    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

GARY D. CORPRON and SUSAN M.                                                         o
                                                                                   too
CORPRON, a married couple,                            No. 69565-7-                 3>30
                                                                              -o

                    Respondents,                      DIVISION ONE
                                                                                   <-or
                                                      UNPUBLISHED OPINIQfel               O


LEIGH M. KELLOGG, a single individual,
                                                                              CD   o—
and RUTH M. PELAN, a single individual,

                    Appellants.                       FILED: April 14, 2014


       Appelwick, J. — The Corprons sued Kellogg seeking quiet title to a narrow,

triangular shaped strip of land on the Corprons' property.      Kellogg counterclaimed

seeking quiet title based on adverse possession. The trial court concluded that Kellogg

failed to prove the elements of adverse possession and quieted title to the Corprons.

We affirm.

                                        FACTS


       Respondents Gary Corpron and Susan Corpron own a five acre parcel of real

property in Arlington, Washington.       The Corprons have lived on the property

continuously since September 11, 2003, when they purchased it from Evelyn Dorsett.

Dorsett owned and occupied the property from approximately March 4, 1987 until the

time of sale.

       Appellants Leigh Kellogg and Ruth Pelan1 own the five acre parcel of real

property immediately west of the Corprons' property. Kellogg purchased the property

on October 26, 2004 from Mark Selvig. Kellogg lived on the property from the time of

       1 We refer to the appellants collectively as "Kellogg." Pelan does not live on the
property; she holds only an equitable mortgage, because she helped Kellogg with the
down payment for the property.
No. 69565-7-1/2




purchase until 2012, when she began renting it to a third party.      Selvig lived on the

property from approximately 1999 to 2004. Selvig purchased the property from Michael

Van Putten, who lived on the property from approximately 1995 to 2000. During that

period, Lori Takaki, who is Selvig's sister and Van Putten's ex-wife, also lived on the

Kellogg property.

       The dispute between Kellogg and the Corprons arises from a long, narrow

triangular strip of land that sits entirely on Corprons' property (the disputed area). The

disputed area runs north and south near the boundary separating the two properties,

angling east as it extends northward—forming the triangle shape.            The area is

approximately 453 feet long, a few feet wide at the southern end, and 24.9 feet wide at

the northern end. It does not extend all the way to either the northern or the southern

boundary of the parties' properties.

       Before 1995, Dorsett built a wood post and lattice fence in the disputed area

(wood/lattice fence). The fence does not run directly along the property line, but rather

angles east as it extends north. Dorsett later added cedar slats to the fence and her

son, Darold Anderson, extended the cedar fence southward an additional length. The

wood/lattice fence is a "hanging" fence, which means it allows easy access from one

side of the fence to the other and between the parties' properties. The fence runs only

about one-third of the total length of the parties' boundary line.

       Dorsett initially built and maintained the wood/lattice fence as a privacy barrier

and screen for odor and dust between the properties. Testimony at trial indicated that

the fence was not originally built or used to demarcate the property line. However, as

time went on, subsequent owners viewed the wood/lattice fence as the border line
No. 69565-7-1/3




fence. The wood/lattice fence is still in place, though a portion has fallen down in recent

years.


         In May 1995, Van Putten installed a wire gauge and post fence in the disputed

area (Van Putten fence).      The Van Putten fence ran immediately adjacent to the

western side of the wood/lattice fence, but extended an additional 122 feet north of the

wood/lattice fence. Van Putten originally built and used the fence to contain horses and

keep those horses off the wood/lattice fence.       The Van Putten fence enclosed the

disputed area and prevented passage from one side to the other.

         In February 2005, the Corprons removed the portion of the Van Putten fence that

extended north of the wood/lattice fence. The trial court found that the Corprons did not

ask permission to remove the fence, but Kellogg would have given permission had they

done so.


         In 2007, Kellogg installed a wood post and electric fence in the disputed area

(Kellogg fence). The fence parallels the wood/lattice fence, but extends farther north

than the wood/lattice fence. The Kellogg fence remained in place at the time of trial.

The Corprons also later installed fencing in the disputed area to the west of the

wood/lattice fence. Kellogg removed that fencing without the Corprons' permission.

         On October 8, 2010, the Corprons filed a complaint against Kellogg seeking quiet

title to the disputed area and damages.       The Corprons asserted that Kellogg had

erected fences encroaching on their property. They requested that Kellogg be ejected

and permanently enjoined from entering their property.
No. 69565-7-1/4




       Kellogg answered and admitted that the Corprons were the recorded owners of

the disputed area. However, Kellogg counterclaimed, alleging adverse possession of

the land and seeking an order of quiet title.

       At trial, the court heard oral testimony from the Corprons, Kellogg, expert

surveyor Robert Huey, Van Putten, Takaki, Anderson, and Selvig.

       On October 15, 2012, the trial court entered findings of fact and conclusions of

law, including the following challenged finding:

              5.     Historic Use and Maintenance of Disputed Area.         The
      testimony and exhibits admitted at trial showed neither Kellogg nor her
      predecessors used, maintained or kept a line fence in the Disputed Area
      for any consecutive ten-year period. More specifically, at trial, the
      evidence showed the following regarding the historic use of the Disputed
      Area:


                   a.     Van Putten/Takaki. From approximately May 1995 to
      2000, Van Putten and Takaki kept horses on the Kellogg Real Property
      and in the Disputed Area. After approximately 2000, no one kept animals
       in the Disputed Area.

             From approximately 1999-2000, Van Putten mowed a small patch
      of grass near the Southeastern corner of the Kellogg Real Property. A
      portion of that grass was located in the Disputed Area.

              As discussed herein, in May of 1995, the Van Putten Fence was
      installed, but the portion extending northerly of the Wood Lattice Fence
      was removed February of 2005.

             Neither Van Putten nor Takaki otherwise regularly used or
      maintained the Disputed Area during Van Putten's ownership of the
      Kellogg Real Property.

                   b.    Selvig. From approximately 2003 to 2004, Selvig
      mowed the small patch of grass near the Southeastern corner of the
      Kellogg Real Property, a portion of which was located in the Disputed
      Area. Selvig also, on a single occasion in approximately 2003 or 2004,
      removed saplings from the Kellogg Real Property, some of which were in
      the Disputed Area.
No. 69565-7-1/5


            Except as stated above, between 1999 and 2004, Selvig did not
      otherwise use or maintain the Disputed Area. Selvig did not: (1) keep
      horses or other animals; (2) add to or maintain any fencing; (3) install any
      improvements; and or (4) weed, in the Disputed Area. There was no
      continuous use of the Disputed Area from the time Van Putten and Takaki
      occupied the Kellogg Property to the time Selvig occupied that Property.
      During Selvig's ownership of the Kellogg Property, apart from the
      maintenance in 2003 and/or 2004 described above, the Disputed Area
      became and remained overgrown with weeds and brush.

                     c.    Use bv the Corprons. The Corprons testified at trial
      they regularly used and maintained the Disputed Area from 2003 to 2010
      and that, during that period, they mowed, weeded, removed debris
      (including tree branches), raked and removed rocks. Kellogg's testimony
      at trial indicated she used the Disputed Area and did not observe the
      Corprons using that Area from Spring 2005 until 2010. The Court found
      neither Party's testimony persuasive by a preponderance of the evidence
      and specifically found the Corprons' position on the this [sic] issue to lack
      credibility.

                   d.     Kellogg. When Kellogg purchased her Real Property
      in 2004, the Disputed Area was unmaintained and overgrown with weeds
      and brush. Kellogg did nothing to maintain the Disputed Area until
      approximately six months after she purchased that Property.

      The trial court concluded that Kellogg failed to meet her burden of proving

adverse possession, because Kellogg and her predecessors' possession of the

disputed area was not "1) exclusive, 2) actual and uninterrupted, 3) open and notorious,

and/or 4) hostile and under a claim of right, during any continuous 10-year period." The

court concluded that the Corprons removed a portion of the Van Putten fence in

February 2005, less than 10 years after its installation in May 1995.      Once the Van

Putten fence was removed, only a hanging fence was left, which allowed easy access

from either side.   Thus, the trial court concluded, Kellogg failed to show exclusive

possession over a 10-year period.

      The trial court further concluded that even if the Corprons had not removed the

Van Putten fence, Kellogg's adverse possession claim would still fail.         The court
No. 69565-7-1/6




reasoned that Kellogg and her predecessors "failed to use, possess or maintain the

Disputed Area in the manner of a true owner over the required 10-year period." The

use and maintenance of the disputed area by Van Putten, Takaki, and Selvig—keeping

horses, periodically mowing a small patch of lawn, and removing saplings once—did not

last for any continuous 10-year period and was insufficient to be actual, open, and

notorious.   Because of breaks in use and maintenance of the disputed area between

Van Putten and Selvig, and then between Selvig and Kellogg, the trial court held that

there was no continuous adverse possession of the land.

      The trial court quieted title to the disputed area in the Corprons and ejected

Kellogg from the land. It also entered a judgment awarding the Corprons $400 for the

fencing that Kellogg removed.       It further awarded the Corprons $200 in statutory

attorney fees and $634 in statutory costs.

       Kellogg appeals the trial court's findings of fact and conclusions of law, as well as

the judgment.

                                      DISCUSSION


      When the trial court enters findings of fact and conclusions of law, our review is

limited to determining if the findings of fact are supported by substantial evidence and if

the findings of fact support the conclusions of law. Douglas v. Visser, 173 Wn. App.

823, 829, 295 P.3d 800 (2013). Substantial evidence is evidence sufficient to persuade

a fair-minded, rational person of the truth of the declared premise. Jd, We view the

evidence and reasonable inferences from the evidence in the light most favorable to the

prevailing party. Jensen v. Lake Jane Estates, 165 Wn. App. 100, 104, 267 P.3d 435

(2011). Though the trier of fact is free to believe or disbelieve any evidence presented
No. 69565-7-1/7




at trial, appellate courts do not hear or weigh evidence, find facts, or substitute their

opinions for those of the trier of fact, ]d. at 104-05. Unchallenged findings are verities

on appeal. IcL at 105.

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

Wn. App. 822, 828, 964 P.2d 365 (1998). To establish ownership of a piece of property

through adverse possession, the claimant's possession must be: (1) exclusive, (2)

actual and uninterrupted, (3) open and notorious, and (4) hostile. ITT Ravonier, Inc. v.

Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989).        Each of these necessary concurrent

elements must exist for the statutorily prescribed period of 10 years. RCW 4.16.020(1).

The party claiming adverse possession bears the burden of proving each element by a

preponderance of the evidence to overcome the presumption of possession in favor the

legal title holder. Bell, 112 Wn.2d at 757; Teel v. Stading, 155 Wn. App. 390, 394, 228

P.3d 1293 (2010).

  I.   Hostile Possession


       Kellogg argues that the trial court erred in considering the purpose and manner in

which Kellogg and her predecessors used the disputed area. Kellogg contends that the

Van Putten fence was a boundary line fence. Relying on Wood v. Nelson, 57 Wn.2d

539, 358 P.2d 312 (1961), she argues that this constitutes prima facie evidence of

hostile possession, and so the actual use of the disputed area is irrelevant.

       In Chaplin v. Sanders, the Washington Supreme Court held that the hostility

element of adverse possession "requires only that the claimant treat the land as his own

as against the world throughout the statutory period." 100 Wn.2d 853, 860-61, 676 P.2d

431 (1984). Thus, the nature of the claimant's possession "will be determined solely on
No. 69565-7-1/8



the basis of the manner in which he treats the property." Id at 861. This is an objective

determination based on the claimant's use of the land.         Anderson v. Hudak. 80 Wn.

App. 398, 402, 907 P.2d 305 (1995). The claimant's subjective belief regarding his true

interest in the land and his intent to dispossess the legal title holder is irrelevant to that

determination. Chaplin, 100 Wn.2d at 861.

       Therefore, the manner in which Kellogg's predecessors used the disputed area is

plainly relevant to Kellogg's adverse possession claim. What does not matter is their

subjective intent to dispossess Dorsett or the Corprons of legal title to the disputed area.

Under Chaplin, the trial court properly considered evidence of use in evaluating

Kellogg's adverse possession claim.

       The Wood court recognized that a fence is the usual means to exclude strangers

and establish dominion and control characteristic of ownership.           57 Wn.2d at 540.

There, the defendants claimed that a wire fence was used to confine animals and was

never intended to mark the property line, and so it did not establish adverse possession.

Id. The trial court rejected this assertion, because the fence ran parallel to the true

boundary line for the entire length of the property. Id. The appellate court agreed and

held that "[wjhere a fence purports to be a line fence, rather than a random one, and

when it is effective in excluding an abutting owner from the unused part of a tract

otherwise generally in use, it constitutes prima facie evidence of hostile possession up

to the fence." Id at 541.


       The Van Putten fence is distinguishable from the fence at issue in Wood. Van

Putten and Takaki built and used the fence to contain their horses and keep the horses

off the wood/lattice fence.   Kellogg does not challenge the trial court's finding to this


                                                  8
No. 69565-7-1/9




effect, so it is a verity on appeal. The record is also clear that the disputed area does

not extend the entire length of the boundary line, or even reach the northern or southern

boundary of the properties.     Nor does the disputed area run parallel to the actual

boundary line—instead it angles east as it extends northward.

       Therefore, this case is not on all fours with Wood.         Kellogg's facts do not

establish a prima facie case of hostile possession under Wood. Furthermore, even if

we were to hold that the animal fence established prima facie hostile possession for

Kellogg, not all of the other elements of adverse possession were established.

 II.   Actual Use and Uninterrupted Possession

       Kellogg argues that the trial court failed to consider evidence of use that occurred

prior to construction of the Van Putten fence—specifically, Van Putten's land clearing

and grading activities in the disputed area in February 1995.       Relying on Frolund v.

Frankland, 71 Wn.2d 812, 431 P.2d 188 (1967), overruled by Chaplin, 100 Wn.2d at

861 n.2, Kellogg contends that these grading activities "unfurled the flag" of hostile

ownership and began the 10-year adverse possession period before Van Putten built

the fence in May 1995.2

       The general test of actual possession is whether the claimant's use and

occupancy of the land is "'of the character that a true owner would assert in view of [the

land's] nature and location.'" Chaplain, 100 Wn.2d at 863 (emphasis omitted) (quoting

Krona v. Brett, 72 Wn.2d 535, 539, 433 P.2d 858 (1967), overruled by Chapin, 100



       2 Being overruled by Chaplin as to the claimant's subjective intent to use the
land, the vitality of Frolund is in doubt and is of limited use to us. However, we note that
whether grading commences adverse possession is a question of fact, not a question of
law.
No. 69565-7-1/10



Wn.2d 861 n.2); 17 William B. Stoebuck & John W. Weaver, Washington Practice:

Real Estate: Property Law § 8.9, at 518 (2d ed. 2004).

         Some activities that Washington courts have held to establish actual possession

of rural land include: building a fence and cultivating up to it; clearing land, constructing

and occupying buildings, and planting orchards; farming, pasturing, planting an orchard,

and building irrigation ditches; and maintaining a partial fence and annually cutting

brush.    17 Stoebuck & Weaver, supra, § 8.10, at 520-21. Conversely, the following

activities have been held not to amount to actual possession of rural or semi-rural land:

having an old, dilapidated fence in an unused strip overgrown with trees and brush;

maintaining an irregular fence of poles and brush, taking timber, and once planting

cabbages; and maintaining a fence intended to be a cattle fence and not a line fence.

17 Stoebuck & Weaver, supra, § 8.10, at 521.

         The facts here are most similar to the latter group of cases. Van Putten and

Takaki built and used the Van Putten fence to contain horses and keep the horses off

the wood/lattice fence. They used the fence in this manner from May 1995 until they

moved out in 2000.       Takaki testified that neither she nor Van Putten repaired or

maintained the fence after they built it.

         Selvig then lived on the Kellogg property from 1999 to 2004.3 During that time,

Selvig once removed saplings from the disputed area. He also mowed a small patch of

grass partially in the disputed area sometime during 2003 or 2004. Otherwise, Selvig

explained, he "didn't use that space." He testified that he did not repair the Van Putten



         3 Selvig, Takaki, and Van Putten all lived on the property together in 1999 and
2000.


                                                 10
No. 69565-7-1/11




fence during his tenure. Nor did he keep animals, install any improvements, weed, or

garden in the disputed area. Selvig recalled the disputed area being overgrown with

brush and trees while he lived on the property.

       When Kellogg bought the property in October 2004, she found the disputed area

overgrown with tall grasses and brush—consistent with Selvig's testimony that he did

not use the area. Kellogg did not use the disputed area until May or June 2005. Thus,

substantial evidence in the record supports the trial court's finding of only sporadic

rather than continuous use in the disputed area.

       Moreover, even if grading alone is sufficient to "unfurl the flag" of adverse

possession, Kellogg failed to show by a preponderance of the evidence precisely when

in February 1995 Van Putten began grading activities.      In his pretrial deposition, Van

Putten testified that he began constructing the fence in May 1995.          After he was

deposed but before trial, Van Putten developed a romantic relationship with Kellogg.

On direct examination at trial, Van Putten testified that he began a finish grade of the

disputed area in February 1995.      He further testified that he began constructing the

fence around March 1995.         Confronted with this conflicting testimony on cross-

examination, Van Putten stated that "I think I previously said March earlier this

afternoon, March, May. I'll stick with May." Van Putten admitted that it was tough to

remember the exact date 17 years later, but recalled that he built the fence in "late

spring, early summer."

      The trial court did not make a finding about the grading activities. We presume

that the lack of a finding on this issue is a negative finding against Kellogg, because she

bears the burden of proof.     Taplett v. Khela, 60 Wn. App. 751, 760, 807 P.2d 885


                                                  11
No. 69565-7-1/12




(1991). Given Van Putten's imprecise testimony, Kellogg failed to establish that Van

Putten began grading activities 10 years before the Corprons removed a portion of the

Van Putten fence in February 2005.4

      All this evidence supports the trial court's conclusion of law that Kellogg and her

predecessors failed to "use, possess or maintain the Disputed Area in the manner of a

true owner over the required 10-year period."        We hold that Kellogg's adverse

possession claim fails.

      We affirm.




                                            ^/t&rt/y IA~
WE CONCUR:




                                             ^SlirVU , (_




       4 Kellogg also argues that the trial court should have projected a boundary line
where the original Van Putten fence still exists, because that portion of the fence has
been in place for more than 10 years. This argument fails. The use and maintenance
of the disputed area by Kellogg and her predecessors was not actual, uninterrupted, or
hostile for 10 years, regardless of the continuing existence of a portion of the Van
Putten fence. Furthermore, the record does not show that Kellogg argued this theory of
lesser encroachment below, so the trial court was not in a position to fashion an
intermediate remedy. There is no error.


                                              12
