Thompson v. Schlittenhart – Case Review

Some boundary dispute cases involve a little bit more than the parties’ contrary claims of adverse possession and quiet title to the recorded real property. No, sometimes the professionals can make bank by engaging in a contest in which one of them will ultimately end up the butt of the joke. [1]

That’s what happened in Thompson v. Schlittenhart. [2]

Basically, the common grantors made an original goof such that the legal descriptions which ought to have met at an adjoining line did not.

The first surveyor – hired by Thompson – did everything he could to figure the mess out but ultimately acknowledged that there was imperfect closure of the survey after examining:

the deeds of the surrounding properties, the conveyances of the Thompsons’ predecessors in interest, an unrecorded plat referred to in the Thompsons’ deed, monuments on the ground and county road maps to determine the intent of the initial common grantors.

Now, I don’t know if this surveyor charged extra for all that work. But, I suspect there is a high likelihood that this “meal” was “prix fixe” – i.e. flat fee – and so the matter became an intellectual puzzle to be solved at his honor.

At any rate, this first surveyor ultimately figured that the adjoining property line was probably along a barbed wire fence which had been in place since 1953 as opposed to the chain link fence 12 feet “inside” it which Thompsons themselves had built in 1969.

Tough schlitz to the Schlittenharts who were now pronounced not to have owned the “DMZ” between these two fences?

Heck no! On their behalf in came surveyor two … and let’s see how that worked out. To wit, surveyor two:

[E]xamined much the same information and used the same procedure as [surveyor I], but determined that the county road to the east of both properties was 60 feet wide rather than 40 feet wide and used the calls exactly as they were found in the Thompsons’ deed. … Because his survey would make the southern boundary of the Thompsons’ and Schlittenharts’ properties not a straight line, [surveyor II] did not believe that his survey reflected the intent of [the common grantors], but saw his duty as faithfully following the description in the Thompsons’ deedEmphasis added. [3]

‘What we’ve got here is failure to communicate. Some men you just can’t reach.” [4]

Surveyor 2.0 is pejoratively called a “deed staker”. He ‘slaps down the math’ and then tells people something along the lines of: ‘Gosh, you better go get an attorney. This is a mess!’

In this matter it turned out that Thompsons decided not to wait for that to happen; they initiated suit against Schlittenharts.

So, the trial court made its determination that the first surveyor knew what he was doing and as such the Thompsons prevailed. So of course then Schlittenharts appeal.

The appellate court offered a logical series of rules for determining Grantor’s Intent.

That information makes this case extremely valuable as guidance for surveyors [and attorneys] seeking to do their jobs right when the language in the deed just doesn’t fly.

As a result, the appellate court upheld the decision that the first surveyor knew what he was doing.

The appellate court then went on to recognize the trial court’s finding that the “DMZ” between the two fences had not been used exclusively by either party. [5]

Apparently, both parties had advanced claims of adverse possession in case declaratory relief of the line didn’t play to their favor.

The upshot was that Schlittenharts hadn’t adversely possessed for failure of exclusivity and Thompsons had failed simply because “[a] person cannot adversely possess his own property.”

And then we find out one last thing: “The Schlittenharts raise several other issues on appeal which were not raised at trial. These issues will not be considered. RAP 2.5(a).” [6]

In other words, the attorney dripped needless ink all over the appellate brief in a vain attempt to fashion arguments which simply could not be reviewed.

So what should we make of all this?

IMHO, someone should put a boot in both of Schlittenharts’ hired hands’ booties!

Bottom line, don’t be a “Schlitthead” and hire an idiot surveyor and then compound matters by then hiring a stupid lawyer.

Assuming you want to do things correctly, you can start along the right trail by instead taking Justice Smiles’ Initial Assessment [HERE].

[1] See http://www.nbc.com/saturday-night-live/video/cameron-diaz-monologue/n11584 [HERE].

[2] 47 Wn.App. 209, 734 P.2d 48 (1987). See [HERE].

[3] As a not so incidental aside, isn’t it curious that the two surveyors could deviate by 20′ as to the width of a county road? Folks, is it possible that the second surveyor might have done just a tad more due diligence vis-à-vis county records so as not to place his head up a situate where the sun doesn’t shine.

[4] See https://www.youtube.com/watch?v=lj60OAh7O5U [HERE].

[5] Thompsons continued to mow the grass within the “DMZ” created by the original barbed wire fence and the later built chain link fence. What the Schlittenharts did in that area is not specified in the appellate opinion.

[6] See RAP 2.5 [HERE].

ITT Rayonier, Inc. v. Bell – Case Review

ITT Rayonier, Inc. v. Bell was the first Washington Supreme Court review of an adverse possession case after Chaplin v. Sanders. [1] In ITT Rayonier the Supreme Court told the Division II appellate court that they really didn’t “phone in” the Chaplin opinion; its a holding for which … they care. [2]

You see the appellate court on discretionary review of a partial summary judgment ruling decided that there were three (3) reasons why houseboat owner Arthur Bell failed in his mission to take an isolated portion of land away from timber company ITT Rayonier.

The Division II Court of Appeals could have decided that it only needed to determine that Bell’s claim did not have sufficient supporting indicia to recognize adverse possession. [3]

Also and and or (AKA – “and/or”), the Division II Court of Appeals could have confirmed that Bell had not been exclusive in his use because there were other houseboat owners other than himself who also used the land and he admitted in deposition that he wouldn’t have attempted to exclude others who may have attempted to use the land if those others had presented themselves.

But instead of leaving good enough alone perhaps not only because of confusion but also because Bell was a douche, the Division II appellate court decided to put out a secondary rationale which flew in the face of Chaplin. Sure enough, Bell decided to take the bait and so he went hat in hand head on platter to the Washington Supreme Court requesting and receiving review. [4]

Here is the argument straight from the lower appellate court:

Even if we were to hold that there was a fact issue on the element of exclusivity, we would be inclined to affirm the trial court. … As we have observed above, another element of adverse possession is that the party seeking to acquire title to land by adverse possession must possess the land under a good faith claim of right. … We are not unmindful of the fairly recent case of Chaplin v. Sanders … where our Supreme Court overruled a long line of Washington cases and indicated that “[t]he ‘hostility/claim of right’ element of adverse possession requires only that the claimant treat the land as his own against the world throughout the statutory period”, and that the claimant’s “subjective belief regarding his true interest in the land and his intent to dispossess or not dispossess another is irrelevant to this determination.” … However, we observe also that the Chaplin court did not indicate that the good faith of the possessor is a question that can only be answered by making a judgment about the actor’s subjective belief. Although a person’s objective acts may shed light on the person’s state of mind, good faith is essentially a state of mind. In a case where a possessor of land concedes that he had no interest in the land and no claim of right, it defies logic to ignore his pronouncement about his subjective beliefs. [5]

Well, a year a month and three days later the Washington Supreme Court took down both Arty Bell and the Division II Court of Appeals.

It reminded that court that the Chaplin court “unanimously held that the adverse possessor’s “subjective belief whether the land possessed is or is not his own and his intent to disposes or not disposes another are irrelevant to a finding of hostility.”

The Supreme Court then expressly quoted: “the doctrine of adverse possession was formulated at law to protect both those who knowingly appropriated the land of others, and those who honestly held the property in the belief that it was their own. 3 Am.Jur.2d Adverse Possession § 142 (1986).” [6]

So, how was the case then disposed?

Why certainly choking it based on Bell’s failure to demonstrate exclusive use.

Oh my gosh, give me a break. You mean to tell me that the high court had a chance to strangle this thing based on insufficiency and decided not to?

Of course it did. It need to demonstrate some judicial constraint.

So, to make sure that no hapless goof like Bell wouldn’t fluke his way through, the timber industry went to the legislature to prevent this kind of nonsense from happening again.

Nine years later, anyone who attempts to take away “forestland” would need to make no less than $50,000 worth of improvements. [7]

Heck, for that kind of money Bell might just be able to afford a two seater for his outhouse!

To do your best to assure that you don’t clean your own shorts in an boundary dispute with your neighbor, first take Justice Smiles’ Initial Assessment [HERE].

[1] 112 Wn.2d 754 . 774 P.2d 6 (1989).

[2] See http://www.nbc.com/saturday-night-live/video/steve-martin-cold-opening/n10162 [HERE].

[3] See 51 Wn.App. 124, 752 P.2d 398 (1988) [HERE]. Facts supporting adverse possession in this secluded where the houseboat had been tied to a couple of trees had only been (1) some gardening; (2) two woodsheds – 1 abandoned and one later built; (3) an outhouse; and a (4) partially constructed sauna.

[4] Reminds me of the opening scene from Apocalypse Now when Martin Sheen’s character Capt. Willard says: “I wanted a mission, and for my sins, they gave me one. Brought it up to me like room service. It was a real choice mission, and when it was over, I never wanted another.”

[5] See again 51 Wn.App. 124, 752 P.2d 398 (1988) [HERE].

[6] See Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984). [HERE]

[7] See RCW 7.28.085 [HERE].

Wells v. Miller – Case Review

Wells v. Miller opens with one of the best written overviews of any Washington adverse possession cases. [1]

Larry L. Wells appeals a summary judgment which quieted title in Jerry and Betty Miller to a vacated county road right of way. The principal issues is whether a claim of adverse possession commences when a county road is vacated by operation of law or when formally declared by county commissioners as vacated. We hold it commences when the road is vacated by operation of law.

“Well, that’s done and dusted isn’t it … .” [2]

Not so fast!

Now it’s true that in 1965 Millers had started to use the disputed property and by 1968 had in place such a sufficient number uses that under normal circumstances there would be no question as to whether or not they would secure their claim of adverse possession. [3]

But, the law of adverse possession doesn’t allow possession to run against government property.

So, the question which was before this appellate court was essentially a review of the contours of difference with respect to actual and constructive notice as determined within the context between perfected and recognized rights.

As stated the obvious ground truth was that Millers owned the disputed land.

However, because there had been a dedication of the land to the government the property (rights) ought not to have been able to have been adversely possessed. That was the argument which the appellate court reviewed for Wells.

With little more than citation to a few cases and a footnote, the appellate court determined a law from 1890 – which had been overturned in 1909 and later codified by the statute RCW 36.87.090 in 1963 which itself was based on a sessions law back to 1937 – did not have any effect in this case. [4] Really?!?

The upshot of this reasoning was that the appellate court concurred with the trial court’s summary judgment disposition of the matter in Millers’ favor on the basis that formal – i.e. “recognized” – vacation of Railroad Street by the county commissioners in 1982 was not the point which started the clock.

Instead, because the land – though dedicated – was never opened, the county’s property rights had “reverted” to the adjoining property owners. Interestingly, that particular date of reversion is not specified.

Noteworthy, in the very last paragraph we find what I believe to be an extremely telling line.

Mr. Wells’ principal contention is that the Millers failed to possess the right of way in an adverse manner when they rented property east of the right of way boundary. We disagree. (Emphasis added).

It seems to me that this additional argument MIGHT add quite a bit more as fences don’t always serve to mark boundaries. Also, there is no mention as to whether the various indicia of adverse possession cross the center line of the vacated street or not. Regardless, it looks like the appellate court MAY have been keen to sweep things under the rug.

So, did Larry Wells get railroaded? Not necessarily. But, it appears to me at least that there is one critical lesson to learn here. It is this.

Though one has the right to an appeal as a matter of law, one better very carefully determine whether it is worthwhile to exercise that right. [4]

I intuit that a number of appellate courts don’t want to encourage review of boundary dispute matters.

Basically, except for the disputants themselves, most people think: “For crying out loud! Why all the rumpus?”

Sure, the (half) width of a roadway along the back of one’s yard is probably fairly significant, but in that it had been used that way for so darn long … who really cares. Perhaps the appellate court thought the whole darn thing was harmless error if there was an error to be had at all.

But why don’t we go back three years before this decision to when Wells decided to file against Miller and let me ask you this.

Do you think it might have been worthwhile for Wells to hold back a bit and really try to both determine the odds of winning at litigation and attempting to work it out with neighbors Miller?

Your darn tootin’ he should have. And guess what else, that 1/2 width of roadway along the backyard was probably the most expensive piece of land per sq.ft. that Millers ever “purchased” too!

So, if you want to better understand your case before you blindly march into a war which may or may not be to your fighting advantage, why don’t you just go ahead and take Justice Smiles’ Initial Assessment [HERE].

[1] 42 Wn. App. 94, 708 P.2d 1223. See [HERE].

[2] See http://www.nbc.com/saturday-night-live/video/mick-jimmy-backstage/2869237?snl=1. [HERE].

[3] Claimants of adverse possession Millers had used the disputed property as: (1) a driveway and (2) parked motor vehicles upon it; (3) cleared brush; (4) constructed a fence; and (5) built a garage partially within it.

[4] RCW 36.87.090. See [HERE].

[5] RAP 2.2(1). See [HERE].

 

Chaplin v. Sanders – Case Review

Chaplin v. Sanders is without doubt the most important adverse possession case in Washington state.[1]

It is a case stacked high with facts supporting the claimants of adverse possession.[2] But, there was a legal snag which gave it legs for appeal to the Washington Supreme Court.

Essentially, there was a break in the chain of title which prevented a claim of constructive knowledge. The absence of this element drove an inquiry which completely changed the law.

All adverse possession cases which came before it must now be viewed through this case’s lense. And all cases which come after it are based at least in part on its holding.

That holding is that “subjective intent” is no longer an element to be considered when determining the validity of a claim for adverse possession.

What the heck does “subjective intent” mean?

Do you remember when [3] … you were young and “accidentally” hit your brother or sister. And you professed that you certainly didn’t “mean” – i.e. intend – for them to fall down to the ground bawling. Well, although you probably couldn’t name the (criminal) elements of battery, you intuitively knew that if you didn’t intend it – even though you did it – you couldn’t be held responsible for it.

You see, in criminal law one must both do whatever “it” – i.e. the crime –  is. The fancy pants name for this in law  is actus reus. AND, the “it” must be done with a certain level of intentionality. This second element is called mens rea.

Now prior to Chaplin v. Sanders, claimants of adverse possession essentially had to prove that they hadn’t intentionally sought to take the land away from the neighbor. But, instead of just saying that simply. The Washington Supreme Court realized that through a whole host of different cases, it had indicated this requirement in all different sorts of ways including: good faith, subjective intent, and color of title.

Looking at all the nuance and at times contradictions of all these past rulings along with the first piece of written advice offered 24 years earlier by an individual who in the intervening years became a recognized legal eagle, the court determined to go ahead and pitch any concerns as to whether a claimant  intended or didn’t intend to adversely possess their neighbors’ land.

The upshot is that adverse possession became easier to determine. As a matter of social policy this ought to be a good thing. That policy is that having a clean cut method of getting to a decision is more important than than what the decision is. The law allows a judge to break up the fight as soon as possible with a ruling at summary judgment. [4]

Unfortunately, the result of this holding is often that strident holders of record title will now consider anyone who claims adverse possession against their title to be “land thieves.” While this does occur at times, most commonly neither party knew there was a difference between title and ground truth until a survey was ordered.

But now, because there is no legal need for a claimant of adverse possession to disabuse their neighbor that they are not land thieves, the holder of record title may escalate the casting of the matter to one of moral terms. Lo and behold, soon this is the perception of the claimants of adverse possession too because they believe the law recognizes the land as theirs and as such it is the claimant of record title who is in the “wrong.”

Notably, there is one last bit about Chaplin v. Sanders which can not be ignored. It is this.

Holders of record title can defeat adverse possession claims if the use was permissive. Now let’s think about this for just a bit. How many neighbors go running to lawyers to craft some sort of letter of permission if they are going to allow their neighbor to use their land. Stepping back from that question, how many neighbors run to the surveyor to identify what is their land prior to a potential grant of permission which “ought” to be drafted by a lawyer.

Yes in certain rarefied echelons of wealthy society, one has chambermaids to wipe your tail too. But for the vast majority, it simply isn’t real world to expect people to go though all this hassle … if they even know that they should. Which in itself is highly unlikely … right?

Conversely, holders of record title who have been sleeping on their rights might find it awfully easy to claim after the fact that they had granted permission for property use to their neighbors. And when this happens, a fact question is introduced which will almost certainly prevent the judge to quickly dispose of the case at summary judgment … the whole policy reason for throwing out subjective intent in the first place. What a mess!

Now does this mess well serve anyone? Of course it does. It serves the litigators. But remember that aside from making money, litigators don’t have to deal with the aftermath.

So, is there a better way? For the life of my practice, I have been advocating for a quick determination of where the line will likely be drawn if done by a court. This ought to then allows the parties to quickly settle their dispute and hopefully not create or exacerbate interpersonal strain and conflict. Why?

Because in the vast majority of cases while the real property issues have some importance, it is the underlying interpersonal conflict which needs reconciliation … and no court can do that.

Bottom line, it’s better for neither neighbor to embark on a path for which it is unlikely that they will emerge victorious. And even if they do, that definition of victory better be vary clear in their head at the outset to allow them to clearly recognize its benefits and detriments … and see it to its endpoint.

If you want to find out whether you have a case and want to consider how might be the best way to proceed, please take a moment to complete our Initial Assessment [HERE]. [5]

[1] 100 Wn.2d 853, 676 P.2d 431 (1984). See [HERE].

[2] Claimants of Adverse Possession Sanders had: (1) cleared land; up to a (2) drainage ditch; beyond which were (3) bramble bushes. Later, they (4) installed a road; upon which (5) vehicles were parked; (6) garbage and (7) storage goods were placed. The claimed strip alos was regularly (8) mowed; planted with (9) flowers; (10) used for picnics and children’s play; and the placement of (11) over and underground electrical wiring.

[3] See https://www.nbc.com/saturday-night-live/video/the-chris-farley-show-mccartney/2868143?snl=1.

[4] See explanation of Summary Judgment [HERE].

[5] Although Justice Smiles seeks to assist neighbor(s) to handicap their case and come quickly to peace, it is entirely possible that bellicose neighbor(s) will continue to be unreasonable and attempt to push their luck. To better understand how to sidestep that dynamic, I suggest people review the post: What Should I Know about my Neighbor in a Land Fight. See [HERE].

Scrape that Tar Right Off Your Shoe

Bulldogs 65 – 71 Tarheels. Any lessons for Boundary Disputants?

I am going to venture that there is.

Quite a number of people think that they should go to an attorney who is a “real bulldog.”

The problem with this approach is that they are already signaling that they are already so emotionally charged that they might as well simply tell their attorney they are giving them carte blanche to throw a molotov cocktail over the fence and somehow not think that they are going to be burned.

Are you kidding me?

By contrast, I do my best to both settle real property disputes AND resolve  interpersonal conflicts.

Because my practice is dedicated exclusively to these dual but very different functions, I am unique in that I stand on the line between the legal and mediation fields for my clients … and their neighbor.

Still don’t understand how this could benefit you and your neighbor – both … then go find yourself a bulldog and tell him or her all about the bone you have for your neighbor.

Then, when you have had your day in court – or not – and you realize that the only ones who have walked away with satisfaction are the attorneys … you will finally come to understand the folly of your ways.

Then go ahead and see if there is ever going to be any possible chance that either of you will be able to draw from the [oil] well of good will.

Guess what, in the best of circumstances the loser is likely going to find another field from which to draw. In other words, the loser is going to move away. And in the loser could certainly be you, you should really take a moment to determine upfront if you should simply determine that what you thought was an oil field a nice home, has in fact turn out to be a bad trade which you should liquidate.

Alternatively, consider the worst of circumstances. Should you and your neighbor remain in place, you will likely find yourself exchanged in the oil derrick’s rhythmic contrapuntal of tit for tat.

Unfortunately, when that happens I will have no [one] counter-factual to show that notwithstanding the fact that whereas you thought that I was stuck in the tarpit, I actually had a winning strategy which would have satisfied to best possible extent all the normal concerns inherent to these matters … except perhaps this one.

My March Madness bracket was a winner … I had the North Carolina Tarheels going all the way!

Author’s Note: While to Gonzaga students, alum, friends, and fans this post may seem unwarrantedly cold, I seek to use it to indicate the critically important point that a dispassionate, honest attempt to determine outcomes generally is the more sound approach to the handicapping of future events.

As I had no affilial “skin in the game”, I could do this. However, if I had such affiliations, I no doubt would have sought to let it ride on “my team”. Perhaps that is the most apt reason why one should get counsel to assist you to handicap your matter upfront after the disclosure of facts … instead of you telling the attorney how the law is going to shake out in your matter.

Oh and by the way, for those [other] folks out there that think they can take up my time by telling their story and get some free advice over the phone … forget about it. Go ahead and look at this blog, if you get what you need and don’t need more, great! That’s a significant part of its function. But, if you want more, all you have to do is fill out this initial assessment assessment which is linked [HERE].

If you want to call, that’s fine too. Just have your calendar ready because we will be scheduling an initial consultation. The office line for Justice Smiles, pllc is 206.216.5878.

Land Surveyors’ Association of Washington Conference

Non-Combative Dispute Resolution Speech Outline

Anecdote #1 – Twin Sisters

Anecdote #2 – Concrete Pad

Mending Wall by Robert Frost  – Mutual Recognition and Acquiescence

Elements of Adverse Possession

  • Open & Notorious
  • Hostile & Exclusive
  • Continuous for Statutory Period (of 10 years per RCW 4.16.020)

Problems with Court:

  • Costs Prohibitively Expensive – An Access to Justice Question
  • “Open & Notorious” should mean easy to determine the contest upfront.
  • Courts generally believe these matters are rather insignificant.

Importance of Asking the Quintessential Question – “Why”

Three Models of Non-Litigious Dispute Resolution

  • Facilitative Mediation
  • Evaluative Mediation
  • Transformative Mediation

“When can boundary dispute problems be best resolved?”

“Why are they not resolved at that time?”

  • Realtor’s Interests
  • Title Insurers Interests
  • Mortgage Lenders Interests

Where will value added increasingly occur going forward?

Beating Your Neighbor Legally Senseless is Good for Them

Many of us are aware of the 10,000 hour rule which Malcom Gladwell pointed out to the world in his book The Tipping Point.

Don’t know what I am talking about?

Well here is a quote apparently about the difference between good and great musicians which I found in my inbox from Brian Johnson of Philosophers’ note a few days ago which will help.

“The striking thing about Ericsson’s study is that he and his colleagues couldn’t find any ‘naturals,’ musicians who floated effortlessly to the top while practicing a fraction of the time their peers did. Nor could they find any ‘grinds,’ people who worked harder than everyone else, yet just didn’t have what it takes to break the top ranks. Their research suggests that once a musician has enough ability to get into a top music school, the thing that distinguishes one performer from another is how hard he or she works. That’s it. And what’s more, the people at the very top don’t work just harder or even much harder than everyone else. They work much, much harder. The idea that excellence at a complex task requires a critical minimum level of practice surfaces again and again in studies of excellence. In fact, researchers have settled on what they believe is the magic number for true expertise: ten thousand hours.” [Emphasis added.]

Malcolm Gladwell
from Outliers

Well folks, as someone who has concentrated my practice exclusively on Real Estate Boundary Dispute matters for the last 8 years, I’ve put in a few hours.

So, though I may not know shinola about a lot of other areas of the law … I probably know this area better than you know the color of your spouse’s eyes!

Yes, I have seen a lot.

Though always game for to swap some new ideas with someone that also knows about this area of law in a robust exchange, the one thing I just can not abide are opposing counsel who help their clients cross the Rubicon – i.e. get beyond the point of no return – when their clients have neither the merits nor the intestinal fortitude to see the matter to its end point.

Notably, this is a litmus test that I put my own clients through. As I see it, that’s simply proper client management.

Not incidentally, it is also why I charge $750 for an initial office consultation. Likely the highest value that my clients pay to me … especially if they really don’t have what it takes to take it all the way. Perhaps I’ll expound on that point further in depth another day.

For now though, I want to return to the lawyer that has been approached by a client and is moving through the motions to sign them up … but doesn’t know this area of law and their client’s case is nonsense. 

In those situations, it’s simply the best course for me to help you beat the smack out of your neighbors early, often, and unrelentingly until they realize this is one pissing match that isn’t going to get negotiated out in a “fair manner” after a period of long negotiation, litigation preparation and its follow through, or both.

Now how is this in your neighbor’s best interest?

Because now they don’t have to continue to pay their useless attorney any more to do “research” on something for which they aren’t possibly going to get results!

Of course taking your neighbor out quickly means that I can be released from your services early too … which is a very good thing.

So, do you want to find out if you can make a mash of your neighbor or whether the opposite will occur to you?

To get a free triage of your case before your neighbor does, please take a moment to connect by answering the questions to this initial assessment [HERE].

 

 

Perception Drives Understanding

What would happen if people identified their legal rights as easily as they could identify their titled boundaries?

This is an interesting question. There would always be gaps and overlaps in understanding. But, just as importantly it helps us to realize how boundary dispute law is such an apt analogy for all law.

So, going to the concrete steps that most people exercise when seeking to figure out their titled boundaries – i.e. the limits of their legal rights – you start by hiring an expert. That expert though is not a lawyer.

That expert is a licensed surveyor who researches their title and that of their adjoining property owners; goes to the land to locate it in relationship with other known and commonly regarded monuments; and then often (but not always) will produce a survey exhibit which at minimum depicts the land and often demonstrates relationships of fixtures upon the land regarding the boundary.

Note for surveyors out there, I know this is a far too simplified identification of the work you do. We can go into many other facets, but let’s keep it simple for this exercise.

Now, with your boundaries determined, those people your boundaries are rubbing up against – i.e. adjoining – should understand them in the same way … right?

Well, this is where an old axiom comes in to do it wonders: “Where you stand is a function of where you sit.”

This is to say that your UNDERSTANDING of the situation is a function of your PERCEPTION of it. And not incidentally, many if not most people believe they are “entitled” to everything they get.

Clarifying, where adverse possession is claimed, each party argues that they are entitled to real property – i.e. the territory of legal rights – along the farthest line of their perception of ownership OR that line which they are advised is theirs as a matter of ownership through their title.

Adverse Possession is essentially the claim: “You didn’t use it (whereas we did) for such a long time that it is unjust for you to seek to take it back and deprive us of it now.

This is why Adverse Possession is considered a Statute of Limitations. Statutes of Limitations are in place to eliminate liability for stale claims so people can get on living their life.

But, notice that the people “sitting” on the other side are also going by that same logic. It’s not that they necessarily want to take away someone else’s rightful property (although I won’t eliminate that as a possibility), it is that they don’t want to have the neighbor take property – “by title” – that is theirs away from them.

And this brings us right down to how we witness a fundamental schism in the law. There is Actual Notice and there is Constructive Notice.

Actual Notice makes perfect sense right? Well, go back up and read about all that gap and overlap business in perception if you thank that’s the case.

As to Constructive Notice, you MAY have heard it before most commonly expressed as the legal expression in Latin no less: Ignorantia juris non excusat. 

For those without working knowledge of that dead language – like me – that bold quote means: Ignorance of the law is no excuse.

The opposite of the same means simply something like ‘Everyone knows the law.’ Really? I don’t think so.

If you have a boundary dispute here in Washington State and want to know more about the law (instead of Latin), take a moment to fill out this Initial Assessment [HERE].

Kettle Logic

Without naming it outright, yesterday I introduced “Kettle Logic.”

This is the term that Jacques Derrida – who came up with the famous line “form is content” (or some such in his native French) and many other concepts of deconstructionism – uses to describe the situation of throwing together a stew of contradictory logical claims.

Kettle Logic for lawyers is when they throw a bunch of contradictory claims or defenses into the pot and make an unpalatable goulash hoping they might be able to prevent a fact finder from figuring out the truth and with it their clients’  liability.

The example provided by Wikipedia on how Kettle Logic got its name is from a reference by Derrida to one of Sigmund Freud’s whacky dream stories about how a man was accused by his neighbor of having returned a kettle in a damaged condition.

As an important frolic and detour, an issue spotting lawyer might just jump in right here to label these neighbors as bailor and bailee. This lawyer might then seek to determine who was the one benefiting from the bailment – i.e. lending or presentment from the bailor to the bailee of the black kettle.

This is because the law gets so specific as to determine different standards of care if the person benefiting because of the bailment was the bailor or the bailee.

To reflect on this bailment point for longer, we are likely to assume that the kettle benefited the bailee perhaps because the bailee for a time had greater cooking capacity.

However, it could have also been the case that the bailor benefited perhaps in the situation that the kettle came available a few days before a family member’s birthday and the bailor wanted it stored to allow it to be a surprise.

Though a side point, if you think like a lawyer you will see doing a neighborly “favor” as a liability. That’s something to “stew on.” (Sorry.)

Returning to the whole point, the bailee offering defenses might come back with the following three provided by that Wikipedia entry … plus a couple more which I offer for good sport:

  1. The bailee had returned the kettle undamaged;
  2. The kettle was already damaged when he borrowed it;
  3. The bailee had never borrowed the kettle in the first place;
  4. The kettle was not the bailor’s kettle;
  5. The bailee did not have legal responsibility over another person who damaged the kettle; and if able to get away without sanction for a patently false claim …
  6. The kettle was not being returned but presented as a gift to the claimant.

Wow? What a mess. It seems what is happening here is that the bailee is creating defenses which will force the accuser to dig in to prove the facts.

All these defenses require that the bailor claimant prove:

  1. The kettle is the bailor’s kettle – i.e. the bailor has title to it.
  2. The bailor’s kettle was entrusted to the bailee.
  3. The bailee received the kettle in good condition (as opposed to the bad condition now claimed to be that of a damaged condition).
  4. The good condition of the kettle was reduced at some point while in the bailee’s possession to a damaged condition.
  5. The bad condition of the kettle occurred because of the bailee defendant’s failed a duty to maintain the kettle in a good condition – regardless if someone else damaged it.
  6. The bailor is actually kicking a gift horse in the mouth … the ingrate!

Even if you take off the final claim and required proof as being too over the top, the point is clear. Offering defenses tests the claimants’ ability to prove their claim.

But this fails to explain why anyone would want to waste their time with alternative – i.e. contradictory – pleadings as the claimant.

Cynically we might rush to suggest the reason to make alternative claims is to create a nice big bog for the lawyers to wade into and start up a muddy war for which you and your neighbors are both going to pay the price. Right?

True, often that attorney who helped you do your will or your aunt’s divorce a few years ago doesn’t know what they are doing and they are going to just attempting to sling it.

But that is not the whole story …

More charitably to other members of the legal guild, the reason is because additional facts might come in during discovery which helps clarify that an alternative claim is correct whereas the others are not.

Alternative Pleading – AKA “Pleading in the Alternative” – basically provides the greatest latitude for claimants to honor their requirement of giving notice to the opposing party as to what the heck they are suing the other over while at the same time being able to later fashion the most proper claim.  

Think of it this way, the exchange of Complaint and Answer is the first (official) foray of a legal skirmish in which claims and counter claims are exchanged in what can then become a long, long legal process.

It is the legal process itself which usually provides clarity as opposed to greater opaqueness in the legal “fog of war.”

Wouldn’t it be nice though if you could “get a bird’s eye view” of the conflict early on so you don’t waste your time getting into “a war you can not win”.

Better yet, isn’t it great when you can dispassionately identify to your neighbors that the boundary dispute will be “a war they can not win” so they should just holster their six-shooters right now so nobody gets needlessly hurt?

Problem is there are no “can not win wars” in the law. Or at least there are no attorneys who will identify that situation for fear they will be seen as having made a guarantee.

Yet if you at least want help handicapping your case, it is worth having a conversation with lawyers who knows how to assess the lay of the land – i.e. Justice Smiles.

If this sounds like you  and you are a Washington State resident, take a moment for this initial assessment [HERE].

BTW – If you feel compelled to see the entry on Wikipedia, you will find it [HERE].

 

 

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