Faubion v. Elder
301 P.2d 153 · Washington Supreme Court · 1956
Facts
Arthur Elliott purchased a section of land around 1903 and erected a north-south fence, later an east-west fence, dividing it into four apparent quarter sections. The north-south fence was rebuilt in 1916 and remained in place until 1953. Upon Arthur Elliott's death in 1937, the southwest quarter was devised to his son, Bert Elliott, and the southeast quarter to his daughter, the respondent. In 1938, Bert Elliott leased the entire south half of the section to the appellant, who farmed up to the north-south fence, paying landlord's shares based on the fence being the boundary. The appellant continued farming the land up to the fence, eventually purchasing the east half of the southwest quarter in 1951. In 1952, the respondent questioned the fence's location and ordered surveys, which indicated the true boundary was west of the fence, creating a disputed 4.5-acre strip. The respondent had the fence removed in 1953, but the appellant continued farming up to the former fence line.
Procedural history
The plaintiff (respondent) initiated an action to quiet title to a strip of land and sought to have a commission establish the true boundary. The defendants (appellant) asserted title by adverse possession through an affirmative defense and cross-complaint. The trial court found the boundary lost, ruled that adverse possession was not established, and appointed a commission to survey the boundary. The defendants appealed this judgment.
Issue
Did the trial court err in finding that the appellant had not established adverse possession of the disputed strip of land, given that the fence was mistakenly believed to be the true boundary and the predecessors in interest were relatives?
Holding
Yes, the trial court erred. The evidence established the appellant's claim to the disputed strip of land by adverse possession, and the judgment is reversed with directions to dismiss the respondent's action and quiet title in the appellant.
Rule
Adverse possession can be established even if a boundary fence was originally located by mistake, provided the claimant openly and notoriously evinced the necessary intention to claim the land up to that fence. The intention to claim land as its owner is primarily evidenced by the acts of the user, such as exercising full dominion and control over the strip for more than the statutory period, including farming and taking crops. Title by adverse possession can be acquired through a tenant acting as an agent. Successive periods of adverse occupation can be united or 'tacked' to meet the statutory time if there is privity between the occupants. The fact that predecessors were relatives does not prevent adverse possession if they held separate titles and were not cotenants.
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