The Court of Appeals of Washington held that a lot owner was barred from claiming ownership of a strip of land after representing that the land was part of the adjacent lot, building a fence along the supposed boundary, allowing the adjacent lot owner to maintain and landscape up to the fence, abandoning the land, and causing the adjacent lot owner to rely on that representation.
In 1976, Thomas and Charlene Bowdish (the Bowdishes) purchased lots 9 and 10 in Jefferson County, Washington, from Gordon Pettit. In 1988, the Bowdishes purchased lot 11 from Mr. Pettit. Mr. Pettit continued to own the adjacent lot 12.
The subdivision plat depicted an access easement from Cirque Drive, the main subdivision road, that ran across lots 5 through 11 and terminated at the corner of lot 12, which provided access to lots 5 through 12. The protective covenants of the Association (covenants) stated that the owners of lots 5 through 12 were responsible for the upkeep of the access easement. Mr. Pettit did not use the access easement to access lot 12 but used a gravel driveway that crossed a small portion of lot 11 and connected directly to Cirque Drive.
The covenants also established a five-foot utility easement on either side of the common boundary line of each lot (the utility easements). In 2001, the Bowdishes installed a fence beginning at a survey stake and continuing down the side of lot 11 next to lot 12. The fence blocked a paved driveway apron that could have provided access to lot 12 from the access easement.
In 2003, Roger and Jeannette Ricker (the Rickers), purchased lot 12 from Mrs. Pettit after Mr. Pettit’s death. Mr. Bowdish showed Mr. Ricker the survey stake and claimed it marked the corner of lot 12. He acknowledged that the fence completely blocked the paved driveway apron approaching lot 12 but stated that there was no easement in that area. Mr. Ricker accepted Mr. Bowdish’s representations, and the Rickers continued to use the gravel driveway to access their lot. After installing the fence, the Bowdishes did not use or maintain any portion of the property west of the fence (the disputed area).
In 2007, the Rickers removed a mobile home located on lot 12 and began building a new home, which was completed in 2010. The Rickers sited the new house and located the garage on the property based on the gravel driveway being the only access point to lot 12. During construction, the Rickers excavated the disputed area and accidentally covered up a survey stake marking the boundary line between lots 11 and 12 in the process. The Rickers also constructed a patio lined with manor block walls that was partially located within the disputed area. The Bowdishes never objected to the excavation or construction work.
In 2014, the Bowdishes obtained a survey in preparation for clear-cutting lot 11. The survey revealed that the corner of lot 11 was actually 42 inches west of the fence. After receiving the survey, the Bowdishes began coming onto and damaging lot 12 and the disputed area. They moved manor blocks; spray painted the Rickers’ patio, landscaping, and manor block walls; killed landscaping with Roundup; and damaged the Rickers’ fence and street number sign.
In 2015, the Bowdishes obtained a second survey that showed that a portion of the Rickers’ patio and manor block walls were located in the disputed area. The Bowdishes removed their fence and placed a large pile of rocks on the boundary line, which blocked the Rickers’ access from the gravel driveway.
- Whether the Ricker’s gained ownership over the disputed area through adverse possession and had acquired an easement in the portion of lot 11 containing the gravel driveway.
- Whether the Bowdishes were liable to the Rickers for trespassing and causing damage to the Rickers’ property.
In 2016, the Bowdishes sued the Rickers to quiet title (definitively establish property ownership), for damages, and for injunctive relief (requiring a party to take or refrain from taking action). The Bowdishes claimed that the Rickers trespassed on lot 11 and interfered with their easement.
The Rickers counterclaimed, asserting that they had acquired ownership of the disputed area through adverse possession (method of acquiring property by satisfying statutory criteria) or had acquired an easement across lot 11 for access from the gravel driveway. They also claimed the Bowdishes trespassed on and damaged their property.
Trial Court Rulings
The trial court ruled in the Rickers’ favor. It found that the Rickers had gained ownership of the disputed area through adverse possession and had acquired an easement in the portion of lot 11 containing the gravel driveway. The Rickers and the Pettits had used the disputed area and the gravel driveway in a manner adverse to the Bowdishes’ ownership for the required statutory periods.
The trial court further stated that the Bowdishes were liable to the Rickers for trespassing and causing damage to the Rickers’ property, but the Rickers were also liable to the Bowdishes for covering up the survey stake. The trial court confirmed that the Rickers had rights in the access easement as provided by the covenants, but it concluded that the Bowdishes did not have rights in the utility easements because those were reserved solely to the developer and Association. Because of the trespass by the Bowdishes, during which they caused damages, the Rickers’ were awarded reasonable attorney fees. The Bowdishes appealed.
Appeals Court Decision
The appeals court determined that the doctrine of equitable estoppel barred the Bowdishes from claiming rights in the disputed area. Mr. Bowdish told Mr. Ricker that the fence marked the boundary line between the lots and denied lot 12 having access to the access easement. The Rickers relied on those statements when locating the new house, the garage, and the patio, and they would be harmed if they were forced to tear out the patio.
The appeals court also found that the trial court correctly determined that the Rickers had an implied easement over lot 11 to access lot 12 via the gravel driveway. Mr. Pettit used the gravel driveway to access lot 12 both before and after he sold lot 11 to the Bowdishes. There also was some degree of necessity to use the driveway to access lot 12 because the Bowdishes’ fence blocked lot 12’s access to the access easement. Lot 12 was also granted rights in the access easement by the covenants.
Further, lot owners were not granted rights in the utility easements because the covenants stated that the easements were “reserved” rather than “granted.” Had the developer intended to give the easements to someone other than himself, he would have used the term “granted” or similar language to denote giving rather than retaining.
Accordingly, the trial court’s judgment was affirmed, including the award of attorney fees. In addition, the appeals court granted the Rickers request for attorney fees and costs on the appeal.
- Unless you are 100% positive as to a boundary line, do not advise your neighbor where a boundary line exists;
- If you decide to put up a fence, ideally make it on the boundary line or advise your neighbor in writing that it is not on the boundary line, but that you intend to maintain ownership to the boundary line;
- If you find that you or your neighbor have accidentally placed items over a boundary line, immediately determine whether a claim for adverse possession may exist; and
- Regardless of who is right or wrong, don’t vandalize the neighboring property, as courts tend to frown on such actions.
Bowdish v. Decarufel, No. 52227-6-II (Wash. Ct. App. Jan. 7, 2020) Unpublished