Curtis v. Zuck is a case which involves what the court identifies as a ‘shifting easement’. The situation is one in which a gravel road over time ‘shifts’ outside of it’s actual bounds.
Well, just go ahead and put it back into its bounds and stop all this nonsensical meandering.
Unfortunately, it is not quite that easy. The facts indicate that there are trees along one side of the roadway which have grown such that there really isn’t the room to squeeze it back into place.
Now, this is a case which comes before Happy Bunch LLC v. Grandview North LLC determining that trees’ growth do not alter the line of a boundary. [See HERE].
But even so, I think that if a similar case were to come up again in which there is a ‘meandering easement’, the court would likely make the same sort of determination.
Though not stated outright in the case, the reason for this doesn’t lie so much in law as it does in equity.
Basically, Zucks purchased their home 40 years earlier and were lead to believe that they owned up to the south side of east-west running Bennet Street.
However, what their title actually indicated was that they owned to the east-west centerline of Glass Street.
Platted all the way back in 1888, Glass Street was vacated by operation of statutory law 5 years later because it remained unopened for 5 years – everyone could at least agree on that.
Now somewhere out of nowhere – which we are to later find out is due to an implied easement – a private easement was created for Bennet Street – “a gravel roadway [which] was ultimately constructed to provide access for adjacent property owners … [lying] within and somewhat north of the platted location for Glass Street.
Now it’s a tough situation when one purchases into a problem without knowledge, it can be worse when you inherit it … right next to property you already own.
At any rate, facts for Zucks beyond [a] the treeline … were [b] the fact that they maintained their yard (within the gap of legal title), and had [c] had driveways (plural – hmm?) … oh right, and [d] “the Zucks dwelling was constructed about 10 feet into the southerly portion of the vacated right of way of Glass Street.
Folks, that’s adverse possession right there … and the court got around to indicating it … fortunately.
But, sometimes it’s important for the court to also chop down the forest of paper which comes at it in a claim which just isn’t going anywhere? So, here’s the money quote from this case:
Essentially, the Superior Court divested the Curtises of their implied easement of that portion of vacated Glass Street historically occupied by the Zucks and granted the Zucks a nonexclusive prescriptive easement over those portions of Bennett Road encroaching on the Curtis property.
Feel free to read all this nonsense about the rule of Burkhard and Van Buren if you want. All that says is that the grantees don’t take anything more than was granted to them by the grantor who in turn can not grant anything more than what they have.
What follows is the simple logic of … in that the grantor had granted an implied easement, that implied easement wasn’t extinguished by the mere fact that the grantor’s property is now owned by the grantee.
Though the court didn’t mention this outright, which I think is a real shame, basically this is the inverse of tacking.
What do I mean by ‘inverse of tacking’ – well just as claimants of adverse possession can add their possession to that of a predecessor in interest to fulfill the statutory requirement (of 10 years per RCW 4.16.020), in a situation in which the title holder doesn’t have totality of land per legal description … the mere fact that they grant it to someone else doesn’t serve to sever neighbors rights such that now they only have access to that land as described by the legal description.
Pretty simple … right? Well, that’s what both the lower court and the appellate court thought.
I suspect it must have been really difficult for Curtis’ to accept the fact that they had a loser of a case. And why do I suspect this?
Because it is not hard to infer that attorney James F Flynn in coming up with a rather creative plausible argument (no doubt after considerable research which relies on those two other cases for argument), had a dog of a case … from paying clients.
[BTW we ‘know’ they are paying clients because to the Curtis’ these were commercial properties.]
Look, if your case smells like manure, wouldn’t you want like to have an attorney who will give it to you straight up front … instead of taking your money in a game you shouldn’t pursue?
Assuming you do NOT prefer smoke up your tail, get started by take this initial assessment with Justice Smiles [HERE].
Any lawyer who wants to “Geek Out” on civil procedure will have a heyday with Thor v. McDearmid.
This case explore the ins and outs of Washington’s Deadman’s Statute – RCW 5.60.030.
In doing so it parses concepts related to the definitions of “statements”, “parties in interest”, and “waiver” and “offers of proof” within its context.
Once finished beating that “horse”, the case review moves on to explain the intricacies in establishing a “resulting trust” as distinguished from a “constructive trust.”
Heck, even though it is probably hard to figure out “who’s who in the zoo” without going to the reporter because the familial relations between these combatants portrayed in an image is omitted (just as is often the case with survey exhibits which I have previously griped about [HERE]), we can readily intuit the virtually certain use of a litigation guarantee.
But, when we get right down to the nub of the adverse possession question this case is a no-brainer.
Here’s the facts for these 1,280 acres – i.e. (virtually) 2 square miles – of land held in co-tenancy.
 McDearmid’s children used the land “from time to time” for recreational purposes.
 McDearmid paid taxes for a straight stretch of 22 years (and somewhat intermittently thereafter).
 “The land was sometimes leased for cattle grazing […].”
Well, here’s what you have to know about adverse possession …
In those situations in which there is either an express easement or a co-tenancy (which is to say situations in which different parties have an interest in the title to the same real property), the only way to secure a victory by adverse possession is through “OUSTER.”
Ouster, which has a “clear, unequivocal, or convincing” [as I supposed distinguished from “clear, cogent, and convincing”] burden of proof is a virtually unobtainable standard of of conduct. Moreover, not only does the ouster have to occur to put the other title holder’s no notice, the resulting situation has to then stay in effect for the statutory period of generally 10 years per RCW 4.16.020.
The court explains this by looking back at precedential authority and then it notes something else:
They and their successors [the respondents opposed to McDearmid] enjoyed the use of the property at will for 40years, just as did Ms. McDearmid. The fact that Ms. McDearmid may have used it more is insufficient to prove ouster.
Now back up to that first sentence! This is where the “needle” completely trashes this “LP track.”
Folks, have we forgotten that adverse possession requires exclusive use? … Why yes indeed it does.
In fact, this might be used as the “counter-clockwise” approach to understanding ouster.
In cases in which there is an easement (or here co-tenancy), one can not claim some sort of “prescriptive use” in an attempt to “move the needle” as to ownership percentage in some sort of half-measured manner.
No, instead it requires an all-out push!
Believe me, if you are experiencing the “all-out push” which is required for an ouster, you won’t be sitting on your rights for 10 years grinning and bearing it.
Whether its your neighbor or your family, if you feel your rights to your land are not being honored take a moment to fill out Justice Smiles’ Initial Assessment. It’s free and it’s [HERE].
While the conflict attendant to boundary disputes is tremendously wasteful on their own, there is a way to accelerate the extreme wallet purge as if a financial bulimic. That way is to challenge the validity of the neighbor’s survey with one’s own. This is what occurred in Reitz v. Knight.
In surveyor speak this type of situation is called a dueling survey. In such cases, the fact-finder is called to make sense of the difference between no less than two professional land surveyors and quite often this can expand to three or more when other surveyors are brought in as expert witnesses to assist understanding.
Here it may be worthwhile to note that whereas attorneys are extreme linguists, surveyors are extreme mathematicians. As a result, it can and often is difficult for an attorney to properly assess and express the contours of a dueling survey while at the same time surveyors may be more inclined to mathematical and depiction than ‘using their words.’
Now there is something equivalent of a lawyers’ joke which generally all surveyors have heard which laments surveyors’ chosen profession it goes something akin to this …
Whereas Doctors bury their mistakes and Lawyers jail their mistakes, Surveyors record their mistakes for all to see forever.
So though the vast majority of surveyors work in unbiased fashion to opine and mark the lines on the ground of record title and will represent these lines whether subjectively beneficial or detrimental to their clients, once having rendered an opinion as is the case with any professional who takes pride in craftsmanship, most do not want to be challenged and dig in when this occurs.
Yet, just as is the case with all professions surveyors run the gambit in skill and ability. So as is the case here, sometimes not only is the surveyors mistake recorded, but it becomes further memorialization as an appellate case to allow instruction so the mistake is not again made.
As a not so incidental aside, the people who pay for this instruction are the both land owners. So again by way of warning, survey your resources, your case merits, and your determination before diving into a boundary dispute … especially if it may become a dueling survey. Now returning …
Reitz v. Knight is a case in which an initial surveyor discovered that “the 1904 plat map for Block A (which was contained in both Reitz and Knights’ lots) … did not specify a width for Block A’s southernmost lot, … and the actual length of Block A exceeded that indicated on the plat map by 20 to 40 feet, depending upon the width assigned to lot 36.”
Hmm? A 2o’ tolerance of error for Lake Washington fronting property on the tony, Seattle city of Mercer Island? Do you hear the warning bells a ringing?
Well, the first surveyor approach was to assign 42 feet to lot 36 which resulted in “28 feet of excess land within Block A.” This 28 feet was then “apportioned” among the 36 lots [in Block A].
Now let’s see … 12 inches in a foot times 28 feet equals 336. Now take that 336 and divide by 36 blocks and we have exactly 9.3333333 ad infinitum feet – i.e. 9 and 1/3rd – to give to all the neighbors. Now that’s a tidy solution.
What’s best of all this meant that the boundary line between these parties fell exactly “4 feet north of Knight’s foundation” … this is say underneath Knight’s foundation.
Knight apparently was not concerned with this odd result, but his neighbor Reitz was. Reitz evidently didn’t want his neighbor’s foundation or anything else on his property, so he hired a second surveyor.
This surveyor determined that apportionment was just not going to work out, because tellingly … “the newly established lines encroached into existing improvements.” This surveyor instead determined that to allow his client his full 70 feet, he would have to set the line … “one inch north of Knight’s chimney.”
Now here let’s take a break from the world of theory and just think what serves as real world sense with this question:
Is it better to have a boundary line lie 4 feet under the foundation of someone’s home or 1 inch offset from it?
Well, if you said 4 feet under someone’s foundation, then you would be in league with the trial judge. But this is precisely the reason why we have appeals … because sometimes even judges in the tricky area of boundary dispute law will find themselves unable to rely on the information put before them and along with such lack comes also the absence of common sense.
On appeal, Knight put forward several arguments. The first was to argue the weight of the rules by which surveyors make their determination as to where to assign error … here the error which had been discovered in “the 1904 plat map for Block A.”
The appellate court first acknowledges the general rule of surveying procedure – apportionment – as had been performed by surveyor number one. Yet the court then goes on to indicate that this general rule is excepted by the “rule of possession”.
Under the “rule of possession”, an apportionment of an excess or deficiency of land will not be made when to do so would disturb long established occupational lines or would otherwise be impractical or inequitable.
Now holding that adverse possession is valid law, this makes sense doesn’t it?
For surveyors, though not contextually the same, you have another quip which is quite apt.
Let the error lie, instead of kicking it down the road.
My understanding is if failing to do so, the error becomes magnified … just as the road of legal error was magnified by surveyor number one for failing to recognize that calling out an error and effectively demanding its correction does not serve anyone’s best interest well after the prescriptive period of 10 years – at least here in Washington – has run.
Now once the line had been established to have been located 1″ north of Knight’s chimney, the appellate court was free to progress on the claim of adverse possession.
Now the facts attendant to adverse possession:
 “Knight offered evidence that since 1958, the eaves of his house have extended seven inches over the boundary line established by [Surveyor #2].” Also …
 “Reitz expressly disavowed ever caring for the plants [alongside Knight’s house], and Knight testified that since acquiring the property in 1976, he is the only person who maintained them.”
In that there obviously wasn’t a legal description in place to allow the certain transfer of real property by Knight as prevailing party of his adverse possession claim per RCW 7.28.120 … the case was remanded for the trial court to accordingly make this determination.
Wow! What a mess. Try not to have your boundary dispute matter become similarly messy by being in contact with Justice Smiles, pllc through its Initial Assessment [HERE].
Here are a couple of other interesting rules were restated within the context of this case.
[A] Illustrative Evidence – “[A]n exhibit specially prepared for trial as substantive independent evidence should not be allowed unless there is preliminary testimony, by one who can be cross-examined, as to the accuracy of the data upon which the exhibit is based.” Owen v. Seattle, 49 Wn.2d 187, 194, 299 P.2d 560 (1956).
[B] Necessary Parties – “In the context of boundary line disputes, joinder [per CR 19] ordinarily is required only of persons who own property adjacent to the disputed boundary line.” Cady v. Kerr, 11 Wn.2d 1, 14, 118 P.2d 182 (1941).
[C] Irregular Cove Exception – “One exception, recognized in Washington [to rule [B] immediately above], is that when property lines are uncertain for all owners of shoreline property situated on an irregular cove, all owners are necessary parties to a boundary line dispute.” Seattle Factory Sites Co. v. Saulsberry, 131 Wash. 95, 98, 229 P. 10 (1924).
[D] Remnant Rule – The appellate court’s second end note indicates that whereas the second surveyor’s approach was adopted [based on the “rule of possession”] … “[a]nother exception that could have been applied in this case is the “remnant rule”. The remnant rule applies when the subdivider declares the dimensions of each lot except the last and thus leaves an irregular, undimensioned space.” Further expressed is that this rule relies on “Grantor’s Intent” for its semantic validity.
[E] Establishing Lost or Uncertain Boundaries – RCW 58.04.020 was not applicable to the facts of this case on the basis that adverse possession was the equitable relief granted.
ITT Rayonier, Inc. v. Bell was the first Washington Supreme Court review of an adverse possession case after Chaplin v. Sanders.  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. 
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. 
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. 
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. 
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).” 
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. 
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].
 112 Wn.2d 754 . 774 P.2d 6 (1989).
 See http://www.nbc.com/saturday-night-live/video/steve-martin-cold-opening/n10162 [HERE].
 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.
 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.”
 See again 51 Wn.App. 124, 752 P.2d 398 (1988) [HERE].
 See Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984). [HERE]
 See RCW 7.28.085 [HERE].
Crites v. Koch, 49 Wn.App 171, 741 P.2d 1005 (Div. III, 1987.08.06) – [Cause No. 7898-1-III] upholds the Whitman County Trial Court’s decision to quiet title by adverse possession to plaintiff Crites to land south of an access road, but reversed the trial court’s decision to also award a Crites a prescriptive easement to land north of this access road in favor of title holder defendants Kile [and ostensibly defendants Koch as well though the opinion never refers to them].
- Land Type: Agricultural
- Water Feature: Not Specified
- Taxes Paid by AP: Not Specified, Unlikely
Chain of Title:
- TH – Defendant Kile: 1930s Johnson Family –> Kile Family [and Koch Family(?)] in 1984.
- AP – Plaintiff Crites: Pre-1970s county road widening –> time of suit.
Disputed Property Generally:
Black Acre” [is] a parcel of land encompassing approximately 7/100 of an acre. … Black Acre forms the southeast corner of a quarter section owned since the early 1930s by [TH defendant predecessor] the Johnson family. Don Crites owns and farms the quarter section immediately to the south of the Johnson property. Members of the Kile family farm the quarter section immediately to the east of Crites’ property. Consequently the Kile property abuts on Black Acre at the southeast corner. (p. 172).
Disputed Property Specifically:
Black Acre is separated from the rest of the [TH Defendant predecessor] Johnson property by County Road no. 3000. originally constructed in the 1930s. Sometime during the 1970s, the county raised, widened, and blacktopped the road. Robert Johnson sold land on both sides of the road to the county for this purpose. At the same time, the county constructed an “approach” off the road, raising the adjoining edge of Black Acre to facilitate vehicle access to and from the property.  A vehicle access path now bisects the property. (P. 172 -73).
[Justice Smiles’ Comment: It is unfortunate that the opinion fails to specify what direction this bisection formed by the vehicle access path runs. However, it is assumed to be east-west thereby creating a northern portion of land for which a prescriptive easement was claimed and a southern portion for which adverse possession was claimed.]
The [title holder appellants] used Black Acre as [A] shortcut to reach nerby fields and as a place to [B] park equipment occasionally but never farmed the property. Crites apparently farmed the entire parcel until the county road was widened in the 1970s. After the access was constructed, Crites continued to  farm the southern part of Black Acre, approximately to the point where the vehicle path crossed the property. (p. 173).
When plowing, Crites would [Z] “trip the plow,” i.e., raise it, so as not to leave a ditch that would interfere with the use of Black Acre as a shortcut to neighboring fields. Crites, who planted and harvested the parcel in the same manner as his own property, never discussed his use with the Johnsons. According to Crites, the [TH – Defendant] appellants’ use of Black Acre never conflicted with his farming; similarly, appellants acknowledged that Crites’ farming had never restricted their use of Black Acre. All of the witnesses agreed that it was customary for farmers to cross their neighbors’ land, with or without permission, as long as such use did not adversely affect the crops.”
Sufficiency of Adverse Possession Claim:
Whether there are sufficient facts to uphold Plaintiff Crites prescriptive rights to land south of the access road for which the trial court recognized he had gained ownership by adverse possession.
Triffling Encroachments” by TH Doesn’t Nullify AP’s Exclusive Use – Triffling encroachment s by an owner on land held adversely does not render the claimant’s use nonexclusive. See 3 Am.Jur.2d, .. at 175; cf. Danner v. Bartel, 21 Wash.App. 213, 584 P.2d 463 (1978)(title owner’s exercise of nonpossessory right of entry by maintaining drainage ditch not inconsistent with findings that adverse possessor had “exclusive” possession), … (p. 175).
The appellants testified that they refraind from parking on or driving across the southern part when it was seeded. It was undisputed that Crites’ farming never interfered with the appelants’ use of Black Acre. As noted by the trial judge in his oral opinion, the appelants’ use of the southern part of Black Acre was “very, very slight.”
Crites’ use of the southern part of Black Acre thus differed fundamentally in scope and substance from the use made by the appellants. Consequently, appellants’ slight and occasional use of the southern part, which occurred in deference to Crites’ intensive use, does not constitute shared occupancy. … Substantial evidence therefore supports the trial court’s finding that Crites’ possession of the southern part of Black Acre was exclusive. (p. 175).
Munson and Gren, JJ., concur.
Justice Smiles’ Thoughts:
Adverse Possession Element Rankings:
- Actual Notice: High (5)
- Constructive Notice: Low (1)
- Hostile: Above Average (4)
- Exclusive: Above Average (4)
- Continuous: High (5)
- 10 Year Stat Period: Met (5)
- Overall THAP Sufficiency: AP (4)
This is another good example in which use on the ground is more important than what the record of title says in a book somewhere.
This also clearly shows the idea the inter-workings of hostility operating as a superior right and as such if the land is normally used by the owner in this way while still allowing neighborly accommodations, the flip side of hostility – exclusivity – is not sufficient to overturn an adverse possessor’s superior use.
[Note: With minimal touches, this is a republication of an original blog post of 2014.07.28]