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The State's Bundle of Sticks Stays in the State's Pile According to the Washington Supreme Court

As long as a governmental entity has an easement or fee in land, a neighboring landowner will not be able to claim ownership of that land through adverse possession. This is a well known principle in the law, however until earlier this month Washington courts supported a different conclusion. But in the recent Washington State Supreme Court decision of Kiely v. Graves, __ P.3d __ (March 2012, No. 84828-9), the Court brought Washington into the national mainstream protecting public rights from private prescriptive use.

In 1908 a plat recorded with the City of Port Townsend dedicated an alleyway as a public thoroughfare between home lots which were eventually purchased by the Kielys and the Graves. For more than ten years, the Kielys used the entire alleyway between their lot and the Graves’. In 2009, the City vacated the half of the alleyway closest to the Graves’ lot to the Graves. Later in 2009, the Kielys filed an adverse possession claim asserting ownership to the entire alleyway between their lot and the original Graves lot. The trial court ruled with the Kielys, following the rule expressed in Erickson Bushling, Inc. v. Manke Lumber Co., 77 Wn. App. 495, 891 P.2d 750 (1995), in which the Court of Appeals determined that an individual may adversely possess the underlying fee interest in land, despite a public easement.

The Kiely court recounted the law school approach to describe interests in property as a “bundle of sticks”, which relate to the various types of property interests one can own. This “bundle” analysis is important because of the key statute at issue, RCW 7.28.090, described by the Court as follows:

RCW 7.28.070 [establishing the standard for adverse possession under claim and color of title] and 7.28.080 [establishing the standard for adverse possession of vacant and unoccupied land] shall not extend to lands or tenements owned by the United States or this state, nor to school lands, nor to lands held for any public purpose.

(emphasis in the original) Kiely v. Graves, __ P3d __ (2012 WL 663995 at 10). Because the party opposing the adverse possession claim hadn’t established that the alley was “owned” by the subdivision of the state, the Supreme Court assumed that the “stick” held by the City was an alleyway easement. But the Court recognized that the italicized portion of the statute had to have some meaning, therefore it applied to easements. Because the statute barred the acquisition by adverse possession so long as the City’s easement was in effect, the Kielys had only possessed the Graves’ land “adversely” for less than a year. Therefore, the claim of the Kielys failed because the statutory ten year period for adverse possession had not been met.

Score one for public rights and stick bundles.

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