Estate of Stephen A. Jacobs, Jr. et ux v. Randall C. Roberts, Sr. et al

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FILED

DECEMBER 18, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division TII

IN ‘THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

DY ONNE A. JACOBS AS PERSONAL
REPRESENTATIVE OF STEPHEN A.

JACOBS, JR., DECEASED and
DY ONNE A. JACOBS,

Respondents,

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UNPUBLISHED OPINION

RANDALL C. ROBERTS, SR., and
JOYCE L. ROBERTS, husband and wife;
FERNANDO C. RODRIGUEZ and
MARIA RODRIGUEZ, husband and wife,
Appellants.

KORSMO, J. — Aftera bench tnal, the court concluded that the seller had
adversely possessed a road that he originally had sold without reserving any easement for
his own use. The appellants raise numerous issues, not all of which we need to resolve.
The judgment is reversed and the case is remanded for a new thal.

FACTS

The property in question was once owned entirely by Stephen Jacobs. He died

during the pendency of this case and his estate was substituted as a party. The 20-acre

parcel is rural in character and is rectangular in shape, with the north-south dimension

No. 35308-7-III
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2
nearly twice that of the east-west. Jacobs purchased the land, in Benton County, in 1963
and subdivided it into four parcels, each roughly five-acres in size, in 1976. 1
The northern edges of the property abut a public roadway, Game Farm Road.
Parcel 1 occupies the northeast portion of the property, with the remaining lands
numbered in clockwise order: the bulk of parcel 2 is south of parcel 1, while most of
parcel 3 is to the west of parcel 2 and parcel 4 is north of parcel 3 and across from parcel
1. As a result, parcels 1 and 4 abut Game Farm Road. Side-by-side 20-foot strips of
land, running north and south between parcels 1 and 4, were deeded respectively to
parcels 2 and 3 to allow those parcels access to Game Farm Road. Without that
“panhandle” access, those two southern parcels would be landlocked. All four parcels
use a common driveway onto Game Farm Road. The eastern strip, belonging to parcel 2,
contains a roadway. The western strip, belonging to parcel 3, appears to have never been
used as a roadway. Both parcel 1 and parcel 4 have driveways from the parcel 2
panhandle; the parcel 4 driveway from the roadway also is located on a portion of the
parcel 3 panhandle.
Jacobs relinquished his title to parcel 3 in 1977 and to parcel 2 in 1983, deeding
the respective panhandles without reserving any easement to use them. In 1992, parcel 2
came into the possession of Joyce and Randall Roberts; parcel 3 became the property of
1 The property survey is attached as Appendix A.

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Fernando and Maria Rodriguez around 2005. Jacobs continued to own parcels 1 and 4.
He and his new wife had placed a mobile home on parcel 4 in 1984 and thereafter lived
there, while renting his former home on parcel 1 to her son, Douglas McCance. The
residences are located on the northern edges of parcels 1 and 4 close to Game Farm Road.
The majority of the land on those two parcels is devoted to agricultural pursuits,
primarily growing hay. Farming equipment has used or crossed the roadway strip
between parcels 1 and 4 since 1984.
Although never used as a roadway, the parcel 3 panhandle does not appear to have
been encroached on until after Jacobs moved from parcel 1 to parcel 4. A driveway built
to the mobile home and other improvements to parcel 4 eventually encroached on that
panhandle. Nonetheless, parcel 3 owners mowed the remainder of the panhandle on
occasion. A barbed wire fence ran alongside the roadway on the parcel 1 side.
The relationship between McCance and the occupants of parcels 2 and 3
deteriorated over time, with allegations of McCance engaging in threatening behavior and
damaging the roadway. McCance removed the barbed wire fence in 2007 in order to fly
model airplanes between parcels 1 and 4. In July 2012, both the Robertses and the
Rodríguezes obtained restraining orders against McCance that prevented him from
coming onto their property or injuring the roadway. The following month, they

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4
commissioned a survey of their respective roadways.2 After the survey, both owners put
up fences along their properties, including the panhandle strips. The Rodriquez
panhandle fence stopped 200 feet short of Game Farm Road in order not to interfere with
the Jacobs driveway onto parcel 4. The Roberts panhandle fence ran within 20 feet of the
road, leaving a walking space to the road.
Jacobs responded by filing this lawsuit in mid-2013 against both the Robertses and
the Rodríguezes, asking the court to find that he had prescriptive easements across both
panhandles and requesting that the fences be removed. Mr. Jacobs died in December
2013. At the end of 2016, the Jacobs estate sought to amend its complaint to add
allegations of implied easement (easement of necessity), a finding that the fences
constituted “spite fences,” and to adversely possess the parcel 3 panhandle. Following
mediation and a settlement agreement, which Jacobs backed out of, the amendment was
granted.
The case proceeded to bench trial in March 2017. The following month, the trial
court issued a letter ruling in favor of Jacobs. The court determined that Jacobs had
adversely possessed the parcel 3 panhandle and had established both prescriptive and
implied easements over the roadway. The court also ruled that the 2012 fencing
constituted a spite fence and directed that the new fencing be moved or removed. The
2 See Appendix A.

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court also denied the defendants’ counterclaims, including the contention by the
Rodríguezes that they had an easement of necessity across the parcel 3 panhandle.
Jacobs then successfully sought attorney fees from both defendants. Findings in
support of the bench trial were entered and a judgment issued. The defendants then filed
a timely appeal to this court. A panel heard oral argument of the case.
ANALYSIS
Although this appeal presents numerous issues from both sides, we need discuss
few of them in light of our decision to reverse the judgment and remand for a new trial.3
The findings do not establish that the presumption of neighborly accommodation was
properly addressed.
A trial to the bench must result in written findings of fact and conclusions of law.
CR 52(a)(1). This court reviews a trial court’s decision following a bench trial to
determine whether substantial evidence supports any challenged findings and whether the
findings support the conclusions of law. State v. Hovig, 149 Wn. App. 1, 8, 202 P.3d 318
(2009). “Substantial evidence” is sufficient evidence to persuade a fair-minded person of
the truth of the declared premise. Panorama Vill. Homeowners Ass’n v. Golden Rule
Roofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000). Conclusions of law are
reviewed de novo. Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002). We
3 The remaining contentions involve issues that either were correctly decided by
the trial court or are now moot.

No. 35308-7-III
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defer to the trial court’s credibility determinations; we will not reweigh evidence even if
we would have resolved conflicting evidence differently. Thorndike v. Hesperian
Orchards, Inc., 54 Wn.2d 570, 575, 343 P.2d 183 (1959); Quinn v. Cherry Lane Auto
Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009). Stated another way, an
appellate court is not in a position to find persuasive evidence that the trier of fact found
unpersuasive. Quinn, 153 Wn. App. at 717. In determining the sufficiency of evidence,
an appellate court need only consider evidence favorable to the prevailing party. Bland v.
Mentor, 63 Wn.2d 150, 155, 385 P.2d 727 (1963).
Our review of trial court evidentiary decisions likewise is governed by well settled
law. The decision to admit or exclude evidence is reviewed for abuse of discretion.
Thomas v. Wilfac, Inc., 65 Wn. App. 255, 262, 828 P.2d 597 (1992). Discretion is abused
when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll
v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). In a bench trial, judges are presumed
to follow the law and to consider evidence solely for proper purposes. State v. Adams, 91
Wn.2d 86, 93, 586 P.2d 1168 (1978); State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 723
(1970); State v. Bell, 59 Wn.2d 338, 360, 368 P.2d 177 (1962).
The trial court very nicely summarized the elements of the easement and adverse
possession claims in its letter opinion. Common to the theories of prescriptive easement
and adverse possession is the idea that the owner’s property is being used without his
permission. An element of a prescriptive easement claim is that the claimant’s use of the

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land was adverse to that of the true owner of the property. Nw. Cities Gas Co. v. W. Fuel
Co. Inc., 13 Wn.2d 75, 85, 123 P.2d 771 (1942). One element of adverse possession is
proof that the claimant used the property in a manner hostile to that of the true owner.
Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984).
In Gamboa v. Clark, 183 Wn.2d 38, 348 P.3d 1214 (2015), the court considered an
appeal involving joint use of a gravel roadway by the parties, one of whom used it as the
driveway to their home, while the other used it to access their grape field. Id. at 41. Each
party was aware of the other’s use of the roadway and neither side complained until
disputes arose later over collateral matters. Id. Eventually, ownership of the roadway
became disputed and a survey was performed. The survey showed that although a
portion of the roadway was on the Gamboa property, the bulk of it was on the Clark’s
portion. Id. The Gamboas then sued to establish a right to use the roadway to access
their house under a theory of prescriptive easement. Id. at 40, 41.
Concluding that there was no evidence of permissive use, the trial court found for
the Gamboas. Id. at 41-42. A divided panel of this court4 reversed, concluding that the
presumption should be in favor of neighborly accommodation. Id. at 42. The
Washington Supreme Court granted review and ultimately affirmed this court’s decision.
Canvassing its prior case law at some length in order to reconcile competing
4 Gamboa v. Clark, 180 Wn. App. 256, 321 P.3d 1236 (2014), aff’d, 183 Wn.2d
38, 348 P.3d 1214 (2015).

No. 35308-7-III
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presumptions that had grown up over the years, the court concluded that a presumption of
neighborly accommodation applied, particularly in the absence of prior disputes over use
of the property. Id. at 43-51. The court ruled that the Gamboas had failed to overcome
the presumption of permissive use due to lack of evidence that either they had interfered
with the Clarks’ use of the roadway or that the Clarks had asserted that the Gamboas had
an easement over the roadway. Id. at 51-52. Hence, the court affirmed this court’s
ruling. Id. at 52-53.
As to the salient facts, Gamboa is identical to this case—a commonly shared
roadway before disputes led to concern over actual ownership of the road, a survey to
establish boundaries, and then litigation. Although Gamboa presented solely a
prescriptive easement claim, which is only one of the three theories advanced by the
estate to argue its right to use the roadway, we conclude that Gamboa is instructive on all
aspects of the contested issues that were before the trial court. The trial court’s letter
opinion did not address the Gamboa presumption of permissive use, nor did the written
findings or conclusions explain how Jacobs had overcome the presumption. Indeed, only
finding of fact 6 even mentions the issue. Clerk’s Papers at 672 (finding that use of the
road “was more than a mere neighborly accommodation”).
This error requires reversal. Whether the evidence overcame the presumption was
a question that needed to be decided by the trial court. Unlike Gamboa, here the trial
court found for Jacobs on additional theories of recovery, leaving us in a position where it

No. 35308-7-III
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is difficult to grant judgment to the appellants despite the estate’s apparent failure to
prove its prescriptive easement claim.
However, the failure to address the presumption of permissive use also infected
the adverse possession claim. Consent is fatal to the hostility element of adverse
possession. E.g., Chaplin, 100 Wn.2d at 861-862. How the evidence relating to
neighborly accommodation played out in the other causes of action, if it even was
considered, is unclear. The theories of recovery factually were intertwined and we
believe the evidence needed to be weighed even if no presumption was at play. How the
trial court’s decision on the prescriptive easement impacted its decision-making on the
other causes of action, particularly the spite fence claim, also is not something we can
adequately consider on this record and presents an additional reason for holding a new
trial.
Accordingly, we reverse the entire judgment, including the attorney fee award, and
remand for a new trial. We have some additional concerns that we mention here in case
they are of benefit to the parties in reaching a settlement or in preparing for a retrial.
First, it does not appear that an easement by necessity could exist since parcels 1
and 4 both have access to Game Farm Road. By definition, the two parcels are not
landlocked. Thus, there could be no “necessity” justifying an easement because there is
no need to use the panhandles to access the land. E.g., Hellberg v. Coffin Sheep Co., 66
Wn.2d 664, 666-667, 404 P.2d 770 (1965). It may have been more convenient for Jacobs

No. 35308-7-III
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to use the roadway, but it was not necessary that he do so because he could have created,
and apparently still could create, additional entries for both parcel 1 and parcel 4.5
Second, we note that our research did not disclose any other case across the
country where an adverse possession ruling resulted in the subservient estate becoming
landlocked. Landlocking property is against the public policy of this state. Hellberg, 66
Wn.2d at 666. If Jacobs should adversely possess the parcel 3 panhandle, it would appear
to give the Rodríguezes a strong case for finding an easement of necessity against Jacobs
and require the removal of their encroachments, perhaps placing them in a worse position
than before they initiated this litigation.
Third, although we need not consider the sufficiency of the evidence concerning
the spite fence ruling in view of the fact that a retrial is required and the evidence may
well be different in that proceeding, the court should provide more detailed findings in
the event it again reaches that conclusion. McCance was subject to multiple court orders
preventing him from coming on to his neighbors’ lands. Their efforts to prevent him
from doing so do not seem motivated by anything other than self-protection and/or
withdrawing permission to use the southern portions of their panhandle property.
5 The photo exhibits do not suggest that the current driveway is the only possible
access to Game Farm Road from parcels 1 or 4. It does appear to be the only current
access, but whether geography or county code provisions prohibit other potential
connections is not established in this record.

No. 35308-7-III
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Finally, in the event that a prescriptive easement is again found in favor of Jacobs,
the extent of that easement should be described, particularly if it extends to the whole
length of either or both panhandles.6 It appears that access across the entire road length is
not essential to permit access to the farmland sections of parcels 1 and 4, and perhaps any
easement should exist only to the extent of providing convenient access to the farming
areas from the road rather than require use of the entire roadway.
For the reasons stated, we reverse the judgment and remand for a new trial.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Pennell, J.
6 Randall Roberts was the one doing the harvesting for many years and also had no
need of permission due to his ownership of the road. Whether those actions can be
considered "adverse" to his ownership interests in this context is an intriguing question,
and perhaps one that cuts against the estate's claim.
11

No. 35308-7-ITI
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APPENDIX

No. 35308-7-III Estate of Jacobs, et us v. Roberts, et al
27-8-30
43119
NOT FOUND COMPUTED POSITION .
1331.07' ( 1331.08
589/0849E 665.53 (R)
ORD SURVEY NO. 1-205
BRASS CAP IN CASE
275.77
13.6
349.77'
VB REBAR EN MON. CASE
LAWK
DETNG DEVERAY
LAWN
790.03'
DESING FENCE
RECORD LEGAL DESCRIPTIONS PARCEL 2 (A.F.#1998-011233)
THAT PORTION OF THE EAST HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 27, TOWNSHIP B NORTH, RANGE 30 EAST, W.M., BENTON COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID SUBDMSION; THENCE NORTH 89'08'40 WEST ALONG THE NORTH LINE. OF SAID SUBOMISION FOR 349.75 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH CO 34'12"EAST FOR 642.42 FEET: THENCE SOUTH 89'08'49"EAST FOR FEET TO THE EAST LINE OF SAID SUBDMSION; THENCE SOUTH 00/37 10"EAST ALONG THE EAST LINE OF SAID SUBOMSION FOR 695.26 FEET TO THE SOUTHEAST CORNER OF SAID SUBOMISIÓN: THENCE NORTH 89'15'47 WEST ALONG THE SOUTH LINE OF SAID SUBOMISION FOR 284.39 FEET; THENCE NORTH 00'34'12"WEST FOR 528.20 FEET: THENCE NORTH 89'08'49 WEST FOR 86.51 FEET; THENCE NORTH 0034'12"WEST FOR 810.04 FEET TO THE NORTH LINE OF SAID SUBOMSION; THENCE SOUTH 8908'49'EAST ALONG THE NORTH LINE OF SAID SUBOMSION FOR 20.01 FEET TO THE TRUE POINT OF BEGINNING; EXCEPT ROAD. SO KNOWN AS PARCEL 2 OF SURVEY RECORDED IN VOLUME 1 OF SURVEY PAGE 205, RECORDS OF BENTON COUNTY, WASHINGTON.
PARCEL 3 (AUF.(2008-030542)
THAT PORTION OF THE EAST HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 27. TOWNSHIP 8 NORTH, RANGE 30 EAST, W.M., BENTON COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SA'D SUBOMISION: THENCE NORTH 89'08'49 WEST ALONG THE NORTH LINE OF SAID SUBOMSION FOR 369.75 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 00'34'12"EAST FOR 810.04 FEET; THENCE SOUTH B9/08'49"EAST FOR 85.51 FEET: THENCE SOUTH 0034'12"EAST FOR 528.20 FEET TO THE SOUTH UNE OF SAID SUBOMISION; THENCE NORTH 89'15'47"WEST, ALONG THE SOUTH LINE OF SAID SUBOMSION FOR 382.26 FEET TO THE SOUTHWEST CORNER OF SAID SUBDIVISION; THENCE NORTH 0034'12 WEST ALONG THE WEST UNE OF SAID SUBDMSION FOR 528.97 FEET: THENCE SOUTH 89'08'40"EAST FOR 275.77 FEET: THENCE NORTH 0034'12 WEST FOR 810.04 FEET TO THE NORTH LINE OF SAID SUBDIVISION; THENDE SOUTH 89'08'49 CAST ALONG THE NORTH UNE OF SAID SUBDIVISION "FOR 20.01 FEET TO THE TRUE POINT OF BEGINNING, EXCEPT ROAD
SURVEYOR'S CERTIFICATION
THIS MAP CORRECTLY REPRESENTS A SURVEY MADE BY ME OR UNDER MY DIRECTION IN CONFORMANCE WITH THE REQUIREMENTS OF THE SURVEY RECORDING ACT AT THE REQUEST OF RANDALL AND JOYCE ROBERTS IN AUGUST 2012.
FO
500'34'12E
528.97
PARCEL 3 RECORD SURVEY NO. 205 5.00 nc.
528.20'
500'3412℃
PARCEL 2 RECORD SURVEY NO. 205 5.15 oc.
MICHAEL C. FOWLER CERTIFICATE. # 34587
2/07/2
AUDITOR'S CERTIFICATION
FILED FOR RECORD THIS 5th DAY Of September, 20 12 XD, AT 47 MINUTES PAST SAM. AND RECORDED IN VOLUME PAGE 4316, AT THE REQUEST OF ROGERS SURVEYING,
01 OF SURVEYS,
Bende Chilter, by Juillethan 2012-027246 FEE NUMBER
BENTON COUNTY AUDITOR
REY: NONE RECORD SURVEY NUMBER 27083011201 CUENT RANDALL & JOYCE ROBERTS
14812
3. . - DENOTES FOUND MONUMENT AS NOTED.
100
50
100
200
300
RSA
ROGERS SURVEYING INC., P.S. 1455 COLUMBIA PARK TRAIL RICHLAND, WA. 99362 PHONE (509) 783-4141 FAX: (609) 785-8994 www.rogerasurveying.com
PROJECT RECORD SURVEY
PORTION SEC. 27. T.8N., R.30E.,W.M.
5. THIS SURVEY DOCS NOT PURPORT TO SHOW ALL EASEMENTS IF OTHERS EXIST.
SCALE IN FEET
6. EQUIPMENT AND PROCEDURES USED: TOPCON GTS 225 TOTAL STATION; CLOSED TRAVERSE ARO RADIAL SURVEY METHDOS UTILIZED.
DRN. BY RPJ SCALE 1"= 100"
F. B. NO. NONE SDPROJ- 14812 FIL: 14812.DWG OF 1
SHEET_1
2012-027246 B: 01 P
E
2. O =DENOTES SET 5/8"x24" REBAR WITH YELLOW PLASTIC CAP STAMPED "RSI-WCF 34587".
CTb B: 01 P: 4316 SUR
Panten County. benton County Auditar's office
SURVEY . NARRATIVE
THE PURPOSE OF THIS SURVEY IS TO REESTABLISH OR RECOVER THE PROPERTY CORNERS ALONG THE FLAGGED PROPERTY LINES, EACH HAVING A 20.00 FOOT CORRIDOR FROM THE
382.27*
284.39'
S89'15'47'E
589' 15'472
NOTES:
1. BASIS OF BEARING IS A RECORD SURVEY AS SHOWN IN VOLUME 1, PAGE 205, RECORDS OF BENTON COUNTY, WASHINGTON.
912 Q8 47:40 000 Pages: # Fest $100.00
$89'08'49'E 86.51"
NATOS 49 W 275.77'
FIND.
DRIVEWAY
1"= 100'
(HELD)
695.26°
NO037'10W
8.1"-
SBS'CR'49'E 350.31*
FIND
(HELD)
DISTING DANSYAY 500/34 12'E
50034 12E
PARCEL 4 RECORD SURVEY NO. 205 .
500/34*12E
790.04
822.42
NOG:37'10W
S00/34'12E
760.03'
PARCEL 1 RECORD SURVEY NO. 205
BEARING
LENGTH
55909497
20.01* *
12
20.01"
NO0:37-10W
20.01"
1-ROTATION
622.41
LAWN
6.7
UNE
LINE TABLE
2
$89'08'49"E
569 08 492 112 665.53'(4) 585 08'49 E
RECORD SURVEY A PORTION OF THE NE1/4, NW1/4 OF SECTION 27. TOWNSHIP 8 NORTH, RANGE 30 EAST, W.M. BENTON COUNTY, WASHINGTON
APPROVED MCF DATE 8-21-12
---...
0-000000231
ROM THE MAIN BODY OF TRACTS 2 AND 3 TO GAME FARM ROAD AND SACH ANY POSSIBLE ENCROACHMENTS WITHIN THESE BOUNDARIES. THE MASTERTY UNES WERE FLAGGED FOR FIELD VISUAL INSPECTION FOR ALL PARTIES INVOLVED.
4. (+) - MEASURED (R) - RECORD SURVEY #205 (c) - COMPUTED