There is a renewed call for a survey which exemplifies the problems which have been kicked around at Survey Connect [HERE].

As it should happen, I have found such a survey. Please see King County recording 20141112900002 [HERE].

I invite surveyors – especially those licensed in Washington State – to provide written expression at this www situate in the comments below as to what they see.

Afterward, I’ll seek to do the same. I believe the process should be very “illuminative.”

Oh BTW, you might want to come to the party pistols loaded with “silver bullets” … I know that’s my intention. Cheers!

On Monday, I returned from an overseas trip which was 22 hours door to door. On Tuesday, I posted out Lines of Record Title v. Boundary Lines linked [HERE]. Today, I received word that it set off a number of comments at this Surveyor’s Connect Site [HERE].

Admittedly, it would have been better if I had conducted a better spelling scrub before publishing. So comments regarding that aspect of the post, while warranted by those who were unwilling to read past the first few lines before determining that my argument must also be similarly flawed, certainly are entitled to their opinion … because they were too lazy to attempt to discern what I was seeking – albeit not cogently – to convey …

Wait, wait scratch “convey” – because that word is a legal term which might get misconstrued by those seeking to place precision above all else –  let’s use instead the term “express.”

Fortunately, the initial pin heads drew in enough interest that those willing to look beyond precision in an effort to “divine” the accuracy of what I was seeking to express latter came in and helped move the discussion forward.

I’ll let those folks speak both more accurately and more artfully where I obviously failed.

So, let’s move now to the discussion that I have identified in the above title.

Are you a surveyor who has a knee-jerk aversion to most – if not all – lawyers or not.

Though the line is not generally starkly identified right in front of my nose, I’ve spent enough time beyond the legal community and alongside the survey community here in Washington State to recognize the following:

(1) Surveyors generally are not keen on litigators;

(2) Most attorneys, including many in real property, don’t understand the interrelated legal concepts which come to bear upon questions of survey, title insurance, real property purchase and sale, and zoning;

(3) Beyond their survey expertise, a fair number of surveyors are not much more advanced than lawyers in the above regards.

(4) Neither surveyors nor litigators have much knowledge or regard for the emotional, financial, and temporal hardship which the current means of solving boundary dispute issues is played out … in court.

To the last point, I am to understand without seeking to cite reference … yes, another legal sin for which I must tonight go to my maker to receive absolve … that the majority of professionals in both fields are introspective and introverted.

So what! There is business to be had in resolving boundary line issues.

Creation of a better system in which to do this both with economy of time and money in a manner which reduces the [irrational] emotionality associated with boundary disputes benefits both professions.

But guess what? It would benefit the survey community more.

The reason for this is because whereas there may be a reduction of fees for surveyors as expert witnesses, there would be a much more significant volume of surveys if a practical path to resolution were paved … whereas at present a viable path for boundary dispute resolution is not available to the majority of our shared clients.

That is unless you are someone that thinks those extra few feet along the LINE OF RECORD TITLE is worth dust-up likely running in the 10s of thousands of dollars.

Think I’m making this up? Here’s a quote from a prospective client I received this week regarding [potential] encroachments of a fence and a deck built onto their property.

We know we cannot let this go now that the survey has documented these conditions.

I don’t know more about the facts yet than this. I do know that whereas I will likely be able to determine in quintile percentages within 1.5 hours of research and conversation how the matter will likely play out if it goes to court. Obviously that opinion is not guaranteed.

But the meager amount I charge for that initial consult – currently $450 – is a far better spend than going to a “free” initial consultation in which the lawyer’s job is to sink the hook so they can hard charge at their clients neighbor by seeking to go to “TRY-ALL”.

[Damn, a mixed metaphor! My apologies again to the pin heads that have deigned to read so far. Gosh! You’re really going to need to stretch yourself to understand what I have sought to express now … aren’t you?]

Returning, the reason why my approach is better is because there is a fair chance I’ll honestly convince the prospect that his or her chances of securing a victory are dim. As a result, it then becomes clear that it is in their best interest to recognize there is probably a better approach to resolve the problem.

For me, that’s when both the hard work – and the fun – begins.

So, let me lay it down like this. I’m very different than most attorneys.

To be absolutely honest, I recognize – and I believe rightfully so – that any boundary dispute case which is going to trial … is already a loser.

Very recently I was sent an article in which my most idolized historical figure was believed to have wrote the following in preparation for a law lecture sometime on or about July 1, 1850:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

Who came up with that? Well, the lecture preparation date provided above should help. But, here’s another clue. This man was a professional not only in law, but he performed survey work as well.

Still not got it; how about this? He was wise enough to know when to fight to obliterate boundaries which gave refuge to bigotry and hatred.

He’s none other than President Abraham Lincoln.

Yea, Honest Abe knew both when it was time to fight and when it was time for peace.

So ask yourself – be you a surveyor or a lawyer – what do you spend your “time” promoting?

Abject wimps devote their time on the former. They are mercenaries who flee when the going gets rough because they just can’t hack it. It’s too tough!

This type of surveyor usually stabs the ground and then kicks the problem over to the attorney … without more.

This type of attorney usually kicks the problem down to the newest associate.

That is unless the attorney – possibly in cahoots with the surveyor – isn’t indifferent but rather actually relishes the pain the legal process inflicts on their clients.

That’s not me though. I invite those surveyors who want to collaborate to work out solutions in localized cases and to systemically seek to figure out a better system. Maybe now that I’ve expressed that in clearer terms, I deserve to be viewed as the pariah that surveyors generally blanket upon my profession.

This is not merely a single win for me. It’s not “twin win” for me and the surveyor. It’s doesn’t yet stop as a triple win between me, the surveyor, and our respective clients. No, this is at least a quadruple win in that it is also beneficial to the neighbor before moving on more positively to other professionals and society as a whole which is benefited by not having the court system clogged with such petty cases.

Think judges want to waste 2 or 3 days deciding who owns what? Maybe it’s time for you to come out of your cave filled with spelling bees so you can take in the big picture!

To the wise surveyors and dirt lawyers out there – and I know there are quite a number of you – I invite you to work together to develop more business while at the same time better serving our clients. It’s far past time to develop a better system of boundary dispute resolution.

Why? Because regardless of your profession … your business is relationships. Relationships matter.

  1. Your relationship with your Maker – which is up to you to define;
  2. Your relationship with your Spouse – which was a choice you made … or not;
  3. Your relationship with your Children – another big choice;
  4. Your relationship with your Parents – sorry can’t help you there; and yes …
  5. Your relationship with your Neighbors – the work which, when you strip away all over-rationalization, is what surveyors and residential dirt lawyers do.

Hope the language in this post is not too tough to comprehend for the plumbobs out there.

If it is, try flossing … between your ears.

Heck while your at it, make sure you scrape your occipital lobe as well. Cheers!

The public is misinformed as to what it purchases when seeking to have “boundary surveys.” Surveyors identify LINES OF RECORD TITLE.

This is where the theoretical line of ownership as identified by a legal description is opined by the surveyor to meet the ground.

Yet, while lines of record title may coincide with the boundary lines, it is entirely possible – due to exclusive use – that the boundary line has shifted to another location which no longer corresponds with the lines of record title.

When a survey reveals a line of record title which is not coincident with what otherwise seems to be the line of record title, unless you have a good relationship with your neighbors and can work it out, there is likely at least one huge problem.

That one huge problem is that there is now knowledge of a CLOUD ON TITLE … the possibility that the boundary line(s) and lines of record title no longer match up.

If there is a cloud on title, at the very least this information will need to be disclosed for any purchaser at the time of sale. That is unless the sellers are willing to subject themselves to contract revisions and allegations of fraud.

Assuming this isn’t the case though, the seller may be able to work around the problem by having a much more extensive “As Built” (or ALTA) survey performed which the Title Insurance Company may take and use to except out that portion of land which is disputed. That’s not a sure thing though.

So is it appropriate to go straight to litigation with the neighbors? While litigators will likely seek not to disabuse you from this notion, this is because it is in their best interest … not the home owners’.

This is because the costs of going to court are tremendous and in the overwhelming majority of cases in excess of the benefits which a “nominal victory” affords.

But what about what is in the best interest of surveyors?

While many seem perfectly fine with “slapping down the math” and allowing their clients to think that by doing so they have determined the boundaries instead of explaining that they are opining as to the location of Lines of Record Title, an ECON 101 analysis is all that it takes to show that this is a misguided approach for surveyors as well. Here’s why.

To the best of my knowledge there is no successful business model designed solely to identify problems. Certainly there are consultancies for businesses of all types to identify problems … but then they offer solutions to solve them.

Contrastingly, residential surveyors uncover problems and often times instead of seeking to resolve these problems, they send the matter over to a litigator to solve it.

That simply is not ideal!

Instead of keeping the fiction alive that surveyors are determining boundary lines, when the boundary line and line of record title appears not to be coincident surveyors should stop their work and do some more research and seek to reconcile the difference in a manner which will not create enmity between the neighbors.

If this were the standard course in the survey profession, then there would be additional opportunity for surveyors to gain by providing solutions. Solutions very few attorneys provide and as such solutions which would be of significantly greater benefit to clients.

 

“Just when you think you’ve seen everything … you haven’t.” Unless my memory is failing that is what favorite sports announcer NBC’s Al Michaels [1] said about Russell Wilson’s turn of a botched snap/catch  – which under most circumstances would have been a 20 yard set-back – into a first down conversion pass to Tyler Lockett that on the next play allowed the Seahawks to get the ball across the goal line in their 10 – 9 wildcard victory over the frost-bitten Vikings.

Well, similarly to the play which caused Michaels’ comment, here’s the set-up of a “just when you think you’ve seen everything … you haven’t” case I recently reviewed. Basically, we have a flag lot [2] which has an recorded easement for ingress and egress – i.e. going in and out – which burdens a portion of it so that another neighbor can use to cross an “intersection” to said flag lot neighbors’ property.

What makes this case interesting is that there is a fence along the neighbor’s easement, such that the owner of the burdened land can not use his “flag pole” to exit his property because he would need to remove not just one, but two fences, running alongside the neighbor’s easement.

Now my initial reaction was that this would legally be an uphill climb for the owner of the burdened land. But, the more questions I fielded, the more I came to understand that the burdened owner has a very strong legal argument.

Basically, notwithstanding the fact that the fences are believed to have been in place for longer than the statutory period and as such the burdened land owner has not used the property, because we are dealing with an easement instead of the fee simple – i.e. full – ownership of land, the legal analysis ought to cut to the owner of the burdened land.

The reason for this goes to the Washington Supreme Court’s unanimous, en banc – i.e. all 9 Justices sitting – decision in the 2006 case of Heg v. Alldredge. [3] Heg basically provides that an easement can only be extinguished expressly by the benefited land owner … and not by mere abandonment. Heg’s rationale is bottomed on the legal determination that the land owner must be put on notice that the land owners benefited by the easement are having their land removed from them.

This is important because certainly if “sticks of property” from the original “full bundle” of property rights can’t be taken from the (property right receiving) land owner benefited by the easement, the land owner burdened by the easement – by necessary corollary – can not be divested of the remainder of those property rights that he or she retains.

Why would this be the case? Because notwithstanding the fact that the fences exclude others and are are out there for the full world to see, the land owner burdened by the easement does not have notice that the land owner benefited by the easement is seeking to extinguish his or her retained rights.

Essentially, the land owner burdened by the easement has given permission to use the land beyond the scope of the easement. And here please recall that permissive use is subordinate to the superior rights of the one who grants it and thus those uses can be revoked.

I suppose it is possible an appellate court would not rule this way. But even if that isn’t how it would decide, this is a valid question ripe with merit for decision. Will I be the one bringing this case for that determination? … I highly suspect not.

The reason is because while this explanation may be a little daunting, I would seek to clarify it if need be and explain along with an offer for opposing counsel to pass to the neighbor that if they want to press it, this is a case which either side could easily appeal and as such legal engagement is the equivalent of mutually assured destruction.

Instead, one would want to work with the neighbor to attack not each other, but the problems instead. Basically, while there are potentially some valid concerns which might be solved (by perhaps installment of a gate to replace the fence), the net effect of opening the private, easement “intersection” so that both parties can use it is a net positive. And this goes to the final point: “The law seeks to allow land to go to its highest and best use.”

Let’s save the miracles for other contests … like an opportunity for the Seahawks to play and crush the “deflate gate champions” in Super Bowl 50!

—

BTW – That’s not an expression of concern that Seattle will have any difficulty dispatching Carolina and then either Phoenix or Green Bay. No, instead that’s a prayer which goes out to Boston!

—

[1] The reason Al Micheal’s is my all time favorite sports announcer because of his indelible, 1980 call of the US Olympic hockey team’s 4-3 upset of the Soviet Union – The Miracle on Ice.

Enjoy it [HERE] and then Al Michaels’ recollection of it a quarter century (or more) later [HERE].

[2] Flag lots have the appearance of a flag whereby the main portion of the lot is usually connected by a narrow portion to a roadway. Essentially, instead of having an easement serving ingress and egress purposes – which is in fact what the adjoining neighbor in this case in this particular case – there is a “flag pole” portion of the lot which in place for the purpose of ingress and egress.

[3] See FindLaw’s republishing of Heg v. Alldredge [HERE].

Colin Cowherd has a great voice, a great past, and a great message: “Conflict Works – ALLOW IT! [1]. I think Colin has a great point. And yet, I am going to offer some qualifying comments. Comments which some might think are contradictory … perhaps if only to be able to view them in a frame of conflict.

At any rate, Cowherd’s statement that “Conflict Works” is best applied to zero-sum game situations. Situations in which there is usually only one person who is going to come out on top. What’s more these situations are magnified in perceived importance where there is an audience providing feedback. Why?

First, because beyond an individual’s general drive to do well at whatever goal they strive to attain, having rivals with which to conflict and compete allows comparison with which to drive them forward.

Add second a crowd of spectators and you will find that they don’t want to look like jerks not only to themselves and the competitor … but also the universe of onlookers.

Of course, there is a good chance that the difference between having a job that pays big bucks versus what – pushing a broom – keeps one motivated. [2]

But, back to the point. It is because their is an audience of onlookers who pay that gets those in the arena generally motivated. OK, I get it!

I also get that there are some who are extraordinarily motivated from inside. Alright!

Yet not all ‘conflictual universes’ are the same.

It’s one thing if you are being paid millions of dollars to scratch out yards and inches on the gridiron, but do you want to pay someone 10s and possibly 100s of thousands of dollars to scratch out this same distance with your neighbor.

That’s the conundrum people whether they are claimants of adverse possession or the holders of record title come to me about day in and day out. For most, they simply don’t have the money AND YET they are still hell-bent on preventing their neighbors from taking their land from them.

As an important aside, these positions are very often arbitrarily “assigned” by discovery that the “ground truth” is not coincident with the “line of record title” in that often times the fence is either to the left, right, or A, V, or Xs the line of record title. More importantly, both sides have valid intellectual arguments YET even more importantly – I suspect – the motivation is rooted even deeper in our animal brain.

Upshot, at the most visceral level the conflict is real and both parties find themselves precariously teetering in a state of fight or flight.

So Bobby boy, you expect us to fawn is that so? Well kind of … but then again not completely. 

1. A legal fight for most just won’t work, so we kind of have to scratch that off the list … if possible.

 2. The alternative – which is the reason why the cops always respond even though they can’t do much – is to get into an actual fight which may include pulling guns – needs to be scratched off the list lest the cops haul you off to jail.

3. And so this essentially leaves one last alternative – get someone who has the intestinal fortitude to go into the breach of conflict between parties – and help them work it out.

Hey, this isn’t entertainment folks!

This is a job which because it involves managing one’s own clients while at the same time seeking to talk down an opposing client(s) – who may or may not be spurred on by their own attorney(s) – requires several multiples the skills, empathy, strategy, and both intellectual and emotional quotients as those attorneys who simply run down to the courthouse at the drop of the hat.

Is litigation an option? Sure it is. And you know what also? If you are really lucky and you pay a an absolute fortune, you can indeed get yourself memorialized – provided your attorney lines up a nifty new legal angel for you – because your case might then become precedent.

Here let me ask: “Did you read yesterday’s post?” Toward the end I mentioned “the fox case” of Pierson v. Post. Note that it is the precedent, and not the fox pelt for which the whole brew ha ha was conducted that makes a lasting impression.

So, somewhat in Colin Cowherd fashion as a sportscaster who may on occasion let slip that ‘sports are a bit overrated’ type fashion say this: “Your life is short pal.”

First question: “Do you want to squander it fighting with your neighbor?” 

Next question: “Do you want to do it when you can’t financially afford to have the fight?”

Final question: “If you can’t deal with the conflict now, how do you think you will feel on the verge of summary judgment knowing you could end up paying for the displeasure of your neighbor legally cleaning your clock … how about later on when you go to trial?”

“Funny thing” is this very likely … YOU CAN’T!!! 

At the opposite extreme from the self-impugning, no … the self-damning, crossed-up testimony offered by Jack Nicholson’s Col. Jessup in A Few Good Men [3], you probably need someone who while trained to be “on that wall” can outmaneuver those attorney’s who take purely mercenary approach to their job. [4]

Again, while you might think you want someone like Col. Jessup on your team, folks that need to be held by a choke chain have only one direction … conflict.

Conflict is exactly the reason why Col. Jessup ended severing his “decorated” career. He simply couldn’t step back from the conflict brought to him in court and and when fired up under cross examination, he confessed! 

Bottom line, those few feet or inches probably just aren’t worth allowing yourself to get so worked up that you become the One [who] Flew over the Cuckoo’s Nest.

And yet, you still have a problem to resolve … Don’t You!!!

—

[1] See and hear the radio show from which the excerpt in Cowherd’s television plug is drawn [HERE].

[2] I want to clarify that I have the highest admiration for world class athletes. They are blessed with unique natural and mental abilities which due to absolute focus on their craft allow them ‘deep domain specialty’ which helps everyone else realize as motivational speaker Les Brown says: “It’s Possible!” … SEE [HERE]!!!

[3] See Youtube clip of “The You Can’t Handle the Truth!” video [HERE].

—

Reader Instruction: Take a moment to ponder what is the opposite extreme of a Col. Jessup. I am going to propose that it is someone who is just on the other side of the “international date line” from him. To wit – someone who though appearing very far on a flat map is actually just across the border when looking at the reality of the global sphere for which the map represents.

Author Instruction: Come back and explore the difference between application of valid authority, invalid authority, and neglect of application of proper authority within the context of Phillip Zimbardo’s The Lucifer Effect [HERE].

One of the funniest SNL skits of all time has Mick Jagger revisiting the show where he seeks to figure out what to do in front of Jimmy Fallon who acts as his “mirror.” In the beginning of the skit he does a ‘start me up’ in which he asks himself what he should do considering the fact that he has been on the show in the ’70s; ’80s; ’90s; “and whatever you call this ‘dicade’.” [1]

Well, Mick (and Jimmy’s) ‘rooster’ and ‘pointing my fingers at you’ aside, I am not sure that anyone has settled on what to call the first decade of this century. [2] Regardless, and here is where I am going to stop my throat clearing, one of the most critically acclaimed movies of that decade was Paul Thomas Anderson’s 2007 movie screenplay of Upton Sinclaire’s [3] Oil! Within the screenplay, Daniel Day Lewis acts most forcefully as an antihero within the “I drink your milkshake” scene.

Do you recall the movie? Do you recall the scene? Though normally you can find link outs only below at the end of my post, I make an exception [HERE].

Now if you have never seen the movie before, you might wonder what’s all the fuss? Well, what’s happening is a brutal confession that Daniel Day Lewis’ character – Daniel Plainview – has piped off and thus dried out all the oil from land from which the now destitute preacher Eli is hoping to cut some sort of deal. Lest I forget, this all happens AFTER Daniel gets his initial revenge for previous mistreatment by Eli by forcing him to first admit he is “a false prophet and that God is a superstition.”

Still don’t get it? The straw from which Daniel drinks Eli’s milkshake is akin to a pipeline which unbeknownst to Eli (and the original owner of the holdout property) had all of his oil drawn out by adjoining drilling operations.

How could this be relevant to boundary disputes?

Well, as a practical matter the unknown removal of resources is one heck of an uphill battle to climb. As a legal matter, a lawyer might initially revisit the first week of their first year property class and review the case Pierson v. Post – a/k/a “the fox case.”

In that case, hunter Post likely replete with fox hounds was in chase of his fox. Yet, Beverly Hill Billy style the fox came up on Pierson who by luck was able to shoot it down and scoop it up. Though only a fox pelt, the issue that the New York court had to decide was whether it was the chase or the possession which conferred ownership rights to Ferae naturae – a wild animal.

The upshot is that oil, gas, and water – which have the same quality as animals – in that these each have ‘wild’ characteristics of running off as they will, only become property upon possession.

Returning to the movie – which if you haven’t figured out by now is There Will be Blood – note now added to this theoretical conundrum for poor Eli – who will shortly thereafter have a more ‘serious issue’ – is the fact that even if he was able to convince a court that this precedent should not be applied … what are the quantum of damages? That’s fancy law talk for: “What was the value of the oil which Daniel ‘robbed’ from him?” I don’t know. I also am not going to dwell on that question.

Instead, and here’s the point, please think about the alternative in which instead of drinking the milkshake, it instead gets flushed down the toilet and out to a drain field which is under the neighbor’s land. Well, barring the fact that the neighbor needs some extra fertilizer for the field, and provided that this action is unbeknownst to the true owner, the toilet flusher is going to be up to his or her neck in deep doo-doo.

Why? Remember Adverse Possession requires open and notorious possession. In other words the neighbor who has a drain field which extends onto his or her real property BUT doesn’t know of this fact can not have it divested – again fancy talk for “taken” or as some may further assert “stolen” – from him or her.

What can I say, that’s just the way it is. The hierarchy of laws from lowest to highest are malum prohibitum ([criminally] bad because that’s what the law says). Then there is malum in se ([criminally] bad because it’s morally wrong – i.e. evil). And atop all that is the Doaist-like Zen of Natural Law.

Why is it that way it is? I don’t know. It’s just like the late motivational speaker Jim Rohn used to say regarding impractical questions: “That’s not a class worth signing up for.” [4]

[1] See video – after video commercial – [HERE].

[2] See a panaply of choices for in this article [HERE].

[3] Recall Upton Sinclaire’s best known novel was The Jungle which due to his description of the conditions of the Chicago meat packing houses drove uproar which within a few mere months from publication resulted in the 1906 creation of both the Meat Inspection Act and the Pure Food and Drug Act.

[4] Enjoy Jim Rohn Sharing The Parable of the Sower [HERE].

Is your name/title/business really Justice Smiles???

That’s really awesome and sort of inspirational! Nicely done!

Well, I’ve got a quick Q for you Mr. Smiles.

Can I pose a theoretical question to you? Let’s say I had been living/camping on another’s property in Washington state (Whidbey Island, theoretically…), and the neighbor’s knew about it and I was always very pleasant and trimmed the grass and took care of the apple trees, although never entering the house and garage on the premises, and this went on for seven years, like the good RCW 7.28.070 code says that it’s long enough to ‘claim’ as an adverse possession?

Would I theoretically provide proof and written statements from neighbors or pictures or stamp collections to the court to prove that I should indeed posses this property?

Would I still qualify for this possession if I didn’t pay taxes on it? But if I had saved up enough to pay off the seven years, could that work?

Sorry loads of questions and hopefully you have some free time to help.

Cheers and may Justice continue to smile on!

—

OK pal, I’m going to answer your theoretical question.

No. NO. NO YOU CAN’T!

First, did you happen to read RCW 7.28.070? There is nothing in the fact pattern to suggest that you paid the taxes on the property. But even if you had, notice that you need to be their “under claim and color of title, made in good faith”.

RCW 7.28.070 contemplates the situation in which there is some sort of goof surrounding the nature of the document or its transfer from one owner to another. If the purchaser “in good faith” believes that he or she owns the property, actually possesses the property, and pays taxes for 7 years on the property, notwithstanding the initial foul up, the property is theirs.

As a practical matter, this statute is very rarely applicable. What’s more now with RCW 7.28.083, any seller who thinks they can try to unwind a sale after a 7 year period has run its course would be well advised to just give it up and sign a quit claim deed to assure that everything is cleaned up properly and they don’t have attorney’s fees and costs shifted upon them.

Second, your fact pattern indicates permissive use instead of an exertion of any superior claim to the land. Permission nullifies adverse possession and as of April 16 of this year unless you are able to show exclusivity, characterizing your case as one of prescriptive easement will torpedo your ambitions because a legal presumption of permission is thrust upon you per the case Gamboa v. Clark. [1]

Finally for me – but not other arguments – how do you think it is “Just” for you to defect in this situation and seek to steal this land? The answer is: It’s not! You might try it. But certainly not with me and almost just as certainly you will be broken by the attempt as a result.

In that you are “theoretically” on an orchard, perhaps you should forget this legal question and instead contemplate the intricacies of the legal questions raised in the 1999 movie The Cider House Rules. [2]

—

[1] See original filing of Gamboa v. Clark [HERE ].

[2] See Roger Ebert’s review of The Cider House Rules [HERE].

If choosing only a fence or a retaining wall, which would serve to better prove adverse possession? In the above photo we have both. There is what appears (at least from this side) to be a 4 – 5 foot fence in the background. In the foreground is a retaining wall of roughly 1.5 feet which though not failing is well on its way to succumbing to the weight of the land behind it.

Assuming this landowner had a survey performed and found out that the fence line was beyond the line of record title and the fence had been in place for the last 10 years, who would own that strip? Normally with that determined, most of the other facts fall into place. Though the land isn’t tightly manicured, it certainly has been mowed. Also, there is a chair behind the left bush which would suggest the neighbor enjoys sitting in this overall space. Also, it appears that there are limbs of the large central pine tree in an effort to enjoy more natural light. All of these are uses which though not directly within what might be a few feet strip in back or wedge can be used to further buttress the idea that there is ownership to the fence even if the record doesn’t so reflect.

Yet, what if the fence was closer to this landowner than the line of record title would suggest? Well, again it would most likely go to the fence. Though it doesn’t enclose fancy building behind it, it does run a straight line perpendicular to the road. (I know that’s not discernible from this angle, but trust me.) Also, on the other side of it there is a parking lot. So, the use is very different. Again, provided these differences have been in place for 10 years or more, there is virtually no question that the property owner in back would prevail when claiming adverse possession.

Now turning to the retraining wall, note it is much lower than the fence. Though not convenient anyone could jump into the backyard. In fact, with the exception of the wooden rail being on the left side of the stoop – suggestive that it assists the owner to come down the steps as opposed to inviting others – i.e. the majority of others being right-handed – up the steps. Yet, couldn’t one argue that because of the stoop and access that there isn’t exclusive use? Perhaps. And one could also argue that there hadn’t been maintenance of the retaining wall, so how are you going to determine that it is the boundary. In fact, does the boundary run along the retaining wall’s top inside edge or at its toe?

The benefit of having it is the former is that the landowner with the chair is no longer responsible for the retaining wall unless something specific is done which might create issues. This might include planting trees, shrubs, or bushes which damage the retaining wall with their roots. Or this might also be caused if adding more pressure by perhaps installing a swimming pool.

Generally, between a fence and retaining wall it seems that the fence is the greater indication of adverse possession. But let’s note this. First, if the neighbor who owns the fence has placed it so they have space to maintain it and do in fact maintain it whereas the other person leaves their yard in an absolute state of disrepair, is the fence still theirs? The answer is not necessarily. One of the primary reasons for adverse possession is to allow land to go to its highest and best use when someone else doesn’t care for it. In such a case, unless perhaps a protected wetland, the fence will have almost arbitrarily separated it from the true owner … of record title.

By contrast a bulkhead is more of an initial project. Also, though it may be properly placed because of survey to mark a boundary. It may also be placed for the utility of protecting against the collapse of land and as such be placed in a location which most strategically serves this purpose. Going back past ten years to divine those intentions might be rather difficult. One thing that is certain is that neighbors owe each other a duty of adjacent support. This is to specifically say that they are not allowed to have their property negligently fall onto their neighbors land.

This can be a hard pill to swallow though. An upland neighbor very likely will want to delay expending money which will be of little direct benefit for as long as possible. The lowland neighbor though might be sweating bullets with concern that the retaining wall will fail and ruin everything in its path. Notably, don’t expect others to be proactive. Instead, an ‘event’ must occur before you are likely able to get insurance companies to sort out a mess.

Any definitive answers as to which one is better? No. So, if you really want to mark your bounds, consider having a surveyor who will identify the line of record title and then provided you have no cloud on your neighbor’s title or vice-versa and for good measure arrange temporary access with your neighbor on the condition that you will restore any landscaping to as close to its original condition as possible … build a retaining wall built to last and then place a fence on it.

 

Last night I had a discussion with someone who I almost instantly regarded as a friend. At one point during our conversation, we talked about these trees in the picture. Notably, these two trees are located in the planter’s strip in front of my house. More notable yet are the difference in the size of these two trees – the one on the left is much smaller.

This creates a certain amount of dissymmetry in and of itself. Added to this though be the fact that in late July through early August all of the leaves on the left tree shriveled up. Though they didn’t fall immediately, they did all come down with the first hard fall wind. By contrast, the tree to right appeared to cycle through the fall season normally.

The most decisive members of my family indicate that the tree is dead. I don’t want that to be the case – that would really be an asymmetrical detraction!

So, I asked my son and he promptly said: “No, the tree’s not dead; it will be back in the spring.” But then to my question: “How do you know that?” he answered: “I don’t know. I’m just a kid.” With an admixture of pain and joy I chuckled.

So what does this have to do with Summary Judgment? 

First, to be sure that we are all on the same page, Summary Judgment occurs after a lawsuit has been both filed and served but still before trial. It allows the moving party – and here it should be noted that both parties may move – to dispose (i.e. ‘cut-down or sever’) individual claims or possibly the totality of the lawsuit if the Court determines when looking at the evidence most favorably to the non-moving party that there is simply no way that they will prevail at trial.

The upshot of that determination is that the Court determines it is a waste of its time as well as the parties to go through the quite literally “fruitless motions” to come to the same conclusion at trial. As a result, the moving party with the solid case wins and the case is dismissed. [1]

Within the context of boundary disputes if a party is not able to determine whether it can win, it better be able to determine whether or not it will survive a motion for summary judgment.

The reason for this is that if it is unlikely that they will survive summary judgment, it is probably in the best interest to make your peace up front and sacrifice the land to your neighbor. 

Yet, if the matter will survive summary judgment, this can be a huge negotiating tool if properly used upfront. Essentially, one can say: “Look, you’re right, we don’t know if it is you or me who owns this land. So, we have two choices: (a) we can attempt to work this out amicably and be able to continue on as neighbors or (b) we can do the civil equivalent of ‘going to war’ and the endpoint is going to be an Armageddon in our relationship.

Because this is your neighbor, that gives new meaning to oft quoted line from Francis Ford Coppola’s Godfather whereby Al Pacino’s character Michael Coreleone said: “Keep your friends close … but your enemies closer.” [2]

So, now returning to the left tree in the above picture to which I have already pixilated at considerable length in order to drive home the point.

Is that tree dead or not? Or more appropriately within the context of contemplating Summary Judgment, should I cut it down right now or not?

Rather incredulously, my new friend suggested that of the two trees, actually it is the left one which is most healthy! He then went on to explain that it was able to enjoy an early fall because it has no need to ‘grasp’ for more photosynthetic energy produced by its leaves and was able to just … ‘Let it go!’ 

I would like to believe this full stop, but I must admit that I have some reservation. That said, I certainly am not going to cut the left tree down until I am certain whether it is dead or alive next spring. 

If it is the later, I will be very happy I didn’t exact essentially a Summary Judgment upon it. In this situation, why shouldn’t I ‘live and let live?’ I don’t see any cost benefit of not doing so. 

On the contrary, if the left tree does die, I will have to cut it down. And afterwards … I’ll feel compelled to cut down the tree to the right as well.

These trees are neighbors. They either live together … or they don’t!

—

[1] Parties who believe their case was wrongly dismissed may provide notice to the trial court of their intention to appeal per RAP 2.2(a)(1) generally within 30 days per RAP 5.2.

[2] I am unsure if this language was first published in Mario Puzzo’s book of the same name and upon which the movie is based. Notwithstanding, should you be interested in viewing the movie scene to which I refer, you will find it [HERE].