New Ruling Addresses Adverse Possession of Public Property
MRSC is occasionally asked whether adverse possession applies to public property. A recent Washington Court of Appeals case, Michel v. City of Seattle, provides useful clarification of the standards that apply to adverse possession claims against a municipality.
The Michel case involved title to “Tract 44,” which was created in 1905 pursuant to a “right-of-way deed” for railway purposes. Below is a map depicting Tract 44 and the area around it. The Michel and Merriam properties are owned by the plaintiffs.
Tract 44 stopped being used as a railway in 1939 and was eventually conveyed to the City of Seattle in 1951. At that time, Tract 44 was used for distribution of electricity by a series of power poles. The City of Seattle (through Seattle City Light) issued temporary permits in the 1950s and 1960s to the prior owners of the Michel and Merriam properties to use portions of Tract 44 for garden purposes and to access the nearest street. The temporary permits did not prohibit the installation of fences, driveways, or temporary structures, such as sheds.
In addition, the City of Seattle allowed and facilitated the use of Tract 44 for park and recreational purposes, including fishing and swimming. In 2001, the City of Seattle entered into a memorandum of understanding with King County and the City of Shoreline (where Tract 44 is located) to use a portion of Tract 44 as part of the Interurban Trail.
In 2018, the City of Seattle sent a letter to the plaintiffs demanding removal of fences and other encroachments on Tract 44. The City of Seattle subsequently removed a portion of the Michel fence. The plaintiffs sued the city, claiming they adversely possessed the portion of Tract 44 that they had fenced and used for landscaping purposes. They also asserted that the City of Seattle could not claim title to Tract 44 through the 1905 right-of-way deed because it contained a clause stating that title to Tract 44 would revert to the original owners (or their successors) when it stopped being used as a railway.
The city responded by claiming that, while the 1951 conveyance might be invalid, the city had adversely possessed the entirety of Tract 44 between 1951 and 1961. This 10-year time period is important because this is the length of time necessary to establish ownership by adverse possession. The city acknowledged that while it did not physically occupy the entirety of the tract, it exercised control over the entire track by issuing use permits during this time.
The city also argued that the plaintiffs could not assert their own claim of adverse possession for the disputed portion of Tract 44 because RCW 7.28.090 does not allow adverse possession of “lands held for any public purpose.”
The trial court ruled that RCW 7.28.090 did not apply to the disputed portion of Tract 44 and that it was adversely possessed by the plaintiffs. It reasoned that the city used Tract 44 for a proprietary purpose — the distribution of electricity — and that RCW 7.28.090 therefore was inapplicable.
The Washington Court of Appeals reversed the trial court’s decision. It ruled that the City of Seattle adversely possessed the entirety of Tract 44 by exercising exclusive control over it between 1951 and 1961. Exclusive control includes both actively using it (for utility and recreation purposes) and managing the use of it by third parties through issuance of temporary permits.
The court of appeals also found that RCW 7.28.090 did, in fact, apply and that the plaintiffs, under the facts of the case, were precluded from asserting adverse possession against any portion of Tract 44.
Let's look at some takeaways from this decision.
RCW 7.28.090 is interpreted broadly
RCW 7.28.090 was originally adopted in 1893 and the legislature provided that it should be “liberally construed” (see RCW 7.28.100). The court noted that despite some apparent limitations in the statutory language, it applies generally to all claims of adverse possession and prescriptive easements against lands held for a public purpose.
The governmental/proprietary distinction does not apply
As noted by Professor Hugh Spitzer:
The classification of local government powers into “governmental” and “proprietary” categories causes more confusion than perhaps any other distinction in municipal law.
Fortunately, the court of appeals decided that the applicability of RCW 7.28.090 does not turn on this distinction. Even though the operation of an electric utility may be considered “proprietary” because utilities are managed in a business-like manner, that does not have a bearing on the “public purpose” analysis under the statute. As the Michel court explained:
Lands are “held for any public purpose” under RCW 7.28.090 when their actual or planned uses directly or indirectly benefit or advance the public's wellbeing. The public has been benefitting from the City’s uses of tract 44 since it took possession in 1951. The City has used its land to provide the public electricity and water. The City has used its property for public parkland and recreation, including swimming, fishing, picnicking, and bicycling. Because these uses have provided direct and indirect benefits to the public’s wellbeing, the City held tract 44 for a “public purpose” under RCW 7.28.090.
The protections of RCW 7.28.090 are not absolute
The court noted that there may be situations in which publicly-owned property is not exempt from claims of adverse possession:
To be shielded by the statute, the municipality must show some advancement of the public’s wellbeing from any part of the property. This is a fact-specific, reality-based inquiry that recognizes a single parcel owned by a government entity can serve multiple uses providing different public benefits, regardless of whether those uses are traditionally classified as “governmental” or “proprietary.” We do not decide the outer bounds of what actual or planned uses could provide public benefits, but we note that abandoned or forgotten lands put to no actual or planned use at all do not provide public benefits.
Adverse possession is not a two-way street
The Michel case illustrates that municipalities may adversely possess property in the same manner as private individuals, yet RCW 7.28.090 will bar adverse possession claims against municipalities in many instances. That may seem one-sided, but there are good reasons for the distinction. As the court observed, the government holds land for the benefit of the public. Immunizing certain public property from adverse possession claims prevents injury to the public in cases where the government cannot or does not monitor land for trespasses or encroachments.
The Michel case provides important clarity about adverse possession of public lands. The governmental/proprietary distinction does not come into play in such cases. Regardless of whether a public entity uses land for a “governmental” or “proprietary” purpose, the operative question under RCW 7.28.090 is whether the land is “held for any public purpose.”
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