Starfish Savior

Boundary Dispute Law has been my sole occupational focus for a decade. I started drilling down on this nano-niche of real property law after I turned my back on being a “China Hand.” I have decided it is time for me to again change. Why?

Every once in a while, one should take stock and figure out if they are still on course. In my case I’m not. I need to make some big changes. I need to again draw my attention and intention to that which I find I can do to most meaningfully help people. By way of analogy, consider this story of the Starfish Savior.

One day a man on vacation arose at daybreak and went down to the beach. All along the beach, absolutely everywhere, there were starfish. Then he noticed he was not alone. There was a local woman along the beach engaged in some sort of activity. So, he decided to investigate.

As the vacationer approached, he saw that the local would pick up a starfish and fling it into the ocean. Then, she picked up another and threw it as well. She did this over and over and over again.

So, the vacationer decided to approach and then asked her: “Why are you doing this?” Her answer was relatively simple: “To save the starfish from the sun which will soon scorch them.” Dumbfounded, the vacationer responded: “But, there are so many. It doesn’t make any difference.”

Pausing for a moment only, the local replied: “It does to this one.” She then threw it into the water and continued on her task.

Let’s break down how well this story captures my thoughts. First, notice that the local is doing something repeatedly. At least in this domain, not incidentally a domain for which she receives no financial reward, she is doing something that she believes to be meaningful.

The vacationer does not see the situation in the same light. Though the vacationer’s occupation is not mentioned because that doesn’t matter with respect to the starfish, it appears to him that this activity is meaningless.

How can something be meaningful and meaningless at the same time? Well, as the Starfish Savior story illustrates, it is because we are the ones who attach meaning to our activities and possessions – i.e. our occupations. Our occupations, in turn, vest meaning into our respective lives. Just as importantly, everyone vests meaning to their activities and possessions … differently.

The day to day job of a boundary dispute attorney has become meaningless for me. I can’t envision pursuing this line of work in the same manner any longer. I am in the process of making some significant alterations. This isn’t to say that the work doesn’t matter. It also is not to say that I intend to completely unplug from my rich store of knowledge.

Helping neighbors to resolve their issues is an important aim. In this increasingly interconnected world, we have all become neighbors. There will always be conflict. Often, that conflict will require skilled assistance to resolve.

The problem is that whereas the local cares about doing her best for the individual starfish which she saves, my primary aim had been to make systemic improvement so all but the most unlucky of starfish can be saved. In addition to learning mediation, my goal has been to learn and and depict boundary dispute cases in an effort to sidestep needless litigation.

I have developed a diagnostic tool for this purpose … in theory. The tool is one which visually renders the merits of their case so people can determine whether the pursuit of a lawsuit is worthwhile. I have thought about this tool for years.

I started my most rudimentary formulations of this tool as an undergraduate when studying The Legal Environment of Business. My idea then gained continued clarity when I produced an independent study called Legal Geometrics.

Finally, it was an idea which I had reduced to full conceptual form five years ago when I published a couple of articles to demonstrate it in the King County Bar Bulletin. See [HERE] and [HERE].

But that’s about as far as I have taken it. Oh sure, I have pushed the needle along the way a little bit further here and there by working on graphics to better demonstrate individual cases. I also developed a depictional spreadsheet which assists case assessments. But for the most part a half decade has gone by for me of toil with the messiness of boundary disputes in which I have worked to save individual clients as the native who has taken on the role of the Starfish Savior.

Instead, it is time to get on to the business of evangelizing the tool which when reduced to form will not only save the starfish all along the waterfront, but even more importantly be used more importantly to help people use all the time, emotion, and time that they would otherwise waste and devote it to “saving themselves” – i.e. self-improving.

I fully recognize there are some fights with a neighbor which must occur. As anyone can attest, the world is not absent very mean bullies!

Beyond this though, it is my belief that if people put in even one-tenth as much into improving themselves as they might otherwise to force changes in their neighbor, they would be way ahead of the game.

So, where does this leave me? Instead of boundary dispute law, I am commencing a pivot so that my practice’s primary aim becomes engaging in work which assists people to do boundary breakthroughs as a life coach.

Does this mean that I will no longer give initial assessments? Not necessarily, if there are people in the market that value knowledge over a 30 minute sales pitch, then perhaps there is some business left for me in this domain after all. Also, if both neighbors recognize their relationship with each other is more important than the boundary dispute, I am more than willing to come in as an arbitrator. I have no idea if there will be many takers in these two categories?

I do know that I want to improve myself. Essentially, I am conducting a repurposed journey of self-discovery – one which will not tie me up in the litigious and clerical aspects of law.

My decision is made. I’m excited for the future. If you, family, or friends are wanting to generate additional excitement for your futures too, I invite you to join me by subscribing.

Let’s make some “Boundary Breakthroughs” together in 2019 … and beyond. Cheers!

Photo Credit: Pedro Lastra, Key West, FL

Let it Be?

You just found out that your neighbor has “something” located beyond what the survey line indicates onto your property. The “something” could be their fence, their patio, their shed, or any other number of items made by hand or nature – including trees, shrubs, or garden. What should you do about it?

A.     Rip that “something” out of the ground and fling it to the neighbor’s side of the line.

B.     Carefully remove that “something” and gingerly place on the neighbor’s side of the line.

C.     March right over to your neighbor’s house and tell them they need to move it themselves.

D.     Call the neighbor up; send them an email; or perhaps even post a “nice” note to them.

E.     Let it be … and call a boundary dispute attorney to determine your rights.

The answer is: E.

If you just discovered this issue because your surveyor revealed it to you, then there is a fair chance your neighbor has an unperfected claim to a portion of your land.

Instead of communicating with your neighbor in an uninformed writing which serves to send them running to their own attorney, it is better to consult with your own attorney first. This gives you the proper ammunition and aim before you shoot off a writing which if the matter escalates becomes evidence.

If you don’t have a legal leg to stand on, the best approach is to “let it be”. Wait until your neighbor lists their property for sale to move forward. Then seek to sort the matter out because this is when you have the greatest leverage to sort the matter out quickly.

If the matter is a toss-up, then having an attorney work through the situation with you and your neighbor (and their attorney) in an amicable fashion is usually the best approach. If the neighbor is one who needs to be persuaded, you have someone right there ready to go who has a sense of the case and the players involved already.

If the matter is iron-clad on your side, then you won’t have given the neighbor evidence which “can and will be used against you.” Let an attorney who knows how to communicate with legal clarity do this for you instead.

Ok, so that knocks out all the possibilities in answer: D. Answer C, should be analyzed in the same way except it becomes more complex because by having a verbal exchange with your neighbor there is now a “he said/she said” which will need to be expensively explored.

Items A and B, in which items over the land are removed, should be rejected out of hand. Unless absolutely certain your neighbor is wrong, if you damage their property, you will have handed them a claim for Waste.

Waste statutes RCW 4.24.630 (Damage to Land and Property) and RCW 64.12.030 (Timber Trespass) both have fee shifting provisions which allow the opposing attorney’s reasonable fees to be paid by you should a court find you were in the wrong and that the land has actually become your neighbors.

This is critical because there are a lot of hungry attorneys who don’t mind selling their clients on the idea that they will do their level best to seek to have their fees shifted to them from you without also indicating that in most cases the matter gets settled long before trial. The results at best for them after you and your neighbor have spent a heck of a lot of money is only the shifting of one thing – dirt.

By the process of elimination, the answer is: E.

‘Let it be, first talk to me … and the rest of the team at Justice Smiles.’ Cheers!

Gaps and Overlaps

Seeking to define the survey terms of Gap and Overlap reminds me of what a colleague once said: “You know how on the East Coast people are up in your face and gruff, sometimes mean even? Well, they don’t mean it. Similarly, you know how people on the West Coast are pleasant and kind to each other? Well, they don’t mean it, either.”

He said: “But, back in the Midwest people do and say what they mean.”

These are the unwritten rules of engagement. The coastal rules are just like the survey concepts: Gap and Overlap.

A Gap occurs when the legal descriptions of neighboring properties do not match … and there is space – i.e. land – in between. Get it … a “gap.”

An Overlap is exactly the opposite, and it occurs when the legal descriptions of adjoining properties do not come flush to each other, and each legal description includes a portion of the other. It’s like that space in the middle of a Venn Diagram, which demonstrates where two concepts are combined.

How This Relates to Interpersonal Interactions

On the East Coast people are “up in your face.” It’s a culture of overlap. Basically, people move in quickly and find out where each other stands by trespassing upon each other’s spaces. Then they can back off and identify a line. Essentially there has been a double-crossing by both people, which forms awareness of boundaries. Afterwards everyone’s cool … or not. But the society gets on because everyone knows how to play the game.

On the West Coast, especially here where we have the phenomenon of Seattle Nice, people hesitate to engage with people they don’t know – at all.  So we play nicey-nicey and get past any interactions so we can get the transaction done – and that’s it.

Notice the quickness here. It’s like communication triage.

Let’s try the Midwest model where people say what they mean. Come to a peaceable understanding of the real boundary so everyone wins. Document it. Record it. Move on with life.


Stokes v. Kummer – Case Review

Stokes v. Kummer is a case which reveals a divide different than most adverse possession cases. Instead of a dispute over a portion of land along the edge of two neighbors’ real property, this case regards ownership of land in its totality.

As to the divide then, we have a conflict between people who have lived and maintained this rather barren land situate to the east with owners of record title who live to the west of the Cascade Mountain divide.

As indicated in the opinion, one of these West of Cascades residing plaintiffs “visited the property shortly after she acquired it and was thoroughly unimpressed.” Moreover, this particular plaintiff never even got out of her car to walk the land.

Well, even though this rather scrubby agricultural land upon which wheat was grown only every other year was the land upon which local Defendants Kummer had sought to eke out their existence, the plaintiffs wanted it.

So, when the litigation fires were “Stokesed” by plaintiffs seeking to put them off the land, Kummer defended and won.

They were able to show these indicia of wheat farming during productive years.

  • Reseed the Fields
  • Sray for Weeds
  • Harvest with a Combine
  • Plow under stubble (when soil moisture allowed)

During fallow years Kummers performed these activities.

  • Plow
  • Cultivate
  • Fertilize
  • Seed

As to arguments, there is some chatter as to whether or not there was permissive use. In one instance this was put down as a result of failure as to privy – i.e. notice – of a contract between other parties … as opposed to lack of privity.

Another interesting rule which came from this is that if someone who has initially collected money on property and later doesn’t has the duty to check it out and eject for fear of losing the property. I don’t practice landlord/tenant law. But, this speaks to the idea of adverse possession operating as a statute of limitations – one of its primary operational reasons.

Permission failing such that hostility was yet present, the plaintiffs only recourse was an attack on notice.

The fact that most didn’t even attempt to take notice didn’t serve to assist their claim.

But most tellingly, the Division III court closed out its opinion by quoting the surveyor who said of the land:

“It’s either field or sagebrush.”

As a result, though it may have been difficult for the holders of record title to discern what may or may not be going on with the land, the rule from Chaplin was applied.

“The use and occupancy of the property need only be of the character that a true owner would assert in view of its nature and location.”

In cases like these, Justice Smiles strength remains discerning how the law as applied to the facts will likely drive a legal conclusion. Though we may have to supplement facts through conversation with surveyors, to get a head start on whether the case is even worth pursuing at all start by taking this Initial Assessment [HERE].

Lloyd v. Montecucco: Projecting Property Lines Along Land is Fine; Into Tidal Waters is a Different Story


Lloyd v. Montecuco, 83 Wn. App. 846 (Div. II 1996) is a waterfront case which helps to identify the extent to which definitive (boundary) lines must be demonstrated in order to achieve adverse possession. The case is informative with respect to adversely possessed property boundaries both on land and out into the water.

Background Facts:

Thurston County’s Eld Inlet bounds both properties to the west and as such these properties can be classified as exurban. The dispute was over an 11 foot encroachment of [1] a bulkhead and [2] portion of a cyclone fence [3] “on a bluff overlooking [the title holders’ lot]”.

These fixtures had been placed by the Montecucos the same year that they purchased their property in 1971. Significantly, these facts were attested to by the neighbor of this land from 1955 to 1986 – Mr. Shoblom.

Other claimed adverse uses by the Montecucos included: [4] mowing grass outside the fence perimeter; at one point [5] the adverse possessors also keeping of a garden outside the perimeter; [6] the adverse possessors’ planting and harvesting of “seven stumps, several of which lie on [the steep bank of the title holder]” and [7] the seeding of oyster beds beyond the meander line within another portion of the disputed area.

The Lloyds purchased their property in 1989 and soon afterward brought an action to quiet title against the Montecuccos. The Montecuccos defended on theories of (a) adverse possession, (b) mutual recognition and acquiescence; (c) estoppel; and (d) further claimed that the Lloyd’s suit was “frivolous and without merit.”

Procedural Facts:

The trial judge granted the Montecuccos summary judgment for that portion of the land which was marked by the fence (and typography) above the steep embankment running easterly from the bulkhead away from Eld Inlet.

However, the trial judge indicated that the line was unclear from the fence corner down through the steep embankment and out to the meander line and originally sought to allow the trial to proceed to determine the proper course of that line. On Montecucos’ motion for reconsideration, the trial judge relented. The Lloyds appealed and had their case reviewed de novo as is normal for all appeals of a summary judgment.

The trial court analyzed three components of the boundary line: Uplands, Tidelands, and Oysterlands. Specifically, the court indicates in a footnote: “the upland tract includes the surface land up to the bulkhead [Facts 1-5]; the tidelands includes the tract bound by the bulkhead and the meander line [Facts 1 & 6]; the oysterlands refers to the tract waterward of the meanderline [Fact 7].”

Uplands Analysis:

The court quickly determined that Lloyds failed here and stated: “The Lloyds fail to create a genuine issue of material fact by claiming that they could not see the fence or the maintained area from their house, or by claiming that the root of a lone rhubarb plant in the abandoned garden was younger than 10 years old.”

Yet the Lloyds contended this was also not proper because the trial court had provided a straight line whereas actual possession “would be more fairly represented by a jagged line.” This gave rise to a RULE (at least within the jurisdiction of appellate division II).

Courts may create a penumbra of ground around areas actually possessed when reasonably necessary to carry out the objective of settling boundary disputes [and as such affirmed a legal tenet from Frolund v. Frankland, 71 Wn.2d 853 (1984) by paraphrasing that] … courts will project boundary lines between objects when reasonable and logical to do so.

Tidelands Analysis:

Here, the appellate court determined that there was not sufficient notice of use to survive a summary judgment under the theory of adverse possession. The court then went on to explore mutual recognition and acquiescence as an alternative claim by the Montecucos.

Citing Lamm v. McTighe, 72 Wn.2d 587 (1967), the court reiterated:

(1) The line must be certain, well defined, and in some fashion physically designated upon the ground, e.g., by monuments, roadways, fence lines, etc.; (2) in the absence of an express agreement establishing the designated line as the boundary line, the adjoining landowners, or their predecessors in interest, must have in good faith manifested, by their acts, occupancy, and improvements with respect to their respective properties, a mutual recognition and acceptance of the designated line as the true boundary line; and (3) the requisite mutual recognition an acquiescence in the line must have continued for that period of time required to secure property by adverse possession.

In its analysis, the court then found while the second and third elements were satisfied particularily by the aid of Mr. Shoblom’s testimony. However, there was not a well-defined line due to “the Montecuccos’ placement of errant concrete blocks, intermittent moorage, and seeding of oysters and clams”.

This meant that the first element of Mutual Recognition & Acquiescence was not proved. So, with regards to the tidelands boundary line demarcation the “trial court erred in extending the line from the northwest corner of the bulkhead to the meander line.”

Oysterlands Analysis:

Finally the submerged lands beyond the meander line, (see WAC 322-30-106(37) and Manual of Surveying Instructions 2009 p. 190 for clarification of definition) in this instance were claimed to be owned by both parties because patent to the land was provided directly from the federal government to an original owner prior to the Washington’s statehood. [Whereas patents after statehood did not automatically allow this right.]

The upshot was that potentially both owners had access to the oysterlands as described in relevant part of the legal description of the Lloyd’s property: “Together with tidelands suitable for the cultivation of oysters lying in front of, adjacent to and abutting upon [the Lloyd’s Lot] … between the north and south lines thereof extending westerly to the westerly line of tract conveyed by the State of Washington … [in a specific] deed dated August 19, 1901.”

While the parties both acknowledged that the case Spath v. Larsen, 20 Wn.2d 500 (1944) would control, the appellate court noted a more fundamental issue – the other “specific deed” (used to determine the line as indicated in the immediately preceding paragraph) was never put into evidence. As such the appellate court was not in a position to determine how the case could be applied to the facts. The appellate remanded this oysterlands portion for the further proceedings. Notably, attempts at reconsideration and a subsequent petition to Washington’s Supreme Court were both denied.


I sure hope that those eleven feet and the oysters at stake were worth it to these parties. Why? Because despite the fact that this case was determined at summary judgment, you can be darn sure that their inability to resolve this issue ended up costing them both several tens of thousand of clams.justice-smiles-blue.png

If you want to prevent yourself from needlessly shelling out a lot of clams start by taking Justice Smiles’ Initial Assessment [HERE].

Anderson v. Hudak – Case Review

I abhor the practice of pleading in the alternative because it turns a trial into a “try-all.” That stated, Anderson v. Hudak is a case which gives me pause to consider the validity of “complimentary pleading.”

The background facts of this case are fairly simple. In 1960, Aline Anderson had her parcel of 270′ X 60′ subdivided. In doing so, she granted the eastern 120′ X 60′ to her son Forrest and daughter-in-law Delores Anderson. They in turn built a house together on the property.

This couple then planted a line of trees 15′ East of the steep embankment the higher ground upon which Aline retained a 150′ X 60′ parcel for herself.

Critically, the opinion states that the Andersons planted these trees along what they … “thought was their western property line.”

In 1977, Aline sold out completely by two more conveyances. The first was to a developer who eventually built a house upon the western 135′ X 60′ parcel to the Hudaks. The second was a conveyance to then divorced Delores of a 15′ X 60′ strip of land in the middle.

All seems to have been going fine for 14 years until Hudak’s not long after their 1990 purchase hired a surveyor who opined that the Hudak’s “owned” – read instead “were the holders of record title” – apparently from their western line all the way to the treeline – not their eastern embankment ledge.

The trial court decided for Anderson, but the appellate court reversed.

The higher court offers the rule: “[P]lanting of a row of trees, without some use that is open and hostile, does not satisfy the elements of adverse possession … .

It then indicated that Delores Anderson had not testified as to any use. Here, I will add that failure to testify as to use by extension ought to mean that there wasn’t any testimony which would satisfy the element of exclusivity.

So, beyond testifying as to use – assuming there were facts to illustrate this – to make this a viable case of adverse possession, what “complimentary pleading” would have been appropriate?

I think this is a case which could have been a rare case in which Grantor’s Intent would have carried Delores to victory.

Here’s the storyline which I see emerging …

Delores is the dutiful daughter-in-law who stuck by her ex-husband’s mother – Forrest is notably completely out of the picture.

To reward Delores for her faithfulness, Aline “intended” to grant her the additional real property between the treeline and the embankment of 15′ by 60′.

Both comically and tragically, the legal description for this 15′ X 60′ strip instead of lying west of the treeline actually runs to the east.

As a result, though since Chaplin v. Sanders adverse possession disallows an inquiry as to the claimant of adverse possession’s “subjective intent” – i.e. did the claimant of adverse possession mean to possess or not – this case would have allowed an inquiry as to the Grantor’s Intent of Aline!

In that the lower court had found Delores the more credible litigant, I highly suspect if she had made this pleading the appellate court would not have reversed. What a shame!

If you have a case for which you are of the mind to know how best to plead and proceed, take a moment to fill out this Initial Assessment [HERE].