                                                                                C3
                                                                                      y-




                                                                                 ro
                                                                                 c




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


JAMES A. CHASE and JUDY CHASE,                 No. 68439-6-
and the marital community
compromised thereof,                           DIVISION ONE


                    Respondents,
                                               UNPUBLISHED OPINION



JAMES EBELING, JR.,

                    Appellant                  FILED: June 10, 2013

      Schindler, J. — James and Judy Chase (Chase) filed an action to quiet title and

ejectment. James Ebeling, Jr. counterclaimed, alleging adverse possession of the

disputed property. The trial court rejected the claim of adverse possession and quieted

title in Chase. Because the admissible evidence established that some of the

possession and use of the disputed property was permissive, we affirm.

                                        FACTS

      As children, James Chase and David Parkinson were best friends and lived in

the same neighborhood for approximately 10 years. Chase and Parkinson lost contact

after the two families moved away.

       Parkinson's parents purchased property in Auburn, Washington. In 1983,

Parkinson's mother Carmen Hammons conveyed 1.25 acres of the property to
No. 68439-6-1/2



Parkinson. With Hammons' permission, Parkinson installed a chain link fence along the

southern edge and eastern edge of his property to separate his large dog from

Hammons' horse pasture. The fence had a gate that allowed Hammons and Parkinson

to access each other's property. With Hammons' permission, Parkinson built a storage

shed near the fence line.


       Hammons' property was served by a well. In 1996, Parkinson entered into a

covenant to protect the water supply to his mother's parcel. The covenant prohibits the

owner of the subservient parcel from constructing or maintaining a sewer line or septic

tank within 100 feet of the well on Hammons' property.

       In 1996, Hammons decided to sell her property. At the same time, Chase had

decided to buy property in rural King County. When Chase came to see Hammons'

property, he was delighted to discover that the owner was the mother of his childhood

friend Parkinson, and that Parkinson was living next door. Chase purchased the

property in July 1996.

      After Chase moved in, he gave Parkinson permission to use his property "the

same as he had with his mother."

      A      David had some equipment, he had some personal belongings.
             His brother had some couches. They were stored in our barn, and
             that was okay. I felt close to the Parkinson family.
       Q     So because Mr. Parkinson had this property, you went and spoke
             to him, what did you say to him?
      A      I let him know - and being aware of how close he was to his
             mother, I let him know that we were okay, I was fine, his use of the
             property could continue just as it had with his mother. I was great -
             I was delighted that I had found [my] friend, David, and let him
              know that we were all cool. ... I wanted him to know everything
             was all right, and he had my permission to continue -this is where
              he grew up from the time he was fourteen.
       Q      So he had your permission to --
No. 68439-6-1/3


       A       He had my permission to use my property the same as he had with
               his mother. I didn't care where fences were between David and I,
               he was like family, their family was.

        Over the next three years, Parkinson and Chase freely accessed each other's

parcels, and jointly maintained and used property on both sides of the fence.

       James Ebeling, Jr. purchased the property from Parkinson on November 24,

1999. Initially, Chase had a cordial relationship with Ebeling, but eventually disputes

arose over Ebeling's use of the property located near the well. Ebeling parked his

motor home near the fence. Chase was concerned about the discharge of sewage and

water from the motor home and about storage of chemicals within 100 feet of the well.

       Toward the end of 2008, Chase obtained a survey of the property. The survey

shows that the chain link fence is located on Chase's property about 40 feet away from

the boundary between Chase's and Ebeling's property.

       On October 12, 2009, Chase filed an action to quiet title and for ejectment.

Chase also alleged that Ebeling breached the restrictive covenant.1 Ebeling filed a
counterclaim to quiet title in the disputed area. Ebeling claimed adverse possession of

the disputed strip of property.

       During the bench trial, James Chase and Ebeling both testified and the court

admitted Hammons' deposition testimony into evidence. The trial court ruled that

Parkinson's use of Hammons' property and then later of Chase's property was

permissive. The court's findings of fact state, in pertinent part:

       After the Chases moved in, Mr. Chase spoke with Mr. Parkinson about
       their relationship as neighbors. Mr. Chase told Mr. Parkinson that, given
       their life-long and newly rediscovered friendship, he was fine with
       continuing whatever arrangement Mr. Parkinson had with his mother, Ms.

       1Chase later filed an amended complaint adding a claim for nuisance, but it appears they later
abandoned this claim.
No. 68439-6-1/4


       Hammons, as to their respective uses of each other's property.
       Accordingly, Mr. Chase and Mr. Parkinson agreed that each had the
       other's permission to use any part of the other's property.

       The trial court's conclusions of law state, in pertinent part:

              1.    Use of the Disputed Parcel by David Parkinson,
       counterclaim defendant James Ebeling Jr.'s predecessor in interest to the
       Ebeling Property, was with the permission of the true owner and thus was
       permissive.
              2.        Mr. Ebeling owned the Ebeling Property and thus used and
       possessed the Disputed Parcel for less than 10 years prior to initiation of
       this quiet title and ejectment action by the true owners, plaintiffs James
       and Judy chase.
              3.        Because use of the Disputed Parcel by his predecessor in
       interest was permissive, and because Mr. Ebeling's own use and
       possession of the Disputed Parcel was for less than 10 years, Mr. Ebeling
       does not and cannot satisfy the "hostile" element of his adverse
       possession claim for the requisite 10 year period.

Ebeling appeals.

                                              ANALYSIS

       Ebeling challenges the trial court's finding that Chase gave Parkinson permission

to use his property.2 Ebeling claims that, apart from inadmissible hearsay, the finding is

unsupported by substantial evidence in the record.

       Following a bench trial, appellate review is limited to determining whether the trial

court's factual findings are supported by substantial evidence and, if so, whether the

findings support the trial court's conclusions of law and judgment. Sunnvside Valley

Irrigation Dist. v. Dickie. 111 Wn. App. 209, 214, 43 P.3d 1277 (2002). "Substantial

evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth




       2Ebeling assigns errorto several otherfindings offact, conclusions of law, and trial court rulings.
We do not, however, consider assignments of error that are unsupported by legal argument and relevant
authority. RAP 10.3(a)(6); Howell v. Spokane & Inland Empire Blood Bank. 117 Wn.2d 619, 624, 818
P.2d 1056(1991).
No. 68439-6-1/5



of the declared premise." Ridgeview Props, v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d

1231 (1982).

      To establish ownership by adverse possession, Ebeling had to show possession

for 10 years that was (1) exclusive, (2) actual and uninterrupted, (3) open and notorious,

and (4) hostile. Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984); ITT

Ravonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989); RCW 4.16.020.

Because the presumption of possession is in the holder of legal title, the party claiming

to have adversely possessed the property has the burden of establishing the existence

of each element.   ITT Ravonier, 112 Wn.2d at 757.

       Ebeling concedes that he did not own his property for 10 years. Therefore, he

seeks to "tack" the use of his predecessor in interest to establish adverse possession.

Row. Cunningham, 46 Wn. App. 409, 413, 731 P.2d 526 (1986).

       The "hostile" element of adverse possession requires that "the claimant treat the

land as his own as against the world throughout the statutory period." Chaplin, 100

Wn.2d at 860-61. Permission from the true owner negates the hostility element.

Chaplin, 100 Wn.2d at 861-62. Permission may be express or implied. Kunkel v.

Fisher, 106 Wn. App. 599, 602, 23 P.3d 1128 (2001). Permission is implied in " 'any

situation where it is reasonable to infer that the use was permitted by neighborly

sufferance or acquiescence.'" Lingvall v. Bartmess, 97 Wn. App. 245, 251, 982 P.2d

690 (1999) (quoting Roediger v. Cullen, 26 Wn.2d 690, 707, 175 P.2d 669 (1946)).

Permission may also be implied based on the existence of a close relationship between

the parties. Granston v. Callahan, 52 Wn. App. 288, 294, 759 P.2d 462 (1988).
No. 68439-6-1/6



       Ebeling concedes that the testimony that Chase expressly allowed Parkinson to

use his property in the same manner as when his mother lived there, as well as

Hammons' testimony that she gave permission to her son to use her property, defeats

the element of hostility. However, Ebeling claims the testimony is inadmissible. Ebeling

argues that Chase's testimony about his conversation with Parkinson is "classic

hearsay" and not subject to any hearsay exception. Ebeling also argues the trial court

erred in admitting Hammons' deposition testimony because the arrangement between

mother and son was not relevant to show whether Parkinson's use was permissive after

she sold the property.

       The trial court admitted Chase's testimony about his conversation with Parkinson

under the "state of mind" exception to the hearsay rule. Under this exception, a

statement is not excluded as hearsay if it is "[a] statement of the declarant's then

existing state of mind, emotion, sensation, or physical condition (such as intent, plan,

motive, design, mental feeling, pain, and bodily health)." ER 803(a)(3). The trial court

also overruled Ebeling's objection to Hammons' deposition testimony, concluding that

the evidence was relevant to permission, a material issue in the case.

       This court reviews a trial court's decision to admit or refuse evidence for an

abuse of discretion. Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d

555 (1997). A manifest abuse of discretion occurs only when no reasonable person

would take the view adopted by the trial court. Crescent Harbor Water Co., Inc. v.

Lvseng, 51 Wn. App. 337, 344, 753 P.2d 555 (1988).

       Ebeling does not acknowledge that he also advocated for the admission of

Parkinson's out-of-court statements and testified at trial about his own prior
No. 68439-6-1/7


conversations with Parkinson. Ebeling claimed that before he purchased the property in

1999, Parkinson pointed out the property boundaries and indicated that the southern

boundary of the parcel was at the fence line. Ebeling argued, and the trial court agreed,

that Parkinson's out-of-court statements about his understanding of the property

boundaries were admissible under ER 803(a)(3) to show his state of mind and relevant

to the issue of permission. Yet Ebeling offers no explanation as to why the same

hearsay exception did not apply to Chase's testimony. The trial court was within its

discretion in ruling that Chase's testimony was admissible to show his state of mind

under ER 803(a)(3).3
        With respect to Hammons' deposition testimony, Ebeling claims, as he did below,

that the evidence was irrelevant because any permission granted by Hammons to her

son was extinguished when she sold the property to Chase. However, as the trial court

determined, the nature of the arrangement between Hammons and her son was

relevant to the question of whether Parkinson's continued use after Chase purchased

the property was permissive. The trial court did not abuse its discretion in admitting

Hammons' testimony.

        We conclude that the testimony at trial supports the trial court's finding that

Chase granted Parkinson permission to use his property. This finding supports the trial
court's legal conclusion that Parkinson's use of the disputed area was permissive. The
court's unchallenged finding that Chase and Parkinson used both parcels communally
during the period they resided as neighbors also supports the inference of permission
and the conclusion of Parkinson's permissive use.

       3The trial court ruled alternatively that the conversation between Chase and Parkinson was
admissible as a "verbal act." Because we affirm the court's ruling under ER 803(a)(3), we do not address
this alternative basis.
No. 68439-6-1/8


       Finally, in his reply brief, Ebeling contends that even if Chase gave Parkinson

permission to use his property in 1996, because he was not aware of the true property

line at the time, the evidence does not support the inference that the grant of permission

included the area that Chase did not know he owned. But, Chase testified that while he

assumed the property line was at the fence line, because of his relationship with

Hammons and Parkinson, he did not know and did not care where the actual

boundaries were. Chase said that his intent in granting permission was not limited to a

specific area, but extended to all of his property. He said he gave Parkinson permission

to use all of his property: "[Wjhat's mine is yours." Substantial evidence supports the

court's determination that the permission encompassed the disputed area.

       We affirm.




                                               VQLAh^%
WE CONCUR:




   JLJ £ */                                          ^^^
