Types of Proof Required for Adverse Possession
Washington Courts recognize a number of doctrines which allow property owners to quiet title to property and establish new boundary lines, even in the face of a conflicting survey. The most well-known doctrine is adverse possession. Several others include estoppel in pais, parol agreement, and mutual recognition and acquiescence (“mutual acquiescence”). These doctrines contain their own unique characteristics. However, several contain overlapping elements which require similar kinds of proof.
For instance, both adverse possession and mutual acquiescence generally require a showing of certain use of the claimed property for a period of ten years. In short, an attorney’s analysis of one doctrine likely applies to another and the same types of evidence may be gathered to support the related doctrines. Nonetheless, it is important to disassociate the doctrines and separately address each doctrine’s distinct attributes from inception of the lawsuit. Failure to do so may prevent use of the most pertinent doctrine at the summary judgment or trial stage. For instance, in a recent case, plaintiffs prevailed on the theory of mutual acquiescence even where they had only pled claims of adverse possession. Green v. Hooper, 149 Wn. App. 627, 205 P.3d 134 (2009).
The plaintiffs, having failed on their adverse possession claims, finally raised their mutual acquiescence theory on the third and final day of the trial. The trial court, over strenuous objection by the defendants, reasoned that the plaintiffs’ claim of adverse possession was sufficient to put the defendants on notice of the doctrine of mutual acquiescence – given the similar elements of the doctrines and congruous burdens of evidentiary proof. The trial court’s rational was tentatively supported by decisions coming out of Division Two of Washington’s Court of Appeals. That Court has, on previous occasions, stated mutual acquiescence “supplements” the doctrine of adverse possession. See e.g. Lilly v. Lynch, 88 Wn. App. 306, 316, 945 P.2d 727 (1997). The defendants appealed the trial court’s ruling, arguing mutual acquiescence must be separately pled from adverse possession. Division Three of the Court of Appeals agreed. “The doctrine of mutual recognition and acquiescence does not ‘supplement’ adverse possession in the sense that it is contained within a pleaded cause of adverse possession and it is not sufficient, without expressly being pleaded, to give fair notice to a defending litigant where judgment is being sought solely on the theory of adverse possession.” Green, 149 Wn. App. at 640. In so holding, the Green court gave fair-warning to litigants proceeding on alternative, but often interrelated, doctrines commonly used by Washington Courts to settle boundary disputes. Ultimately, plead each doctrine separately to ensure preservation of the most appropriate doctrine for trial.
