Appeal from Superior Court of Kittitas County. Docket No: 94-2-00088-1. Date filed: 07/24/95. Judge signing: Hon. Michael E. Cooper.
Authored by John A. Schultheis. Concurring: Dennis J. Sweeney, Stephen M. Brown.
The opinion of the court was delivered by: Schultheis
SCHULTHEIS, J. The court denied Duane Stokes, Sandra Baker, Terry Johnson and B.G. Knight's claim for ejectment and quieted title to three parcels of land used by brothers Terril Kummer, Arlan Kummer and Kevin Kummer for dry land wheat farming, based on their adverse possession of the fields for more than 10 years. The court also granted the brothers a 75- foot easement across Mr. Stokes's and Ms. Baker's property, for access between two of the fields. On appeal, Mr. Stokes, Ms. Baker and Mr. Knight contend the Kummers' use of field 2 was permissive at its inception, negating the element of hostility required to demonstrate adverse possession. Mr. Johnson contends the Kummers conceded his superior title in 1982 by not contesting an easement he granted to others and did not prove adverse possession for a sufficient period thereafter. All of the appellants contend biennial cropping of agricultural land is insufficient use to establish title by adverse possession. We affirm.
The property at issue in this case is in a fairly desolate part of Kittitas County, accessible only by a gravel county road. The region is rocky and arid, covered mostly with sagebrush and tumbleweeds. There are pockets or hummocks of soil, however, that are suitable for dry land wheat farming. Aerial photographs show the three fields at issue have been cultivated since at least 1954. Sometime during or before October 1971 the quarter section where these fields are located, the northeast one-quarter of Section 33, Township 17 North, Range 18 East, Willamette Meridian, and the quarter section immediately west, the northwest one-quarter of Section 33, Township 17 North, Range 18 East, Willamette Meridian, were divided into tracts of roughly 20 acres each. The platted subdivision, known as the Valley View Ranch tracts, was not recorded. Nor was it surveyed, permanently staked or fenced. The appellants each own a Valley View Ranch tract underlying the three wheat fields that the Kummer brothers have been farming since 1976. See the field survey map attached as an appendix.
It is unclear from the record when Lawrence Hall began growing winter wheat in the area, but in 1953 he leased from Agnes C. Meagher "all that certain crop land owned by [[her__ and lying within a certain fenced area" in the northeast one-quarter of Section 33 to grow wheat. The lease was for four years, from October 1, 1953, to October 1, 1957. Mary Hall married Lawrence Hall in 1956, and in 1957 moved to the old homestead house on his property south of Umptanum Road and west of Durr Road. Mrs. Hall said that when she moved out to the property, Mr. Hall was farming the same fields across the road (Umptanum Road) that the Kummer brothers later farmed. Mr. Hall originally farmed some of the property north of the road for Estil Wright under a crop share agreement, but later bought that property.
On January 28, 1976, the Kummer brothers bought out the Halls. They acquired title to 2,540 acres, including that part of the northeast one- quarter of Section 33 lying south and east of Umptanum Road, and most of the northwest one-quarter of Section 34, which borders the Valley View Ranch tracts on the east. Mr. Hall drove them around the various fields on the property and also gave the Kummers a 1954 aerial photograph of the area. It shows numerous wheat fields, which are irregularly spaced and shaped due to uneven topography and soil.
In March 1976 the Kummers moved onto the property and began farming the same areas Mr. Hall had farmed, including the three fields just north of Umptanum Road. There were no fences, posts or other markers suggesting the northeast one-quarter of Section 33 had been divided into parcels. The Kummers have continuously harvested wheat from all their fields every other year, beginning in 1976 except one year in the early 1980s when they participated in a federal program and ended up harvesting in an odd year, 1981. During crop years they reseed the fields if necessary early in the season, spray later for weeds, harvest the wheat with a combine, and, when soil moisture permits, plow the stubble under in the fall. During the intervening fallow years, they plow, cultivate, fertilize and seed the fields. Every year the Kummers post the perimeters of their wheat fields against trespassing and hunting, and they regularly tell people to get off the land during hunting season.
Meanwhile, S & S Enterprises, Inc., was selling Valley View Ranch tracts. Duane Stokes acquired tract 40 in August 1988 by quitclaim deed from his parents, who had bought it in approximately 1972. When Mr. Stokes first visited the property in fall 1973, he observed most of it was sagebrush, but there was evidence the northern part had been farmed. It looked substantially the same when he next visited in fall 1980 he saw wheat stubble on the northern end. When he last visited in fall 1991 it looked the same, "like somebody had plowed the field."
Sandra Baker (nee Burchfield) acquired tract 41 in June 1973 by deed from S & S Enterprises, after her brother assigned her his interest under a 1971 purchase contract. She first visited the property shortly after she acquired it and was thoroughly unimpressed. It was dry, arid and rocky, covered with sagebrush and tumbleweeds. She visited the property again in the early 1980s, twice in one year, but she only looked at the tract from the road. She did not walk the property and could not see the northern part of it. She did the same thing once more later in the 1980s. Every visit was during winter. Until the lawsuit, she had never seen the north end of the property where the wheat fields extend onto it.
B.G. Knight acquired tract 36 in the 1970s from Melvin and Emma Orness, who deeded the tract to him in January 1980 in fulfillment of his contract with them and their 1971 purchase contract. He saw only a picture of the property when he bought it and it was apparent from the picture that it had been farmed. He learned about the Valley View Ranch tracts from Alex Varunok, a close friend and fellow Boeing employee, who had bought tracts 34 and 35.
In 1978 Mr. Varunok approached the Kummer brothers and told them they were farming on property north of Umptanum Road that did not belong to them. He showed them a deed and a map. After some Discussion and correspondence between Terril Kummer and Mr. Varunok, they reached a lease agreement. On May 7, 1978, Mr. Varunok signed a handwritten "farm lease/share agreement," apparently drafted by him, in which Kevin Kummer agrees to farm tracts 35 and 36, belonging to Mr. Knight and Mr. Varunok, and to provide 25 percent of the gross proceeds of the 1978 and 1979 crops and thereafter 33 percent. Mr. Knight signed on May 8 and Kevin Kummer signed on May 17 at the request of his brother Terril. Terril Kummer then returned the signed lease agreement to Mr. Varunok with a note advising him that they normally harvest wheat every other year, so the next crop after 1978 would likely be 1980.
On November 20, 1978, Terril Kummer sent Mr. Varunok a note and a check for $1,035. In August 1979 Terril Kummer sent Mr. Varunok a letter and newspaper article explaining they had had serious crop damage from grasshoppers. On November 1, 1981, Terril Kummer sent Mr. Varunok a note and a check for $1,810.90. In June 1983 the Kummers bought tracts 34 and 35 from Mr. Varunok. They continued farming field 2 as they always had, believing they now owned the tracts underlying it.
Mr. Knight received his share of the 1978 and 1981 lease payments from Mr. Varunok. He never met or talked with any of the Kummer brothers. Though he did not receive any payments after 1981, he did not ask Mr. Varunok about it. When Mr. Knight visited his property in winter 1982 or 1983, he noticed it had obviously been farmed in wheat because there was wheat stubble on part of it and sagebrush on part. Mr. Knight visited his property probably once more in the 1980s and again in about 1991, both times in the winter. He said he assumed somebody would send him money if the Kummers farmed his property, and since he was not receiving any money, he concluded they must not be farming it. Mr. Knight did not try to contact the Kummers until approximately 1991 or ...