James R. Herrin v. Ellen O’Hern (Division 1, May 14, 2012), is an adverse possession case, which is fine, but I think it’s more interesting as a summary judgment case. In short, the law placed a burden on the Herrins to establish a relevant fact and the Court concluded that they had done enough to create an issue of fact on the question. I’m not so sure about that. But first… the facts!
Back in the day, the Rothenbuhlers owned a large piece of land that a farmhouse, a field, a barn, and some acreage. In 1993, by deed of gift, the Rothenbuhlers transferred the southwest parcel (which is the farmhouse parcel) to James Herrin (who used to be married to one of their daughters. Then in 2003, the northeast parcel (barn, field, &c.) was transferred to Ellen O’Hern (another of the Rosthenbuhlers’ daughters) from her father’s estate following his death.
Well, it turns out that near the border between the parcels, there is a garage, some land, and a little fenced-in area. That land is technically on O’Hern’s property, but the record is clear that it “has always been used by the owners of the farmhouse property,” which are now the Herrins.
[Note: The Court of Appeals repeatedly referred to plaintiffs Herrin and Herrin as the Herrins, but then renders the possessive as the Herrins’s. Yikes. Perhaps we could call that an adverse possessive? Ha! Jokes!]
This little problem was discovered after a 2008-ish survey; before the survey, nobody was aware of the encroachment. But once discovered, of course, everyone sued everyone else, with the Herrins claiming title to the land by adverse possession. O’Hern then moved for summary judgment, assuming that the Herrins could establish actual, open, continuous, and exclusive use. But she argued that the Herrins’ use was permissive, not hostile, and therefore could not support adverse possession.
Under Washington law, hostility “requires only that the claimant treat the land as his own as against the world throughout the statutory period. Hostility is not personal animosity or adversarial intent, but instead connotes that the claimant’s use has been hostile to the title owner’s, in that the claimant’s use has been akin to that of an owner.”
But permission negates hostility. Accordingly, when the initial use is permissive, the “party claiming adverse possession bears the burden of proving that permission terminated.” “[T]he relevant viewpoint for determining when permissive use terminates is that of the party granting the permission.”
So how does that apply here? Well, everyone agreed that the Herrins’ initial use of the disputed land was permissive back in 1988, when Herrin was the caretaker for the entire property – both parcels — with the permission of the owners. Then, in 1993, the Rothenbuhlers transferred the farmhouse property to the Herrins.
The Court of Appeals observed that, clearly, the conveyance of the farmhouse to the Herrins in 1993 terminated the “permissive” use of the farmhouse property because – well, because it doesn’t make any sense to think otherwise. The Herrins owned the farmhouse property following the conveyance, and the Rothenbuhlers no longer owned it. So how could the Rothenbuhlers “permit” the Herrins to use property that the Rothenbuhlers no longer owned and that the Herrins now owned? I’m not sure what point the Court was making in discussing the farmhouse property in this matter, but the Court seemed to put a lot of weight on this seemingly irrelevant observation.
The relevant question, as posed by the Court, was “whether [the 1993] conveyance also terminated permissive use of the adjoining disputed property, which was always used in connection with the farmhouse property described in the deed.”
And on this question — the only relevant question — the Herrins bore the burden of proof. Washington law presumes that permissive use continues as permissive use until some act terminates the permission. Accordingly, the Herrins had the burden to produce some evidence tending to show that the 1993 conveyance terminated their permissive use of the disputed property.
The Court concluded that the Herrins had created an issue of fact regarding whether the 1993 conveyance terminated permission. How? Well… I’m not sure. The Court observes that at the time of the conveyance there is no evidence that anyone knew that the farmhouse property did not include the garage/fence/extra area. So based on that fact, a jury could apparently conclude that the Rothenbuhlers terminted the permissive use.
I don’t get it. Nor did O’Hern, it appears. The Court explained: “O’Hern argues that the Herrins presented no evidence that permissive use of the disputed property was terminated. To the contrary, we just discussed how the evidence does just that.” By “just discussed” the Court was referring to a single paragraph pointing out that nobody knew the boundary line.
In the end, I think this is a pretty close case. The burden for creating an issue of fact is pretty low, and perhaps this is a good case to go to the jury. But it also seems like one of those cases where really there is no evidence of anything — it’s just a muddled mess. Nobody really knew what was going on at all with the land. From that muddle, the Herrins want to be able to say, “Well, hey, it was a mess. Who knows what was going on!? Maybe that was a revocation!?” And then there’s your issue of fact.
I really don’t think that should be enough. It seems like to survive summary judgment, when you’re the party with the burden of proof, you should have to do more than (1) point out that the other side has not conclusively shown that you can’t meet your burden, and (2) make the obvious observation that anything is possible. Rather, the party with the burden should have to come forward with some sort of positive evidence in its favor — something more than mere uncertainty and the probabilistic truth that there’s a chance you’re right.