Appeal from Superior Court of King County. Docket No: 87-2-16696-1. Date filed: 04/18/94. Judge signing: Hon. Sharon Armstrong.
Authored by Ronald E. Cox. Concurring: Walter E. Webster, Ann L. Ellington.
The opinion of the court was delivered by: Cox
COX, J. -- William and Maxine Bryant commenced this action to quiet title to two parcels of property in Black Diamond owned by Palmer Coking Coal Company. The trial court ruled that Bryant established adverse possession to the surface rights of both parcels. But the court also concluded that Bryant did not adversely possess the underground mineral rights to either parcel. Palmer appeals the decision that divests it of title to the surface rights. Bryant cross-appeals the trial court's determination that he did not acquire subsurface mineral rights by adverse possession. We affirm in part and reverse in part.
Bryant commenced this action in 1987. For reasons that are not relevant to this appeal, trial of the adverse possession claim did not occur until February 1994.
A diagram of the parcels that are the subject of the dispute follows.
[SEE DIAGRAM IN ORIGINAL]
Parcel 1 is in the northeast portion of the preceding diagram. It is bounded to its north and east by the Pacific Coast Railroad right of way. Parcel 2 is a triangular-shaped parcel whose longest side extends roughly two-thirds across the width of the diagram. Parcel 2A is a trapezoid-shaped parcel within Parcel 2. Ultimately, the trial court held that Bryant established adverse possession to the surface of Parcel 1 and Parcel 2A. Parcel A and Parcel B lie between Parcel 1 and Parcel 2. Parcel C is south of and shares a common border with Parcel 2. All of these parcels are located in a predominantly agricultural and forested area in King County.
In 1939, Pacific Coast Coal Company (Pacific) sold Parcel A to Bryant's predecessor in interest. Pacific was the predecessor in interest to Palmer. Bryant and his predecessor believed that Parcel 1 was part of the sale. As a result, they conducted a number of activities on Parcel 1. These included clearing the land of brush and blackberries, planting wheat, fencing part of the property, grazing livestock, storing construction materials and debris, and storing some vehicles. These uses of Parcel 1 began on or before the 1939 purchase date of Parcel A and continued to at least 1983. In the early 1950s, Bryant constructed part of an airstrip runway on this parcel.
In 1948, Bryant purchased Parcel B from Pacific. This parcel lies to the west of Parcel A.
In 1950, Bryant leased a strip of property (Parcel L) from Pacific. As the diagram in this opinion shows, Parcel L is west of Parcel B and lies within Parcel 2A. Bryant built an airstrip on this leased property.
In 1954, Pacific sold certain property to Bryant. Bryant believed he was purchasing Parcel C as well as the area designated on the diagram as Parcel 2. He later discovered that the deed of conveyance did not include Parcel 2. According to Bryant, he approached John Morris, then president of Palmer, and explained the misunderstanding. He testified that in 1956 he paid Morris for a deed for the shortage. Morris gave Bryant a deed, but Bryant never recorded it. The original deed was lost in a fire.
Immediately following the 1954 purchase, Bryant began to use a substantial portion of Parcel 2 for a variety of purposes. He constructed a road that he established with the seller along the northern boundary line of Parcel 2. He used this road to get to cars he parked in clearings on the parcel. He used the same road to get wood and to haul dirt. In 1956, he built more roads on the property and cleared a space for more cars. In 1959 or 1960, Bryant obtained a Chrysler/Plymouth agency and his use of the land for car storage escalated. He sometimes kept a doberman on the property to prevent vandalism of the cars.
Palmer presented evidence of its own use of Parcel 2. In 1959, Palmer granted a prospecting permit to a mining company for coal and mineral prospecting on a portion of Parcel 2. The company later leased that portion of the parcel until 1968.
The trial court concluded that Bryant had adversely possessed the surface rights to Parcel 1. It reached the same Conclusion for Parcel 2A, the easterly half of Parcel 2. But the court determined that Bryant failed to prove adverse possession of the underground mineral rights of either parcel.
After two post-trial motions, Palmer appealed the trial court's decisions that Bryant established adverse possession to the surface of the parcels. Bryant cross-appeals the trial court's Conclusion that adverse possession did not include the mineral rights to the parcels.
Adverse Possession of Surface Rights
To establish a claim of adverse possession, there must be a showing that possession is "(1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile." *fn1 Such possession must continue for a period of 10 years. *fn2 It is well established in Washington case law that use must be such as an owner of the type of property in question would make. *fn3 What constitutes adverse possession of a particular tract of land depends on the nature, character and locality of that land, and the uses to which land of that type is ordinarily put. *fn4 Once title by adverse possession is acquired, it cannot be divested by acts other than those required when title is acquired by deed. *fn5
Whether adverse possession has been established by the facts as found is a question of law, *fn6 which we review de novo. We must uphold the trial court's findings if they are supported by substantial evidence. *fn7 Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the declared premise. *fn8 This rule is "based upon the theory that there is a conflict in the testimony and that the trial court, having the witnesses before it, is in better position to arrive at the truth than is the appellate court." *fn9
Palmer does not make any argument challenging the court's determination that Bryant acquired title by adverse possession to the surface of Parcel 1. It does not assign error either to the factual findings or the legal Conclusions for that parcel. Thus, Palmer impliedly concedes that this portion of the court's decision was correct. Accordingly, we do not disturb that portion of the judgment.
The principle focus of Palmer's arguments is Parcel 2A, the trapezoid-shaped portion of Parcel 2 that the trial court held Bryant acquired by adverse possession. More precisely, Palmer argues that the trial court failed to establish that Bryant's use of the western half of the property was open and notorious. It also contends that Bryant's use of the airstrip was not exclusive, but concedes that use of the runway and immediate surrounding areas was open and notorious. Palmer also claims that the trial court's Conclusion that Bryant possessed Parcel 2A to the boundaries set by the court is not supported by substantial evidence. It makes a similar claim with respect to the court's finding that pilots unknown to Bryant landed at the airstrip with Bryant's express or implied permission and in accord with pilot custom.
Palmer contends that Bryant's use of the portion of Parcel 2A in the forested area west of the airstrip and its immediate vicinity was not open and notorious. First, it contends that a parcel lacking well-defined boundaries is not subject to adverse possession. It claims that the northern and western boundaries of Parcel 2A were not sufficiently defined. Second, it argues that Bryant's use of the parcel was insufficient to put Palmer on notice of the adverse possession. Finally, it claims that there is insufficient evidence in the record to support either the court's placement of the northern and western boundaries or Bryant's use of the property.
Open and notorious use is such use that would lead a reasonable person to assume that the claimant was the owner. *fn10 In Hunt v. Matthews, *fn11 we said the acts constituting the warning which establishes notice must be made with sufficient obtrusiveness to be unmistakable to an adversary, not carried out with such silent civility that no one will pay attention. . . . Real property will be taken away from an original owner by ...