Steve Berschauer v. Dep't Of General Admin., State of Washington
35502-1
| Wash. Ct. App. | Dec 12, 2017Background
- In 1883 McKennys retained strips shown as proposed streets between parcels later owned by Hinchcliff (predecessor to Berschauer) and Craig (predecessor to the State); McKennys later dedicated Cherry Street and Park Street (16th Ave SE) for public use.
- In 1961 the city vacated 16th Ave SE; Henry Berschauer believed the south half reverted to him and built a fourplex in 1965 that encroached into the vacated area; he and later Steve landscaped and used a 17-foot-wide strip north of his original lot line.
- In 1969 PSE/State filled part of the vacated gully and created a gravel access area that extended about 8.4 feet onto the south half of the vacated street (i.e., into the area Henry believed he owned); PSE used that gravel area regularly.
- In 2010 the State obtained a quitclaim to the vacated street from a claimed successor and pursued a boundary adjustment; survey stakes placed in July 2010 landed within the area Steve (the appellant) claimed by adverse possession, prompting his stress-related complaints and later litigation.
- The trial court: (a) conceded adverse possession to Berschauer for the 17-foot landscaped strip, (b) quieted title to the remaining disputed 8.4-foot gravel strip in the State, (c) found a technical trespass for placement of a survey stake but denied emotional distress damages as too remote a cause, and (d) awarded Berschauer $10,000 (partial) in attorney fees under RCW 7.28.083(3) instead of his requested larger sum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of street vacation on fee title | Vacation passed fee to abutting owners by statute; McKennys’ dedications didn’t reserve fee | Dedicator (McKennys) retained fee because dedicated street lay entirely within their original tract; vacation reverts to dedicator/heirs | Title to vacated 16th Ave SE reverted to McKennys’ successors; summary judgment for State affirmed |
| Adverse possession of the 8.4-foot southern gravel strip | Father’s belief and use, plus occasional parking and landscaping, support penumbral adverse possession extending into gravel area | Gravel area was used more by PSE; south 8.4 ft not reasonably necessary to owner’s objective so no adverse possession | No adverse possession for the south 8.4-foot gravel strip; summary judgment for State affirmed |
| Emotional distress damages from surveyor trespass (stake) | Placement of stake on possessed land proximately caused plaintiff’s stress, hospitalization, and damages | Trespass was a mere technical/brief invasion; plaintiff’s hospitalizations were remote consequences, not direct proximate result of stake placement | Denial of emotional distress damages affirmed; stake was too remote a cause to support such damages |
| Attorney fees award under RCW 7.28.083(3) | Trial court should perform lodestar analysis and award full requested fees ($66k+) because plaintiff prevailed on adverse possession claim | Statute grants discretion to award all or a portion of reasonable fees; vague billing made lodestar impractical; $10,000 was equitable | $10,000 fee award upheld as within trial court’s broad equitable discretion; lodestar is a guide but court did not abuse discretion |
Key Cases Cited
- London v. City of Seattle, 93 Wn.2d 657 (Wash. 1980) (statutory vacation presumption favoring abutters; exception when dedicator retained entire fee)
- Chaplin v. Sanders, 100 Wn.2d 853 (Wash. 1984) (elements and ten-year requirement for adverse possession)
- State v. Stockdale, 34 Wn.2d 857 (Wash. 1951) (penumbral possession: possession may extend to areas reasonably necessary to owner’s objective)
- Bradley v. Am. Smelting & Refining Co., 104 Wn.2d 677 (Wash. 1985) (trespass is strict liability; entry upon land in another’s possession creates liability)
- Mahler v. Szucs, 135 Wn.2d 398 (Wash. 1998) (lodestar method as guidance for reasonable attorney-fee awards)