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Marcott v. Nielsen

April 7, 1997

LORI M. MARCOTT, AND DAN F. MARCOTT, HUSBAND AND WIFE, APPELLANTS,
v.
SCOTT O. NIELSEN AND JANE DOE NIELSEN, HUSBAND AND WIFE, AND THE MARITAL COMMUNITY COMPRISED THEREOF, RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 94-2-03300-0. Date filed: 08/11/95. Judge signing: Hon. Charles V. Johnson.

Authored by Walter E. Webster. Concurring: Ronald E. Cox, H. Joseph Coleman.

The opinion of the court was delivered by: Webster

WEBSTER, J. -- Lori and Dan Marcott appeal a summary judgment order that dismissed their trespass action against Scott and Sandy Nielsen based on the Nielsens' affirmative defense that they had adversely possessed the property at issue. Because genuine issues of material fact exist as to whether the Nielsens' alleged activities took place within the disputed strip of property, if at all, we remand for trial on the merits.

FACTS

The Marcotts purchased a five-acre parcel of property from the Schneiders. Prior to closing, a survey revealed that a strip of property cleared and used by the neighboring property owners, the Nielsens, was part of the Schneiders' parcel. The Marcotts purchased the property anyway and the Schneiders assigned any claims they may have to the Marcotts.

The Marcotts brought this action against the Nielsens for trespass to land, timber trespass, conversion, and damages. As an affirmative defense, the Nielsens claimed that they owned the property in question through adverse possession. The Nielsens moved for summary judgment.

The Nielsens asserted that, when they purchased the property, it was surrounded by perimeter dirt roads and that they understood the eastern perimeter road to be within the boundary between their property and the property now owned by the Marcotts. The Nielsens claimed to have marked their eastern boundary with flags at 100 foot intervals in 1982. Declarations of a friend who assisted with the marking and another friend who saw the flags in 1982 supported this statement. The Nielsens stated that, beginning in 1982, they maintained the eastern perimeter road, which they claim was on the disputed strip, on a yearly basis by clearing blackberries and underbrush. This statement was supported by the declarations of two friends who either saw Mr. Nielsen maintain the road or used the road themselves to access the property. Mr. Nielsen stated that he built an electric fence for his dog, a portion of which was on the eastern perimeter road in the disputed area. The Nielsens also claimed that they used the disputed property to walk their dog, collect firewood, and practice shooting. They allowed other people to operate all-terrain vehicles and collect firewood from the disputed property. Nielsen asserted that he dug a drainage ditch on the property in 1989, placed a propane tank on the property in 1990, and built a treehouse there in 1990.

The Marcotts' response to the summary judgment motion included a series of aerial photos of the property taken in 1985, 1990, and 1992 and declarations from persons familiar with the property who had never seen any eastern perimeter road or flags.

The trial court granted the Nielsens' summary judgment motion, dismissing the Marcotts' trespass action. Prior to oral argument before this court, the Marcotts filed a motion requesting that we take judicial notice of new photographs of the Nielsens' property as adjudicative facts.

We denied the Marcotts' motion, but reserved ruling on the Nielsens' request for sanctions.

Discussion

The Marcotts do not make any arguments related to the elements of adverse possession. *fn1 Rather, they argue that there are factual questions as to whether the Nielsens' alleged activities took place in the disputed strip. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We review the summary judgment order de novo, considering the evidence in the light most favorable to the non-moving party.

See Kruse v. Hemp, 121 Wash. 2d 715, 722, 853 P.2d 1373 (1993).

Affidavits considered in support of summary judgment must contain facts that would be admissible in evidence and affirmatively show that the affiant is competent to testify to the stated matters. See CR 56(e). The appellate court's role, when the admissibility of such evidence is questioned, is to determine whether the trial court properly considered or refused to consider the evidence. See Mithoug v. Apollo Radio, 128 Wash. 2d 460, 462-63, 909 P.2d 291 (1996). The standard of review of evidentiary decisions made in the course of summary judgment proceedings is abuse of discretion. ...


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