                                                                                                             F11 ED
                                                                                                     CO    T OF APPErILS
                                                                                                           DIVi -,10I- ii

                                                                                                    261 HAR 1 !    RN 0: 4 0

      IN THE COURT OF APPEALS OF THE STATE OF WAS

                                                DIVISION II

WILLIE E. YOUNG, a widow,                                                        No. 43834 -8


                                    Respondent,


        MA




MICHAEL A. CALLAHAM and DIXIE D.                                         UNPUBLISHED OPINION
CALLAHAM, husband and wife,




        WORSWICK, C. J. —         Michael and Dixie Callaham appeal the trial court' s ruling, which

quieted title in favor of Willie Young to an 11 foot wide strip of land between Young' s western

parcel and the Callahams' eastern parcel. The Callahams argue that they acquired title to the

strip by adverse possession. We affirm because the trial court' s unchallenged findings of fact
support its conclusion that the Callahams did not acquire title to the strip by adverse possession.

                                                       FACTS


         Willie Young owned a parcel of land in Tacoma, on which she had lived since

approximately 1970. This parcel abutted a parcel to the east, which was later purchased by the

Callahams. An old fence was located on Young' s parcel; which was built prior to Young' s

purchase. This old fence ran from north to south, 11 feet west of the legal property line

separating Young' s western parcel from the eastern parcel. This created an 11 foot wide strip of

land between the old fence and the legal property line.

         Prior to 1997, Young replaced the old fence with a new fence. Young intentionally built

her   replacement   fence   on   the same   location   as   the old fence ( 11   feet   west of   the legal property
No. 43834 -8 -II


line between the eastern and western parcels) because she did not want her children and


grandchildren to fall into a well that she had been told was located immediately east of the fence.

Young occasionally dumped yard waste into the strip and picked berries growing there.

        In 1997, Michael and Dixie Callaham bought the property to the east of Young with the

intent to build a house upon it. However, the Callahams lived on another parcel of property,

which was adjacent to the one they purchased in 1997. In 1998, the Callahams cleared their

parcel of its shrubbery. Some of that removed shrubbery may have been located on the strip.

The Callahams also installed a culvert in a ditch that ran along the north side of the eastern

parcel, and laid gravel. A portion of the culvert and gravel occupied the strip.


        In 2002 and 2003, the Callahams dug holes into the ground in order to conduct a

percolation test on the eastern parcel. Up to three of the holes dug in 2003 may have been

located in the strip. The eastern parcel failed the percolation test, forcing the Callahams to

change their plans from building a house on the eastern parcel to using the eastern parcel as an

extension of their main home' s back yard.


        Google Earth pictures of the western and eastern parcels taken in May of 2005,

November of 2007, April of 2009, and June of 2010, showed vegetation growing in the eastern

parcel, but did not show any structures, equipment, vehicles, or evidence of human activity.'

The trial   court   found, " The   Callahams did not offer any photographs, or other physical or

documentary     evidence,   that   they   used [ the eastern parcel] -   or, in particular the [ strip] for any

purpose after conducting the failed [percolation] tests in 2003 until they removed Young' s fence

  Google Earth is a computer program that allows the user to view satellite images of the earth,
 with a level of detail allowing one to view individual properties in the United States. Overview
 of Google Earth, Google ( February 7, 2014),
 https: Hsupport.google.. om/ earth/ answer/ I 76145? hl=en.
                        c


                                                          2
No. 43834 -8 -II



in 2010."    Clerk' s Papers ( CP) at 316. The trial court found that the Callahams' lot was vacant


during the period of time between May of 2005 and June of 2010.

       In July of 2010, the Callahams began to build on the eastern parcel in earnest. While

building on the eastern parcel, the Callahams accidently knocked down a portion of Young' s

fence. At this time, the Callahams acquired Young' s permission to replace Young' s fence, and

did so. The discussion to acquire Young' s permission to replace the fence was the first

conversation between Young and the Callahams regarding the property line' s location.

       In 2010, Young' s daughter informed the Callahams that Young wanted the fence moved

east eleven feet to the legal property line. The Callahams refused to move the fence, but offered

to pay Young $2, 000 to $ 2,500 for the strip.

        Young sued the Callahams to quiet title to the strip. The Callahams countersued on

grounds that they had acquired title to the strip by adverse possession. Following a bench trial,

the trial court ruled that the Callahams did not acquire the strip by adverse possession. The trial

court made the following conclusion of law excerpted in relevant part:

            The Callahams] have failed to show that they have acquired title by adverse
        possession.    Since 2003, the Callahams claim to have considered the vacant lot to
        which the disputed property is adjacent, as part of the back yard of their residence.
        But they have failed to provide evidence that they maintained or used the property
        in the fashion ofa residential backyard Instead, such use of the property as they
        have provided evidence has been non -continuous and irregular. Furthermore, the
        uncontroverted evidence shows that Young built [ Young' s] fence to prevent her
        children and grandchildren from playing on land she considered hazardous —
        specifically [ because of the] well.... [ Young] continued to use the disputed 11
        feet   by disposing   ofyard   waste [ and]   picking blackberries.
No. 43834 -8 -II



CP    at   318 (   emphasis added).          The trial court quieted title to the strip in favor of Young. The
                             2
Callahams          appeal.



                                                            ANALYSIS


            The Callahams do not assign error to any of the trial court' s findings of fact, arguing only

that the trial court erred in concluding that the Callahams did not acquire title to the strip by

adverse possession. The Callahams argue that they adversely possessed the strip from the date

that   they   purchased          the   eastern parcel   in June   of   1997   until   May   of   2011.   We disagree.3

            We analyze adverse possession as a mixed question of law and fact.. Chaplin v.

Sanders, 100 Wn.2d 853, 863, 676 P. 2d 431 ( 1984). The existence of the essential facts is for


the trier of fact to decide. Chaplin, 100 Wn.2d at 863. However, whether those facts, as the trier

of fact found them, constitute adverse possession is a legal question for this court. Chaplin, 100

Wn.2d at 863.


            We review legal conclusions de novo, determining whether the trial court' s findings

support its conclusions. Bingham v. Lechner, 111 Wn. App. 118, 127, 45 P.3d 562 ( 2002).

Interpretation or construction of a trial court' s findings of fact is a question of law. In re

Marriage of Stern, 57 Wn.                  App.   707, 712, 789 P. 2d 807 ( 1990). Unchallenged findings are


verities on appeal.              Yousoufian v. Office ofRon Sims, 168 Wn.2d 444, 450, 229 P. 3d 735 ( 2010).

2
     At trial, the Callahams also claimed that they had acquired title to the strip by acquiescence and
estoppel in pais. The trial court ruled against the Callahams on both of these claims. However,
the Callahams only appeal their claim for adverse possession.
 3
  Young argues that the Callahams waived their challenge to conclusion of law B -1, which
 concluded that Young has title to the strip. But, title to the strip turns on whether the Callahams
 adversely possessed the strip, and this is the issue the Callahams raise on appeal. Thus the
 Callahams' argument regarding adverse possession sufficiently addresses the trial court' s
 conclusion that Young has title to the strip.
No. 43834 -8 -II



            When the trial court' s findings are susceptible of two constructions, one that supports the


conclusions of law and one that does not, we construe the findings in the manner that supports

the trial court' s conclusions of law. Lincoln Shiloh Assocs., Ltd. v. Mukilteo Water Dist., 45 Wn.

App.    123, 131, 724 P. 2d 1083 ( 1986).            We do not read words or phrases from the findings and

conclusions in isolation but, instead, read the findings and conclusions as a whole to ascertain


their meaning. See Callan v. Callan, 2 Wn. App. 446, 449, 468 P.2d 456 ( 1970).

            Under adverse possession, a person without color of title acquires legal title to another' s

land if, for at least 10 continuous years, he or she possesses the land in a manner that is ( 1) actual

and uninterrupted, ( 2) open and notorious, (            3) exclusive, and ( 4) hostile. See RCW 4. 16. 020( 1);

                                                                                 2012). The law does not
Gorman       v.
                  City   of Woodinville, 175 Wn.2d 68, 71 - 72, 283 P. 3d 1082 (


favor prescriptive rights, and as such the party claiming adverse possession ( here the Callahams)

must prove each element by a preponderance of the evidence to prevail. Standing Rock

Homeowners Assn             v.   Misich, 106 Wn.     App.   231, 238 -39, 23 P. 3d 520 ( 2001);   Teel v. Stading,

 155 Wn. App. 390, 393 -94, 228 P. 3d 1293 ( 2010).

            We hold that the findings of fact support the conclusion that the Callahams failed to

prove that they possessed the land for ten consecutive years in a manner that was continuous and

uninterrupted, open and notorious, or exclusive.



                                      I. CONTINUOUS AND UNINTERRUPTED POSSESSION

            The Callahams argue that the trial court erred because it applied the wrong legal standard

 by ruling that the Callahams' use of the strip had to be in the " fashion of a residential backyard."
 Br.   of   Appellants     at   13.   We disagree.




                                                                5
No. 43834 -8 -II


         Under adverse possession, the possessor must possess the land in a manner that is actual


and uninterrupted for the statutory period of ten years. Gorman, 175 Wn.2d at 71 -72. This

standard is the standard that the trial court applied to the Callahams' case.

          The trial court said that the Callahams' claim fails because the Callahams " failed to

provide evidence that they maintained or used the property in the fashion of a residential back

yard."    CP   at   318. However, a more complete quote shows that the trial court applied the correct


standard: "    Since 2003, the Callahams claim to have considered the vacant lot to which the

disputed property is adjacent, as part of the back yard of their residence. But they have failed to

provide evidence that they maintained or used the property in the fashion of a residential back

yard. Instead, such use of the property as they have provided evidence has been non -continuous

and   irregular."      CP    at   318 (   emphasis added).    Therefore, the trial court applied the proper


standard to find that the Callahams' use of their land was not continuous and uninterrupted, and

thus the trial court did not err.

                                           11. OPEN AND NOTORIOUS POSSESSION


          The Callahams argue that they possessed the strip in an open and notorious manner for

ten consecutive years. We disagree.


          The " open and notorious" element of adverse possession requires proof that ( 1) the true

 owner had actual notice of the adverse use throughout the statutory period, or ( 2) the claimant

 used the land in a way that would lead a reasonable person to assume the claimant was the

 owner.    Shelton     v.   Strickland, 106 Wn.      App.    45, 51 - 52, 21 P. 3d 1179 ( 2001).   The necessary

 occupancy and use need be of the character that a true owner would assert in view of the

 property' s nature and location. Anderson v. Hudak, 80 Wn. App. 398, 403, 907 P. 2d 305 ( 1995).


                                                                rol
No. 43834 -8 -II



The trial court properly concluded from its findings that the Callahams failed to prove that they

possessed the land in an open and notorious manner for ten consecutive years.

         The trial court found that the Callahams did not discuss the property line with Young

until 2010. This supports that Young did not actually know that the Callahams claimed to

possess the land until 2010. Thus to establish open and notorious possession, the Callahams

have to prove that they possessed the land in a manner that would lead a reasonable person to

assume that the Callahams owned the strip. Shelton, 106 Wn. App. at 51 -52.

          The Callahams purchased the land in 1997. The trial court found that the Google maps

showed no structures, equipment, vehicles, or evidence of human activity from May of 2005

through June of 2010.          The trial   court   further found, " The   Callahams did not offer any

photographs, or other physical or           documentary     evidence,     that   they   used   the [ eastern   parcel] - or,




in   particular   the [ strip] -   for any purpose after conducting the failed [ percolation] tests in 2003

until   they   removed    Young' s     fence in 2010."    CP at 316.


          The Callahams dug holes that may have been located in the strip for their 2003

percolation test. However, those holes were dug prior to 2005, and the findings do not support

that the Callahams maintained the holes beyond the time that they discovered that they failed the

percolation test in 2003.


          Part of the Callahams' culvert and gravel were on the strip. However, because these

items occupied only a fraction of the strip, it constituted an incursion on the land that was far too
minor to constitute an open and notorious possession, because it would not signal to a reasonable

person that the Callahams owned the strip.




                                                             7
No. 43834 -8 -II



             The trial court' s finding that the Callahams did not use the eastern parcel between May of

2005 and June of 2010, in combination with its finding that the Callahams purchased the eastern

parcel in 1997, supports the conclusion that the Callahams did not prove by a preponderance of

the evidence that they had ten years of possession in a manner that was open and notorious.

Thus the trial court did not err in concluding that the Callahams failed to prove with a

preponderance of the evidence that they possessed the land in a manner that was open and

notorious for ten consecutive years.


                                              III. EXCLUSIVE POSSESSION


             The Callahams argue that their possession of the strip was exclusive. We disagree.

             The " exclusive" element of adverse possession requires proof that an adverse possessor' s


dominion over the land was as exclusive as the community would expect of an ordinary title

owner in light of the land' s nature and location. Crites v. Koch, 49 Wn. App. 171, 174, 741 P. 2d

1005 ( 1987).         If the adverse possessor allows the title owner an occasional transitory use as the

community would expect an average owner to allow a neighbor, possession is likely exclusive.

Lilly   v.   Lynch, 88 Wn.     App.   306, 313, 945 P. 2d 727 ( 1997). But if the adverse possessor allows


the title owner use indicating his or her true ownership, possession is not likely exclusive. See
Bryant       v.   Palmer   Coking   Coal Co.,   86 Wn. App. 204, 217, 936 P. 2d 1163 ( 1997).

             In this case, Young periodically dumped grass clippings into the strip, and periodically

picked the berries from the strip. Dumping yard waste onto land and entering land to take its

 berries constitutes more than a mere transitory use that the community would expect an average

 owner       to   allow a neighbor.   See   Lilly,   88 Wn.   App.   at   313.   Rather, these acts constitute use


 consistent with        true ownership.     Thus the Callahams failed to          provide proof   that   its dominion
No. 43834 -8 -II



over the land was as exclusive as the community would expect of an ordinary title owner in light

of the land' s nature and location. Crites, 49 Wn. App. at 174.

        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.




                                                                   Worswick, C.J.
We concur:




                                                  E
