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Blackburn v. Robinson

January 23, 1997

MILLARD BLACKBURN AND DOROTHY BLACKBURN, HUSBAND AND WIFE, APPELLANTS,
v.
KENNETH & CHARLOTTE ROBINSON, HUSBAND AND WIFE, RESPONDENTS.



Appeal from Superior Court of Spokane County. Docket No: 94-2-04494-4. Date filed: 02/07/95. Judge signing: Hon. Tari S. Eitzen.

Authored by Dennis J. Sweeney. Concurring: Philip J. Thompson, John A. Schultheis.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. In 1977, Kenneth and Charlotte Robinson had their property surveyed. The surveyor erroneously set their boundary line on the property of their neighbors, Millard and Dorothy Blackburn. In 1994, the Blackburns sued for damages and removal of nuisance. The Robinsons counterclaimed for adverse possession. The court granted the Robinsons' motion for summary judgment. The primary question here is whether the Robinsons' possession of the property was sufficient to satisfy the requirements of adverse possession, as a matter of law. We conclude that it was and affirm.

FACTUAL BACKGROUND

Soon after the 1977 survey, the Robinsons removed a rock pile from the disputed strip. They drove and parked vehicles on the strip. They also set up bark beds and wood piles. The Robinsons dumped fill dirt and leveled the ground for improvements. In 1978, they built a garage. The eaves of the garage jut out over the disputed strip. In 1980, the Robinsons placed a trailer for dry storage on the disputed strip.

In 1994, the Blackburns had the property surveyed and discovered the Robinsons' encroachment. On August 30, 1994, they brought this action for damages and removal of nuisance. RCW 7.48 (Nuisances). The Robinsons counterclaimed that they had adversely possessed the property. They moved for summary judgment on December 13. A hearing was scheduled for January 20, 1995.

On January 9, 1995, Mr. Blackburn filed an affidavit. On January 13, the Robinsons filed a motion to strike portions of the affidavit because it lacked firsthand knowledge and contained hearsay. CR 56(e). Mr. Blackburn filed a supplemental affidavit on January 18. The Robinsons moved to strike the later affidavit as untimely.

At the summary judgment hearing on January 20, the court noted it would disregard those portions of Mr. Blackburn's January 9 affidavit which were hearsay "and not based on facts in evidence." It held that the January 18 affidavit was untimely and granted the Robinsons' motion to strike. CR 56(c); LR 56. The court held there were no material issues of fact and granted summary judgment in favor of the Robinsons. This appeal follows.

OPPORTUNITY TO PRESENT EVIDENCE

The Blackburns first argue that Mr. Blackburn's January 18 supplemental affidavit was a clarification and therefore was not untimely. CR 56(c). We review all evidence "called to the attention of the trial court." RAP 9.12; Mithoug v. Apollo Radio of Spokane, 128 Wash. 2d 460, 462, 909 P.2d 291 (1996). We have, therefore, considered Mr. Blackburn's January 18 supplemental affidavit.

ADVERSE POSSESSION

The Blackburns argue that the Robinsons' use of the property before 1989 was not sufficient to put them on notice of their adverse possession. And they argue the Robinsons' possession was not hostile. They urge that the trial court erred in granting summary judgment.

Standard of Review. Summary judgment is appropriate if the pleadings and affidavits show no genuine issue as to any material fact. Allen v. State, 118 Wash. 2d 753, 757, 826 P.2d 200 (1992); CR 56(c). A material issue of fact is one upon which the outcome of the litigation depends, in whole or in part. Zobrist v. Culp, 18 Wash. App. 622, 637, 570 P.2d 147 (1977). Whether the requirements of adverse possession are met is a mixed question of law and fact. Chaplin v. Sanders, 100 Wash. 2d 853, 863, 676 P.2d 431 (1984); Anderson v. Hudak, 80 Wash. App. 398, 401-02, 907 P.2d 305 (1995).

Adverse Possession. A party claiming adverse possession must show that the possession was (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile. Chaplin, 100 Wash. 2d at 857. The existence of each element must be established for a 10-year uninterrupted period. ...


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