No. 60837-1-I.The Court of Appeals of Washington, Division One.
November 17, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 05-2-00967-1, Steven J. Mura, J., entered October 26, 2007.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
A party seeking to establish a boundary line by mutual recognition and acquiescence must prove the necessary elements by clear, cogent, and convincing evidence. Here, Derek and Megan Watt satisfied this evidentiary burden by proving the existence of a well-defined line and establishing that the parties and their predecessors mutually recognized and accepted that line as the true boundary for more than 10 years. Accordingly, we affirm the trial court’s decision quieting title in favor of the Watts.
FACTS
As the trial court noted in its oral decision, the evidence at trial was essentially uncontroverted. Doug and Sandra Albee purchased real property in Whatcom County in 1967. The Albees then developed and managed a mobile home park on the property until they sold the land to Derek and Megan Watt in 2005.
Bruce Walton owned the adjoining land to the north of the Albee property. Donna Clark has lived on the Walton property since 1987, and the property passed to her after Walton’s death in 1999.
The western boundary of both the Albee and Walton properties is a narrow, unbuildable waterfront parcel that runs roughly north-south along the shore of Lake Whatcom. The waterfront parcel, which is part of an abandoned railroad right-of-way, is separated from the main properties by North Shore Drive.
For much of the 20th century, surveys erroneously placed the southern boundary of the Walton property about 70 feet south of the theoretical boundary line. Surveyor Walter Fouts monumented the erroneous boundary line in 1938, and it is now known as the Fouts 1938 1/16th line. Prior to 1984, legal descriptions referenced the Fouts 1938 1/16th line as the boundary between the Walton and Albee properties.
In 1984, Walton hired Peter Harrison to survey his property. The 1984 Harrison survey noted both the Fouts 1938 1/16th line and the theoretical boundary line and identified a potential dispute as to the southern boundary of the Walton property.
In 1986, Walton built a fence along the eastern boundary of the waterfront parcel. The fence ran north-south to the Fouts 1938 1/16th line. When Doug Albee saw the fence, he called Walton, and the two men met on the property. Albee told Walton that the property line was not at the end of the newly constructed fence, but rather about 53 feet farther north, roughly consistent with a power pole and an old fence running east-west on Walton’s property. Immediately after this conversation, Walton removed the fence back to the point that Albee had identified, which was about 17 feet south of the theoretical boundary line.
Walton died in 1999, and the property passed to Clark in about 2002. Clark was unaware of the Fouts 1938 1/16th line until after Walton’s death. In early 2005, Clark built a fence on the waterfront parcel along the Fouts 1938 1/16th line. When she refused to remove the fence, the Albees filed suit, seeking to quiet title to the disputed area based on theories of adverse possession and mutual recognition and acquiescence. After the Albees sold the property, the Watts were substituted as plaintiffs.
At trial, Doug Albee testified that throughout his ownership of the property, he maintained the waterfront parcel, including mowing the grass, trimming the vegetation, and performing erosion control. Albee also permitted his tenants to use the waterfront parcel for recreational purposes and told unauthorized visitors to leave.
Clark testified that she had occasionally used the boat launch and ridden horses on the parcel. At some point after 2002, she removed a patch of blackberries directly south of the Walton fence. But Clark acknowledged that she had never asked anyone to leave the disputed property.
The trial court did not rule on the Watts’ adverse possession claim, but determined that Walton had acquiesced to Albee’s ownership of the disputed parcel in 1986 by removing his fence to the designated line. The court found that Albee’s actions after 1986 were appropriate to his ownership of the waterfront parcel and that Walton and his successors had not undertaken any efforts to assert possession or ownership control. The court concluded that from 1986 to 2004, the parties’ conduct had manifested a mutual recognition of the south end of the Walton fence as the boundary line and quieted title in favor of the Watts.
DECISION
A party seeking to establish a boundary line by mutual recognition and acquiescence must establish the following elements by clear, cogent, and convincing evidence:
(1) The line must be certain, well defined, and in some fashion physically designated upon the ground, e.g., by monuments, roadways, fence lines, etc.; (2) in the absence of an express agreement establishing the designated line as the boundary line, the adjoining landowners, or their predecessors in interest, must have in good faith manifested, by their acts, occupancy, and improvements with respect to their respective properties, a mutual recognition and acceptance of the designated line as the true boundary line; and (3) the requisite mutual recognition and acquiescence in the line must have continued for that period of time required to secure property by adverse possession.[1]
The claimant must demonstrate that the parties recognized the purported boundary line as a true boundary and not merely as a barrier.[2]
Evidence is clear, cogent, and convincing “when the ultimate fact in issue is shown by the evidence to be `highly probable.'”[3]
Clark contends that the evidence was too equivocal to establish mutual recognition of the end of Walton’s fence as the boundary line between the properties. She points to evidence that other people, in addition to Albee’s tenants, may have used the disputed strip and to the fact that neither party made exclusive use of the small blackberry patch directly south of the fence. Clark also maintains that Albee’s mowing of grass along the waterfront was insignificant. But Clark’s arguments do not accurately summarize the scope of the evidence before the trial court.
After Walton constructed a fence to the Fouts 1938 1/16th line, Albee met with him on the property and informed Walton that the fence was encroaching on Albee’s property. Albee then showed Walton where the property line was, a spot that was consistent with a power pole and a fence line to the east on Walton’s property. After the conversation, Walton immediately removed the fence to the point that Albee had designated, and the fence remained unchanged for almost 20 years.
Clark acknowledges that Albee mowed the grass along the water up to the end of Walton’s fence. But Albee did much more to maintain the disputed area, including trimming vegetation, placing rocks along the beach to prevent erosion, and protecting the maple trees with hog wire to prevent damage from beavers. Albee also permitted his tenants to use the parcel for recreational purposes, including use of the boat launch and beach, and to store their boats on the property. Albee would reserve the area for larger tenant gatherings.
Finally, Albee posted a No Trespassing sign, and if he found that outsiders using the property were interfering with his tenants’ use, he ordered them to leave. On one occasion in the mid-1990s, Albee discovered Clark removing sand from the beach. He told her to stop taking the sand and she complied, without raising any objection or suggesting that she owned the property. Although Clark testified that she had used Albee’s boat launch and ridden horses on the property, she did not identify a single instance in which she or Walton had attempted to assert control over the property or the people using the property until 2005, when she built the fence on the Fouts 1938 1/16th line.
The foregoing circumstances, which demonstrated the extensive scope of Albee’s maintenance and the exclusive control that he exercised over the property for more than 10 years, were sufficient to permit the trier of fact to find, by clear, cogent, and convincing evidence that both parties recognized and accepted the south end of the Walton fence as the true boundary for more than 10 years. The evidence was therefore sufficient to support the trial court’s decision.
Clark also contends that the trial court committed reversible error by relying on the wrong standard of proof. She maintains that in finding mutual recognition and acquiescence, the trial court applied the preponderance of the evidence standard rather than the higher clear, cogent, and convincing standard.
The Watts argue that Clark did not raise this issue below and therefore cannot raise it for the first time on appeal.[4] But we need not decide this contention because Clark has not demonstrated that the trial court committed the alleged error.
Clark’s argument apparently rests entirely on the trial court’s failure to identify, on the record, the applicable standard of proof. She notes that the trial court did not mention the standard of proof during the oral decision and that the parties did not expressly mention the standard of proof during argument or include it in the written findings of fact and conclusions of law.
But Clark concedes that the Watts’ trial brief correctly recites the higher standard of proof for mutual recognition and acquiescence. Moreover, the judge conducting a bench trial is presumed to know and correctly apply the law.[5] That presumption is not overcome by a completely silent record, and Clark has not cited any authority suggesting that the trial court was required to recite the standard of proof in its decision. Under the circumstances, Clark has failed to establish any error.
Affirmed.
(1984).
(1995).