Acord v. Pettit

Sweeney, J. ¶ 1 — The trial judge here awarded title to a strip of land to the plaintiffs after concluding that they and their predecessors had adversely possessed the property. The appellants challenge the factual and legal basis for the court’s ruling on a number of grounds. We conclude that the 99 judge properly admitted testimony from a previous trial of a witness who had died. We conclude that the court properly admitted the opinion of the respondents’ expert on logging operations on the disputed property. And we ultimately conclude that the court’s findings support the necessary elements of adverse possession. We then affirm the judgment of the trial court. FACTS ¶ 2 Eddie E. Acord and Sharon K. Acord and Britton K. Pettit and Lynnette F. Pettit own adjacent property. The Acords’ property is situated to the north of the Pettits’. This dispute is over an approximately 100-foot strip between the two parcels. The contested property is forest land. ¶ 3 The Acords purchased 180 acres of property from Fred and Carol Chandler in September 1991. The Pettits purchased 20 acres of property that borders the Acords’ property to the south from Leigh Robertson on August 21, 2000. ¶ 4 The Pettits obtained a permit to log their property in 2005. Eddie Acord’s son, Walter, then logged his father’s property to a fence line in the contested area. This dispute followed. The Pettits filed a stumpage lien on March 21, 2006, and claimed title to the logs the Acords had harvested between the section line and the fence line. The Pettits sued in small claims court to recover the value of the logs. The Acords responded with a suit to quiet title to the disputed property by adverse possession. They prayed for damages from the timber harvest that the Pettits interrupted and for release of the Pettits’ stumpage lien. ¶ 5 At trial, the Acords planned to use the transcript of earlier testimony of their predecessor, Fred Chandler, to show the necessary use of the disputed strip of land. The earlier 1996 suit by the Acords established ownership by adverse possession against their neighbors to the east, Carl and Donna Thomsen. Fred Chandler had died in the in 100 terim. The Pettits moved to prohibit use of this prior testimony. They argued that his testimony in the previous trial was irrelevant because that suit was over an east-west boundary whereas this suit was over a north-south boundary. And they argued that his previous testimony failed to satisfy the requirements of ER 804(b)(1)1 because they had not been able to cross-examine Mr. Chandler. The Acords responded that Mr. Chandler’s 1996 testimony was relevant to the current case because it included information about when fences on the property were built, by whom, and for what purpose, including that portion of the fence south of the Acords’ property that played a role in the judge’s decision here. The judge agreed with the Acords and ordered publication of the 1996 transcript. ¶ 6 During the earlier 1996 trial, Mr. Chandler testified that he purchased 160 acres from John and Jacqueline Sperber in 1972. In 1974, he purchased an additional 20 acres from Grouse Creek Associates. He testified that the property did not have a fence in 1974 and that he hired Jim Bosingham, a surveyor, to establish the boundary of his property. Mr. Chandler marked the boundary line with a fence after the perimeter was surveyed. Ex. 16, at 11. He testified that he fenced the east line and then continued the fence to the southwest corner of the property, where he continued the fence along his southern line. He testified that he fenced the south side of the property he purchased from Grouse Creek Associates according to the unofficial “survey on the south side of my property at the same time.” Ex. 16, at 34. He testified that when he sold his property to the Acords in 1991, the fence was still in good repair and 101 that he had regularly maintained it once or twice a year. Ex. 16, at 22, 24. During cross-examination in this first trial, he twice reiterated that he fenced his southern border in 1974 and regularly maintained the fence. Ex. 16., at 34, 35, 43. ¶ 7 During the trial giving rise to this appeal, witnesses testified about maintaining the boundary fence. Walter Acord was an adult when his parents bought the property. He testified that he moved to the area in 1996 and that he worked on the southern fence and rebuilt the gate on the south easement road. Eddie Acord also testified that he maintained the southern fence in the disputed area, explaining that he “cut trees off of it and stuck it back up.” Report of Proceedings (RP) at 40. ¶ 8 The Acords presented testimony that the disputed area had been used to cut wood. The Acords presented testimony of an expert, Al Lang. Mr. Lang had worked for the Department of Natural Resources for over 30 years as an engineer, surveyor, and forester. He then worked as a private forest consultant after retirement. At trial, he identified photos of 12 stumps he analyzed in the disputed area. He testified that he compared the stumps between the survey line and the fence line (the area in dispute) with comparable property that had been logged in 1976. He concluded based on this experience and these observations that the stumps in the disputed area had been cut between 1976 and 1980. And he observed that the stumps had been cut to the fence line. ¶ 9 The Pettits objected that the testimony did not pass the Frye2 test because there were no peer reviewed articles to support his method of dating the stumps in the disputed area. The Acords responded that the Frye test did not apply and Mr. Lang simply had to show that he had knowledge and expertise beyond the average person. The court agreed with the Acords and allowed Mr. Lang to testify, “There’s no peer review articles for sure, but again, [Mr. Lang’s] been a 102 forester in Idaho and Washington and he has been working in this part of the area for again about forty years. So for those reasons in the belief that the various environmental factors are much the same, I’ll allow the opinion.” RP at 128. ¶ 10 At the end of the trial, the court entered conclusions of law, including: • The Chandlers and then the Acords had exclusive possession of the Acord property, including the contested area, for a total of 21 years, from 1974 to 1995, as evidenced by the boundary fence to the south, which established exclusive dominion. Clerk’s Papers (CP) at 375-76. • The Acords’ possession was actual and uninterrupted because they lived on the property and the Chandlers and then the Acords made ongoing use of the contested area by logging and by cutting firewood. CP at 376. • The Acords and the Chandlers treated the contested area as “theirs as against the world throughout the statutory period.” They had it fenced and kept the fences maintained. Their overt actions prove the hostility and claim of right element of adverse possession. “Their possession of the wooded area which included the contested area, was clear to the world.” CP at 376. • The acts of the possessors were sufficiently open and notorious to manifest to others a claim to the contested area, given the character of the land. • Vesting of title occurs once the 10-year period of adverse possession is completed. The Acords’ claim to the contested area dates back to 1974, and therefore their interest in the contested area vested in 1984. CP at 377. • Leigh Robertson interrupted the use of the eastern part of the Acords’ property in 1995 by bulldozing the fence. Following this incident, the Acords stopped 103 making use of the eastern part of the contested property. CP at 377. • The Pettits and Leigh Robertson have made exclusive use of the contested area since 1995. The Pettits have adversely possessed the entire contested area since August 2000. CP at 377-78. • The Acords acquired their title to the contested forest land by adverse possession under the law in effect in 1984. RCW 7.28.085 did not take effect until June 11, 1998. CP at 378. The Pettits cannot claim the contested area by adverse possession because they have not made substantial improvements under RCW 7.28.085 and are not record holders. CP at 378. ¶ 11 The court then quieted title to the disputed property to the Acords and released the stumpage lien. The court ordered that the Pettits were “forever barred” from asserting any right or interest to the disputed property. The court also dismissed the Acords’ claim for money damages and attorney fees and costs. DISCUSSION Adverse Possession ¶ 12 Essentially, the Pettits contend that the Acords have not made a sufficient showing to establish ownership by adverse possession based on the evidence that should have been admitted and considered by the court. ¶ 13 To establish their claim of ownership by adverse possession, the Acords had to show possession that had lasted for 10 years and that was (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile. Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984); ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989); RCW 4.16.020. The Acords can also “tack” the possession of a predecessor in interest to establish the use required for adverse possession. Roy v. Cunningham, 46 Wn. App. 409, 413, 731 P.2d 526 (1986); RCW 4.16.020. 104 ¶ 14 Open and notorious requires a showing of use consistent with ownership. Chaplin, 100 Wn.2d at 863. The use and occupancy needs only to be like that of a true owner, considering the land’s nature and location. Id. at 861. Hostile requires a showing that the claimant treated the land as his own for the statutorily required period. Id. at 860-61. Admission of Fred Chandler’s Testimony ¶ 15 Fred Chandler’s testimony, in the earlier 1996 suit, was central to the Acords’ claim of adverse possession. The Pettits contend the court erred by admitting that transcript. They argue that Mr. Chandler’s testimony was inadmissible hearsay prohibited by ER 804(b)(1)3 because the earlier trial related to a different parcel of property and his testimony was not subject to adequate cross-examination. ¶ 16 The admission of this testimony was a discretionary decision vested in the trial judge responsible for trying the case. State v. Mason, 160 Wn.2d 910, 922, 162 P.3d 396 (2007). Our review is therefore for abuse of discretion. State v. DeSantiago, 149 Wn.2d 402, 411, 68 P.3d 1065 (2003). Former testimony of an unavailable witness is admissible if the party against whom it is offered “had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination” when the witness testified. ER 804(b)(1); DeSantiago, 149 Wn.2d at 411. The question facing the judge here was “whether the questioner had a substantially similar interest in asserting that side of the issue.” United States v. DiNapoli, 8 F.3d 909, 912 (2d Cir. 1993). The proceedings did not have to be identical. State v. King, 113 Wn. App. 243, 292, 54 P.3d 1218 (2002). ¶ 17 Also the “predecessor in interest” language of ER 804(b)(1) has been interpreted broadly by federal courts 105 and Washington state courts. Indeed, the courts have dispensed with any technical and narrow definition of the term and instead examine whether the party against whom the evidence was previously offered had an opportunity and similar motive to develop and challenge the testimony by cross-examination. So a previous party having like motive to develop the testimony by cross-examination about the same matter is a predecessor in interest to the present party for purposes of this rule. See State v. Whisler, 61 Wn. App. 126, 135, 810 P.2d 540 (1991) (“no legitimate rationale” to disallow former testimony “so long as the ‘opportunity and similar motive’ requirements of ER 804(b)(1) are met”); Allen v. Asbestos Corp., 138 Wn. App. 564, 579, 157 P.3d 406 (2007) (“the predecessor in interest exception requires the predecessor to have the opportunity to examine the witness”); Lloyd v. Am. Exp. Lines, Inc., 580 F.2d 1179, 1187 (3d Cir. 1978) (“ ‘if it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was accorded an adequate opportunity for such examination, the testimony may be received against the present party’ ” (quoting McCormick’s Handbook of the Law of Evidence § 256, at 619-20 (Edward W. Cleary ed., 2d ed. 1972))); Clay v. Johns-Manville Sales Corp., 722 F.2d 1289, 1295 (6th Cir. 1983) (“ ‘the previous party having like motive to develop the testimony about the same material facts is, in the final analysis, a predecessor in interest to the present party’ ” (quoting Lloyd, 580 F.2d at 1187)). In Clay, the court refused to endorse “ ‘an extravagant interpretation of who or what constitutes a “predecessor in interest,” ’ ” it preferred one “ ‘that is realistically generous over one that is formalistically grudging.’ ” 722 F.2d at 1295 (quoting Lloyd, 580 F.2d at 1187). This commonsense, practical application of this rule can easily be applied by trial judges exercising their discretion in these matters. ¶ 18 ER 804(b)(1) does not mechanically define the extent to which the issues in the former proceeding must 106 correspond to the issues in the later proceeding. And published cases suggest that the issues need not be identical. King, 113 Wn. App. 243 (videotape testimony of witness’s former testimony held admissible even though issues not identical); Bailey v. S. Pac. Transp. Co., 613 F.2d 1385 (5th Cir. 1980) (testimony of former victim of a similar accident at same railroad crossing allowed); Young v. Key Pharm., Inc., 63 Wn. App. 427, 819 P.2d 814 (1991) (testimony of former witness in almost identical products liability case allowed). ¶ 19 The Pettits argued that they had no predecessors in interest because the southern boundary of the Acords’ property was not an issue in the former case and therefore there was no motive for thorough cross-examination of Fred Chandler relating to evidence about the southern line. CP at 294-99. The judge reviewed significant portions of that testimony on the record and concluded that the Thomsens’ interest and motives in examining Fred Chandler “were the same as those of the party against whom the witness’ testimony is later offered.” RP at 297-303. And he found that “[t]he motive was to call into question how the fence was constructed, what the purpose of the fence was, where it was put down.” RP at 302. ¶ 20 We conclude then that the court’s reasons for admitting this prior testimony were tenable. See O’Banion v. Owens-Corning Fiberglas Corp., 968 F.2d 1011 (10th Cir. 1992) (no error in admission of trial testimony given by an expert in a former case where the plaintiffs’ predecessors in interest had an opportunity to thoroughly develop the expert’s testimony through cross-examination at trial). The Thomsens, who were defending an adverse possession claim to the Acords’ east line, had a similar opportunity and motive to challenge Fred Chandler’s statements pertaining to how he established his east and south lines based upon the construction of fences along the east and south lines of the Chandler (now Acord) property. ¶ 21 The same fence was implicated in both cases, and questions as to its location, when it was built, and how often 107 it was maintained were then relevant in both trials. The attorney for the defendants in the earlier adverse possession suit cross-examined Mr. Chandler about the relevant details of the fence. He questioned about when it was built and how often it was maintained. Ex. 16, at 32-44. Elements of Adverse Possession ¶ 22 The court concluded that this boundary fence was evidence that the Chandlers and their successors in interest, the Acords, had exclusive possession of the Acord property, including the contested area, for 21 years, starting in 1974. The court relied in part on Wood v. Nelson,4 There the court held that a fence that had separated property for more than 10 years, combined with the possessor occasionally cutting wild grass up to the fence line, was sufficient to constitute adverse possession. Because “[a] fence is the usual means relied upon to exclude strangers” and exclusion is another indication of possession, the existence of a fence is dispositive. The court in Wood also concluded that [w]here a fence purports to be a line fence, rather than a random one, and when it is effective in excluding an abutting owner from the unused part of a tract otherwise generally in use, it constitutes prima facie evidence of hostile possession up to the fence. 57 Wn.2d at 541 (emphasis omitted). ¶ 23 The Pettits argue that the fence here was not a boundary fence but “a pre-existing containment fence constructed . . . prior to Mr. Chandler’s ownership.” Br. of Appellants at 7. They argue that without Mr. Chandler’s testimony, there is no evidence to support the court’s finding that Mr. Chandler constructed a fence on the property. And, while that is certainly a tenable argument, it is one that was ultimately rejected by the trial judge. The judge rejected both the argument that Mr. Chandler’s 108 testimony was inadmissible and the Pettits’ arguments on the significance of that testimony, and he was privileged to do just that. Rognrust v. Seto, 2 Wn. App. 215, 221, 467 P.2d 204 (1970), overruled on other grounds by Chaplin, 100 Wn.2d 853. ¶ 24 There was more than ample evidence to support the court’s finding that a fence existed on the property in 1974. First, a number of surveys confirm the existence of the fence. A 1997 survey shows the east fence along the eastern boundary of the Acords’ Tax Parcel No. 5230475 extending into the Pettit parcel to the South. Ex. 10. A 2003 survey shows the south fence extending into the Pettits’ property from the west. Ex. 11. A 2004 survey of the northeast quarter of section 7 shows an “existing fence” running east to west and located just south of the section line. Ex. 104. And, in his written report, Mr. Lang noted, “An established fence has been the common boundary of this line between various past landowners. A survey .. . placed the line 100+ feet to the North of this common established fence line.” CP at 123. Both Walter and Eddie Acord testified that they maintained the fence. And Mr. Chandler testified about the construction and maintenance of the southern boundary fence; he said it was built in 1974 and that he regularly maintained it. ¶ 25 The Pettits point to the testimony of Fred Chandler’s son and stepdaughter, Brian Chandler and Jill Metlow, to show that the fence in question was not a boundary fence. Brian Chandler testified that he lived on the property from 1971 until 1987 and denied any knowledge of who built or maintained the fence on the southern part of the property. He also testified that he was only four years old in 1972. Ms. Metlow testified that she was 14 years old when she moved onto the property in 1971 with her parents. She testified that the fence on the southern part of the property was not serviceable and denied that her family built the fence. She also testified that she married in 1973 and moved away from the property. But none of this is 109 helpful here on review. The credibility of these witnesses, the weight to be attached to their observations and opinions, and the persuasiveness of the evidence were all matters for the judge trying the case, not us. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). ¶ 26 And the judge considered the testimony of Mr. Chandler’s children but found Mr. Chandler’s testimony more persuasive. He noted that Brian Chandler was only 6 or 7 years old when his father built the fence and that Ms. Metlow had already moved away. He noted that “[t]he father and property owner, Frank Chandler, operated a dairy farm in his years on the property. He was in a better position than his son and stepdaughter to know whether the boundaries were measured and a boundary fence erected.” CP at 372. The court found that Mr. Chandler’s testimony was clear on relevant points, particularly that the fence around his property was meant to establish a boundary. The Acords produced sufficient evidence to establish that a fence existed and had been considered a boundary fence. The existence of that fence was dispositive evidence of “hostile” possession. Wood, 57 Wn.2d at 540; Chaplin, 100 Wn.2d at 861. The fence was built in 1974, was visible to others, and was kept in good repair. The fence was treated as a boundary line, not a random line, and is therefore a “ ‘clear assertion of possession and dominion.’ ” Danner v. Bartel, 21 Wn. App. 213, 216, 584 P.2d 463 (1978), overruled on other grounds by Chaplin, 100 Wn.2d at 861. ¶ 27 The Chandlers’ and the Acords’ use of the disputed property was also consistent with the character and nature of the property. This was forest property. The Chandlers and the Acords cut trees and firewood in the area. Mr. Chandler testified that he cut trees in the disputed area around 1984 (Ex. 16, at 13), and Mr. Acord testified that he cut firewood in the disputed area from the time of purchase to the late 1990s. Walter Acord testified that he logged to the south side of his father’s property in 1997 and again in 2006. Indeed, the 2006 logging operation 110 precipitated this litigation. Mr. Lang testified that the disputed area had been logged between 1976 and 1980, which brings us to our next point. Expert Testimony ¶ 28 The Pettits challenge the court’s finding that the area was logged from 1976 to 1980. They argue that the “sole basis for the alleged logging in the contested area was speculation by an expert, Al Lang.” Br. of Appellant at 20. They characterize Mr. Lang’s opinion testimony as “junk science” and contend, as they did in superior court, that the judge should have excluded his testimony as inadmissible under Frye. Id. ¶ 29 Evidence derived from a scientific theory is admissible only if the theory has general acceptance in the relevant scientific community. State v. Copeland, 130 Wn.2d 244, 256-57, 922 P.2d 1304 (1996). However, a Frye analysis need not be undertaken to admit evidence that does not involve new methods of proof or new scientific principles from which the conclusions are drawn. State v. Russell, 125 Wn.2d 24, 69, 882 P.2d 747 (1994); Bruns v. Paccar, Inc., 77 Wn. App. 201, 215-16, 890 P.2d 469 (1995) {Frye inapplicable to expert testimony that low levels of chemicals found in the cab of new truck could produce low level sensory irritation experienced by drivers because experts relied on established scientific methods of air sampling, chemical analysis, clinical examination, and questionnaires). ¶ 30 The Pettits mischaracterize Mr. Lang’s opinion evidence as “novel” scientific evidence, requiring a showing of acceptance in the scientific community. It is not, and they made and make no showing that it is. Mr. Lang was clearly a well educated and a very experienced forester. He was then clearly qualified as an expert. He compared the appearance and condition of tree stubs and explained in some detail how those comparisons were made, why the stubs had the appearance they had, and what, in his 111 opinion, was the significance of all of this. That is classic expert testimony. Reese v. Stroh, 128 Wn.2d 300, 308, 907 P.2d 282 (1995). And it was admissible if, in the judge’s opinion, it would help the trier of fact. Id. To characterize these opinions and the basis of those opinions as junk science or scientifically novel is to mischaracterize them. The Pettits made no attempt to show that the factual basis for the opinions (the appearance and location of the stumps) was inaccurate or that the conclusions Mr. Lang drew from that data were illogical, unfounded, or scientifically novel. So whether the testimony was admissible turned therefore on the application of ER 702 (testimony of experts). ¶ 31 Again, the judge had broad discretion here. Miller v. Likins, 109 Wn. App. 140, 147, 34 P.3d 835 (2001). “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” ER 702. Application of the rule raises two questions: (1) does the witness qualify as an expert and (2) would the witness’s testimony be helpful to the trier of fact. State v. McPherson, 111 Wn. App. 747, 761, 46 P.3d 284 (2002). “ ‘[Practical experience is sufficient to qualify a witness as an expert.’ ” Id: at 762 (alteration in original) (quoting State v. Ortiz, 119 Wn.2d 294, 310, 831 P.2d 1060 (1992)). ¶ 32 Mr. Lang easily passes this test. He had worked for 30 years at the Department of Natural Resources as an engineer, surveyor, and manager of 186,000 acres of timber. He worked for over 15 years as a private forestry consultant. He carefully laid out the basis for his opinions. He testified in some detail about his method of comparing tree stumps on the disputed area with a comparable region along the Spokane River with a similar habitat. He explained that the weather conditions and rotting factors in the two regions were similar and that he is familiar with the region because he has lived and worked in the area 112 since 1966. Mr. Lang’s testimony helped the court determine the time frame of logging on the disputed area. There was no abuse of discretion here. Application of RCW 7.28.085 Substantial Improvement ¶ 33 The Pettits contend that the court should have required that the Acords show evidence of “substantial improvement” on the disputed property to satisfy the requirements of RCW 7.28.085(1) (requiring “substantial improvements” to prove adverse possession of forest land after 1998). They argue that the “Acords cannot prove an adverse claim by their own use in the 6-2/3 years between their October 1991 move to the property and the June 1998 effectiveness of RCW 7.28.085.” Br. of Appellants at 15. They argue that there is no evidence of adverse use by the Acords’ predecessors and therefore the Acords have nothing to “tack” to their deficient 62/3 years of use. Id. ¶ 34 The court concluded, on ample evidence, that the Acords’ claim to the contested area dates to 1974 when Mr. Chandler installed the boundary fence. And RCW 7.28-.085(4) provides that the statute does “not apply to any adverse claimant who, before June 11, 1998, acquired title to the lands in question by adverse possession under the law then in effect.” Here, title vested in 1984, 14 years before the June 11, 1998 deadline set out in RCW 7.28-.085(4). See El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 855, 376 P.2d 528 (1962) (“When real property has been held by adverse possession for 10 years, such possession ripens into an original title.”). The El Cerrito court also noted that once a person acquires title by adverse possession, he or she can transfer it to another party without having title quieted in him or her prior to the conveyance. Id. The Acords’ title by adverse possession up to the existing fence line vested in 1984, and they are not subject to the requirements of RCW 7.28.085(1). 113 Pettit Adverse Possession ¶ 35 The Pettits also contend that even if the Acords had at some point acquired title to the property by adverse possession, they regained it through their use, color of title, and the Acords’ abandonment of the property. ¶ 36 The court concluded that the Pettits and Leigh Robertson, starting in 1995, made exclusive, actual and uninterrupted, open and notorious use of the eastern part of the contested area. It also concluded that the Pettits adversely possessed the entire contested area since August 2000. CP at 377-78 (Conclusion of Law G). However, citing to RCW 7.28.090,5 the court further concluded that the Pettits cannot claim the contested area by adverse possession because they have not made the now statutorily required “substantial improvements” within the contested area. CP at 378 (Conclusion of Law H). The court concluded that they are not holders of record title because a registered land surveyor has not established the boundaries of their property. CP at 378 (Conclusion of Law H). The Acords challenge, as unsupported by the evidence, the court’s conclusion that the Pettits otherwise met the elements of adverse possession. ¶ 37 The Pettits do not assign error to conclusion of law G; however, they assign error to conclusion of law H and contend they were not “adverse claimants” because they had record title to the property. And the court therefore erred in applying the substantial improvement required by RCW 7.28.085(1) since it applies only to those who claim ownership by adverse possession. ¶ 38 The Pettits refer to Exhibits 10,11, and 104 to show that the boundary between the properties was established by recorded surveys. They are mistaken. The 1988 survey by Thomas E. Todd surveys the Acords’ north property line 114 and notes, “No monument found or set.” Ex. 104. Mr. Todd’s 1992 survey shows the south corner with the notation “[N]o monument found or set.” Ex. 104. The 1997 survey by Thomas Todd again shows the notation at the south quarter corner, “[No] monument found or set.” Ex. 10. And the 1997 survey by Richard Bard shows the east boundary of the Acord property and notes, “No monument found.” Ex. 104. A 2004 RFK Land Survey of the Stimson property, west of the Pettits’ land, set the north quarter corner of section 6. Ex. 11. But there is no evidence that the common boundary line between the Acord and Pettit properties has ever been surveyed. They have shown neither the substantial improvements on the disputed property required by RCW 7.28.085 nor stakes and boundary markers that might relieve them of that obligation. ¶ 39 The court then correctly concluded that the Pettits failed to establish adverse possession. Attorney Fees ¶ 40 Both parties request attorney fees on appeal. The Pettits argue that the Acords are liable to the Pettits for investigation and litigation costs as well as reasonable attorney fees. The Acords contend they are entitled to fees under RAP 18.1 and RCW 4.84.080(2). They also request their costs of appeal pursuant to RAP 14.2 and 14.3. ¶ 41 Under RAP 14.2, we may award costs to the prevailing party. The trial court found that both parties prevailed on major issues in this case and therefore declined to award costs to either party. We agree. Both parties partially prevailed but neither one substantially prevailed. Accordingly, neither party is entitled to attorney fees or costs under the cited provisions. In re Marriage of Goodell, 130 Wn. App. 381, 122 P.3d 929 (2005) (declining to award attorney fees where neither party was the substantially prevailing party). 115 ¶ 42 We affirm the judgment of the trial court and refuse to award fees and costs on appeal. Brown, J., concurs. Footnotes [1] ER 804 states: (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. [2] Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). [3] Declarant unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity. [4] Wood v. Nelson, 57 Wn.2d 539, 540, 358 P.2d 312 (1961). [5] The court cited RCW 7.28.090 when referencing “substantial improvements.” Viewed in context, the court intended to cite RCW 7.28.085.