Paul Michel, Et Ano, V. City Of Seattle

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

PAUL MICHEL and ANN MICHEL, ) No. 82073-7-I

husband and wife; JOHN W. MERRIAM ) consolidated with

and BRENDA K. WALKER, husband ) No. 82074-5-I

and wife, )

)

Respondents, )

)

v. )

)

CITY OF SEATLE, a Washington ) PUBLISHED OPINION

municipality, d/b/a SEATTLE CITY )

LIGHT, )

)

Appellant. )

)

VERELLEN, J. — When the legislature enacted RCW 7.28.090, it shielded

municipal “lands held for any public purpose” against being taken by adverse

possession. The common law rule of nullum tempus occurrit regi (no time runs

against the king) shields only those lands used in a governmental capacity and is

narrower than this statutory immunity because RCW 7.28.090 prevents the loss of

municipal lands actually being used or planned for use to provide any direct or

indirect benefit to the public.

The trial court granted summary judgment against the City of Seattle (City)

and allowed portions of its land to be taken by adverse possession. It concluded

the land could be taken by adverse possession because it was used for a

proprietary purpose and so was not held in a governmental capacity. The trial

court should have applied the broader statutory “held for any public purpose” test.

No. 82073-7-I/2

On de novo review, we conclude that the City holds title to the entirety of

tract 44 and that RCW 7.28.090 applies and shields the disputed property from

adverse possession by the homeowners.

Therefore, we vacate the trial court’s order and remand for further

proceedings in accordance with this opinion.

FACTS

In the early 1900s, the Wenzlers and the Mehlhorns owned tract 44, a long,

100-foot wide lot adjacent to Echo Lake in Shoreline, as appears below. In 1905,

they executed a “right of way deed” in favor of the Seattle-Everett Interurban

Railway Company, letting it use tract 44 as a railway. 1 If tract 44 stopped being

used as a railway, then ownership would revert to the original owners and their

heirs or assigns. Over the next 25 years, ownership of tract 44 changed

numerous times. In 1939, it stopped being used as a railway. In 1945, it was

conveyed to the Puget Sound Power & Light Company. And in 1951, Puget

Sound Power & Light conveyed tract 44 to the City, which managed the tract

through Seattle City Light.

By 2018, the lots adjacent to tract 44 had been subdivided and developed.

Married couples, the Michels2 and the Merriams3 (homeowners), lived on

neighboring lots between Echo Lake and tract 44. The homeowners’ fenced front

1 Clerk’s Papers (CP) at 445.

2 Paul and Ann Michel.

3 We refer to John Merriam and Kaye Walker as “the Merriams,” which the

trial court did as well.

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No. 82073-7-I/3

yards, the disputed properties, are located in tract 44. The nearest street runs

along tract 44. A map appears below, identifying the homeowners’ properties and

tract 44.

In June of 2018, the City sent a letter to the Michels stating their fence and

other “encroachments” on tract 44 had to be removed.4 It sent a similar letter to

the Merriams in October of 2018. The Michels and the City did not negotiate a

solution. In November, the City removed most of the Michels’ fence. The

4 CP at 174.

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No. 82073-7-I/4

homeowners filed separate quiet title actions against the City, alleging they

possessed their fenced front yards. The City counterclaimed in each case,

seeking to quiet title and eject the homeowners. The cases were consolidated.

During discovery, the homeowners learned of the restrictive 1905 right-of-

way deed and moved for partial summary judgment on the City’s ability to claim

ownership of tract 44 by deed. The court agreed, dismissing the City’s

counterclaims except to the extent they were based on adverse possession by the

City.5

Following discovery, the parties filed amended complaints. The Michels

brought claims for adverse possession, quiet title, and for a prescriptive easement

for access against the City and all putative owners. 6 They also brought claims for

trespass and conversion against the City. The Merriams brought claims for

adverse possession and for a prescriptive easement for access against the City

and all putative owners. The City brought claims for adverse possession against

the homeowners and against any heirs or assigns of the original owners of

tract 44.

The parties filed cross motions for summary judgment. The City argued

that it took the entirety of tract 44 by adverse possession and that RCW 7.28.090

barred the homeowners from adversely possessing the disputed property because

it was using the land for a public purpose. The homeowners contended that the

5 The City does not seek review of this decision.

6

Because the 1951 conveyance was ineffective, the heirs and assigns of the

Wenzlers and Mehlhorns were joined as defendants. Most did not appear. The

sole heir/assign who actively litigated is not a party to this appeal.

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No. 82073-7-I/5

City did not take their fenced yards by adverse possession because it “has never

occupied or even used [them]”7 and that the City’s land was not shielded from

adverse possession because, as a matter of law, a municipality providing utility

services is not acting in a governmental capacity.

The court concluded that the City adversely possessed tract 44 as of 1961,

except for the disputed properties.8 It concluded the City had not held tract 44 in a

governmental capacity, so RCW 7.28.090 did not shield it from being adversely

possessed. The court held the Merriams took title to their disputed property in

1963, and the Michels took title to their disputed property in 1974. It also granted

both homeowners prescriptive easements for access.9 The City filed a motion for

reconsideration, which the court denied.

The City appeals.

ANALYSIS

When parties file cross motions for summary judgment, questions of law

determine the outcome if there are no genuine issues of material fact. 10 We

engage in de novo review of the trial court’s rulings.11 Determinations by the trial

7 CP at 1220.

8 CP at 1395.

9 CP at 1395-96.

10Tiger Oil Corp. v. Dep’t of Licensing, State of Wash., 88 Wn. App. 925,

929-30, 946 P.2d 1235 (1997).

11Lakehaven Water & Sewer Dist. v. City of Fed. Way, 195 Wn.2d 742, 752,

466 P.3d 213 (citing Watson v. City of Seattle, 189 Wn.2d 149, 158, 403 P.3d 1

(2017); Okeson v. City of Seattle, 150 Wn.2d 548, 78 P.3d 1279 (2003)), affirmed,

195 Wn.2d 742 (2020).

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No. 82073-7-I/6

court are not entitled to any deference.12

The core question raised on appeal is whether the City is shielded by

RCW 7.28.090 from the homeowners’ claims of adverse possession to their

fenced yards, the disputed portions of tract 44.13 The homeowners argue the

statute is inapplicable because of its narrow scope or because the City did not use

tract 44 for a public purpose. But, as a preliminary matter, we address the

homeowners’ contention that the City never acquired ownership of the disputed

properties.

The homeowners challenge the City’s claim that it acquired title to the

disputed properties by adverse possession as of 1961. Specifically, they argue an

adverse possessor has actual and exclusive possession of a disputed property

only when they have actual, physical possession,14 and the City “never established

exclusive possession of the portions of [tract] 44 occupied by the Michels and the

Merriams and their predecessors” because it “never possessed the area inside the

[homeowners’] fence line.”15 The homeowners do not dispute that the City took

title to the rest of tract 44 by adverse possession.

A person claiming adverse possession under RCW 4.12.020 must prove

they “possess[ed] the property for at least 10 years in a manner that is ‘(1) open

12 Brinkerhoff v. Campbell, 99 Wn. App. 692, 699, 994 P.2d 911 (2000).

13 The homeowners do not dispute that the City adversely possessed the rest

of tract 44. Michel Resp’t’s Br. at 25.

14 Merriam Resp’t’s Br. at 24.

15 Michel Resp’t’s Br. at 25.

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No. 82073-7-I/7

and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile.’” 16 The

homeowners’ narrow arguments challenge only the elements of actual and

exclusive possession.17

The homeowners misconstrue the meanings of “possession” and

“exclusive,” and they cite no authority requiring physical occupation of the entirety

of a disputed property to prove “actual” and “exclusive” use. While “it is not

possible to be in adverse possession without physical occupation,”18 “[t]he ultimate

test is the exercise of dominion over the land in a manner consistent with actions a

true owner would take.”19 “Adverse possession must be as exclusive as one

would expect of a titled property owner under the circumstances.”20 “[T]he

exclusivity element means that an adverse possessor may not share possession

of the area claimed with the true owner and, though less critical, not too much with

third persons who are there without the adverse possessor’s consent.”21

The City has maintained a continuous physical presence on tract 44 since

1951, using it for electrical distribution with power poles. Nothing shows the City

16Gorman v. City of Woodinville, 175 Wn.2d 68, 71-72, 283 P.3d 1082

(2012) (quoting ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989)).

17 The homeowners’ arguments are expressly limited to whether the City

lacked physical possession and control over the entirety of tract 44. Michel Resp’t’s

Br. at 23; Merriam Resp’t’s Br. at 28-30.

18

17 W ILLIAM B. STOEBUCK AND JOHN W. WEAVER, W ASHINGTON PRACTICE:

REAL ESTATE: PROPERTY LAW § 8.9, at 517 (2d ed. 2004).

19 ITT Rayonier, 112 Wn.2d at 759.

20Harris v. Urell, 133 Wn. App. 130, 138, 135 P.3d 530 (2006) (citing Crites

v. Koch, 49 Wn. App. 171, 174, 741 P.2d 1005 (1987)).

21 17 STOEBUCK AND W EAVER, supra, § 8.19, at 541 (emphasis added).

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No. 82073-7-I/8

shared possession of tract 44 with the “true owners,” the Wenzlers, the Mehlhorns,

and their heirs or assigns. The City consented to third persons’ uses of tract 44 for

road access, recreation, parks, and trails. Although possession of tract 44 was not

literally exclusive, as the homeowners would require, the record shows the City

managed the land as a true owner would under the circumstances.

Tract 44 is a 100-foot wide parcel that cuts off the Michels’ and Merriams’

properties from the road. In 1951, the City took possession of and actively

managed the uses of tract 44. It granted permits, charging only a nominal fee, to

the homeowners’ predecessors for use of tract 44 to garden and access the road.

The temporary permits issued in the 1950s and 1960s did not prohibit the

construction of fences, driveways, or temporary structures, such as a shed. The

City required that it be allowed to access the homeowners’ property within tract 44

“at all reasonable times” to ensure compliance with the permitted uses.22 And, as

discussed in more detail below, the City managed other third parties’ access to

and uses of tract 44, including lake access, fishing, and other recreation.

From 1951 to 1961, the City physically occupied tract 44 and exercised

exclusive control over it, managing third parties’ uses. The City exercised

dominion and control over the entirety of tract 44 as a true owner would. Because

the City took the entirety of tract 44, including the portions within the homeowners’

fence lines, the trial court erred by concluding the City did not take title to the

disputed properties.

22 CP at 754.

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No. 82073-7-I/9

Next, we turn to the core question: Whether the City was shielded from the

homeowners’ claims that they adversely possessed the disputed areas after the

City took title to all of tract 44.

We review issues of statutory interpretation de novo.23 Statutes are

interpreted to “‘ascertain and carry out the [l]egislature’s intent.’”24 If a statute’s

meaning is plain and unambiguous, “then the court must give effect to that plain

meaning as an expression of legislative intent.”25 “To interpret a statute’s plain

language, we examine the text of the statute, ‘as well as the context of the statute

in which that provision is found, related provisions, and the statutory scheme as a

whole.’”26 We interpret statutes to avoid unlikely, strained, or absurd

consequences.27

In Washington, adverse possession primarily applies through statutes of

limitation, and courts have worked out the elements of the doctrine as “a kind of

23

Kiely v. Graves, 173 Wn.2d 926, 932, 271 P.3d 226 (2012) (citing Lake v.

Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010);

Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369

(2003)).

24

Cent. Puget Sound Reg’l Transit Auth. v. WR-SRI 120th N. LLC, 191

Wn.2d 223, 233, 422 P.3d 891 (2018) (quoting Dep’t of Ecology v. Campbell &

Gwinn, L.L.C., 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)).

25

Campbell & Gwinn, 146 Wn.2d at 9-10 (citing State v. J.M., 144 Wn.2d

472, 480, 28 P.3d 720 (2001)).

26

Cent. Puget Sound Reg’l Transit Auth., 191 Wn.2d at 234 (internal

quotation marks omitted) (quoting State v. Larson, 184 Wn.2d 843, 848, 365 P.3d

740 (2015)).

27

In re Wieber, 182 Wn.2d 919, 927, 347 P.3d 41 (2015) (citing Kilian v.

Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002)).

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No. 82073-7-I/10

judicial gloss on the statutes of limitation.”28 Most claims of adverse possession

are based upon RCW 4.16.020, which creates a 10-year limitations period.29

There are also two statutes that authorize adverse possession claims with a

seven-year limitation period: RCW 7.28.07030 and RCW 7.28.080.31 Another

statute, RCW 7.28.090, immunizes certain government lands against a claim of

adverse possession. RCW 7.28.090 provides, “RCW 7.28.070 and 7.28.080 shall

not extend to lands or tenements owned by the United States or this state, nor to

school lands, nor to lands held for any public purpose.”32

The homeowners argue that because they claim to have adversely

possessed tract 44 under the 10-year limitations period set by RCW 4.16.020,

RCW 7.28.090 is inapplicable.33 The homeowners’ interpretation is not

persuasive.

28

17 STOEBUCK AND W EAVER, supra, §§ 8.1-8.2, at 505-07; see Gorman, 175

Wn.2d at 76 (“[A]s it has developed in our state, the doctrine [of adverse

possession] is not entirely a creature of the common law.”) (Madsen, J., concurring).

29 17 STOEBUCK AND W EAVER, supra, § 8.2, at 506-07.

30 The “payment of taxes” statute allows adverse possession if, for seven

years in addition to meeting the common law elements, the possessor “(1) has

‘color of title,’ (2) has paid all taxes levied on the land for seven successive years,

and (3) believes in ‘good faith’ that he has title. Id. at 507.

31 The “vacant land statute” is unusual in that it is not an adverse possession

statute, and the statute is unavailable if the person possesses the land. Id. at 508.

“To prevail under this section, the claimant must (1) have color of title, (2) be in

good faith, and (3) pay all taxes assessed for seven successive years; and of

course (4) the land must be ‘vacant and unoccupied.’” Id.

32 (Emphasis added.)

33 Michel Resp’t’s Br. at 33-37; Merriam Resp’t’s Br. at 12-15.

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No. 82073-7-I/11

The legislature expressly directed that RCW 7.28.090 “be liberally

construed for the purposes set forth” in it.34 Courts have applied this liberal

construction directive by concluding RCW 7.28.090 applies even when a plaintiff

does not rely on either RCW 7.28.070 or .080. In Skinner v. McCrackan, the

Supreme Court concluded RCW 7.28.090 limited the plaintiff’s claim for betterment

damages under RCW 7.28.160 because the United States held title to the land

when many of the improvements were made, and a claim for betterment damages

requires the ability to claim adverse possession of the improved land.35 Similarly,

in Pioneer National Title Insurance Company v. State, this court relied on

RCW 7.28.090 to conclude a claim for betterment damages could not be made

against the state.36 Neither case implicated RCW 7.28.070 or .080. Courts have

also concluded RCW 7.28.090 prohibits prescriptive easements from lying against

government-held land, even though easements are not mentioned in

RCW 7.28.070 or .080.37

34 RCW 7.28.100.

35 93 Wash. 43, 45-46, 159 P. 977 (1916). Technically, the court held Rem.

Rev. Stat. § 790 limited the claim for betterment damages brought under Rem. Rev.

Stat. § 797. Id. at 45. But because those laws are substantively identical to their

current counterparts, we refer to the current statutes.

36 39 Wn. App. 758, 695 P.2d 996 (1985).

37 E.g., Williams Place, LLC v. State ex rel. Dep’t of Transp., 187 Wn. App.

67, 98, 348 P.3d 797 (2015) (“‘[P]rescriptive easements do not lie against the

state.’”) (alteration in original) (quoting Northlake Marine Works, Inc. v. State, Dep’t

of Nat. Res., 134 Wn. App. 272, 291 n.12, 138 P.3d 626 (2006) (citing

RCW 7.28.090)).

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No. 82073-7-I/12

Kiely v. Graves also supports a broad reading of RCW 7.28.090.38 In Kiely,

the Supreme Court concluded “RCW 7.28.090 precluded adverse possession of” a

public alley in Port Orchard “while it was held for a public purpose.”39 Two

neighboring families, the Kielys and the Graveses, lived adjacent to a public

alley.40 The Kielys’ house encroached on a portion of the alley.41 In 2008, the

Graveses made an agreement with Port Orchard to take possession of the entire

alley. In 2009, Port Orchard vacated the alley and conveyed it to the Graveses.42

The Kielys filed a complaint against the Graves family alleging adverse possession

of the alley.43

The Kielys argued that they possessed the entire alley and that

RCW 7.28.090 did not apply because Port Orchard possessed an easement

only.44 The Graveses argued that “RCW 7.28.090 precludes adverse possession

of land owned by the government.”45 The court agreed with the Kielys that the

municipality had held an easement and not fee simple title.46 But it broadly

interpreted the phrase “lands held for any public purpose” as covering public

easements dedicated for a public thoroughfare, thereby “barring adverse

38 173 Wn.2d 926, 271 P.3d 226 (2012).

39 Id. at 927-28.

40 Id. at 928.

41 Id.

42 Id. at 929.

43 Id.

44 Id. at 930.

45 Id.

46 Id. at 935.

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possession claims against the property.”47 Because “[a] party may not claim

adverse possession of property held or controlled by a municipality for public

use”48 and the Kielys’ use of the alley “interfered with the public’s potential or

actual use of the easement[,] RCW 7.28.090 prohibited the Kielys from obtaining

title to the alley through adverse possession.”49 Neither RCW 7.28.070 nor .080

were the basis for adverse possession claims at issue in Kiely.

The liberal construction required of RCW 7.28.090 reveals the legislature’s

intent to broadly shield qualifying land from any form of adverse possession.

Other than their narrow interpretation of the statute, the homeowners cite no

contrary authority. And adopting the homeowners’ interpretation would undermine

the purpose of RCW 7.28.090. If a plaintiff met the requirements in

RCW 7.28.070, the “payment of taxes” statute, to adversely possess land held for

a public purpose but waited until the 10-year limitations period ran, then they could

avoid RCW 7.28.090 by bringing their claim under RCW 4.16.020. The legislature

would not intentionally undermine one enactment with another.50 Recognizing the

broad scope of RCW 7.28.090 harmonizes it with RCW 4.16.020. Because the

legislature intended to broadly shield government-held land, RCW 7.28.090 can

47 Id. at 936.

48

Id. at 935-36 (citing Gustaveson v. Dwyer, 83 Wash. 303, 304-05, 145 P.

458 (1915)).

49 Id. at 940.

50

See Wieber, 182 Wn.2d at 927 (statutes are interpreted to avoid unlikely or

absurd consequences) (citing Kilian, 147 Wn.2d at 21).

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No. 82073-7-I/14

apply to adverse possession claims brought against a government entity under

RCW 7.28.070, .080, or RCW 4.16.020.

Because RCW 7.28.090 can apply, the question is whether it applies here.

The statute prohibits any claim of adverse possession against “lands held for any

public purpose.” The issue is how to identify land “held for any public purpose.”

RCW 7.28.090 was enacted in 1893 and has remained substantively

unchanged since then.51 At the time, the common law rule nullum tempus occurrit

regi was held to apply to certain government-owned land in the United States,

preventing adverse possession by ensuring the limitations period never ran.52

States were divided over whether this rule shielded municipalities.53 In 1905, our

Supreme Court relied upon the common law to state “[t]he general rule that a party

cannot acquire title by adverse possession to property held by a municipality in its

governmental capacity for public purposes,” concluding a street held by a

51 See Kiely, 173 Wn.2d at 935 (“RCW 7.28.090 has remained unchanged

during all times relevant to this case” from 1908 through 2012.) (citing Brace &

Hergert Mill Co. v. State, 49 Wash. 326, 95 P. 278 (1908)); see also LAWS OF 1893,

ch. 11 § 5 (“The [equivalents to RCW 7.28.070 and .080] shall not extend to lands

or tenements owned by the United States or this state, nor to school lands, nor to

lands held for any public purpose.”).

52 See, e.g., United States v. Thompson, 98 U.S. 486, 25 L. Ed. 194 (1878)

(explaining the common law rule meant state statutes of limitation could not run

against the United States without its consent); Almy v. Church, 18 R.I. 182, 26 A. 58

(1893) (relying on the common law rule to conclude a public road held by a town

could not be taken by adverse possession); City of Ft. Smith v. McKibbin, 41 Ark. 45

(1883) (concluding the common law rule shielded the state only and not

municipalities); Leet v. Rider, 48 Cal. 623 (1874) (applying common law rule to

conclude a street in Sacramento could not be taken by adverse possession).

53 See Almy, 26 A. at 59-60 (listing cases and noting the division between

states).

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municipality could not be adversely possessed.54 Over time, this generated

discussion of a “rule” allowing adverse possession of government property held in

a “proprietary capacity.”55 But scholars question the extent to which this “rule” is

actually established:

In repeated dictum, the Washington State Supreme Court has

said that it is possible to obtain title to lands owned by cities,

counties, and other governmental entities below the state level in a

“proprietary capacity.”[56] While the supreme court has not identified

what is a proprietary capacity [for purposes of adverse possession],

a decision of the Washington State Court of Appeals has. It held that

land owned by an irrigation district but not actually used for its

ditches or works was “proprietary” and subject to adverse

possession.[57]

We seek to avoid sinking into the governmental versus proprietary “‘quagmire that

has long plagued the law of municipal corporations’” created by the “willy-nilly

labeling of municipal activities” through the “[m]indless [a]pplication of [l]abels.” 58

54Town of W. Seattle v. W. Seattle Land & Improvement Co., 38 Wash. 359,

363-64, 80 P. 549 (1905) (citing BYRON K. ELLIOTT & W ILLIAM F. ELLIOTT, THE LAW OF

ROADS AND STREETS § 883, at 968-69 (2nd ed. 1900); JOHN F. DILLON,

COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS § 675, at 803-04 (4th ed.

1890); Ralston v. Town of Weston, 46 W. Va. 544, 33 S.E. 326 (1899)).

55See, e.g. Gustaveson, 83 Wash. at 305-06 (considering an issue of

adverse possession by posing “the vital question here to be: Does the county hold

land, acquired by purchase at tax sale for want of another purchaser, in a

governmental capacity, as distinguished from a proprietary capacity?”).

56 (Citations omitted.)

57

17 STOEBUCK AND W EAVER, supra, § 8.8, at 516 (citing Kesinger v. Logan,

51 Wn. App. 914, 756 P.2d 752 (1988)).

58Hugh D. Spitzer, Realigning the Governmental/Proprietary Distinction in

Municipal Law, 40 SEATTLE U.L. REV. 173, 202 (2016) (quoting Indian Towing Co. v.

United States, 350 U.S. 61, 65, 76 S. Ct. 122, 100 L. Ed. 48 (1955)).

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We do not need to label land uses as “proprietary” or “governmental” to

decide whether RCW 7.28.090 shields municipal lands from claims of adverse

possession. When the legislature enacted RCW 7.28.090, it chose to shield

sovereign government entities—the United States and Washington state—as well

as “lands held for any public purpose.” And it mandated that RCW 7.28.090 “be

liberally construed.”59 Unlike the common law rule of nullum tempus, this statutory

immunity is not based upon sovereignty alone and does not merely stop the

limitations period from running. The legislature went beyond the common law,

barring the taking of “lands held for any public purpose” by adverse possession. It

did not fashion the statute in terms of the troublesome “governmental” versus

“proprietary” dividing line.

With this background in mind, we determine the plain meaning of “lands

held for any public purpose” by looking to the statute’s context, related provisions,

and overall scheme.60

RCW 7.28.090 immunizes certain government-held property from adverse

possession. The doctrine of adverse possession ensures the maximum utilization

of land, encourages the rejection of stale claims, and promotes quiet titles.61 The

doctrine of governmental immunity against adverse possession also promotes

stable ownership and land use because its absence “would encourage

59 RCW 7.28.100.

60 Cent. Puget Sound Reg’l Transit Auth., 191 Wn.2d at 234.

61 Chaplin v. Sanders, 100 Wn.2d 853, 859-60, 676 P.2d 431 (1984).

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encroachments . . . and hinder public use.”62 Municipal governments hold land for

the benefit of the public,63 and immunizing certain municipal property against

adverse possession eliminates the risk of permanent injury to the public from the

careless civil servant who fails to monitor boundaries.64

In accordance with these goals, the statutory phrase “lands held for any

public purpose” means land actually used or planned for use in a way that benefits

the public as shown by the benefits flowing directly or indirectly from governmental

ownership of the particular property. 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.”65 We do not decide the outer bounds

62 Kiely, 173 Wn.2d at 940.

Id. at 937 (citing State ex rel. York v. Bd. of Comm’rs, 28 Wn.2d 891, 898,

63

184 P.2d 577 (1947)).

64Gorman, 175 Wn.2d at 73 (citing LAWS OF 1986, ch. 305, § 100; Bellevue

Sch. Dist. No. 405 v. Brazier Constr. Co., 103 Wn.2d 111, 114, 691 P.2d 178

(1984)); see Thompson, 98 U.S. at 489 (“In a representative government, where the

people do not and cannot act in a body, where their power is delegated to others,

and must of necessity be exercised by them, if exercised at all, the reason for

applying these [governmental immunity] principles is equally cogent.’”). This risk is

more than hypothetical here because, as amicus Washington State Association of

Municipal Attorneys explains, public utility districts, which are municipal

corporations, manage approximately 35,000 miles of electric distribution and

transmission corridors in Washington.

65Indeed, counsel for the homeowners agree proprietary functions of

government can provide public benefits. Wash. Court of Appeals oral argument,

Michel v. City of Seattle, No. 82073-7-I (Sept. 30, 2021), at 21 min., 10 sec. through

17

No. 82073-7-I/18

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.66

The homeowners argue land used for electrical distribution lines cannot, as

a matter of law, be held for a public purpose.67 They rely upon a case about

municipal taxing authority, Okeson v. City of Seattle,68 for support. In Okeson, the

Supreme Court stated, “A city’s electric utility serves a proprietary function of the

government.”69 The City contends land used for electrical distribution lines is, as a

matter of law, held for a public purpose. It relies upon a condemnation case,

Central Puget Sound Regional Transit Authority v. WR-SRI 120th North LLC, for

support.70 There, the Supreme Court stated, “‘The generation and distribution of

electric power has long been recognized as a public use by this court.’”71

Neither standard is apt here. The power to tax is distinct from the power to

condemn, and neither addresses government immunity from adverse possession.

21 min., 20 sec., https://www.tvw.org/watch/?clientID=9375922947&eventID=

2021091164&startStreamAt=1260&stopStreamAt=1285&autoStartStream=true.

66 See Sisson v. Koelle, 10 Wn. App. 746, 751, 520 P.2d 1380 (1974)

(holding that land held by a county but “abandoned and forgotten” and “never

devoted to any use, public or otherwise,” could be adversely possessed).

67 Merriam Resp’t’s Br. at 18-20; Michel Resp’t’s Br. at 37-41.

68 150 Wn.2d 540, 78 P.3d 1279 (2003).

69

Id. at 550 (citing Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 694,

693, 743 P.2d 793 (1987)).

70 191 Wn.2d 223, 422 P.3d 891 (2018).

71

Id. at 247 (quoting Carstens v. Pub. Util. Dist. No. 1 of Lincoln County, 8

Wn.2d 136, 143, 111 P.2d 582 (1941)).

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No. 82073-7-I/19

Indeed, our Supreme Court recently explained that when applying the government

immunity doctrine, courts should look to the context of the specific case and apply

the rules relevant to the area of law under consideration.72 Thus, we apply the

standards set by the legislature in RCW 7.28.090 to determine whether tract 44

was held for a public purpose and shielded from adverse possession.

The undisputed record shows tract 44 has long been used for recreation.

When the City took possession in 1951, it allowed temporary permits for adjacent

property owners—including the Merriams’ predecessors—to use tract 44 for

gardening and additional yard space.73 By 1954, a fish screen had been installed

on tract 44 by the Washington Department of Game to maintain the trout stocked

in Echo Lake for fishing.74 At least as early as 1963, the City let sportsmen and

“hundreds of children and teenagers” use tract 44 like a park to access Echo Lake

for fishing and swimming.75 A 1972 letter from the City to the Department of Game

states its support for a “continuing program of maintaining a fishery in Echo

Lake.”76 In 1973, the City and King County entered into a “permit agreement”

providing for the creation of a public park along tract 44.77 The agreement

authorized “recreational purposes,” including “picnicking, swimming, bicycling, and

72 Lakehaven, 195 Wn.2d at 764-65.

73 CP at 847.

74 CP at 643.

75 CP at 626-28.

76 CP at 642.

77 CP at 116.

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No. 82073-7-I/20

such outdoor recreational activities as are appropriate for a neighborhood park.”78

And in 2001, the City signed a memorandum of understanding with King County

and the city of Shoreline to dedicate a continuous area of tract 44 for use as part

of the Interurban Trail.79

Tract 44 has also been used by the City to supply utility services to the

public. Since it took possession in 1951, the City has used the property for

electrical distribution lines.80 In 1976, the City designated part of tract 44 to

“construct, reconstruct and maintain” a water main.81

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

78 CP at 116.

79 CP at 921.

80See CP at 123-29 (deed purporting to convey tract 44 to the City, which

included a transmission line right of way for an existing power line); CP at 921

(memorandum of understanding between Shoreline, King County, and the City to

create the Interurban Trail, noting the “primary purpose of [tract 44] is for the

transmission and distribution of electricity).

81 CP at 706-08.

20

No. 82073-7-I/21

held tract 44 for a “public purpose” under RCW 7.28.090.82 RCW 7.28.090

applies.

Therefore, we conclude the City is the owner of tract 44 in its entirety and

that RCW 7.28.090 barred the homeowners from taking any of it by adverse

possession.83 We vacate the trial court’s order and remand for further

proceedings in accordance with this opinion.

WE CONCUR:

82

Because this standard is more protective of government property than the

common law rule, property shielded by the common law would be shielded by

RCW 7.28.090 as well.

83

The homeowners request attorney fees from this appeal under RAP 18.1

and RCW 7.28.083(3). Because they do not prevail, we deny their request.

21