Boundary Dispute Law Blog

"Wars of Reasonableness" - as defined here at Justice Smiles - are generally conducted by providing choice:

• a 'hard' choice for the opposing party;
• a 'soft' choice for the client;
• an exceptionally fair choice for all;
• and the consequences of a non-response – the filing of a complaint and proper service and continuing with necessary follow-through.

Justice Smiles has found its "Wars of Reasonableness" to be exceptionally successful.

In addition to cabining the opposing party’s emotions, this technique applies significant pressure on opposing attorneys.

Attorneys faced with the prospect of not likely being able to provide better results for their clients are unlikely to advocate for additional conflict.

First, this deflates their credibility in front of fact finders who deem boundary disputes in the vast majority of cases to be pitiful wastes of resources.

Second, opposing attorneys also face the very real prospect of receiving bar complaints after the unsuccessful pursuit of a trial, when a more appropriate option had been provided much earlier.

Clean up the conflct. Don't clean out the client's wallet is the goal. That's reasonable isn't it?

I spent the better half of last week at the annual conference of LSAW (Land Surveyors Association of Washington). While there, not only did I have the chance to listen to some interesting presentations, I was given the opportunity to give a presentation on adverse possession ... twice.

As surveyors are often the people that identify the titular lines of property which on many if not most occassions are not necessarily in accord with recognized boundary lines, adverse possession is a legal doctrine of significant interest to them.

In preparing my comments for an earlier presentation of this talk, I came to realize something truly bizarre about the new adverse possession law. It is this. Though this statute is placed within RCW 7.28 and thus ostensibly pertains to actions to quiet title and all the emotion that went into it as it progressed legislatively was to make the law more difficult for adverse possessors, the actual language of the statute which relates only to when a claim of adverse possession is made helps adverse possessors!

When a claim of adverse possession is made two things may happen at the discretion of the Court. After sufficient evidence (albeit that which may not necessarily clear, cogent, and convincing) is given for its ruling, the court may first make a ruling which relates toward the amount of taxes that the title holder had overpaid.

Well, in my opinion this first part regarding taxes was always a rather silly quest. Here, "the juice isn't going to be worth the squeeze." This is to say the cost of hiring an expert witness to fight this out is going to in most cases be more costly than the gain. Moreover, we are not looking at the loss of the value of the land. We are simply looking at the loss of the money that has been paid to the tax-man while the land has been in the actual possession of the adverse possessor. No big whop!

However, the second discretionary tool identified for the court is a "big whop"! It suggests that the court may shift reasonable legal fees and costs to the prevailing party in cases where adverse possession is claimed.

Query: Who claims adverse possession? Answer: The putative adverse possessor.

What does this mean? My reading of the statute is that only the putative adverse possessor may put the negotiating strength of RCW 7.28.083 into play.

In other words, if the adverse possessor has a strong case, well then the adverse possessor should go ahead and claim it because he, she or they can use RCW 7.28.083 to strike sufficient fear in the title holder of a possible "double down situation" (i.e. potential threat of having to pay both the title holder and the adverse possessor's attorney fees and costs) that the title holder may give up.

Noticeably, this will also likely mean that some people with lousy adverse possession cases will try to still gain this effect by the superior huff, puff, and bluff of larger law firms who may be generating more value by the petty pretty nature of their stationary than that of their legal analysis.

The third route that may occur is to look to one of the other means of doing a non-written form of litigous boundary adjustment. These include: common grantor, parole agreement, estoppel in pais, laches, prescriptive easement, and mutual recognition and acquiescence.

The final point that I made to surveyors is that because this third route involves legal doctrines almost completely bereft of jurisprudential precedent, clients are going to be fairly anxious about their attempt. So, what can be expected...

I suggest that there will likely be many more second opinions (i.e. contra-party surveys performed). Now fortunately surveyors are fairly collegial and they rely on each others work.

But, these are hard economic times for folks that have businesses which ride on the waves of the real property markets. So there may be some people who may identify alternative - perhaps justifiably - means of interpreting title descriptions which may "better" assist their clients.

It then may come down to dueling surveys where each surveyor is called to defend his or her position in court and seeks to tear down that of the other surveyor.

In the legal arena, we realize that this is not personal. Yet we are at pains to remind ourselves that we should be more civil to our fellow legal colleagues. In other words, though trained not to, we also can find ourselves caught up in the emotion of it all at times.

All said however, surveyors don't strike me as being so finely acculturated as to be able to mercilessly cut out each others spleen in the morning and then go out for drinks in the evening. That's a pleasant collegiality that is generally the preverse of only lawyers, investment bankers, and aluminum siding salesman. What do you think?

I received an important comment to my recent post "Survey Says the Fence Encroaches - Now What?". I think that commenter Scott D. Warner, R.L.S. Senior Director / Editor Land Surveyors United (www.landsurveyorsunited.com) has made such an important point that I want to reproduce it here, so that it won't be overlooked. He states:

A survey should not say that something encroaches. In matters of encroachment, I would prefer that my peers in the land surveying profession refrain from using the term "encroachment" on survey maps, plats, etc. An encroachment is a legal condition, not a matter of survey, and thus should not be identified as such by a surveyor. A man-made structure, large tree, or anything else that a land surveyor can "see" during the course of a survey on the ground should be identified on the map, plat, etc. as exactly what it is, e.g. shed, tree, electric transformer; a distance should be denoted on the plat to the effect of the horizontal relationship between the boundary of the survey and the structure without expressing legal opinion.

Scott is absolutely correct! While surveyors identify 'Potential Encroachments' which appear to straddle boundary lines, whether 'Potential Encroachments' are 'Actual Encrochments' is subject to legal interpretation.

So, in these types of situations, the surveyor identifies relationships between the boundary line and 'potential encroachments' at a (relative) moment in time.

However, to identify whether these 'potential encroachments' are still encroachments or have served as facts sufficient to perfect possession by adverse possession (or one of the other lesser used non-written land transfer methods) or use by prescriptive easement, is the arena of the lawyers (i.e. the practice of law).

A layman may not be too keen on the separation of these two functions, but woe onto the surveyor who oversteps his or her mark into the domain of lawyers ... this is considered practicing law without a license.

Just as pointedly, woe onto the attorney who - on behalf of his or her client - "advocates" for the land surveyor to dispense with their unbiased judgment and cajoles him or her to indicate a boundary line favorable to the client.  

Thanks for your comment Scott D. Warner. I hope you will continue to offer your thoughts in the future and that others will as well. Cheers! 

A Boundary Line Adjustment ("BLA") requires that both your property and your neighbor's property be surveyed. Surveyed not just as to the boundary line. Surveyed not just as to their respective 'footprints.' But instead, surveyed as to all of that - as well as all fixtures.

Q: What's a fixture? A: Anything that wouldn't fall off your land if you turned it upside down and shook it! In other words, your house, your garage, your shed, your walkway and drive, your fence ... .  That's a lot of survey work!

Then, you will have to make an application - and pay its fee -  to the appropriate city, county, municipal governments charged initial review of your BLA.

Then, you might find that its been discovered that there is some sort of current deficiency. Perhaps current code requires that a new fire hydrant be placed. Well guess who is going to have to apply to have that reviewed after you (or your neighbor) has paid to have it installed.

And needless to say, if you want any assurance or guarantee as to what you may need to spend, you will likely be providing a nice set of billable hours to your attorney to research your needs.

Then after a long drawn-out process which very likely will exceed 6 months, your project might be blessed.

So, in answer to the question: Is a Boundary Line Adjustment Right for my Neighbor and Me? The answer is almost catagorically - NO!

No that is - unless you and your neighbors are cows and your land is green field.

Above is shot I took last weekend during a visit to the MOHAI before they start packing up for their new location. "Museum of History & Industry, #83.10.10,325 - Opening on Montlake Cut, August 26, 1916" is reproduced here at the express permission of MOHAI's librarian Carolyn Marr. It offers an excellent means of explaining the term reliction.

Reliction is the gradual creation of land when water levels around a river or lake recede.

The picture above captures the breaking of the dam which contained Lake Washington's waters prior to completion of the Montlake cut. Its effect was to connect Lake Washington to Lake Union which in turn connected to Salmon Bay through the Hiram M. Chittenden Locks (between Seattle's Ballard and Magnolia neighborhoods) thus suddenly dropping the water level.

By dropping the water level in a hurry, submerged land would quickly be accessable. Who was to own this land? The case that decided this was: State v. Sturtevant, 76 Wash. 158, 135 P. 1035 (Wash. 1913). The case notes:

The right to control navigation is admittedly in the United States, but the people of the state of Washington have asserted 'ownership to the beds and shores of all navigable waters in the state up to and including the line of * * * ordinary high water within the banks of all navigable rivers and lakes.' Constitution, art. 17, § 1. This declaration destroyed all riparian right in tide and shore lands, and affirmed the right of the state to absolutely control and dispose of these lands in any way or to whomsoever the Legislature might ordain.

However, the case then goes on to acknowledge that the State's consitutional drafters were not considering an event like this. And here the term event is important.

As stated earlier, Reliction is the gradual creation of land when water levels around a river or lake recede.

Now, surveyors that work around water have to make decisions about how to equitably redraw lines when they return after many years to find a relicted lake or river - but that's a subject for another time. The disposition in this case turned largely on this stated recognition:

The value of shore lands in most instances lies in the fact that ownership gives access to deep or navigable water. The state has sold and the purchaser has bought believing this to be true. The right of a riparian proprietor or a shore owner to improve up to the line of navigation and to erect docks and piers, though sometimes denied, is now well settled.

Washington's Supreme Court determined that the upland real property owners, and not the state, owned the land ... which was to be quickly created.

Yes, that's right - which was to be created. Notice again the date on the case - 1913 [October 25th to be exact] - and the date on the picture - August 26, 1916. Indeed, this was an anticipated event which generated attention and quite likely a great deal of anxiety as to affected people's real property rights.