Appeal from the United States District Courtfor the Western District of WashingtonFranklin D. Burgess, District Judge, PresidingArgued and SubmittedMarch 8, 1999--Seattle, WashingtonFiled May 13, 1999Before: Betty B. Fletcher, Stephen Reinhardt andSidney R. Thomas, Circuit Judges.Opinion by Judge Thomas
_____________________________COUNSEL John R. Muenster, Muenster & Koenig, Seattle, Washington,for the defendants-appellants.Richard E. Cohen, Assistant United States Attorney, Seattle,Washington, for the plaintiff-appellee.
_____________________________OPINION THOMAS, Circuit Judge:In this appeal, we consider whether the government mayacquire title by adverse possession in Washington after afailed forfeiture proceeding in which the property wasimproperly described. We hold that in this case, the UnitedStates did not satisfy the elements of adverse possessionestablished under Washington law and cannot acquire title toland not included in the forfeiture action.INader Spahi and his partnership Emperor West Associatesowned a warehouse at 1208 Fourth Street in Anacortes,Washington ("the warehouse property"). Alleging that Spahihad purchased the property with the proceeds of an illegalmarijuana operation, the United States commenced a civil for-feiture action pursuant to 21 U.S.C. S 881(a)(6) on February20, 1990. The forfeiture complaint described the warehouseproperty by its commonly known street address, 1208 4th St.,Anacortes, WA, and included its "buildings, improvements,appurtenances, fixtures, attachments, and easements."Attached to the complaint was a legal description of the prop-erty to be forfeited ("Parcel 1"), which described most, butnot all, of the property owned by Spahi at this address, specif-ically: All of Lots 15 and 16, Block 71; AND that portion of Lots 11 to 14, inclusive, Block 71, lying South- easterly of a line that is 10 feet Southeasterly of and parallel with the center line of the right of way of the Great Northern Railway Company, as it existed on April 23, 1935, through said Block 71, MAP OF THE CITY OF ANACORTES, according to the plat thereof recorded in Volume 2 of Plats, pages 4 through 7, records of Skagit County, Washington.The description omitted a small triangle of land which con-tained a corner of the warehouse and a railroad right of way("Parcel 2") more particularly described as follows: All that portion of Burlington Northern Railroad (formerly the Great Northern Railway Company) right of way lying within Block 71, "City of Anacortes", according to the plat recorded in volume 2 of plats, page 4, records of Skagit County, Wash- ington, except any portion thereof lying northwest- erly of a line parallel with and (10) ten feet as measured radially, northwesterly from the center line of said right of way.Corporate predecessors of the Burlington Northern Railwayhad acquired title to Parcel 2 by patent from the United Statesgranted in 1875, and recorded in 1881. Title was conveyed byquitclaim deed to Spahi on December 18, 1987 and recordedOctober 29, 1997.After the complaint was filed, Spahi agreed to withdraw hisclaims and forfeit Parcel 1. The United States took possessionof the warehouse property and required Spahi's tenant to signa "tenant occupancy agreement" with the United States Mar-shal Service.When the government was in the process of selling thewarehouse property, it discovered that it had failed to includea description of Parcel 2 in its forfeiture complaint. There-upon, the United States filed the instant complaint seeking toquiet title in Parcel 2, and, in the alternative, asserting thatParcel 2 should be forfeited pursuant to 28 U.S.C.S 881(a)(6).Spahi resisted the complaint based on his purchase of Parcel2 from Burlington Northern Railroad, Inc. The district courtdismissed the forfeiture claim as barred by the statute of limi-tations.Following a bench trial on the quiet title claims, the districtcourt granted judgment to the United States, holding that ithad established ownership by adverse possession under colorof title pursuant to Washington Revised Code S 7.28.50. Inthe alternative, the court found that the United States held aneasement over Parcel 2 by prior use.Spahi appealed the court's decision, but did not seek a stayof the execution of the court's judgment. Because no stay wasissued, the government sold the warehouse property, includ-ing Parcel 2, to a third party.IIThe government contends that this appeal should be dis-missed as moot because Spahi did not obtain a stay and theUnited States has sold the warehouse property to a bona fidegood faith purchaser who cannot be compelled to relinquishits interest in the property.[1] Under the bona fide purchaser doctrine, as it exists inWashington, a good faith real estate purchaser for value whois without actual or constructive notice of another's interest inthe property purchased has the superior interest in the prop-erty. See Wash. Rev. Code S 65.08; Tomlinson v. Clarke, 825P.2d 706, 707 (Wash. 1992) (en banc). The third party pur-chaser in this instance does not qualify as a bona fide pur-chaser for value because he took title with notice of Spahi'sclaim. In addition, title was transferred to the third party pur-chaser by quitclaim deed, which conveyed only the grantor'sinterest, subject to valid title claims and encumbrances. SeeThorstad v. Federal Way Water & Sewer Dist., 870 P.2d1046, 1048 (Wash. Ct. App. 1994) (citing Corning v. Aldo, 55P.2d 1093 (Wash. 1936)). Because the third party purchaseracquired title by quitclaim deed, with knowledge of Spahi'sclaim, the third party does not qualify as a bona fide purchaserand the appeal is not moot.IIIUnder Washington law, there are four primary statutesunder which a party may acquire title by adverse possession:(1) Washington Revised Code section 4.16.20, under which aparty may acquire title by adversely possessing real propertyfor a period of ten years; (2) section 7.28.070, under which aparty may acquire title by adversely possessing real propertyunder color of title and paying all taxes levied during thatperiod; (3) section 7.28.050, which applies a seven year stat-ute of limitations on the filing of any action to recover realproperty when the same is adversely possessed by one whohas "a connected title in law or equity deducible of recordfrom this state or the United States;" and (4) section 7.28.080,under which title to vacant land may be acquired by a personwho, in good faith, has color of title and pays taxes on theproperty for seven years without necessarily "possessing" theproperty by hostile use.ABecause the government did not adversely possess Parcel2 for ten years prior to filing the quiet title action, it cannotestablish title under section 4.16.020. It is undisputed that thegovernment did not seize Parcel 1 until 1990, so even if,arguendo, Parcel 2 were seized with Parcel 1, the requisite 10years had not passed at the time of the filing of this case inMay 1996.[2] Because the real property subject of this action was notvacant land, section 7.28.080 is inapplicable. Therefore, thegovernment must recover, if at all, under the color of title orconnected title statutes.B[3] Washington's adverse possession by color of title stat-ute provides that: Every person in actual, open and notorious posses- sion of lands or tenements under claim and color of title, made in good faith, and who shall for seven successive years continue in possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tene- ments, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, devise or descent, before said seven years shall have expired, and who shall continue such possession and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section.Wash. Rev. Code S 7.28.070 (1998). Under Washington law,"[c]olor of title is that which is a semblance or appearance oftitle, but is not title in fact nor in law." Scramlin v. Warner,416 P.2d 699, 701 (Wash. 1966) (quoting Bassett v. City ofSpokane, 168 P. 478, 479 (Wash. 1917)). "Color of title mustpurport to pass title, and the claimant must believe it to be avalid title." Daubner v. Mills, 811 P.2d 981, 983 (Wash. Ct.App. 1991). "[A]n instrument insufficiently describing prop-erty is not color of title." Wingard v. Heinkel, 464 P.2d 446,447 (Wash. Ct. App. 1970). "One may not claim propertyunder color of title when the property is not described in thedeed." Heikkinen v. Hansen, 360 P.2d 147, 149 (Wash. 1961).[4] The judgment of forfeiture did not include Parcel 2.Therefore, the United States did not have "color of title" as toParcel 2 under Washington law and cannot recover under sec-tion 7.28.070.C[5] For similar reasons, the United States cannot recoverunder the "connected title" statute, which provides: That all actions brought for the recovery of any lands, tenements or hereditaments of which any per- son may be possessed by actual, open and notorious possession for seven successive years, having a con- nected title in law or equity deducible of record from this state or the United States, or from any public officer, or other person authorized by the laws of this state to sell such land for the nonpayment of taxes, or from any sheriff, marshal or other person autho- rized to sell such land on execution or under any order, judgment or decree of any court of record, shall be brought within seven years next after pos- session being taken as aforesaid, but when the pos- sessor shall acquire title after taking such possession, the limitation shall begin to run from the time of acquiring title.Wash. Rev. Code S 7.28.050. This statute differs in structurefrom the other adverse possession statutes. It provides for astatute of limitations on actions filed to recover real property"when the same is possessed by one who has record title run-ning back to a state or federal deed, to a tax sale, or to a stateor federal judicial sale." W. Stoebuck, The Law of AdversePossession in Washington, 25 Wash. L. Rev. 53, 56 (1960).The statute validates titles which might otherwise be void"because of some defect in the deed or sale or the proceedingsleading up to them." Id. Thus, rather than providing a partywith an avenue to establish a right, the statute confirms defec-tive record title taken from the government if no challenge ismade within the statutory period.The district court concluded that the United States had aconnected title in law or equity deducible of record from theUnited States on two grounds: (1) the forfeiture complaintregarding Parcel 1 was sufficient to demonstrate a connectedclaim to Parcel 2 and (2) pursuant to 21 U.S.C.S 881(h), titlein the United States vested as of the date of the earliest actgiving rise to forfeiture.[6] The district court's first conclusion is in error becausethe legal description of Parcel 2 is not included in either theforfeiture complaint nor the judgment and decree of forfei-ture. As a consequence, the forfeiture proceeding did not vestthe United States with any claim to record title to Parcel 2;rather, the United States only obtained record title to Parcel1. Thus, the forfeiture proceeding did not serve to establish "aconnected title in law or equity deducible of record from thisstate or the United States," and was insufficient to commencethe running of the statute of limitations under section7.28.050.The district court also held that section 7.28.050 was appli-cable in light of its conclusion that the United States acquiredtitle in August 1986 pursuant to 21 U.S.C. S 881(h). That pro-vision states that title to property subject to forfeiture vests inthe United States upon the commission of the act giving riseto forfeiture. See id. The district court reasoned that becausethe initial act was committed in August 1986, title vested asof that date.[7] The initial flaw in the district court's conclusion is thatSpahi did not hold title to Parcel 2 in August 1986 -- the Bur-lington Northern Railway did. Without establishing that theBurlington Northern Railway consented or had knowledge ofthe predicate criminal acts, the United States may not acquiretitle by forfeiture to property owned by Burlington NorthernRailway. See 21 U.S.C. S 881(a)(7).[8] Second, assuming, arguendo, that the requisite predi-cate criminal acts were occurring when Spahi obtained title toParcel 2, the forfeiture statute would still not operate to pro-vide the United States with legal title to Parcel 2. Title to realproperty may "vest" in the United States upon commission ofthe act giving rise to forfeiture, but vesting is not self-executing. Indeed, under the forfeiture statutes,"nothing vestsin the government until some legal step shall be taken for theassertion of its right, after which, for many purposes, the doc-trine of relation carries back the title to the commission of theoffense." United States v. Parcel of Land,
507 U.S. 111
, 125(1993) (quoting United States v. Grundy, 3 Cranch 337, 350-51 (1806)). Thus, the United States is required to perfect titleby legal action before title may vest. The initial forfeiture suitdid not include Parcel 2, and the district court correctly heldthat the forfeiture claim in the instant suit was barred by thestatute of limitations. Thus, no judicial action has perfectedthe title of the United States. That being so, no "connectedtitle" which is "deducible of record" exists by virtue of 21U.S.C. S 881(h), and the United States cannot establish titleunder section 7.28.050 by virtue of that provision either.IV[9] As an alternative holding, the district court concludedthat the United States had established an implied easement byprior use of Parcel 2. Generally speaking, under Washingtonlaw, an implied easement exists when property over which aservitude has been imposed is divided and an easement is rea-sonably necessary for use of one of the severed parcels. See,e.g., Bailey v. Hennessey, 191 P. 863, 864 (1920). The princi-ple behind the creation of easements implied from prior useis that the conveyance of a dominant estate should be accom-panied by the advantages and burdens which were appurte-nant to the estate prior to the separation of the title. See Roev. Walsh, 135 P. 1031, 1033-34 (Wash. 1913). The paradig-matic implied easement is presented when an owner sells partof his or her property to which access may only be gainedthrough an existing road which passes over the seller's prop-erty. See, e.g. Roberts v. Smith, 707 P.2d 143, 145-46 (Wash.App. 1985).[10] To establish an easement by implication in this case,four elements must be shown: (1) that defendants owned bothParcel 1 and Parcel 2; (2) that the defendants imposed adegree of servitude upon both properties; (3) that the twoproperties were severed; and, (4) that the easement sought bythe government was reasonably necessary for the enjoymentand use of Parcel 1. See Dreger v. Sullivan, 278 P.2d 647, 648(Wash. 1955).[11] It is readily apparent that the circumstances of thiscase do not lend themselves to an implied easement analysis.Although there was unity of title, there was no easement orother servitude imposed on both the parcels during the periodof joint ownership. The easement sought by the governmentis not to obtain access to Parcel 1, to which it already hasunrestricted access. Rather, the government seeks to integrateboth parcels for the exclusive use of its grantees. This notionis antithetical to the concept of an easement, because an ease-ment is a right to use land of another for a specific purposenot inconsistent with the general use of the property owner.See 7 Thompson on Real Property, Thomas Edition S 60.02(a)(David A. Thomas ed., 1994). Indeed, Spahi has a betterclaim, under implied easement theory, to an easement overParcel 1 to obtain access to Parcel 2.Thus, the government's implied easement theory failsbecause it did not establish both the pre-existing servitude andthe requirement of reasonable necessity. However, on a morefundamental level, application of an easement analysis isinappropriate when the easement claimant is seeking toacquire exclusive use of the land.VIn summary, the appeal is not moot because the acquiringparty was not a bona fide purchaser for value without noticeof Spahi's claim. The district court properly dismissed thegovernment's forfeiture claim as barred by the statute of limi-tations. The government cannot establish adverse possessionunder section 4.16.20 because ten years has not elapsed. Thegovernment cannot establish adverse possession under section7.28.080 because vacant land is not at issue. The governmentcannot establish adverse possession under section 7.28.070because it did not have color of title. The government is notentitled to confirm title under section 7.28.050 because it didnot have a connected title deducible of record. The govern-ment is not entitled to an easement by implication because theservitude was not imposed on the land prior to severance andbecause the easement is not reasonably necessary.The judgment of the district court is reversed. Spahi isawarded his costs. the end