Peeples v. Port of Bellingham

Andersen, A.C.J.— Facts of Case Titleholders of approximately 2 1/2 acres of Blaine Harbor tidelands appeal from a judgment quieting title in the [822] Port of Bellingham by adverse possession.1 The tidelands in issue were purchased by the titleholders predecessor in interest at a tax sale in 1946.2 In 1956, the same tidelands along with adjacent ones were conveyed by the City of Blaine by quitclaim deed to the Port of Bellingham. This was in connection with a program of major improvements to Blaine Harbor which was carried out in 1957. The improvement program contemplated that the entire harbor area would be owned by the port and enclosed by a protective breakwater. A 1962 aerial photograph (exhibit 23) is illustrative. The harbor is depicted with the tidelands in question appearing as marked in the upper right-hand quadrant of the harbor area as shown in the photograph. In 1974, the titleholders commenced a quiet title action against the port and the port counterclaimed asking similar relief. The trial court held for the port and the titleholders bring this appeal. One ultimate issue is presented. Issue Did the trial court err in concluding that the port had acquired title to the disputed tidelands by adverse possession? Decision Conclusion. The trial court did not err in quieting title to the property in the port on the basis that it did. Following a trial to the court, the trial court found as to the tidelands in issue that: a rip rap breakwater had been constructed by the port on one side of it; a pile and plank bulkhead had been constructed on the other side of it; a [823] channel 80 feet wide and 10 feet deep had been dredged across it; and that either the port or the contractor had caused one or more dolphins to be erected on it which were periodically used to anchor net-tending barges and other vessels. The trial court concluded that this work was done in approximately 1957, and thereafter the port was in uninterrupted possession of the property in question and its use thereof had been open, notorious, hostile, exclusive and [824] under a claim of right made in good faith for oyer 10 years.3 Conflicting evidence in the record supports the trial court's findings. Since we are not a fact-finding court, we must therefore accept the findings as verities for the purpose of this appeal even though a persuasive argument can be made that the facts should have been found otherwise. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959). The determinative legal issue is whether the findings sustain the conclusion that the port is entitled to title to the tidelands by right of adverse possession under RCW 4.16.020, the 10-year statute, which we consider to be the determinative statute. In Hunt v. Matthews, 8 Wn. App. 233, 505 P.2d 819 (1973), we summarized the legal principles which control in applying this statute to the facts of a particular case: Were the actions of the one claiming title by adverse possession sufficiently apparent and blatant to give notice to the original title holder that he was being challenged? The acts constituting the warning which establishes notice must be made with sufficient obtrusiveness to be unmistakable to an adversary, not carried out with such silent civility that no one will pay attention. The intention to claim title to an area must be objectively exhibited by the claimant. Brown v. Hubbard, 42 Wn.2d 867, 259 P.2d 391 (1953). Uninterrupted, open, notorious, hostile and exclusive possession for 10 years is required. Krona v. Brett, 72 Wn.2d 535, 433 P.2d 858 (1967); El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 376 P.2d 528 (1962); Rognrust v. Seto, 2 Wn. App. 215, 467 P.2d 204 (1970). Real property will be taken away from an original owner by adverse possession only when he was or should have been aware and informed that his interest was challenged. See Roesch v. Gerst, 18 Wn.2d 294, 138 P.2d 846 (1943). Whether actions are open, notorious and hostile is a question of fact to be decided by the trier of the fact. Northwest Cities Gas Co. v. Western Fuel Co., 13 Wn.2d [825] 75, 123 P.2d 771 (1942); Spear v. Basagno, 3 Wn. App. 689, 477 P.2d 197 (1970). The decision is made within the context of the locality, the nature and character of the property and the use made of it. Frolund v. Frankland, 71 Wn.2d 812, 431 P.2d 188 (1967). When a claimant does everything a person could do with particular property, it is evidence of the open hostility of his claim. If he does less, the trier of the fact is justified in concluding that an owner would not be expected to take alarm from such random activity. Grays Harbor Commercial Co. v. McCulloch, 113 Wash. 203, 210, 193 P. 709 (1920). Hunt v. Matthews, supra at 236-37. Here the trial court found all of the elements required to establish title in the port by adverse possession under the statute. Butler v. Anderson, 71 Wn.2d 60, 64-65, 426 P.2d 467 (1967); Hunt v. Matthews, supra. The enclosure of the tidelands in question by the port, graphically, portrayed in the aerial photograph which is included herein, was complete, open, notorious and in every way appropriate to fit the premises for port purposes. 3 Am. Jur. 2d Adverse Possession § 43 (1962); 2 C.J.S. Adverse Possession § 36 (1972). In a legal sense, the enclosure "unfurled the flag of hostile ownership." Drumheller v. Nasburg, 3 Wn. App. 519, 524, 475 P.2d 908 (1970). The enclosure was coupled with other acts of use by the port appropriate to the nature and character of the tidelands, such as dredging the channel across it, using fill from it and constructing a dolphin or dolphins on it which were periodically used for vessel moorage. As one port commissioner who had been in office since 1955 testified, we made all of the use of the tide flats that you could make of any tide flats. The sum and substance of all of these acts, considered together, were sufficient to establish adverse possession in the port. Hunt v. Matthews, supra; 3 Am. Jur. 2d Adverse Possession, supra; 2 C.J.S. Adverse Possession, supra. Affirmed. Callow, J., concurs. Footnotes [1] The City of Blaine has been dismissed as a party to this appeal by stipulation. [2] The appellants' predecessor in interest paid $21 for the tidelands at a 1946 tax sale; the highest real estate taxes paid on the property, insofar as the record before us reflects, was $8.96 paid in 1973; and in this litigation, the appellants claim that the property has a value of $150,000. [3] Findings of fact labeled conclusions of law will nevertheless be treated as findings of fact. Redmond v. Kezner, 10 Wn. App. 332, 343, 517 P.2d 625 (1973).