[WSBARP] Quiet Title - "Actual Possession" Where Possessor's Use Is Unlawful

Mon Oct 3 17:22:00 PDT 2016

No response to my e-mail.  I will try to call him tomorrow.

Gourley Law Group
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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Rob Wilson-Hoss
Sent: Monday, October 03, 2016 5:08 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Quiet Title - "Actual Possession" Where Possessor's Use Is Unlawful

Try this for a start:

But in this case the possession of the respondent, though it may be said to have been in a sense adverse to that of the plaintiff, was not such a one as could ever ripen into any title, as against the plaintiff, or any other person. Such entry was, under the decision of the supreme court of the United States in Atherton v. Fowler, 96 U. S. 512, unlawful, and not such as could be the foundation of any right whatever.
Laurendeau v. Fugelli, 5 Wash. 632, 633, 32 P. 465, 466 (1893) (correct cite to Atherton now is 96 U.S. 513)

In an earlier case, Laurendeau v. Fugelli, 5 Wash. 632, 32 P. 465, 466, we pointed out the distinction between adverse possession which was truly adverse, and adverse possession which was merely trespass, and approved a statement by the United States Supreme Court in Atherton v. Fowler, 96 U. S. 513, 24 L. Ed. 732, to the effect that possession, which was merely unlawful and without the foundation of any right whatever, could never be the basis of the acquisition of title as against an owner who had never consented to such possession, or who interrupted it upon his first notice of it. See, also, Myer v. Roberts, 50 Or. 81, 89 P. 1051, 12 L. R. A. (N. S.) 194, 126 Am. St. Rep. 733, 15 Ann. Cas. 1031; McGinnis v. Fernandes, 135 Ill. 69, 26 N. E. 109, 25 Am. St. Rep. 347.
Plaza Farmers' Union Warehouse & Elevator Co. v. Tomlinson, 183 Wash. 617, 626, 49 P.2d 36, 40 (1935)

Rob

Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of David Faber
Sent: Monday, October 03, 2016 4:32 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Quiet Title - "Actual Possession" Where Possessor's Use Is Unlawful

Thank you all. Yes, John, exactly! I, too, cannot recall the case. I'm going to dig a bit deeper. A lot of great ideas floating around in this thread, though. I have a few proverbial rounds for my bandolier with this one, both in equity and in law. Love it!

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110

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On Mon, Oct 3, 2016 at 2:05 PM, John M. Riley III <JMR at witherspoonkelley.com<mailto:JMR at witherspoonkelley.com>> wrote:
There is a case.  Involves as I vaguely recall a use that violated the zoning code and was not a nonconfoming use.  Darn, I can't recall the case name yet.

John Riley

John M. Riley III
Principal | Witherspoon • Kelley
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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>] On Behalf Of David Faber
Sent: Friday, September 30, 2016 4:35 PM
To: wsbarp
Subject: [WSBARP] Quiet Title - "Actual Possession" Where Possessor's Use Is Unlawful

PC has been threatened with a quiet title action by the owner of a vacant/unimproved lot neighboring PC's property. The neighbor has been using a portion of PC's property to dump garbage/junk/broken down vehicles/etc for decades. The issue I am wrestling with is whether a person can claim that they had "actual possession" of a disputed portion of property when their use of the property was technically unlawful (local zoning disallows use of vacant land as a junkyard, and neighbor is now being threatened by city with daily fines for violating solid waste disposal requirements)? I recall seeing a case that stood for the proposition that one cannot claim adverse possession through unlawful use, but I cannot seem to find that case. Does this ring a bell with anyone else or does anyone have any thoughts on this?

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110<tel:%28360%29%20379-4110>

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