ITT Rayonier v. Bell, 112 Wn.2d 754, 774 P.2d 6 

Supreme Court of Washington

1989

Chapter

38-39

Title

Adverse Possession

Page

809

Topic

Ultimate Test - exercise of dominion over land consistent with action of true owner

Quick Notes

ITT instituted this action to quiet title their property to eject Arthur Bell.  Bell counterclaimed, but he did not possess his land open and notoriously, his stay was not continuous, he did not exclude others, and therefore did satisfy the element of hostility.

Adverse Possession Requirements, possession must be:

(1)   open and notorious,

(2)   actual and uninterrupted,

(3)   exclusive, and

(4)   hostile.

(5)   Possession of the property with each of the necessary concurrent elements must exist for the statutorily prescribed period of 10 years.

Focusing on Exclusivity Prong

Ultimate Test - exercise of dominion over land consistent with action of true owner.

o         The ultimate test is the exercise of dominion over the land in a manner consistent with actions a true owner would take.

Court - Reasoning

o         Bell's burden was to establish specific acts of use rising to the level of exclusive, legal possession.

o         Unfortunately, while Bell recited certain improvements he had made in the property, he failed to state definitively the length of their existence.

o         Thus, the record reflects that only a woodshed, a partially built and then abandoned sauna, and an outhouse have existed on the property for the full 10-year statutory period.

o         As the Court of Appeals correctly held, Bell's shared and occasional use of the property simply did not rise to the level of exclusive possession indicative of a true owner for the full statutory period.  

Book Name

Fundamentals of Modern Property Law: Rabin; Kwall, Kwall.  ISBN:  978-1-59941-053-1.

Issue

o         We are asked whether summary judgment against the defendant was proper based on the defendant's failure to establish his exclusive possession of the disputed property for the statutory period?

Procedure

Trial

o         Granted summary judgment to ITT.

Appellant

o         Affirmed on alternative grounds of good faith.

Supreme

o         We affirm the Court of Appeals on the basis of Bell's failure to establish exclusive possession, and reverse the Court of Appeals alternative holding that Bell failed to establish a good faith claim to the property

Facts/Cases

Discussion

Reasoning/Key Phrase

Rules/Laws

Pl - ITT Rayonier

Df - Bell

Suit Description

o          ITT Rayonier, Inc. (ITT), plaintiff, instituted this action to quiet title to property situated in Clallam County.

o         In addition, ITT prayed for damages for trespass and for the ejectment of defendant Arthur Bell.

o         Bell answered, alleging ITT was not entitled to judgment in its favor by reason of Bell's adverse possession of the property for a period greater than the statutory period of 10 years.

o         Additionally, Bell counterclaimed against ITT praying for judgment quieting title in Bell.

o         On July 8, 1986, the trial court entered partial summary judgment, quieting title in favor of ITT.

o         The Court of Appeals affirmed.

Facts

o         In 1972, Arthur Bell purchased a houseboat moored near the mouth of the Big River in Swan Bay on Lake Ozette.

o         The property that is the subject of this action is directly adjacent to that moorage and was purchased by ITT in 1947.

ITT Pays Taxes

o         ITT, as owner of record, has paid the property taxes on the land in question continuously since its purchase.

Did not purchase

o         Bell admits that he never purchased any of the property involved in this action.

No Trespassing Signs

o         Additionally, he concedes that he has never maintained any "No Trespassing" signs on the property, nor has he ever denoted any boundary with a fence or any other markers.

o          A very rough approximation of the amount of land in question is one-half of an acre.

Not Continuous, Seasonal

o         Bell testified that he regularly occupies his houseboat in the spring, summer, and fall, and visits only occasionally during the winter months

Issue

o         We are asked whether summary judgment against the defendant was proper based on the defendant's failure to establish his exclusive possession of the disputed property for the statutory period?

Court - Determines if facts constitute as adverse possession.

o         Whether the facts constitute adverse possession is for the court to determine as a matter of law.

Deposition Testimony

o         Relying upon the deposition testimony of Bell and the affidavits of Klock and Olesen.

Trial court

o         Held Bell had failed to establish that his possession of the property was exclusive.

Court of Appeals

o         Affirmed, holding Bell's shared use of the property with the Klocks and Olesens was not possession in the nature one would expect from an owner, and thus the exclusivity requirement had not been met.

Adverse Possession - need not be absolutely exclusive

o         Possession of property by a party seeking to establish ownership of it by adverse possession need not be absolutely exclusive.

Possession must be type expect of an owner

o         The possession must be of a type that would be expected of an owner.

Court - Bell did not act like he owned the property

o         Bell's possession of the subject property is not of the type one would expect of an owner.

Not merely causal.

o         The intrusion onto the land by Klock and Olesen cannot be said to be merely casual.

Neighbors boats were there before Bell

o         The evidence shows that they moored their houseboat near the same property for a longer period than did Bell.

o         During this period, they used the property in question along with Bell.

Bell was not controlling the land

o         Bell's acquiescence in their use of the land cannot be described to be simply the attitude of a good neighbor.

Shared occupation of land

o         It shows, rather, that there was a shared occupation of land.

o         This does not constitute the exclusive use of land necessary for adverse possession and, in our judgment, reasonable persons could not conclude otherwise.

Thompson v. Schlittenhart - Exclusivity was lacking because USE was shared

o         The court held that the exclusivity element was lacking because the alleged adverse possessor had shared the use of the disputed area.

Bell Arg - Look at my specific instances

o         Nevertheless, by pointing to specific instances of his own use of the property, Bell attempts to establish his exclusive possession.

Court - Fails to negate USE by others

o         Unfortunately, such an approach logically fails to negate instances of use by others.

o         Specific instances of property usage merely provide evidence of possession.

Rule - Use is admissible

o         Evidence of use is admissible because it is ordinarily an indication of possession.

o    It is possession that is the ultimate fact to be ascertained.

Rule - Exclusive dominion

o         Exclusive dominion over land is the essence of possession, and it can exist in unused land if others have been excluded therefrom.

o    A fence is the usual means relied upon to exclude strangers and establish the dominion and control characteristic of ownership.

Wood v. Nelson - Establishing possession

o         Possession itself is established ONLY IF it is of such a character as a true owner would make considering the nature and location of the land in question.

Young v. Newbro,

o         Use alone does not necessarily constitute possession.

Ultimate Test - exercise of dominion over land consistent with action of true owner.

o         The ultimate test is the exercise of dominion over the land in a manner consistent with actions a true owner would take.

Court - Reasoning

o         Bell's burden was to establish specific acts of use rising to the level of exclusive, legal possession.

o         Unfortunately, while Bell recited certain improvements he had made in the property, he failed to state definitively the length of their existence.

o         Thus, the record reflects that only a woodshed, a partially built and then abandoned sauna, and an outhouse have existed on the property for the full 10-year statutory period.

o         As the Court of Appeals correctly held, Bell's shared and occasional use of the property simply did not rise to the level of exclusive possession indicative of a true owner for the full statutory period.

We affirm the Court of Appeals.

Rules

Adverse Possession Requirements, possession must be:

(1)   open and notorious,

(2)   actual and uninterrupted,

(3)   exclusive, and

(4)   hostile.

(5)   Possession of the property with each of the necessary concurrent elements must exist for the statutorily prescribed period of 10 years.

Rule - Use is admissible

o         Evidence of use is admissible because it is ordinarily an indication of possession.

o    It is possession that is the ultimate fact to be ascertained.

Rule - Exclusive dominion

o         Exclusive dominion over land is the essence of possession, and it can exist in unused land if others have been excluded therefrom.

o    A fence is the usual means relied upon to exclude strangers and establish the dominion and control characteristic of ownership.

Wood v. Nelson - Establishing possession

o         Possession itself is established ONLY IF it is of such a character as a true owner would make considering the nature and location of the land in question.

Young v. Newbro,

o         Use alone does not necessarily constitute possession.

Ultimate Test - exercise of dominion over land consistent with action of true owner.

o         The ultimate test is the exercise of dominion over the land in a manner consistent with actions a true owner would take.

Class Notes