Howard v. Kunto, Ct. of Appeals of WA (1970)
Author: Bram

Parties: PL's are the actual landowners (to the east of Kuntos) by city records and deed; DF's are the adverse possessors who thought they were living on the right tract of land but for the mistake in the deed.

Cause of action/remedy sought: DF's seek reversal of trial court's quiet title (action in equity) to PL's.

Procedural History: DF's appeal from a decree quieting title in PL's tract of land on the shore of Hood Canal.  This court reverses with directions to dismiss PL's action and to enter a decree to quiet DF's title to the disputed tract of land in accordance of their cross-complaint.

Facts: As early as 1932 one McCall had a deed to a tract of land on a canal.  Kuntos, who bought the land in 1959, lived there on the purported deed, but in fact were 50 feet off the mark, as were others in the neighborhood as well (the last 3 deeds of the conveyed land to the Kuntos took place in other states - good faith argument).  Kuntos previous owner, the Millers, improved upon the land by building a dock.  The land was used as a summer home.

Howards bought land east of the Kuntos, and wanted to convey one-half interest in the land to another party, the Yearlys.  So the Howards got a surveyor, who found that the deed descriptions and the land occupancy of the parties did not coincide.  Between the Howards and the Kuntos was the Moyers' property.  The Howards were record owners of the land occupied by the Moyers and that the Moyers held record title of the Kuntos' land.

Howard approached Moyer and in return for a conveyance of the land upon which the Moyers' house stood, Moyer conveyed to the Howards record title to the land upon which the Kunto house stood.  Until Howard obtained the conveyance from Moyer in April, 1960, neither Moyer nor any of his predecessors ever asserted any right to ownership of the property actually possessed by Kunto and his predecessors.

Issue(s): Under WA property law, is a claim of adverse possession defeated b/c the physical use of the premises is restricted to summer occupancy?

Under WA property law, may a person who receives record title to tract A under the mistaken belief that he has title to tract B (immediately adjacent to tract A) and who subsequently occupies tract B, for the purpose of establishing title to tract B by adverse possession, use the periods of possession of tract B by his immediate predecessors who also had record title to tract A?

Holding: No.  The court held together with the improvements on the land in combination with possession for over 10 years constituted uninterrupted possession within the rule of adverse possession.

Yes.  When several successive purchasers received record title to tract A, under the mistaken belief that they were acquiring tract B, immediately adjacent, and where possession of tract B is transferred and occupied in a continuous manner for more than 10 years by successive occupants, there is sufficient privity of estate to permit tacking and thus establish adverse possession as a matter of law.

Court's Rationale/Reasoning:  The disputed facts are of uninterrupted possession and the claim of right.

Uninterrupted possession must be for 10 years by WA law.  Here, the court finds that the summer residence of DF's was in fact enough to execute the statute of limitations, as the time they lived on the land, in combination with the improvements made on the land constituted substantial possession and dominion as other ordinary owners would in this situation.  The court said to think otherwise would be to overlook the nature and condition of the property (it was traditionally a summer place by other tenants, and Kuntos improved on it sufficiently).

For the claim of right dispute, DF/appellees intended to "tack" on the previous deeds of other conveyances in order to show a good faith belief they were in fact on the right tract of land.  In fact, each conveyance previous to the Kuntos conveyance involved the same mistake of conveying the adjacent land and not the proper land according to city records.  Thus, since the same good faith mistake was made prior to the current conveyance in question, and since it was uninterrupted there was adverse possession, and thus the tacking process may be used by DF.  PL's argument that since there was no privity b/c there was no contract b/c there was a material fact significant to the K made the deed void was turned away, as the mistake of fact was mutual, the court could construct a new one, or at least define the parameters of the old one, which they did.

Rule: To establish privity in adverse possession cases, it must be established that the adverse possessor's predecessors had intended to always convey title to the adversely possessed land.  Such privity in contract may be used in the tacking process to prove adverse possession.

WA law: to constitute adverse possession, there must be actual possession, the actual possession must be uninterrupted, open and notorious, hostile and exclusive, and under a claim of right made in good faith for the statutory period.

A purchaser may tack the adverse use of its predecessor in interest to that of his own where the land was intended to be included in the deed between them, but was mistakenly omitted from the description.

Did court avoid issues?: No.

Dicta: The tacking issue presents one of first impression.