Daily Development for
Monday, March 3, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ADVERSE POSSESSION; REQUIREMENT OF ACTUAL POSSESSION: In reviewing an adverse possession claim , court can create "penumbra" of areas possessed, even without proof that every square foot of property was possessed; and court may project boundary lines when logical and reasonable to do so.

BOUNDARIES; ACQUIESENCE: Doctrines of boundary by recognition or boundary by acquiescence are inappropriate when no well-defined physical monument is present.

Lloyd vs. Montecucco, 924 P.2d 927 (Wash. App. Div. 2, 1996).

The Lloyds and the Montecuccos owned adjoining waterfront lots and the Lloyds brought an action to quiet title with respect to a disputed boundary. For convenience, the court divided the disputed area in question into three separate categories; namely, the "uplands," the "tidelands" and the "oysterlands." The court quieted title in the uplands, comprised of forested area above the bulkhead, in the Montecuccos, based on adverse possession. The court found open and notorious, actual and uninterrupted, exclusive and hostile possession in the Montecuccos for the requisite statutory 10-year period. In doing so, the court found that the Montecuccos had maintained, planted and harvested the upland area at issue. But the court found it unnecessary to demonstrate that the Montecuccos actually possessed every square yard of the disputed upland tract, concluding that courts may create a "penumbra" of ground around areas actually possessed when reasonably necessary to carry out the objective of settling boundary disputes. Moreover, the court confirmed a decision of the trial court to draw an imaginary line between a stationary fence and the subject bulkhead, reasoning that courts may project boundary lines between objects when reasonable and logical to do so as dictated by the character of the land and its use.

With respect to the "tidelands," consisting of the area below the bulkhead and extending to the meander line of the adjacent water, the court concluded that the correct boundary line should be identical to the platted legal boundary. The court rejected the Montecuccos' argument that they should be awarded title on the basis of the legal doctrine of "recognition and acquiescence." The court identified the three basic elements of that doctrine as: (1) the existence of a well defined physical designation (e.g., monuments, roadways, fence lines, etc.); (2) good faith manifestation by the adjoining landowners that they mutually recognized and accepted the designated line as a true boundary; and (3) continuation of such mutual recognition and acquiescence for the time period required to secure property by adverse possession.

In this case, the first element of the doctrine was found to be absent. The court held that the placement of concrete blocks moveable by tidal action and placed 8 feet below the bulkhead, intermittent moorage, and seeding of oysters and clams were insufficient to establish a definitive boundary line.

Finally, with respect to the "oysterlands," consisting of the area beyond the meander line of the adjacent waterway, the court found that there was insufficient evidence on record to support a determination of ownership, and remanded the matter to the trial court for further proceedings.

Comment: It may go without saying that possession involves more than physical presence. Even when there are no fences, properties often "use" by including it within a zone of effective presence. But courts rarely are as explicit as this court in acknowledging this concept. Consequently, this case may be a useful one to tuck into your precedent file.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.