Background
Medar Properties originally owned a 16.6-acre parcel in Spokane County. In 2006, Medar instructed Robert Sydow to mark the northern boundary of approximately 2 acres intended for Sydow’s use. Sydow constructed a fence that he believed marked this boundary. However, Medar and its later buyer Saylor contended the fence was placed approximately 60 feet north of the legal description established in a 2008 segregation survey. Despite contentious correspondence between the parties’ attorneys and promises to relocate the fence, it was never moved.
Following segregation and conveyances, Sydow held title to the parceled property while the disputed 60-foot strip remained part of the parcel now owned by Douglass Properties. From 2008 to 2020, Sydow continuously used and maintained the disputed area: thinning trees, creating wildlife habitats and family memorials, posting security and no-trespassing signs, and placing an electrical line to support wildlife cameras. Each successive owner of the disputed property had actual knowledge of Sydow’s possession. In December 2020, Douglass cleared the area without warning, destroying the fence and Sydow’s improvements. Sydow then sued for adverse possession and other torts.
The trial court granted summary judgment for Douglass and dismissed all claims, finding Sydow failed to establish the “open and notorious” element of adverse possession. Sydow appealed.
The Court’s Holding
The Court of Appeals reversed, holding that Sydow established adverse possession as a matter of law. The court concluded undisputed evidence satisfied all four required elements: open and notorious, actual and uninterrupted, exclusive, and hostile possession for the requisite 10-year period (2008–2020).
On the critical “open and notorious” element, the court held Sydow satisfied it through two independent paths. First, actual notice: Medar (the initial true owner) objected in writing to the fence’s placement and discussed moving it; Saylor (the second owner) also objected and had notice; and Douglass (the third owner) hired surveyors before purchase, obtained a title insurance policy explicitly exempting the disputed area as a “major fence encroachment,” and thus had clear actual notice before taking title. The court rejected Douglass’s argument that successive ownership resets the adverse possession clock, holding instead that the 10-year period runs cumulatively against successive owners so long as possession remains continuous and each owner has actual or constructive notice. Second, constructive notice: a reasonable person would have believed Sydow owned the land because the fence was visible, Sydow’s cultivation, clearing, and maintenance were apparent, and he posted security and no-trespassing signs. The court noted that courts have long recognized a fence used to mark a boundary as classic evidence of open and notorious possession.
The court rejected Douglass’s defenses. Douglass argued that because a surveyor could not locate the original boundary monument and theorized someone moved it, Sydow’s possession was surreptitious rather than open and notorious. The court held Sydow’s subjective intent—even if he moved the pin—is irrelevant; what matters is whether possession is objectively open, notorious, and hostile. The court emphasized that adverse possession doctrine does not require good faith and can reward a wrongdoer. The court also rejected the common grantor doctrine as a bar, holding it applies only to enforce visible boundaries parties adopted in place of a deed’s legal description, not to enforce the legal description itself. Here, the legal description was not visible; only the fence was, and the parties’ conduct treated the fence as the controlling boundary.
Key Takeaways
- Adverse possession’s “open and notorious” element is satisfied by either actual notice to the true owner or constructive notice (visible possession that would lead a reasonable person to assume the claimant owns the land).
- The 10-year statutory period runs cumulatively against successive owners of the disputed property; transfer of title does not restart or interrupt the period if possession remains continuous and successive owners have actual or constructive notice.
- An adverse possessor’s subjective intent, state of mind, or good faith is irrelevant to establishing adverse possession; only the objective nature of the possession matters.
- A visible fence used to mark a property boundary is recognized as open and notorious possession and as evidence of exclusive possession and hostility (claim of right).
- The common grantor doctrine—which binds successive grantees to a boundary location established by the common grantor—applies only to enforce visible, physical boundaries parties adopted in place of the deed’s legal description, not to enforce the legal description itself.
Why It Matters
This decision clarifies that Washington’s adverse possession doctrine protects possessors who visibly occupy land openly over time, even where successive owners technically hold legal title. By treating successive owners as one entity for adverse possession purposes, the decision reflects the doctrine’s purpose: to align legal title with long-maintained appearances on the ground. The decision reinforces that actual notice to a property owner suffices to establish open and notorious possession—the owner cannot hide behind ignorance or dispute the visual reality of occupation. For title insurers and purchasers, it underscores that a survey showing a recorded boundary differs from a visible fence does not automatically invalidate an adverse possession claim; conversely, a purchaser with actual notice of encroachment takes title subject to the risk of adverse possession if the encroacher continues uninterrupted.
The court’s rejection of the common grantor doctrine as a shield against adverse possession also clarifies that doctrine’s scope: it validates compromises parties reach on the ground, not claims to enforce abstract legal descriptions buried in deeds. By holding that subjective intent is irrelevant, the decision confirms that even if an adverse possessor deliberately moved a survey monument, the objectively open nature of possession still counts. This makes adverse possession more predictable and harder to defeat through technical arguments about the possessor’s mental state or the location of invisible survey pins.