff, and entered the following findings

regarding the old fence and the uses made up to it in the disputed strip:

       7.      It is clear from the testimony that Ted Thompson fenced what is now the
       Clinefelter property sometime prior to 1977, including a fence in platted Swan
       Street, between the Plaintiffs’ and Defendants’ properties.
       8.      It is also clear that as between Plaintiff Dennis Severson and Ted
       Thompson, the fence in platted Swan Street was recognized by both as the common
       boundary between their properties. Mr. Severson exclusively occupied that portion
       of platted Swan Street up to the fence, including using it as a lawn and parking
       vehicles there, while the Thompson property on the other side of the fence was
       generally un-maintained.
       9.      Florence Hubbard testified that when Ted Thompson sold the current
       Uphoff/Burnell property to her in 1977, she treated the old fence in platted Swan
       Street as the common boundary between her property and Ted Thompson’ s
       property, including building a greenhouse and installing a garden adjacent to the
       fence.

CP at 63. The court did not explicitly make a credibility determination, but apparently believed

Uphoff’ s testimony that the Clinefelters asked permission to build the gate in the old fence and

did not believe the Clinefelters’ contrary testimony:

               The act of Brad Clinefelter, upon taking possession of Defendants’ present
       property, of asking permission of Plaintiffs Uphoff and Burnell to install a gate in
       the old fence, to access their side of the disputed property, evidenced recognition
       of those Defendant’ s non-permissive occupation of that disputed area.

CP at 67 (conclusion of law 9).

       The trial court also found that

              i]n 1990 Florence Hubbard sold her property to Kronquist, who sold to
       Myers in 1992, who sold to Uphoff/Burnell in 2003. [ Exh. 5, 6 and 7]. Dennis
       Severson testified that during this period the area up to the fence, in the West half

                                                 7
No. 45596-0-II


       of vacated Swan Street, was exclusively used in various ways that included a
       garden, parking of vehicles, and a mobile home owned by Kronquist, and was
       maintained to a greater or lesser degree by Kronquist, Myers and Uphoff and
       Burnell.

CP at 64 (finding of fact 13). The court also found that “[ t]here is no testimony or evidence that

the Thompson estate or the Clinefelters attempted to use any portion of vacated Swan Street for

ingress, egress, or drainage.” CP at 64 (finding of fact 14).

       The court also made the following dispositive conclusions:

       6.       Plaintiff Severson had for more than ten years prior to litigation herein, from
       1977 to 2011, by occupying, maintaining by mowing as a lawn up to the fence,
       storing and parking vehicles, grading and maintaining a driveway that only
       Plaintiffs used, and otherwise exercised open and notorious, actual and
       uninterrupted, exclusive to the rights of the true owner, and without recognition of
       superior title by another or by permission, adverse possession of that portion of
       vacated Swan Street between the centerline adjacent to his property and the old
       fence, which portion is indisputably within the fee to which title has been held by
       the Defendants Clinefelter and their predecessors since 1977.
       7.       By a preponderance of the evidence, Plaintiffs Uphoff and Burnell had, for
       more than ten years prior to litigation herein, from 1977 to 2011, by tacking to the
       uses and occupations of their predecessors Hubbard, Kronquist and Myers by
       installing and maintaining gardens, a greenhouse, chicken coops, grading and
       maintaining a driveway which only they used, parked vehicles and other indicia of
       ownership, exercised open and notorious, actual and uninterrupted, exclusive to the
       rights of the true owner, and without recognition of superior title by anther or by
       permission, adverse possession of that portion of vacated Swan Street between the
       centerline adjacent to their property and the old fence, which portion is indisputably
       within the fee to which title has been held by the Defendants Clinefelter and their
       predecessors since 1977.

CP at 66 (emphasis omitted). Thus, with respect to Severson, the court relied on his installation

of the driveway, storing of vehicles, and mowing to establish the adverse possession, and with

respect to Uphoff, on the uses of predecessors in interest starting with the Hubbards.

       The trial court declined to rule on the accuracy of the Olson survey, finding it

unnecessary to the resolution of the dispute. The trial court ruled that the 1983 stipulation did

not bind the parties to this litigation. The court quieted title to the underlying fee of the disputed

                                                  8
No. 45596-0-II


strip, from Olson’ s center line to the old fence, in Severson and Uphoff “subject to the easement

rights of ingress, egress and utilities remaining to Defendants as adjacent lot owners.” CP at 67,

68-71. The Clinefelters appeal.

                                            ANALYSIS

       The Clinefelters contend that the trial court erred in declining to enforce the stipulation

resulting from the 1983 lawsuit between the Hubbards and Thompson’ s estate, arguing that (1) it

binds the present parties and (2) precludes Severson’ s and Uphoff’ s claims under the doctrine of

res judicata. The Clinefelters also assign error to a number of the trial court’ s findings and

contend that neither Uphoff nor Severson established adverse possession of the disputed strip.

We disagree.

       We first consider the effect of the 1983 litigation and the resulting stipulation.

Concluding that the 1983 stipulation does not bind the present parties, we then turn to the

Clinefelters’ remaining challenges.

                               I. EFFECT OF THE 1983 STIPULATION

       The Clinefelters argue both that the stipulation binds the parties as a contract and that

because it concluded the 1983 lawsuit, it has a preclusive effect under the doctrine of res

judicata. We address each contention in turn.

A.     The Stipulation Does Not Bind the Parties

       The Clinefelters rely on precedent holding that stipulations affecting an interest in realty

entered in open court bind the parties to them. Snyder v. Tompkins, 20 Wn. App. 167, 173, 579

P.2d 994 (1978). Our Supreme Court held long ago, however, that

       adoption or agreement fixing boundary lines, when evidenced in such manner as to
       give notice thereof to subsequent grantees, will, as a general rule, bind grantees of
       the parties so adopting or agreeing; but manifestly it will not do to hold grantees or



                                                  9
No. 45596-0-II


       successors in interest bound by any such adoption or agreement when they have no
       certain knowledge, actual or constructive, of such adoption or agreement.

Aust v. Matson, 128 Wash. 114, 121, 222 P. 225 (1924). As Uphoff and Severson point out, the

cases on which the Clinefelters rely involve attempts to enforce stipulations against the actual

parties to those stipulations. The Clinefelters cite no case in which a court has enforced such a

stipulation against someone not party to it.

       Similarly well established is the more general rule that an agreement does not generally

bind persons who are not party to it. See Oltman v. Holland Am. Line USA, Inc., 163 Wn.2d 236,

249-50, 178 P.3d 981 (2008). It is undisputed that neither Severson nor any predecessor in

interest to his parcel agreed to the stipulation. Thus, because neither Severson nor any

predecessor was party to the 1983 stipulation, Severson is not bound by it.

       The decision in Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984), also

illuminates the reach of the 1983 stipulation. In Chaplin, the party claiming adverse possession

had actual notice of a provision in a real estate contract conveying his parcel from one

predecessor in interest to another, which recognized the true owner’ s superior title to the land at

issue. Chaplin, 100 Wn.2d at 855-56. After holding that a claimant’ s “ subjective belief

regarding his true interest in the land and his intent to dispossess or not dispossess another is

irrelevant” and overruling cases to the contrary, the court made clear that “ the contractual

provision is no longer relevant” and ultimately held that the claimant’ s actual uses established

adverse possession. Chaplin, 100 Wn.2d at 861-62. Thus, even a party with actual notice that a

predecessor in interest recognized another’ s superior title to disputed land may still adversely

possess that land.




                                                 10
No. 45596-0-II


       The parties to the 1983 litigation did not reduce the stipulation to a judgment or record it.

Under the case law just described, the stipulation did not bind Uphoff, because they had no

actual or constructive knowledge of it.

B.     The Stipulation Is Not Res Judicata

       The Clinefelters also contend that, under the doctrine of res judicata, the stipulation

ending the 1983 lawsuit should control the outcome here. Uphoff and Severson counter that the

Clinefelters waived any res judicata defense because they did not plead it in their answer and that

the doctrine does not apply in any event.

       Whether or not the Clinefelters’ pleadings in the trial court adequately raised res judicata,

the doctrine plainly does not apply to these circumstances. “ The threshold requirement of res

judicata is a final judgment on the merits in the prior suit.” Hisle v. Todd Pac. Shipyards Corp.,

151 Wn.2d 853, 865, 93 P.3d 108 (2004). The record reflects that the 1983 lawsuit was

dismissed for want of prosecution under CR 41(b) on the court clerk’ s motion. CP 11. CR

41(b)(2)(A) specifies that such dismissals are without prejudice. A dismissal without prejudice

does not constitute a final judgment on the merits for purposes of res judicata. See Zarbell v.

Bank of Am. Nat’ l Trust & Sav. Ass’ n, 52 Wn.2d 549, 554, 327 P.2d 436 (1958). Therefore,

there was no final judgment on the merits, and the resolution of the 1983 litigation by stipulation

does not preclude this lawsuit.

                                     II. ADVERSE POSSESSION

       The Clinefelters raise different challenges to the trial court’ s ruling as to each of the

neighboring parcels. With respect to Uphoff, they assert that the evidence does not establish

continuous use of the disputed strip for the required 10-year period. As to Severson, the




                                                 11
No. 45596-0-II


Clinefelters assert that he failed to show that his use of the disputed strip was exclusive or hostile

to their interests.

         After setting out the standard of review and governing law, we address Uphoff's and

Severson’ s arguments that the Clinefelters waived any challenge to the assignments of error.

Holding that the Clinefelters did not waive their challenge, we consider whether the trial court’ s

conclusions as to each respondent’ s parcel rest on findings supported by substantial evidence in

the record. Concluding that substantial evidence in the record supports the relevant findings and

that the findings support the conclusions of adverse possession, we affirm the trial court.

A.       Standard of Review

         Adverse possession claims present mixed questions of law and fact: “‘ Whether the

essential facts exist is for the trier of fact; but whether the facts, as found, constitute adverse

possession is for the court to determine as a matter of law.’” Chaplin, 100 Wn.2d at 863

quoting Peeples v. Port of Bellingham, 93 Wn.2d 766, 771, 613 P.2d 1128 (1980)). Thus,

whether the facts properly found establish each particular element of an adverse possession claim

raises a separate question of law that we review de novo. See Petersen v. Port of Seattle, 94

Wn.2d 479, 485, 618 P.2d 67 (1980). We presume that the holder of legal title has possession,

and the party claiming adverse possession thus bears the burden of proving the necessary

elements by a preponderance of the evidence. ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757,

774 P.2d 6 (1989); Nickell v. Southview Homeowners Ass’ n, 167 Wn. App. 42, 50, 271 P.3d 973

2012).

         A party challenging a trial court’ s factual findings bears the burden of showing them

incorrect. Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990).

In that inquiry, we consider whether substantial evidence supports the findings and, if so,



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No. 45596-0-II


whether those findings properly support the trial court’ s conclusions of law. Harris, 133 Wn.

App. at 137. Substantial evidence supports a finding where the record, viewed in the light most

favorable to the prevailing party, contains a quantity of evidence sufficient “ to persuade a fair-

minded, rational person” of its truth. Harris, 133 Wn. App. at 137. We treat unchallenged

findings as verities. Harris, 133 Wn. App. at 137.

B.     Governing Law

       When a platted street was vacated by operation of the former nonuser statute codified at

Laws of 1889-90, chapter 19, section 32, at 603, until 1909, title to the underlying fee vested in

the owners of the adjacent parcels from the edge of those parcels to the street’ s center line.

Turner v. Davisson, 47 Wn.2d 375, 385-86, 287 P.2d 726 (1955); Curtis v. Zuck, 65 Wn. App.

377, 378-79, 829 P.2d 187 (1992); Wells v. Miller, 42 Wn. App. 94, 97-98, 708 P.2d 1223

1985). Purchasers of parcels in the plat, however, retained a right to use the platted street for

ingress and egress, which other purchasers and the grantor may not deny. Burkhard v. Bowen,

32 Wn.2d 613, 622-24, 203 P.2d 361 (1949); Van Buren v. Trumbull, 92 Wash. 691, 695-98, 159

P. 891 (1916); Curtis, 65 Wn. App. at 379. Nonetheless, title to the underlying fee acquired by

vacation of such a street is “ of such a nature that it could be lost by adverse possession.”

Tamblin v. Crowley, 99 Wash. 133, 139, 168 P. 982 (1917); see also Wells, 42 Wn. App. at 97-

98.

       In Washington, the common law and statutes of limitation govern adverse possession

claims. See Gorman v. City of Woodinville, 175 Wn.2d 68, 76, 283 P.3d 1082 (2012) (Madsen,

C.J., concurring). Here, the relevant statute provides that

        f]or actions for the recovery of real property, or for the recovery of the possession
       thereof[,] . . . no action shall be maintained for such recovery unless it appears that
       the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of
       the premises in question within ten years before the commencement of the action.

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No. 45596-0-II


RCW 4.16.020.

       Thus, parties claiming property by adverse possession must generally prove that their

possession of the disputed property was “( 1) open and notorious, (2) actual and uninterrupted, (3)

exclusive, and (4) hostile” to the interest of the holder of title for a period of 10 years. ITT

Rayonier, 112 Wn.2d at 757; Nickell, 167 Wn. App. at 50. “ Where there is privity between

successive occupants holding continuously and adversely to the true title holder, the successive

periods of occupation may be tacked to each other to compute the required 10-year period of

adverse holding.” Roy v. Cunningham, 46 Wn. App. 409, 413, 731 P.2d 526 (1986).

       Generally, a claimant who shares the disputed property with the title owner cannot

establish the first element of “exclusive” possession. Crites v. Koch, 49 Wn. App. 171, 174, 741

P.2d 1005 (1987). Adverse possession claimants need not prove, however, that their possession

was absolutely exclusive: “ An ‘occasional, transitory use by the true owner usually will not

prevent adverse possession if the uses the adverse possessor permits are such as a true owner

would permit a third person to do as a neighborly accommodation.’” Lilly v. Lynch, 88 Wn.

App. 306, 313, 945 P.2d 727 (1997) (quoting 17 WILLIAM B. STOEBUCK, WASHINGTON

PRACTICE REAL ESTATE: PROPERTY LAW § 8.19, at 516 (1995)) (internal quotation marks

omitted). Thus, “ the possession must be of a type that would be expected of an owner under the

circumstances.” Crites, 49 Wn. App. at 174.

       Similarly, the “ actual and uninterrupted” element does not require claimants to show that

they used the property constantly. “‘ Continuous and uninterrupted use’ does not . . . require the

neighbors to prove constant use[, but only] . . . ‘use of the same character that a true owner might

make of the property considering its nature and location.’” Lee v. Lozier, 88 Wn. App. 176, 185,

945 P.2d 214 (1997) (quoting Double L. Props., Inc. v. Crandall, 51 Wn. App. 149, 158, 751



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No. 45596-0-II


P.2d 1208 (1988)). Seasonal use, for example, will suffice if owners of similar property

typically use it only seasonally. Lee, 88 Wn. App. at 185-86.

       To establish the open and notorious element, the claimant must show “ either (1) that the

title owner had actual notice of the adverse use throughout the statutory period or (2) that the

claimant used the land such that any reasonable person would have thought he owned it.” Riley

v. Andres, 107 Wn. App. 391, 396, 27 P.3d 618 (2001). As with the other elements, in

determining whether this requirement is met, a court must consider the claimant’ s conduct in

light of the character of the property at issue: “ The necessary use and occupancy need only be of

the character that a true owner would assert in view of its nature and location.” Krona v. Brett,

72 Wn.2d 535, 539, 433 P.2d 858 (1967) (emphasis omitted).

       For purposes of the fourth element, hostility does not require animosity, but only “that the

claimant possesses property in a manner not subordinate to the title of the true owner.” Teel v.

Stading, 155 Wn. App. 390, 395, 228 P.3d 1293 (2010). Our Supreme Court has held that courts

apply an objective test to determine whether a claimant has established this element:

       The “ 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. The nature of his possession will be determined solely on the basis of the
       manner in which he treats the property. His subjective belief regarding his true
       interest in the land and his intent to dispossess or not dispossess another is irrelevant
       to this determination.

Chaplin, 100 Wn.2d at 860-61. Nevertheless, “ permission, express or implied, from the true

owner negates the hostility element as a matter of law,” unless the claimant shows “ that the

permission terminated and that the original owner had notice of the adverse use.” Teel, 155 Wn.

App. at 396.




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No. 45596-0-II


C.     The Clinefelters’ Challenge to the Trial Court’ s Factual Findings

       Uphoff and Severson first argue that we should not consider the assignments of error to

certain findings of fact because the Clinefelters did not (1) specifically object to the challenged

findings when presented by the trial court or (2) reproduce the challenged findings verbatim in

their brief. We address each contention in turn and reach the Clinefelters’ assignments of error

on their merits.

       1. The Clinefelters’ Failure to Object to the Findings in the Trial Court

       Severson and Uphoff cite no authority demonstrating that one must formally object to

findings at the trial court in order to challenge them on appeal. Instead, the relevant court rule

provides that

                f]ormal exceptions to rulings or orders of the court are unnecessary; but for
       all purposes for which an exception has heretofore been necessary it is sufficient
       that a party, at the time the ruling or order of the court is made or sought, makes
       known to the court the action which the party desires the court to take or the party’ s
       objection to the action of the court and grounds therefore; and, if a party has no
       opportunity to object to a ruling or order at the time it is made, the absence of an
       objection does not thereafter prejudice the party.

CR 46. We have interpreted this rule such that “[ a] party who clearly presents its factual and

legal position at trial, but loses, does not waive error by cooperating when a trial court asks that

its lawyer provide draft findings and conclusions that reflect the court’ s announced decision.”

Gamboa v. Clark, 180 Wn. App. 256, 266, 321 P.3d 1236 (2014), aff’ d, 183 Wn.2d 38 (2015).

This view has long prevailed in Washington. See, e.g., Harmon v. Gould, 1 Wn.2d 1, 6, 94 P.2d

749 (1939) (similarly interpreting Rule XI of the former Rules of Practice).

       The Clinefelters’ evidence and argument at trial adequately informed the trial court of

their objection to the findings made and the actions it took based on those findings. This

preserved their challenge to the findings on appeal.


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No. 45596-0-II


        2. The Clinefelters’ Failure to Set Out the Challenged Findings in Their Brief

        Uphoff and Severson next invite us to decline to consider the assignments of error to the

trial court’ s factual findings because the Clinefelters did not set forth the challenged findings

verbatim in their brief. Although the Clinefelters attached the findings and conclusions to their

notice of appeal, in their brief they merely identified the challenged findings by number and

briefly explained their objections to each.

        This argument relies on RAP 10.4(c), which provides that “ a party [who] presents an

issue which requires study of a . . . finding of fact, . . . should type the material portions of the

text out verbatim or include them by copy in the text or in an appendix to the brief.” The rules

specify, however, that when a party fails to do something that the rules state the party “ should

do,” the ordinary remedy is sanctions, not outright refusal to consider the claim on its merits.

RAP 1.2(b). The rules provide ultimately that they “ will be liberally interpreted to promote

justice and facilitate the decision of cases on the merits.” RAP 1.2(a).

        Consistently with this approach, “[ i]n appropriate circumstances,” we will waive

technical violations of the RAP 10 briefing requirements, especially where “ the appellant’ s brief

makes the nature of the challenge clear and includes the challenged findings in the text.” Harris

v. Urell, 133 Wn. App. 130, 137, 135 P.3d 530 (2006) (citing RAP 1.2(a)). Although, the

Clinefelters did not include the challenged findings in their brief’s text, they identified them by

number, included them in their notice of appeal and in the record, and made the nature of the

challenges perfectly clear. Consequently, we address the Clinefelters’ assignments of error to

the trial court’ s findings on the merits.




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No. 45596-0-II


       3. The Challenged Findings4

       The Clinefelters assign error to several of the factual findings on which the trial court

relied in ruling that Severson and Uphoff had adversely possessed the disputed strip. They

challenge finding 8, which reads:

               It is also clear that as between Plaintiff Dennis Severson and Ted
       Thompson, the fence in platted Swan Street was recognized by both as the common
       boundary between their properties. Mr. Severson exclusively occupied that portion
       of platted Swan Street up to the fence, including using it as a lawn and parking
       vehicles there, while the Thompson property on the other side of the fence was
       generally un-maintained.

CP at 63. The Clinefelters assert that the evidence establishes that the old “fence in Swan Street

was not the common boundary between Thompson and Severson” and that “ Severson did not

exclusively occupy Swan Street” up to the old fence. Br. of Appellant at 10.

       The Clinefelters assign error to finding 9, which states:

              Florence Hubbard testified that when Ted Thompson sold the current
       Uphoff/Burnell property to her in 1977, she treated the old fence in platted Swan
       Street as the common boundary between her property and Ted Thompson’ s
       property, including building a greenhouse and installing a garden adjacent to the
       fence.

CP at 63. They assert that the Hubbards were uncertain where the old fence was and Florence

Hubbard did not testify that she recognized the fence as the common boundary.

       The Clinefelters also assign error to finding 13, which reads:

              In 1990 Florence Hubbard sold her property to Kronquist, who sold to
       Myers in 1992, who sold to Uphoff/Burnell in 2003. [ Exh. 5, 6 and 7]. Dennis
       Severson testified that during this period the area up to the fence, in the West half
       of vacated Swan Street, was exclusively used in various ways that included a
       garden, parking of vehicles, and a mobile home owned by Kronquist, and was

4
  In addition to the findings discussed below, the Clinefelters also assign error to finding of fact
10, which concerns the events leading up to the 1983 litigation. However, the manner in which
the 1983 lawsuit began has no bearing on the issues here, and the Clinefelters do not explain why
they take issue with the trial court’ s findings on the matter.

                                                18
No. 45596-0-II


       maintained to a greater or lesser degree by Kronquist, Myers and Uphoff and
       Burnell.

CP 64. The Clinefelters assert that Severson “ did not testify that the area was used exclusively

by anyone; he also testified that he recognized it as a right of way.” Br. of Appellant at 11.

       The Clinefelters further assign error to finding 14, which reads:

               There is no testimony or evidence that the Thompson Estate or Clinefelters
       attempted to use any portion of vacated Swan Street for ingress, egress, or drainage.
       Nor have utilities been installed or otherwise altered from what existed at the time
       of the 1983 Stipulation.

CP at 64. The Clinefelters point out that they testified to occasionally using Swan Street for

taking walks.

       Substantial evidence supports the findings to the extent that Severson used the disputed

strip as a lawn almost up to the old fence and at some time stored property in the form of a boat

on it. 1 VRP at 44-45, 53, 93-96. Substantial evidence further shows that Severson mowed

much of the disputed strip almost up to the old fence. 1 VRP at 93-96.

       However, the assertion in finding 8 that “ Mr. Severson exclusively occupied that portion

of platted Swan Street up to the fence,” and the assertion in finding 14 that “[ t]here is no

testimony or evidence that the Thompson Estate or Clinefelters attempted to use any portion of

vacated Swan Street for ingress, egress, or drainage” are not supported by substantial evidence.

CP at 62-63. The testimony established, and Severson admitted, that the Hubbards and other

owners whose parcels further south abutted Swan Street to the east used the portion of Swan

Street adjacent to Severson’ s parcel. 1 VRP at 73, 88, 126-28. The trial court also heard

testimony that both Thompson and the Clinefelters occasionally used the disputed strip to access

their property on foot. 1 VRP at 118, 2 VRP at 52. However, as shown in the analysis below,




                                                 19
No. 45596-0-II


this occasional use by neighbors does not prevent Severson from establishing the exclusivity

needed for his adverse possession claim.

       Substantial evidence also supports the finding that Florence Hubbard maintained a garden

in the disputed strip. The evidence, set out above, shows that Florence Hubbard maintained the

garden from 1977, when the Hubbards purchased their property, to 1990, when they sold it to

Kronquist. 1 VRP at 109-11, 117, 120. Severson’ s testimony that Kronquist maintained the

Florence Hubbard’ s garden “ somewhat,” 1 VRP at 26-30, and that the Myers kept up the garden

is substantial enough to support the finding that the garden was maintained in the disputed strip

up to Uphoff’ s purchase of the property. 1 VRP at 31.

D.     The Trial Court’ s Conclusions of Law

       The Clinefelters assign error to many of the trial court’ s conclusions regarding

Severson’ s and Uphoff’ s claims to adverse possession of the disputed strip. In reviewing these,

we consider whether the trial court’ s judgment properly follows from its unchallenged findings,

together with the challenged findings supported by substantial evidence in the record. We first

address Uphoff’ s adverse possession claim, then Severson’ s.

       1. Uphoff’ s Adverse Possession Claim

       The Clinefelters contend that the trial court erred in concluding that Uphoff and their

predecessors in interest used the disputed strip continuously for the required 10-year period. The

Clinefelters claim that the trial court erred in tacking on the Hubbards’ uses of the parcel to

Uphoff’ s period of adverse possession. The Clinefelters argue that, because the Hubbards signed

the 1983 stipulation recognizing the Thompson estate’ s title to the west half of Swan Street,

principles of estoppel preclude any claim of adverse possession based on the Hubbards’ uses.

Uphoff and Severson concede that the trial court erred in tacking on the Hubbards’ period of



                                                 20
No. 45596-0-II


possession, but maintain that the uses of the subsequent owners, combined with Uphoff’ s own

uses, still establish 10 years of adverse possession.

       We decline to accept the concession, and we hold that the Hubbard’ s uses may be

considered in judging Uphoff’ s adverse possession claim. Under the authorities discussed above

in Part I. A., the stipulation recognizing the Thompson estate’ s interest in Swan Street bound the

Hubbards as parties to the 1983 litigation. The stipulation, as noted above, set out that the

Thompson estate (the Clinefelters’ predecessor) owned the western half of Swan Street adjacent

to the Hubbards’ property and that the Hubbards owned the eastern half. The stipulation also

granted each party a permanent easement for drainage, ingress, egress and utilities over the other

party’ s half of Swan Street, but prohibited use of the other party’ s half for “parking or storage or

in any other manner not reasonably related to the exercise of the parties’ rights to drainage,

ingress, egress and utilities.” CP at 10. Whatever the effect of any potential estoppel, the

Hubbards were not authorized to put in a garden in the disputed strip. By doing so, they engaged

in a use that was adverse to the Thompson estate under the criteria for adverse possession in Part

II. B of the Analysis, above. The Clinefelters are in privity with the Thompson estate, and

Uphoff is in privity with the Hubbards. Therefore, under Roy, 46 Wn. App. at 413, the

Hubbards’ garden use may be tacked to successive periods of occupation to compute the required

10-year period of adverse holding. In addition, as shown below, Hubbards’ garden meets the

requirements for adverse possession.

       In conclusion of law 7, the trial court held that by tacking the uses and occupations of their

predecessors Hubbard, Kronquist, and Myers, Uphoff had adversely possessed the disputed strip

adjacent to their property from 1977 to 2011,




                                                  21
No. 45596-0-II


          by installing and maintaining gardens, a greenhouse, chicken coops, grading and
          maintaining a driveway which only they used, parked vehicles and other indicia of
          ownership.

CP at 66. Finding of fact 9 states:

                 Florence Hubbard testified that when Ted Thompson sold the current
          Uphoff/Burnell property to her in 1977, she treated the old fence in platted Swan
          Street as the common boundary between her property and Ted Thompson’ s
          property, including building a greenhouse and installing a garden adjacent to the
          fence.

CP at 63. Although phrased in terms of a finding about Florence Hubbard’ s testimony, finding

9, reasonably read, serves as a finding that Hubbard installed a garden in the disputed strip when

the Hubbards bought the property in 1977. In addition, conclusion 7, holds that the Hubbards’

use was one of the adverse uses that may be tacked onto the other uses to reach the 10-year

period.

          The Clinefelters challenge this determination as not adequately showing continuous use.

As shown, however, substantial evidence is present to support Florence Hubbard’ s garden use

from 1977 to 1990. That alone shows a use continuous enough to establish adverse possession.

As also shown, substantial evidence supports a finding that Kronquist and the Myers continued

to maintain Hubbard’ s garden in the disputed strip. Thus, without even considering Uphoff’ s

uses, the evidence shows continuous, adverse use of the garden for a period of approximately 25

years. For this reason, the trial court was correct in quieting title in Uphoff.

          2. Severson’ s Adverse Possession Claim

          The Clinefelters also contend that Severson failed to show that his claimed adverse

possession of the portion of the disputed strip adjacent to his parcel was exclusive or hostile. We

disagree.




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No. 45596-0-II


                a. Hostility

        As already noted, Severson’ s subjective belief that the Clinefelters or their predecessors

in interest had legal title to the disputed area is irrelevant to whether his use was hostile for

purposes of adverse possession: instead, “[ t]he nature of his possession will be determined

solely on the basis of the manner in which he treats the property.” Chaplin, 100 Wn.2d at 860-

61.

          P] ermission, express or implied, from the true owner negates the hostility element as a

matter of law,” unless the claimant shows “ that the permission terminated and that the original

owner had notice of the adverse use.” Teel, 155 Wn. App. at 396. In addition, “ an initial

presumption of permissive use” applies in “enclosed or developed land cases in which there is a

reasonable inference of neighborly sufferance or acquiescence.” Gamboa, 183 Wn.2d at 47. No

such presumption applies here, however, because the evidence does not give rise to a reasonable

inference that Thompson or the Clinefelters acceded to Severson’ s uses of the disputed strip out

of neighborly sufferance or acquiescence.

        In Gamboa, 183 Wn.2d at 47, as in the case on which it largely relied, Roediger v.

Cullen, 26 Wn.2d 690, 712-14, 175 P.2d 669 (1946), the neighbors’ long period of common use

of the subsequently disputed routes gave rise to the inference of neighborly accommodation.

Here, Thompson and Clinefelter only used the disputed strip occasionally as a foot path, while

Severson mowed it and used the disputed strip as though it were his own property. The trial

court did not err in concluding that Severson’ s possession of the strip was legally hostile to the

Clinefelters.




                                                  23
No. 45596-0-II


               b. Exclusivity

       The Clinefelters argue that Severson cannot meet the exclusivity requirement because

both the Clinefelters and Thompson occasionally walked in the strip. This, however, does not

necessarily defeat Severson’ s adverse possession claim. As noted above, “[ a] n occasional,

transitory use by the true owner” does not defeat exclusivity “ if the uses the adverse possessor

permits are such as a true owner would permit a third person to do as a neighborly

accommodation.” Lilly, 88 Wn. App. at 313. We have held that “ slight and occasional use” by

the title owner did not render the adverse possessor’ s use insufficiently exclusive to support the

claim where the adverse possessor’ s use “ differed fundamentally in scope and substance from

the use made by the” title owner. Crites, 49 Wn. App. at 174-75.

       The record here shows that Severson used the area more or less as he would have his own

backyard, regularly mowing and at times storing his boat there. On the other hand, Hubbard

testified only that “ there were times that [Thompson] did come through” the old fence into the

disputed strip, 1 VRP at 118, and the Clinefelters admittedly walked through it only

 periodically.” 2 VRP at 46. Given the nature of the property at issue and the apparently

friendly relations that prevailed in the neighborhood prior to the Olson survey and this lawsuit,

this is the type of occasional, transitory use that a true owner would have allowed as a neighborly

accommodation. The trial court did not err in ruling that Severson’ s use of the disputed strip was

sufficiently exclusive to the true owners’ rights to support his adverse possession claim.

                                       III. ATTORNEY FEES

       Uphoff and Severson request costs and attorney fees on appeal. However, they do not

identify what provision of law entitles them to an award or devote a section of their opening brief

to the request, as RAP 18.1 requires. We thus decline to consider their requests.



                                                 24
No. 45596-0-II


                                        CONCLUSION

       We hold that the 1983 stipulation is not binding on Severson or Uphoff and that the

evidence establishes adverse possession by Severson and by Uphoff’ s predecessors under the

applicable legal principles. Therefore, we affirm.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.




                                                     BJORGEN, A.C.J.

 We concur:




 LEE, J.




 SUTTON, J.




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