Opinion Information Sheet

			

          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

WILLIAM H. KIELY and SALLY CHAPIN-                  )
KIELY, husband and wife,                            )      No. 84828-9
                                                    )
                      Respondents,                  )
                                                    )
       v.                                           )      En Banc
                                                    )
KENNETH W. GRAVES and KAREN R.                      )
GRAVES, Trustees, Graves Family Trust; and          )
all persons or parties unknown claiming any         )
right, title, estate, lien, or interest in the real )
estate described in the complaint,                  )
                                                    )
                      Appellants.                   )      Filed March 1, 2012
_____________________________________)

       MADSEN, C.J. -- At issue in this review is whether homeowners William Kiely

and Sally Chapin-Kiely may claim adverse possession of an alley dedicated for public 

use.  Relying on Erickson Bushling, Inc. v. Manke Lumber Co., 77 Wn. App. 495, 891 

P.2d 750 (1995), the trial court ruled that the Kielys established their adverse possession 

claim to the underlying fee interest held by their neighbors, Kenneth and Karen Graves, 

in an alley vacated by the city of Port Townsend.  We hold that the city held an interest in 

the alley for use as a public thoroughfare and that RCW 7.28.090 precluded adverse  

No. 84828-9

possession of the alley while it was held for a public purpose.  Because the city of Port 

Townsend did not vacate the alley until February 2009, its interest in the alley prevented 

the Kielys from obtaining the property through adverse possession.

                                            FACTS

       The Kielys own real property in the city of Port Townsend next to real property 

owned by the Graves.  The disputed alley was dedicated to the city in 1908 by John and 

Mary Power through the following plat language:  "[a]nd we do hereby dedicate to the 

Public for its use forever as Public thoroughfares the streets and alleys as shown on this 

plat."  Ex. 27.

       The plat describes an alley 15 feet wide, running along the length of the boundary 

between the Graves property to the south and the Kiely property to the north.  For as long 

as anyone can remember, a hog wire fence has run along the southern boundary of the 

alley.  The Graves property adjacent to the disputed alley has remained open space where 

the Graves have planted fruit trees, berry vines, and garlic.  Part of the Kielys' recently 

restored cottage encroaches upon the disputed alley.

        In 2008, the Graves filed a petition with the city to vacate the western half of the 

alley and merge it into their adjoining lands.  The city held a public hearing on the 

application, which it processed according to the statutes and ordinances applicable to 

vacation.  As conditions precedent to vacating the alley, the city required the Graves to 

pay for an appraisal of the alley, a survey of the alley, a lot line adjustment, and the 
appraised value of the alley.1 The Graves satisfied all of the city's financial conditions.

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No. 84828-9

       The city also required the Graves to sign an indemnity and hold harmless 

agreement releasing the city from any future damage claims resulting from encroachments 
and/or any adverse possession claims.2 The Graves complied.  Neither the city nor the 

Graves were aware of any adverse possession claim upon the alley. 

       In February 2009, the Port Townsend City Council passed Ordinance 3005 to 

vacate the alley.  The city then conveyed the vacated alley to the Graves through a lot line 

adjustment recorded on March 2, 2009.  The Kielys filed an action in the Jefferson 

County Superior Court alleging ownership of the entire alley through adverse possession 

on June 10, 2009.

       On March 26, 2010, visiting Judge Wood denied cross motions for summary 

judgment.  Relying on Erickson, Judge Wood ruled that the city's easement did not 

preclude the Kielys from adversely possessing the Graves' underlying fee interest in the 

disputed alley.  Because satisfaction of the elements of adverse possession was in dispute, 

Judge Wood denied summary judgment.  Id.

       In a bench trial, on July 2, 2010, Jefferson County Superior Court Judge Verser

agreed that Erickson was controlling and concluded that the Kielys met the requirements 

1 $10,000 was the appraised value of the property.
2 The Kielys argue that this agreement is evidence the city recognized that the Graves held the fee 
interest in the alley and that the disputed area could have been adversely possessed.  However, 
this conclusion is in tension with the city demanding the full appraised value of the alley as a 
condition of vacation.  The city likely would not have requested the full value of the fee interest in 
the alley, unless it believed it owned the fee.  If it believed it owned the fee, then presumably it 
would have understood the land could not be adversely possessed.  Interestingly, the hold-
harmless agreement does not specify the interest held by the city prior to vacation.  It is possible 
the city did not know its quantum of title and believed the agreement to be a prudent means of 
confronting this uncertainty.

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No. 84828-9

for adverse possession.  The trial court entered a judgment and decree in favor of the 

Kielys.  We granted direct review to decide whether the Kielys could assert adverse 

possession based on events which preceded vacation of the alley.  

                                         ANALYSIS

       As a threshold matter, the parties dispute the nature of title held by the city as a 

result of the Powers' 1908 dedication of the alley to the public for its use "forever as [a]

public thoroughfares."  Ex. 27. The Kielys assert that when property is dedicated to a 

municipality as a street or alley, the city receives only an easement, and the abutting 

owners retain title to the land.  The Graves contend that the Powers' dedication 

transferred to the city a fee simple that could not be adversely possessed by the Kielys

because RCW 7.28.090 precludes adverse possession of land owned by the government.  

The Graves also insist the trial court erred by not analyzing whether the Powers made a 

statutory or common law dedication.

       The Kielys contend that our courts have consistently held that a city presumptively 

holds only an easement as a result of the dedication of land for use as a street or 

thoroughfare.  E.g., Rainier Ave. Corp. v. City of Seattle, 80 Wn.2d 362, 494 P.2d 996 

(1972).

       In Finch v. Matthews, 74 Wn.2d 161, 167-68, 443 P.2d 833 (1968), this court held 

that ordinarily, "the fee in a public street or highway remains in the owner of the abutting 

land, and the public acquires only the right of passage, with powers and privileges 

necessarily implied in the grant of the easement."  The court noted, "This rule was [first] 

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No. 84828-9

applied specifically to a street dedicated to the public through the recording of a plat in 

Schwede v. Hemrich Bros. Brewing Co., 29 Wash. 21, 69 P. 362 (1902)."  Id. at 168.  

Relying on Schwede, the court held that the city owned only an easement in the right-of-

way it had received through a dedication and that the original owner retained title to the 

property.  Id. at 167-69.  

       The holdings in Finch and Schwede are consistent with numerous other decisions 

of this court.  Rainier Ave. Corp., 80 Wn.2d 362 (holding that absent an intent to convey 

a fee, a dedication for public park purposes creates a public easement only); Puget Sound 

Alumni of Kappa Sigma, Inc. v. City of Seattle, 70 Wn.2d 222, 422 P.2d 799 (1967) 

(determining that a city may not require payment of one-half of appraised value of 

property in connection with street vacations because the city merely holds easements); 

Rowe v. James, 71 Wash. 267, 128 P. 539 (1912) (finding that the courts have uniformly 

held that a city acquires only an easement in a street in consequence of a dedication); 

Burmeister v. Howard, 1 Wash. Terr. 207, 1867 WL 5421 (1867) (holding that when an 

easement is taken as a public highway, the soil and freehold remain in the owner of the 

land encumbered only with the right of passage in the public). 

       The Graves, however, attack this line of cases as the result of either an overly 

broad or incorrect reading of Burmeister that fails to recognize the implications of a 

statutory dedication.  Burmeister, 1 Wash. Terr. at 211-12, is the seminal case 

recognizing an easement presumption in land dedicated as a public highway and 

subsequent cases have relied on that decision.  Meanwhile, other decisions such as Karb

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No. 84828-9

v. City of Bellingham, 61 Wn.2d 214, 377 P.2d 984 (1963), and secondary sources like 

6 Washington State Bar Association, Washington Real Property Deskbook § 91.9 (3d ed.

2001) (Deskbook), discuss the importance of the distinction between common law 

dedication and statutory dedication for determining the nature of the interest the public 

acquires.  

       We agree with the Graves that there is a distinction between common law 

dedications and statutory dedications.  Common law dedications are controlled by 

common law principles while statutory dedications are governed by specific statutes.  See 

Karb, 61 Wn.2d at 218-19.  Another distinction between a statutory and common law 

dedication is that the former operates by way of grant and the latter by way of equitable 

estoppel.  Id.  The title or right acquired by the public in a statutory dedication depends 

upon the language of a jurisdiction's dedication statute.  Deskbook, supra, at § 91.9(2).  

In many jurisdictions, a statutory dedication conveys a fee interest to the public.  See 

Gen. Auto Serv. Station v. Maniatis, 328 Ill. App. 3d 537, 765 N.E.2d 1176 (2002); 

Nettleton Church of Christ v. Conwill, 707 So. 2d 1075 (Miss. 1997). However, in other

jurisdictions a statutory dedication may confer no further right than a mere easement.  See

Heyert v. Orange & Rockland Utils., Inc., 17 N.Y.2d 352, 218 N.E.2d 263, 271 N.Y.S.2d 

201 (1966); City of Bartlesville v. Ambler, 1971 OK 154, 499 P.2d 433; Lee v. 

Musselshell County, 2004 MT 64, 320 Mont. 294, 87 P.3d 423; Mallory v. Taggart, 24 

Utah 2d 267, 470 P.2d 254 (1970).

       Here, the Powers made a statutory dedication, evidenced by the presentment for 

                                               6 

No. 84828-9

filing of a plat and its subsequent approval by the city.  See RCW 58.17.020(3);

Richardson v. Cox, 108 Wn. App. 881, 891, 26 P.3d 970, 34 P.3d 828 (2001).  Thus, we 

turn to the statutes.  

       In Washington a statutory dedication to a city or town is governed by RCW 

58.08.015, which states:

       Every donation or grant to the public, or to any individual or individuals, 
       religious society or societies, or to any corporation or body politic, marked 
       or noted as such on the plat of the town, or wherein such donation or grant 
       may have been made, shall be considered, to all intents and purposes, as a 
       quitclaim deed to the said donee or donees, grantee or grantees, for his, her 
       or their use, for the purposes intended by the donor or donors, grantor or 
       grantors, as aforesaid.

       Statutory interpretation is a question of law.  Lake v. Woodcreek Homeowners 

Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). Questions and conclusions of law are 

reviewed de novo.  Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 

P.3d 369 (2003).

       In Rainier Avenue Corp., this court held that the language of RCW 58.08.015 does 

not convert the dedication of land to a conveyance of a fee.  Rather, the reference to a 

quitclaim deed in the statute simply refers to the interest intended to be conveyed by the 
donor or grantor of the property. Rainier Ave. Corp., 80 Wn.2d at 366-67.3 The court 

stated that no additional language is required under the statutory dedication scheme to 

reserve the fee to the dedicators.  Id.  This is so, the court stated, because the fee in a 

public street remains in the owner of the abutting land and the public acquires only the 

3 In connection with the vacation of streets, RCW 35.79.050 states, "No vested rights shall be 
affected by the provisions of this chapter."

                                               7 

No. 84828-9

right of passage, along with the powers and privileges necessary to enjoy that right.  Id.4

       The Graves acknowledge that our cases have recognized a presumption that a 

statutory dedication of land for highway purposes constitutes only a public easement.  

However, they also contend that the nature of the interest conveyed through the 

dedication must be evaluated on a case by case basis.  We agree.
       "'The intention of the owner is the very essence of every dedication.'"5  Frye v. 

King County, 151 Wash. 179, 182, 275 P. 547 (1929) (quoting City of Palmetto v. 

Katsch, 86 Fla. 506, 510, 98 So. 352 (1923)).  Intent must be adduced from the plat itself.  

Id.  When an individual seeks to dedicate a fee interest, "that intent should be clearly 

stated and the use should be unrestricted or, if the use is a condition, the condition should 

be clearly stated with a specific right of reversion."  Deskbook, supra, § 91.9(1).  

       Some information can be deduced from this plat.  Most significantly, when a 

dedication specifies that property is to be used as a thoroughfare, this is strong evidence 

of intent to grant only an easement.  See Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 

738, 844 P.2d 1006 (1993); Swan v. O'Leary, 37 Wn.2d 533, 535-36, 225 P.2d 199 

(1950); Deskbook, supra, § 91.9(1).  Normally, the interest acquired by the public in land 

4 Indeed, the statute on street vacation, RCW 35.79.040, provides:  "If any street or alley in any 
city or town is vacated by the city or town council, the property within the limits so vacated shall 
belong to the abutting property owners, one-half to each."
5 A strong emphasis on intent is also consistent with this court's many railroad right-of-way cases.  
The conveyance of a right-of-way to a railroad may be in fee simple or may be an easement only.  
Morsbach v. Thurston County, 152 Wash. 562, 568, 278 P. 686 (1929). Thus, in construing the 
grant of a right-of-way, the intent of the parties is controlling.  Roeder Co. v. Burlington N., Inc.,
105 Wn.2d 269, 273, 716 P.2d 855 (1986); Zobrist v. Culp, 95 Wn.2d 556, 560, 627 P.2d 1308 
(1981); 4 Richard R. Powell, Real Property § 34.12 (2000); 2 American Law of Property § 8.64 
(A. James Casner ed., 1952).

                                               8 

No. 84828-9

dedicated as a highway is only an easement.  State ex rel. York v. Bd. of Comm'rs of 

Walla Walla County, 28 Wn.2d 891, 898, 184 P.2d 677 (1947). Washington property 

experts have commented:

       Any deed to a local government specifically for highway, right of way, or 
       any public purpose could be interpreted as a dedication conveying an 
       easement only. If the intent is to grant a fee interest, that intent should be 
       clearly stated and the use should be unrestricted or, if the use is a condition, 
       the condition should be clearly stated with a specific right of reversion.  

Deskbook, supra, § 91.9(1).  

       Here, the use is restricted by a condition the property be used as a thoroughfare, 

and there is no specific right of reversion provided.  In our many railroad cases, we have 

held that when a grant specifies a strip of land is to be used for a particular purpose, for 

example as a right-of-way, the grant generally creates an easement.  Brown v. State, 130 

Wn.2d 430, 439-40, 924 P.2d 908 (1996); Morsbach v. Thurston County, 152 Wash. 562, 

568, 278 P. 686 (1929). Conversely, when there is no such language specifying a 

particular use for the property, the deed will be construed to convey a fee.  Brown, 130

Wn.2d at 439-40.  The restriction on the alley for use as a thoroughfare is strong evidence 

that the Powers' intended to convey an easement.

       Because lines as well as words may be considered, one might infer meaning from 

the use of solid lines on this plat.  See Cummins v. King County, 72 Wn.2d 624, 627, 434 

P.2d 588 (1967).  Because solid lines separate the alley from the properties, it is possible 

the Powers intended to convey to the public the alley as an entirely distinct property 

interest.  If this were accepted as true, then the Graves would have had no interest for the 

                                               9 

No. 84828-9

Kielys to adversely possess until the city vacated the alley in 2009.  Yet, the plat neither 

assigns meaning to the solid lines, nor includes anything but solid lines on the entire plat.  

Moreover, the Graves fail to direct the court as to how the plat lines should be 

interpreted.  Absent such argument, we decline to imply meaning into the plat's use of 

lines.

       The duration of the interest is similarly unhelpful because either a fee or an 

easement can be dedicated to the public forever.  See Danaya C. Wright & Jeffrey M. 

Hester, Pipes, Wires, and Bicycles:  Rails -- to -- Trails, Utility Licenses, and the Shifting 

Scope of Railroad Easements From the Nineteenth to the Twenty -- First Centuries, 27 

Ecology L.Q. 351, 382 (2000).

       We find nothing in the language of the Power plat to suggest that the original 

property owners intended to dedicate the alley property in fee to the city of Port 

Townsend.

       The Kielys contend that because the city possessed only an easement, the Graves

may not rely on RCW 7.28.090 to defeat their claim to the alley through adverse 

possession.  RCW 7.28.090 states: 

       RCW 7.28.070 [establishing the standard for adverse possession under 
       claim and color of title] and 7.28.080 [establishing the standard for adverse 
       possession of vacant and unoccupied land] 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.  

(Emphasis added.)  RCW 7.28.090 has remained unchanged during all times relevant to 

this case.  See Brace & Hergert Mill Co. v. State, 49 Wash. 326, 95 P. 278 (1908). A 

                                               10 

No. 84828-9

party may not claim adverse possession of property held or controlled by a municipality 

for public use.  Gustaveson v. Dwyer, 83 Wash. 303, 304-05, 145 P. 458 (1915).  Land

does not lose its character as a public property merely because no public funds are 

expended for the maintenance or upkeep of the public facility.  Goedecke v. Viking Inv. 

Corp., 70 Wn.2d 504, 509, 424 P.2d 307 (1964).

       This case hinges on whether an easement dedicated for a public thoroughfare 

constitutes "lands held for any public purpose" under RCW 7.28.090.  We hold it does.

       Initially, it is significant to note that one clause of RCW 7.28.090 prohibits 

adverse possession of government owned property and another clause disallows adverse 

possession of "lands held for any public purpose."  In State v. Lundquist, 60 Wn.2d 397, 

403, 374 P.2d 246 (1962), the court noted, "A legislative body is presumed not to have 

used superfluous words."  Therefore, we must give meaning to the "lands held for any 

public purpose" clause distinct from ownership.  The legislature must have intended the 

clause to refer to land held by the government in something less than fee simple.  An 

easement logically would be such a property interest. 

       "Property" is best described as certain rights pertaining to a thing, not the thing 

itself.  Eggleston v. Pierce County, 148 Wn.2d 760, 783, 64 P.3d 618 (2003). Property is 

often analogized to a bundle of sticks representing the right to use, possess, exclude, 

alienate, etc.  Id.  An easement provides the right to use real property of another without 

owning it.  City of Olympia v. Palzer, 107 Wn.2d 225, 229, 728 P.2d 135 (1986). The 

recipient of an easement is often called an "easement holder."  E.g., State v. Newcomb, 

                                               11 

No. 84828-9

160 Wn. App. 184, 191, 246 P.2d 1218 (2011).  Presumably then, "lands held for any 

public purpose" is property in which the government holds some but not all rights.  When 

the public holds an easement, the "lands held for any public purpose" prong of RCW 

7.28.090 is satisfied, barring adverse possession claims against that property.
       There is no question that land held for a street or highway is a public purpose.6 In 

State ex rel. York v. Bd. of Comm'rs, 28 Wn.2d 891, 898, 184 P.2d 577 (1947), this court 

noted that the interest acquired by the public in property dedicated for street and highway 

purposes is generally an easement.  However, the court went on to say that regardless of 

the nature of the property interest acquired, the interest is one that is held in trust for the 

public.  Id.

       This case bears strong resemblance to Rapp v. Stratton, 41 Wash. 263, 83 P. 182 

(1905).  There the plaintiff brought an action alleging ownership of an alley that the 

plaintiff claimed the defendant had attempted to appropriate for her own by placing 

barriers and obstructions across the property.  Id. at 263.  The alley was a part of a lot 

deeded to the plaintiff by the defendant.  Id. at 264.  The defendant claimed the alley had 

been vacated for over 10 years and that he had acquired title through adverse possession.  

Id.  The court rejected the defendant's claim of adverse possession, holding that the alley 

6 RCW 58.08.050 provides: 
       Whenever any city or town has been surveyed and platted and a plat thereof 
       showing the roads, streets and alleys has been filed in the office of the auditor of 
       the county in which such city or town is located, such plat shall be deemed the 
       official plat of such city, or town, and all roads, streets and alleys in such city or 
       town as shown by such plat, be and the same are declared public highways: 
       PROVIDING, That nothing herein shall apply to any part of a city or town that 
       has been vacated according to law.

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No. 84828-9

had not been vacated and that title to the alley could not be obtained through adverse 

possession because the property was held by the city as a trustee for the public and not as 

the property of the municipality.  Id. at 266.

       Here, as in Rapp, the city held the alley in trust for the public until it was vacated,

thus precluding adverse possession prior to vacation by the city.  

       The trial court in this case felt bound by Erickson Bushling, 77 Wn. App. at 497-

98, where the Court of Appeals determined an individual may adversely possess the 

underlying fee interest in land, despite a public easement.  In Erickson Bushling, the 

parties owned abutting properties divided by a section line.  Id. at 496. The original plat 

dedicated an easement for a county road that straddled the section line and extended onto 
each property.  Id.  The road was never opened,7 and Erickson's predecessor built a fence 

encroaching on his neighbor's property.  Id.  After the fence had stood for 40 years, 

Erickson filed an action to quiet title.  Id.  The court determined that the county's 

"equitable interest in the property" was insufficient to constitute "lands held for any 

7 Although not addressed by the Erickson court, the Graves argue Erickson can be distinguished 
based on the applicability of RCW 36.87.090 in that case.  The statutes states:
       Any county road, or part thereof, which remains unopen for public use for a period 
       of five years after the order is made or authority granted for opening it, shall be 
       thereby vacated, and the authority for building it barred by lapse of time: 
       PROVIDED, That this section shall not apply to any highway, road, street, alley, 
       or other public place dedicated as such in any plat, whether the land included in 
       such plat is within or without the limits of an incorporated city or town, or to any 
       land conveyed by deed to the state or to any county, city or town for highways, 
       roads, streets, alleys, or other public places.
RCW 36.87.090. Although the county road in Erickson was unopened for more than five 
years, it was undisputed that the dedication of the easement for a county road was done by 
plat.  See Erickson Bushling, 77 Wn. App. at 496.  Therefore, RCW 36.87.090 was not 
applicable in Erickson or in this case and does not distinguish one case from the other.  

                                               13 

No. 84828-9

public purpose."  Id. at 497-98. Ruling that Erickson could adversely possess the 

property over which the county had an easement, the trial court quieted title to the 

disputed area in Erickson.  Id.  The Court of Appeals affirmed.  Id. at 499. Review was 

not sought.

       Erickson's holding is not supported by statute or case law.  First, the court did not 

explain why such an easement interest was insufficient to constitute "lands held for any 

public purpose" under RCW 7.28.090.  See Erickson, 77 Wn. App. at 497-98 (the court 

cited Finch, 74 Wn.2d at 167-68, to support its conclusion, but that case only addresses

the presumption that land dedicated to the public is an easement).

       Second, we have held fee interests subject to public easements may be considered 

"mere future expectancies, 'bereft of enjoyment and incapable of pecuniary advantage.'"  

Mall, Inc. v. City of Seattle, 108 Wn.2d 369, 377, 739 P.2d 668 (1987) (quoting In re 

New York, 278 N.Y. 163, 173, 15 N.E.2d 563 (1938)).  We further stated, "Landowners 

with property abutting dedicated streets hold a reversionary fee interest to the center line 

of the street."  Id. at 376 (citing Roeder Co. v. Burlington N., Inc., 105 Wn.2d 567, 716 

P.2d 855 (1986); RCW 35.79.040).  An adverse possession claim cannot be asserted 

against a reversionary interest or a remainder interest until the future interest becomes a 

vested interest.  Martin v. Walters, 5 Wn. App. 602, 490 P.2d 138 (1971); Nw. Indus., 

Inc. v. City of Seattle, 33 Wn. App. 757, 760, 658 P.2d 24 (1983).
       Further, with the exception of a 95-year-old Kentucky Court of Appeals decision,8

8 Home Laundry Co. v. City of Louisville, 168 Ky. 499, 182 S.W. 645, 650 (1916) (holding an 
individual may adversely possess land despite a public easement if the individual provides notice 

                                               14 

No. 84828-9

one unpublished Washington Court of Appeals opinion citing Erickson,9 and the trial 

court here, it appears no other court has reached a conclusion similar to the Erickson 

court.  Indeed, other jurisdictions have reached the opposite conclusion, finding it 

impermissible to adversely possess an underlying fee interest when the government holds 

an easement on the land.  Cal. Civ. Code § 1007 (stating "no possession by any person 

. . . no matter how long continued of any . . . easement, or other property whatsoever . . . 

dedicated to or owned by the state or any public entity, shall ever ripen into any title, 

interest or right against the owner thereof"); Ellis v. Jansing, 620 S.W.2d 569 (Tex. 1981) 

(concluding that Texas statutory law prohibits the adverse possession of a fee title subject 

to a 15 foot easement dedicated to the city of Waco); United States v. Herbert Bryant, 

Inc., 740 F. Supp. 863 (D.D.C. 1990) (holding that adverse possession cannot be used to 

acquire property affected with a public interest or dedicated to a public use in Virginia) 

(citing City of Lynchburg v. Chesapeake & Ohio Ry., 170 Va. 108, 195 S.E. 510 (1938))); 

Hellerud v. Hauck, 52 Idaho 226, 13 P.2d 1099 (1932) (concluding that land dedicated to 

a public use may not be acquired by adverse possession against the state); McCuen v. 

McCarvel, 263 N.W.2d 64 (Minn. 1978) (finding plaintiffs could not acquire an interest 

adverse to the public's easement rights prior to vacation of the town road).

       Finally, there is no practical distinction between the overlying easement and 

underlying fee.  When Erickson's predecessor built a barbed wire fence that encroached 

into his neighbor's property, he both initiated the statutory period for adverse possession 

to the municipality).
9 Jones v. Hall, noted at 86 Wn. App. 1010, 1997 WL 243489.

                                               15 

No. 84828-9

against the neighbor and interfered with the public easement.  See Erickson, 77 Wn. App. 

at 496-99.  The court concluded, "Erickson does not attempt to extinguish the County's 

easement, restrict public access along the easement, or interfere with the County's use of 

the easement."  Id. at 499. However, building a barbed fence through the easement 

restricts access and interferes with the public's rights.  See id.

       In this case, by using the alley for parking, gardening, and other purposes, the 

Kielys and their predecessors interfered with the public's potential or actual use of the 

easement.  It is ultimately not possible to separate the adverse possession of the Graves

fee simple interest from the encroachment upon the public easement.  Because it is not 

permissible to encroach upon a public easement, it is not permissible to adversely possess 

the underlying fee interest.  See Baxter-Wyckoff Co. v. City of Seattle, 67 Wn.2d 555, 

559, 408 P.2d 1012 (1965). To decide otherwise would encourage encroachments upon 

public easements and hinder public use.

       Because the city of Port Townsend held an easement interest until vacation in 

2009, RCW 7.28.090 prohibited the Kielys from obtaining title to the alley through 

adverse possession. 

       The trial court is reversed.

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No. 84828-9

AUTHOR:
        Chief Justice Barbara A. Madsen

WE CONCUR:
                                                         Justice James M. Johnson

        Justice Charles W. Johnson                       Justice Debra L. Stephens

        Justice Tom Chambers                             Gerry L. Alexander, Justice Pro Tem.

        Justice Susan Owens                              Stephen J. Dwyer, Justice Pro Tem.

        Justice Mary E. Fairhurst

                                               17