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Lloyd v. Montecucco

October 18, 1996

ROSS LLOYD AND JOYCE LLOYD, HUSBAND AND WIFE, AND THEIR MARITAL COMMUNITY, APPELLANTS,
v.
RICHARD MONTECUCCO AND PEGGY MONTECUCCO, HUSBAND AND WIFE, AND THEIR MARITAL COMMUNITY, RESPONDENTS.



Appeal from Superior Court of Thurston County. Docket No: 92-2-01157-1. Date filed: 11/18/94. Judge signing: Hon. Thomas R. Sauriol.

Petition for Review Denied May 7, 1997,

Authored by Carroll C. Bridgewater. Concurring: Elaine M. Houghton, David H. Armstrong

The opinion of the court was delivered by: Bridgewater

BRIDGEWATER, J. -- The Lloyds appeal a judgment entered in a boundary dispute that quieted title in their neighbors, the Montecuccos, to a tract of land between their lots. Both lots were patented *fn1 before statehood and front Eld Inlet. We hold that the trial court correctly determined that the Montecuccos established adverse possession of the disputed tract on the bluff down to the bulkhead by exclusive and continuous possession for more than 10 years with uses including installing a fence, gardening, planting and harvesting trees, and tending a lawn. But we hold the trial court erred when it adjusted the boundary in the tidelands because the Montecuccos did not establish ownership of that disputed tract by possession sufficiently open and notorious or certain and well-defined to acquire title by adverse possession or mutual recognition and acquiescence. Because the record is insufficient regarding the lateral boundary extending waterward of the meander line, further proceedings in the trial court are necessary. We affirm in part, reverse in part, and remand.

The Lloyds and the Montecuccos own adjoining waterfront lots. Lot 1, owned by the Montecuccos, lies south of Lot 2, owned by the Lloyds. Both lots front Eld Inlet to the west. The Montecuccos purchased Lot 1 in 1971. The Lloyds purchased Lot 2 in 1989.

In 1971, the Montecuccos constructed a bulkhead to protect their steep bank from erosion. *fn2 In 1973, they built a cyclone fence that runs northerly atop the steep bank, then turns and runs east-southeasterly on a bluff overlooking Lot 2. A 1993 professional survey showed that both the bulkhead and part of the cyclone fence encroached approximately 11 feet onto Lot 2. The steep bank descends from the western edge of the fence, through seven stumps, several of which lie in Lot 2, to the bulkhead below. The trees were planted and then harvested by the Montecuccos over a period of time greater than 10 years. The stumps and the bulkhead are separated by approximately 45 feet. Enar Shoblom, the owner of Lot 2 from 1955 to 1986, knew the Montecuccos had constructed the bulkhead and the fence and that the Montecuccos maintained the property around the fence to the edge of the bluff and down the steep bank to the bulkhead. Shoblom never knew while he owned Lot 2 that the fence and the bulkhead encroached onto his lot.

Shortly after the Lloyds purchased Lot 2 in 1989 from an interim owner, they sued the Montecuccos, seeking to quiet title in themselves to the southerly portion of Lot 2 directly north and west of where the Montecuccos had erected the cyclone fence. The Montecuccos answered with several affirmative defenses, including that they adversely possessed the disputed tract, that the boundary as recognized by themselves and the former owners of Lot 2 constituted the correct boundary, that the Lloyds were estopped from alleging ownership to the disputed areas, that the Lloyds had no legal or equitable right to take the property, and that the Lloyds' suit was frivolous and without merit. The Montecuccos then moved for summary judgment, in support of which they averred that they had mowed the area on the outside perimeter of the fence continuously for 20 years, and, at one time, maintained a garden on the outside perimeter of the fence. The trial court granted partial summary judgment in favor of the Montecuccos, concluding there was no genuine issue of material fact regarding the Montecuccos' adverse possession of property just north of the fence, and west of the fence to the northwest corner of the bulkhead. The trial court determined, however, that "ownership westerly of the sea wall shall be decided at trial or by subsequent motions." The parties went to trial on the issue of ownership of those tracts "westerly of the sea wall."

A professional surveyor submitted planimetric mapping depicting the common platted boundary of Lots 1 and 2 extending approximately 200 feet out into the tidelands to a government surveyed meander line. The surveyor testified that the meander line was the western boundary of Lots 1 and 2:

The upland property was patented, that is, sold by the Federal Government in 1869, and because it was patented prior to statehood, the ownership of the upland goes to the meander line.

It is a rule of boundary in this state.

His statement is sufficiently consistent with Harris v. Hylebos Indus., Inc., 81 Wash. 2d 770, 505 P.2d 457 (1973), which cites the rule that the water boundary of land patented before statehood, where the patent contains no water boundary description, is stationary at the meander line if the meander line is lower than the line of ordinary high tide. Harris, 81 Wash. 2d at 772. The surveyor also testified that upland owners owned a portion of the oysterlands, shown on the assessor's map to be situated waterward of the meander line. He read into the record the following legal description from the Lloyds' 1989 deed:

Together with tidelands suitable for the cultivation of oysters lying in front of, adjacent to and abutting upon said Lot 2 and between the north and south lines thereof extending westerly to the westerly line of tract conveyed by the State of Washington to August Kludt and Frank Bonell by deed dated August 19, 1901.

Richard Montecucco recalled that his ownership also extended waterward of the meander line. The oysterlands tract extends an indeterminate distance waterward of the meander line.

Testimony at trial showed that the Montecuccos had seeded the area between the bulkhead and the meander line with oysters, had laid clam nets, had moored their boat to a buoy connected to hasps anchored on or near the northern border of the disputed tidelands tract, and had set 40-pound concrete blocks on a line no farther than eight feet west of the northwest corner of the ...


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