IN THE COURT OF APPEALS OF THE STATE OF WAS DIVISION II WILLIE E. YOUNG, a widow, Respondent,

MA MICHAEL A. CALLAHAM and DIXIE D. CALLAHAM, husband and wife, No. 43834 - 8 F11 ED CO T OF APPErILS DIVi -,10I- ii 261 HAR 1 ! 

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UNPUBLISHED OPINION

WORSWICK, C.J. — Michael and Dixie Callaham appeal the trial court' s ruling, which 

### quieted title in favor ofWillie Young to an 11 foot wide strip of land between Young's western parcel and the Callahams' eastern parcel. The Callahams argue that they acquired title to the 

### strip by adverse possession. We affirm because thetrial court's unchallenged findings offact support its conclusion that the Callahams did not acquire title to the strip by adverse possession. FACTS 

### Willie Young owned aparcel ofland in Tacoma, on which she had lived since 

### approximately 1970. This parcel abutted aparcel to the east, which was laterpurchased bythe Callahams. An old fence was located on Young' s parcel; which was built prior to Young' s purchase. This old fence ran from north to south, 11 feet west ofthe legal property line 

### separating Young' s western parcel from the eastern parcel. This created an 11 foot wide strip of land between the old fence and the legal property line. 

### Prior to 1997, Young replaced the old fence with a new fence. Young intentionally built her replacement fence on the same location as the old fence ( 11 feet west of the legal propertyNo. 43834 - 8 -II line between the eastern and western parcels) because she did not want her children and grandchildren to fall into awell that she had been told was located immediately east ofthe fence. 

### Young occasionally dumped yard waste into the strip and picked berries growing there. In 1997, Michael and Dixie Callaham bought the property to the east ofYoung with the intent to build a house upon it. However, the Callahams lived on another parcel ofproperty, which was adjacent to the one they purchased in 1997. In 1998, the Callahams cleared their 

### parcel ofits shrubbery. Some ofthat removed shrubbery may have been located on the strip. The Callahams also installed a culvert in a ditch that ran along the north side ofthe eastern parcel, and laid gravel. A portion ofthe culvert and gravel occupied the strip. 

### In 2002 and 2003, the Callahams dug holes into the ground in order to conduct a 

### percolation test on the eastern parcel. Up to three ofthe holes dug in 2003 may have been 

### located in the strip. The eastern parcel failed the percolation test, forcing the Callahams to change their plans from building a house on the eastern parcel to using the eastern parcel as an extension oftheir main home' s back yard. Google Earth pictures ofthe western and eastern parcels taken in May of2005, November of2007, April of2009, and June of2010, showed vegetation growing in the eastern 

### parcel, but did not show any structures, equipment,vehicles, or evidence ofhuman activity.' The trial court found, "The Callahams did not offer any photographs, or other physical or documentary evidence, that they used [the eastern parcel] - or, in particular the [strip] for any 

### purpose after conducting the failed [percolation] tests in 2003 until they removed Young's fence Google Earth is a computer program that allows the user to view satellite images ofthe earth, 

### with a level ofdetail allowing one to view individual properties in the United States. Overview ofGoogle Earth, Google (February 7, 2014), https: Hsupport.google.. com/earth/answer/ I 76145?hl=en.
2No. 43834 - 8 -II
in 2010." Clerk' s Papers ( CP) at 316. The trial court found that the Callahams' lot was vacant 

### during the period oftime between May of2005 and June of2010. 

### In July of2010, the Callahams began to build on the eastern parcel in earnest. While 

### building onthe eastern parcel,the Callahams accidently knocked down a portion ofYoung' s fence. Atthis time, the Callahams acquired Young' s permission to replace Young' s fence, and did so. The discussion to acquire Young' s permission to replace the fence was the first 

### conversation between Young and the Callahams regarding the property line' s location. In 2010, Young's daughter informed the Callahams that Young wanted the fence moved east eleven feet to the legal property line. The Callahams refused to move the fence, but offered to pay Young $2,000 to $2,500 forthe strip. Young sued the Callahams to quiet title to the strip. The Callahams countersued on 

### grounds thatthey had acquired title to the strip by adverse possession. Following abench trial, the trial court ruled that the Callahams did not acquire the strip by adverse possession. The trial court made the following conclusion of law excerpted in relevant part: The Callahams] have failed to show that they have acquired title by adverse possession. Since 2003, the Callahams claim to have considered the vacant lot to 

### which the disputed property is adjacent, as part ofthe back yard oftheir residence. But they havefailed to provide evidence that they maintained or used the property in thefashion ofa residential backyard Instead,such use ofthe property as they have provided evidence has been non - continuous and irregular. Furthermore, the 

### uncontroverted evidence shows that Young built [Young' s] fence to prevent her children and grandchildren from playing on land she considered hazardous — specifically [ because of the] well.... [ 

### Young] continued to use the disputed 11 feet by disposing ofyard waste [ and] picking blackberries.No. 43834 - 8 -II CP at 318 ( emphasis added). The trial court quieted title to the strip in favor ofYoung. The Callahams appeal.2 ANALYSIS 

### The Callahams do not assign error to any ofthe trial court' s findings offact, arguing only 

### that the trial court erred in concluding thatthe Callahams did not acquire title to the strip by 

### adverse possession. The Callahams argue thatthey adversely possessed the strip from the date
that they purchased the eastern parcel in June of 1997 until May of 2011. We disagree.3 We analyze adverse possession as a mixed question of law and fact.. Chaplin v. Sanders, 100 Wn.2d 853, 863, 676 P. 2d 431 ( 1984). The existence ofthe essential facts is for the trier offact to decide. Chaplin, 100 Wn.2d at 863. However, whetherthose facts, as the trier offact found them, constitute adverse possession is a legal question forthis court. Chaplin, 100 Wn.2d at 863. 

### We review legal conclusions de novo, determining whetherthe trial court' s findings support its conclusions. Bingham v. Lechner, 111 Wn.App. 118, 127, 45 P.3d 562 (2002). Interpretation or construction ofatrial court' s findings offact is a question of law. In re Marriage ofStern, 57 Wn. App. 707, 712, 789 P. 2d 807 ( 1990). Unchallenged findings are

verities on appeal. 

### Yousoufian v. Office ofRon Sims, 168 Wn.2d 444, 450, 229 P.3d 735 (2010).

2 

### Attrial, the Callahams also claimed thatthey had acquired title to the strip by acquiescence and estoppel in pais. The trial court ruled against the Callahams on both ofthese claims. However, 

### the Callahams only appeal their claim for adverse possession.
3 

### Young argues thatthe Callahams waived their challenge to conclusion oflaw B -1, which concluded that Young has title to the strip. But,title to the strip turns on whetherthe Callahams 

### adversely possessed the strip, and this is the issuethe Callahams raise on appeal. Thusthe Callahams' argument regarding adverse possession sufficiently addresses the trial court' s conclusion that Young has title to the strip.No. 43834 - 8 -II When the trial court' s findings are susceptible of two constructions, one that supports the conclusions of law and one that does not, we construe the findings in the manner that supports the trial court' s conclusions of law. Lincoln Shiloh Assocs., Ltd.v. Mukilteo Water Dist.,45 Wn. App. 123, 131, 724 P. 2d 1083 ( 1986). We do not read words or phrases from the findings and conclusions in isolation but, instead, read the findings and conclusions as a whole to ascertain 

### their meaning. See Callan v. Callan, 2 Wn.App. 446, 449, 468 P.2d 456 ( 1970). Under adverse possession, a person without color oftitle acquires legal title to another' s land if,for at least 10 continuous years, he or she possesses the land in a manner that is ( 1) actual

and uninterrupted, (2) open and notorious, (3) exclusive, and (4) hostile. See RCW 4. 16.020( 1); Gorman v. City ofWoodinville, 175 Wn.2d 68, 71 -72, 283 P.3d 1082 (2012). The law does not 

### favor prescriptive rights, and as such the party claiming adverse possession (here the Callahams) 

### must prove each element by a preponderance ofthe evidence to prevail. Standing Rock Homeowners Assn v. Misich, 106 Wn. App. 231, 238 -39, 23 P. 3d 520 ( 2001); Teel v. Stading, 

### 155 Wn.App. 390, 393 -94,228 P.3d 1293 (2010). We hold that the findings offact support the conclusion that the Callahams failed to 

### prove thatthey possessed the land forten consecutive years in a manner thatwas continuous and uninterrupted, open and notorious, or exclusive. I. CONTINUOUS AND UNINTERRUPTED POSSESSION The Callahams argue that the trial court erred because it applied the wrong legal standard 

### by ruling thatthe Callahams' use ofthe strip hadto be in the "fashion ofa residential backyard." Br. of Appellants at 13. We disagree.

5No. 43834 - 8 -II Under adverse possession, the possessor must possess the land in a manner that is actual 

### and uninterrupted for the statutory period often years. Gorman, 175 Wn.2d at 71 -72. This standard is the standard thatthe trial court applied to the Callahams' case. The trial court said that the Callahams' claim fails because the Callahams " failed to 

### provide evidence thatthey maintained or used the property in the fashion ofa residential back
yard." CP at 318. However, a more complete quote shows that the trial court applied the correct

standard: " Since 2003, the Callahams claim to have considered the vacant lot to which the 

### disputed property is adjacent, as part ofthe backyard oftheir residence. Butthey have failed to provide evidence thatthey maintained or usedthe property in the fashion ofa residential back yard. Instead,such use oftheproperty as they haveprovided evidence has been non - continuous

and irregular." CP at 318 ( emphasis added). Therefore, the trial court applied the proper standard to find that the Callahams' use oftheir land was not continuous and uninterrupted, and thus the trial court did not err.11. OPEN AND NOTORIOUS POSSESSION 

### The Callahams argue thattheypossessed the strip in an open and notorious manner for ten consecutive years. We disagree. The " open and notorious" element ofadverse possession requires proofthat (1) the true owner had actual notice ofthe adverse use throughout the statutory period, or (2) the claimant 

### used the land in awaythat would lead a reasonable person to assume the claimant was the

owner. Shelton v. Strickland, 106 Wn.App. 45, 51 -52, 21 P. 3d 1179 (2001). The necessary 

### occupancy and use need be ofthe characterthat atrue ownerwould assert in view ofthe 

### property's nature and location. Anderson v. Hudak, 80 Wn.App. 398, 403, 907 P.2d 305 ( 1995).

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### The trial court properly concluded from its findings that the Callahams failed to prove thatthey possessed the land in an open and notorious manner for ten consecutive years. The trial court found that the Callahams did not discuss the property line with Young 

### until 2010. This supports that Young did not actually knowthat the Callahams claimed to possess the land until 2010. Thus to establish open and notorious possession, the Callahams 

### have to prove thatthey possessed the land in a mannerthat would lead a reasonable person to assume thatthe Callahams owned the strip. Shelton, 106 Wn.App. at 51 -52. The Callahams purchased the land in 1997. The trial court found that the Google maps showed no structures, equipment, vehicles, or evidence ofhuman activity from May of2005 through June of 2010. The trial court further found, "The Callahams did not offer any photographs, or other physical or documentary evidence, that they used the [ eastern parcel] - or, in particular the [ strip] - 

### for any purpose after conducting the failed [percolation] tests in 2003

until they removed Young' s fence in 2010." CP at 316. 

### The Callahams dug holes that may have been located in the strip fortheir 2003 percolation test. However,those holes were dug priorto2005, and the findings do not support that the Callahams maintained the holes beyond the time thatthey discovered thatthey failed the percolation test in 2003. 

### Part ofthe Callahams' culvert and gravel were on the strip. However, because these 

### items occupied only afraction ofthe strip, it constituted an incursion onthe land thatwas fartoo minor to constitute an open and notorious possession, because it would not signal to a reasonable person that the Callahams owned the strip.

7No. 43834 - 8 -II 

### The trial court's finding thatthe Callahams did not use the eastern parcel between May of 2005 and June of2010, in combination with its finding that the Callahams purchased the eastern parcel in 1997, supports the conclusion that the Callahams did not prove by a preponderance of 

### the evidence thatthey had ten years ofpossession in a manner thatwas open and notorious. Thus the trial court did not err in concluding that the Callahams failed to prove with a 

### preponderance ofthe evidence that they possessed the land in a mannerthatwas open and notorious for ten consecutive years.III. EXCLUSIVE POSSESSION 

### The Callahams argue that their possession ofthe strip was exclusive. We disagree. The " exclusive" element of adverse possession requires proofthat an adverse possessor' s dominion over the land was as exclusive as the community would expect of an ordinary title owner in light ofthe land' s nature and location. Crites v. Koch, 49 Wn.App. 171, 174, 741 P.2d 1005 ( 1987). Ifthe adverse possessor allows the title owner an occasional transitory use as the 

### communitywould expect an average ownerto allowa neighbor, possession is likely exclusive. Lilly v. Lynch, 88 Wn. App. 306, 313, 945 P. 2d 727 ( 1997). But ifthe adverse possessor allows 

### thetitle owner use indicating his or hertrue ownership, possession is not likely exclusive. See Bryant v. Palmer Coking Coal Co., 

### 86 Wn.App. 204, 217, 936 P.2d 1163 (1997). 

### In this case, Young periodically dumped grass clippings into the strip, and periodically 

### picked the berries from the strip. Dumping yard waste onto land and entering land to take its berries constitutes more than a mere transitory use that the community would expect an average

owner to allow a neighbor. See Lilly, 88 Wn.App. at 313. Rather, these acts constitute use

consistent with true ownership. Thus the Callahams failed to provide proof that its dominionNo. 43834 - 8 -II


### overthe land was as exclusive as the community would expect ofan ordinary title owner in light ofthe land' s nature and location. Crites, 49 Wn.App. at 174.

We affirm. 

### A majority ofthe panel having determined thatthis opinionwill not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040, it is so ordered.

We concur: Worswick, C.J.

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