John, I once won such a case on summary judgment, by being just a little better prepared than the other guy.
Neither side wanted to budge, so it looked like we were going to an expensive trial. The other lawyer was a reasonable guy, so I called him and said, "Ya know, the survey is what it is, and the dates are what they are- about the only issue of fact is how your client used the disputed property. How about you get an affidavit from him on his use of it, and if we can agree with it, we'll try to do this on summary judgment?" He did, and fell into the trap- the affidavit detailed how he mowed the grass up the to same point every time, religiously, all summer, for the past upteen years. He was careful to recite facts that established all the factors, or so he thought.
What the other guy didn't realize is that there is case law in Washington that says mowing lawn grass isn't sufficient use to support an adverse possession claim- it has to be some productive use, like a garden, cattle grazing, crops, etc.
I did the SJ motion, submitted and agreed to his clients affidavit as proof of the use, and cited the killer case- It was too late for his client to change his story, so I won, and we've laughed about it a few times over the years.
Note that this would not have worked in Nancy's case, because she has a fence involved. A separate doctrine of Mutual Acquiescence to a physical boundary (such as a fence, a road, stream, etc.) says that if both parties treat such a physical feature as the mutual boundary for 10 years, either by word or by action, it becomes the boundary. And mowing up to it would be enough- treating it as the boundary is a different thing than productive use.
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Today's Featured Article - Earthmaster Project Progress Just a little update on my Earthmaster......it's back from the dead! I pulled the head, and soaked the stuck valves with mystery oil overnight, re-installed the head, and bingo, the compression returned. But alas, my carb foiled me again, it would fire a second then flood out. After numerous dead ends for a replacement carb, I went to work fixing mine.I soldered new floats on the float arm, they came from an old motorcycle carb, replaced the packing on the throttle shaft with o-rings, cut new ga
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