No. 21539-3-IIIThe Court of Appeals of Washington, Division Three. Panel Two.
Filed: July 10, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County Docket No: 98-2-00188-4 Judgment or order under review Date filed: 10/03/2002
Counsel for Appellant(s), Terry Elgin Miller, Attorney at Law, 7409 W Grandridge Blvd Ste C, Kennewick, WA 99336-6710.
Counsel for Respondent(s), George Fearing, Attorney at Law, 2415 W Falls Ave, Kennewick, WA 99336-3068.
KATO, J.
Leroy and Gladys Cain owned two parcels of property in Richland, Washington. While replatting the parcels, the Cains discovered that a city street and some underground utilities encroached upon one of them. They filed an action against the City of Richland for inverse condemnation and damages. The court summarily dismissed the Cains’s inverse condemnation claim and ordered them to grant the City an easement.
The Cains appeal. We affirm in part and reverse in part.
In 1992, the Cains purchased Tracts B and C of the Canyon Terrace Plat in Richland. They purchased these tracts from Benton County as part of a tax foreclosure process. The tracts lie on either side of Canyon Street.
In 1994, while replatting the parcels, the Cains discovered that Canyon Street, the sidewalk, and the underground utilities encroached upon Tract B.
Canyon Terrace Plat was developed in the mid-1970s. Canyon Street was built between 1975 and 1978. The street was then dedicated to the City of Richland.
On February 5, 1998, the Cains filed this action to quiet title and to enjoin trespass or, in the alternative, recover damages. The City answered, and agreed the street was misaligned. But it alleged the misalignment was caused by the developer before the street was dedicated to the City. The City also raised several affirmative defenses, including adverse possession and prescriptive easement.
In 1999, the City moved for summary judgment on the theory of adverse possession or prescriptive easement. The court denied this motion.
On October 26, 2000, the Cains amended their complaint to add a claim for inverse condemnation and to delete their claim for trespass. They then moved for summary judgment. The City filed a cross motion for summary judgment. In July 2002, the court denied the Cains’s motion and granted the City’s motion. This appeal follows.
We review motions for summary judgment de novo, engaging in the same inquiry as did the trial court and treating all facts and inferences in the light most favorable to the nonmoving party. Saddle Mountain Minerals, L.L.C. v. Joshi, 116 Wn. App. 198, 203, 65 P.3d 366
(2003). Summary judgment is proper when the pleadings, depositions, and admissions in the record, together with any affidavits, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Bishop v. Miche, 137 Wn.2d 518, 523, 973 P.2d 465 (1999).
Alleging the City unlawfully took a portion of their property, the Cains brought this action for inverse condemnation. Such an action is grounded in the Washington Constitution. Pruitt v. Douglas County, 116 Wn. App. 547, 559, 66 P.3d 1111 (2003). Our constitution prohibits the taking of private property without just compensation. Const. art. I, sec. 16 (amend. 9).
In order to prevail on their claim of inverse condemnation, the Cains must establish “(1) taking or damaging (2) of private property (3) for public use (4) without just compensation being paid (5) by a governmental entity that has not instituted formal proceedings.” Pruitt, 116 Wn. App. at 559 (quoting Phillips v. King County, 136 Wn.2d 946, 957, 968 P.2d 871 (1998)). In order for a taking to occur, the government must invade or interfere with the use and enjoyment of one’s property and the invasion or interference must reduce the property’s market value. Id.
It is undisputed that Canyon Street, a public roadway, and its underground utilities encroach upon Tract B of the Cains’s property. It is also undisputed that no one was paid for this encroachment. But the developer of Canyon Terrace, not the City, put in the utilities and built the road. Because the City did not construct the road such that it encroached upon Tract B, no `unconstitutional taking’ occurred.
In any event, however, the Cains were not the owners of Tract B when the encroachment occurred. A subsequent purchaser cannot sue for a taking occurring prior to his acquisition of title. Hoover v. Pierce County, 79 Wn. App. 427, 433, 903 P.2d 464 (1995), review denied, 129 Wn.2d 1007 (1996).
In Hoover, a diversion of water created by a culvert that was installed in 1972 flooded the Hoover’s property in 1991 and 1992. The Hoovers had not purchased the property until 1988. They sued the county for damages under an inverse condemnation theory. The court noted that a subsequent purchaser cannot sue for a taking that occurred prior to the acquisition of title because the right to damages for injury to property is a personal right that belongs to the property owner. Id. at 433-34. This right does not pass to a subsequent purchaser unless it is expressly conveyed. Id. at 434. The court did note that a subsequent purchaser could sue for a `new taking.’ Id. But because the only government action was the 1972 installation of the culvert, no new taking occurred and the Hoovers were not entitled to recover for the 1972 taking because they bought the property after the taking occurred. Id. at 435-36; see also DiBlasi v. City of Seattle, 136 Wn.2d 865, 877-79, 969 P.2d 10 (1998); Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 695, 935 P.2d 555
(1997). Hoover is directly on point. Here, the alleged taking occurred no later than 1978 when Canyon Street was constructed. The Cains did not purchase the property until 1992. Therefore, they are not entitled to recover for a taking that occurred prior to their ownership.
The Cains nevertheless argue that Hoover misstates Washington law. They assert a taking does not occur until the condemnation process is over.
They assert that a condemnation proceeding is an in rem proceeding, so the right to damages passes to a subsequent owner. They rely on In re Twelfth Ave. South, 74 Wn. 132, 132 P. 868 (1913), to support this claim. In that case, there was a contest between the owner of the property at the time of the verdict and the owner of the same property at the time of final judgment for an inverse condemnation proceeding. The court determined that, prior to the entry of judgment on the condemnation proceeding, the government entity is not entitled to take or damage the land. Id. at 135.
Therefore, the property is not condemned until the entry of the judgment.
The court held that if property is conveyed during a condemnation proceeding, the person entitled to compensation is the one who owns the property when possession is actually taken. Id. at 136. Because we are not dealing here with two owners of Tract B vying for damages, the Cains’s reliance on Twelfth Avenue South is misplaced.
The Cains further argue that Hoover ignores the recognized exceptions to the subsequent purchaser rule. They rely on quotations from legal encyclopedias and an Illinois case to support this assertion. Although Illinois would allow a subsequent purchaser, such as the Cains, to bring an inverse condemnation proceeding, Rosenthal v. City of Crystal Lake, 171 Ill. App.3d 428, 437, 525 N.E.2d 1176 (1988), that is not the law in Washington.
The Cains are subsequent purchasers and thus cannot bring a claim for inverse condemnation. The court’s summary judgment dismissal of this claim was proper.
In its order of summary judgment, the court ordered the Cains to sign quit claim deeds granting the City `utility and slope easements.’ Clerk’s Papers at 40-42. The City had claimed these easements on a prescriptive easement theory. In order to establish adverse possession or a prescriptive easement, possession must be for 10 years. ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989) (adverse possession); Highline Sch. Dist. No. 401 v. Port of Seattle, 87 Wn.2d 6, 10, 548 P.2d 1085 (1976) (prescriptive easement).
The City acquired the property in question sometime between 1975 and 1978. But Benton County held the property from 1981 to 1992 because of delinquent taxes. The time that a county holds a piece of property in trust for the state cannot be used to establish adverse possession. Gustaveson v. Dwyer, 78 Wn. 336, 341, 139 P. 194 (1914).
At most, the City held the property for six years for adverse possession purposes before the County and then the Cains acquired it. Benton County’s intervening ownership makes it impossible for the City to establish the 10-year requirement for obtaining easements by prescription. Therefore, the court erred in granting the easements. We reverse the court’s order requiring the Cains to grant the easements to the City.
The court’s dismissal of the Cains’s inverse condemnation claim is affirmed and the order granting easements to the City is reversed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, C.J. and SCHULTHEIS, J., concur.