August 11, 2023

Land Use, Property Rights and Land Development: New 2023 Washington case law that could impact you! (Part Three)


Jordan Ramis Shareholder Jamie Howsley recently summarized these cases, which were presented at the June 2023 Building Industry Association of Washington Legal Committee meeting. Here are Jamie’s highlights in this multi-part series.

Non-user statute doesn’t apply to 1889 road, alleyway

Messersmith v. Town of Rockford, May 18, 2023 Division II Published

Mr. Messersmith and Ms. Bryant (“Plaintiff’s) attempted to quiet title to an undeveloped road and alleyway dedicated as part of a plat in 1889.  Plaintiff’s relied on Washington’s non-user statute from 1890-1909 to argue that unopened roads revert back to the predecessor after five (5) years.

The nonuser statute only imposed time limits on county roads.  The Town of Rockford incorporated in 1890 and annexed the plat.  The Court of Appeals relied on Washington Supreme Court’s prior decision in Brokaw v. Town of Stanwood 79 Wash. 322, 140 P. 358 (1914) in which the Supreme Court set a “low bar for proving a road opened holding that ‘[t]he public is not, under all circumstances obliged to take physical possession of public highways whether they have been acquired by dedication or otherwise, in order to preserve its rights therein.’” Id. At 326

The Court reasoned that once Rockford incorporated the road ceased to be a county road and the non-user statute couldn’t be applied.  And the Court went on to confirm that a low bar for future use existed.

Family property at odds with boundary line, apartment development

Sydow v. Douglas Properties, LLC May 9, 2023 Division III Unpublished

Robert Sydow appealed a denial of a preliminary injunction against Douglas Properties, LLC (“Douglas”) from entering on land Sydow claimed by adverse possession.  The Court of Appeals questioned the appealability of a preliminary injunction.  Washington Superior Court held that is temporary injunction is not an appealable issue.

In 1930s Sydow’s grandmother purchased an 80 acre property in Spokane Court of which the parcels in this dispute are owned.  At some point in time Mr. Sydow became a member of Medar Properties, LLC (“Medar”) and took ownership of the 80 acre parcel.  In 2006, Sydow’s mother “gifted” him the family home on the property even though Medar owned the property.  Sydow then proceeded to build a chain link fence and placed no trespassing signs on the property around the portion of the land he deemed the family parcel.  In 2008 Medar divided the property into two separate lots with Medar quitclaiming the southern lot to Sydow and the north lot back to itself.  The surveyed line did not match the existing fence line.

Eventually Medar sold the property that ended up with a sale to Douglas.  Douglas hired Whipple Engineering who discovered that one of the survey monuments had been moved and theorized it was moved to align with the fence before they purchased it.  Despite this Douglas bought the property.   Almost three years later Douglas razed the fence and disputed area because Douglas wanted to use the land for a parking garages for an apartment complex.

Sydow then sued for adverse possession, timber trespass, quiet title and others.  He also sought an injunction to prevent further development in the strip.  The Court ruled in favor of the Douglas concluding that the legal descriptions had not changed and that Sydow would likely lose on the merits for failing to meet the open, notorious and hostile elements.


Click here to read Part Two

Click here to read Part One

Tags: Environmental and Natural Resources, Construction, Real Estate and Land Use, Homebuilding, Construction and Development

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