Teel v. Stading

¶1¶12 (dissenting) — I respectfully dissent.

¶2The majority premises its analysis on finding of fact number five, which states that Stading gave the Teels permission “to ride and graze horses on the Stading property.” Clerk’s Papers (CP) at 215. In its conclusion, the majority alters finding number five to a “finding that Stading granted the Teels permission to use all of the land.” Majority at 397 (emphasis added). Not only is the word “all” missing from finding number five, finding number eight states that Stading granted the Teels permission “to graze their horses in [the] upper and lower pasture” CP at 215 (emphasis added). And the parties agreed in oral argument before us that the upper and lower pasture is separate and distinct from the north disputed area. Stading does not challenge finding eight, and unchallenged findings are verities on appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).

¶3¶13 Yet, finding number eight speaks of grazing only, raising the possibility the trial court found that Stading gave the Teels permission to ride on all his property but *398limited his permission for grazing to the upper and lower pastures.5 Even so, we should sustain the trial court’s conclusion that Teels established title to the disputed property by adverse possession. The trial court found that the Teels fenced the disputed property, cleaned it up by paying to have old cars removed, sprayed and cut weeds, and used the property to graze horses and raise pigs. Assuming the trial court intended to find that Stading granted permission only to ride on the disputed property, this use far exceeds such use. And it would amount to a “distinct change” that put Stading on notice of Teels’ adverse use. Miller v. Anderson, 91 Wn. App. 822, 829, 964 P.2d 365 (1998) (citing Ormiston v. Boast, 68 Wn.2d 548, 551, 413 P.2d 969 (1966)).

¶4¶14 Because the trial court found the necessary elements of the Teels’ adverse possession claim and specifically found that Stading’s permission did not include the north disputed area, I would affirm.