Gary D. Corpron, Et Ux., Respondents V. Leigh M. Kellogg, Et Ano., Appellants

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GARY D. CORPRON and SUSAN M.
CORPRON, a married couple,
Respondents,
LEIGH M. KELLOGG, a single individual,
and RUTH M. PELAN, a single individual,
Appellants.
No. 69565-7-
DIVISION ONE
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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.
WE CONCUR:
^/t&rt/y 	IA~
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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