gray-large.pngThompson v. Schlittenhart, 47 Wn.App. 209, 734 P.2d 48 (Div. I, 1987.03.18) – [Cause No: 17041-4-I] – upholds (a King County [Superior] Trial Court decision regarding a quiet title matter brought by Thompsons against the Schlittenharts who unsuccessfully claimed adverse possession to legal descriptions which overlap.



  • Land Type: City/Suburban
  • Water Feature: Not Specified
  • Taxes Paid by AP: Not Specified, Unlikely 

Chain of Title: 

  • TH – Thompson: Elmer & Jane Conger –> V.J. Wade in 1936.09 –> Thompson in 1953.
  • AP – Schlittenhart: Elmer & Jane Conger –> Lulu Conger in 1923.05 –> Schlittenhart in 1971.

Disputed Property:

An overlap of the boundary line descriptions apparently created at the time of subdivision of the original property owned by Elmer and Jane Conger identified in the case specifically as follows:

The description in the [AP – Shlittenhar’s predecessor] Lulu Conger deed begins at a point some 1400 feet southeast of the Congers’ property, describes all of the Congers’ property and then excepts out a parcel from the southeast corner. The description of this exception begins at the southeast corner of the Congers’ property. The description in the [TH – Thompson’s predecessor] V.J. Wade deed begins at the same point as the [AP – Shlittenhar’s predecessor] Lulu Conger deed and does not coincide exactly with the description of the exception in the Lulu Conger deed. Consequently, the boundary line between the properties was not the same in both deeds. Emphasis Added. (p. 210).  

Uses & Activities:

[Alphabetic Fact Support AP Claimant Schlittenhart – Numeric Supports TH Claimant Thompson]  

 “In 1969, the Thompsons [A] built a chain link fence inward from the [1] barbed wire fence some 12 feet on the west and 4 feet on the north. The [B] Thompsons continued to [2] mow the grass up to the barbed wire fence line.” (p. 210).

Initial Survey for Thompson:

In 1979, the City of Auburn widened the street on the east of both properties. The Thompsons had their property surveyed by William Baumgras, who concluded that the true boundary of the Thompsons’ property was approximately along the barbed wire fence line. Baumgras first determined that the Thompsons’ deed did not establish the true boundary because it did not close and the courses were incomplete and inconsistent. In particular, he could not determine whether the southeast corner of the Thompsons’ property was on the county road or just slightly west of it. He then examined the deeds of the surrounding properties, the conveyances of the Thompsons’ predecessors in interest, an unrecorded plat referred to in the Thompsons’ deed, monuments on the ground and county road maps to determine the intent of the initial commond grantors, the Congers. Emphasis added. (p. 211).

Second Survey for Schlittenharts:

The Schlittenharts did not agree with Baumgras’s survey so, in 1980, they had the Thompsons’ property surveyed by Robert McKiddy. McKiddy examined much the same information and used the same procedure as Baumgras did, but determined that the county road to the east of both properties was 60 feet wide rather than 40 feet wide and used the calls exactly as they were found in the Thompsons’ deed. McKiddy’s survey placed the boundary 15 feet south and 5 feet east of where Baumgras’s survey placed it. Because his survey would make the southern boundary of the Thompson’s and Schlittenharts’ properties not a straight line, McKiddy did not believe that his survey reflected the intent of the Congers, but saw his duty as faithfully following the description in the Thompsons’ deed. Emphasis Added (p. 211).


“[W]hether the trial court may determine a boundary to property on the basis of a survey which conforms to the grantors’ intent but does not conform precisely to the description in the deed.” (p. 211).


A Deed’s Construction of Law is Fundamentally Predicated by Grantor’s Intent as Matter of Fact – “Although, the construction of a deed is a matter of law for the court, Thomas v. Nelson, 35 Wash.App. 868, 670 P.2d 682 (1983), the court’s purpose is to ascertain the parties’ intent, Cook v. Hensler, 57 Wash. 392, 399, 107 P. 178 (1910), which is a factual matter, Roeder Co. v. Burlington Northern, Inc., 105 Wash.2d 269, 276, 714 P.2d 1170 (1986). In determining a boundary, the fundamental question is what was the grantor’s intent. Erickson v. Wick, 22 Wash.App. 433, 436, 591 P.2d 804 (1979). (p. 211-12).

Grantors’ Intent Sometimes Determinable Beyond Deed –  [Grantors’] Intent is to be gathered from the language of the deed if possible, but when necessary by resort to the circumstances surrounding the entire transaction. Hirt v. Entus, 37 Wash.2d 418, 224 P.2d 620 (1950). (p. 212).

Uncertain Boundaries May Be Determined by Best Outside Evidence – Where a boundary is uncertain, it may be established by the best evidence available. Ghione v. State, 26 Wash.2d 635, 652, 175 P.2d 955 (1946). That evidence may include other deeds made as part of substantially one transaction, Standardring v. Mooney, 14 Wash.2d 220, 227, 127 P.2d 401 (1942, or a recorded plat referred to in a subsequent deed, Cook [v. Hensler,] 57 Wash. at 399-400, 107 p. 178 [1910]. (p. 212) 

Conflicting POB’s Allows Fact Finding Court to Use Modern Survey – “Where the evidence conflicts as to the validity of a monument used to begin the original survey, the trial court, as finder of fact, may determine a boundary based on a modern survey. Sparks v. Douglas Cy., 39 WAsh.App. 714, 722, 695 P.2d 588 (1985).” (p. 212).


Williams, Judge.

“The trial court found, and the evidence shows, that the boundary was uncertain because the deeds are not congruent and the Thomson deed is defective. In such a case, ascertaining the common grantors’ intent was necessary. The trial court’s determination that [Th – Thompson’s surveyor] Baumgras’s survey more closely followed the Congers’ intent than did [AP – Schlittenhart’s surveyor] McKiddy’s survey is supported by the evidence.” (p. 212).

Ringold, Acting C.J., and Coleman, J., concur.

Justice Smiles’ Thoughts: 

Grantor’s Intent is Fact Underpinning Deed as Law Analysis – Adverse possession is considered a mixed-law and fact doctrine whereby the fact finder determines the “where” the title lines are located, but the judge determines “what” the facts mean with respect to the law. This case was appears to have been a bench trial and as such the court determined both the facts and the law. As a result, the construction of the rules in this case may be moot as to this point, BUT … It would seem that if this had been a jury trial the jury would have determined would have been allowed to determine what was the Grantor’s Intent and then the court would have had to then apply the law to it. One of the primary benefits of having a jury trial is there are more opportunities for appeal. First, the court might provide improper legal instructions. Second, the interpretation of the facts as returned from the jury can be called into question. Whether it is more advantageous to have a jury trial or not is a question which should always be asked if a matter is on a litigation track.

Deed is Predicated on Grantor’s Intent Analysis – The second rule indicates that surveyors may go beyond a deed’s legal description “if necessary” to determine the grantor’s intent. This is rather odd legal language in light of the first rule which seems to indicate that grantor’s intent undergirds interpretation of a deed. 

Many if not most folks need to rely on surveyors to create legal descriptions because they themselves aren’t able to understand how a legal description relates to title of real property. To facilitate this surveyors usually generate maps. But the legal description on a deed – not the map, if included at all – is controlling for any conveyance.

Here, Thompson’s surveyor Baumgras noticed that there was an issue with the legal description of the conveyancing deed of his clients. So, he went beyond to try to figure out how to solve the matter by looking at the legal descriptions of adjoining properties and researching plat maps before coming up with an answer which coincided with the placement of the original barbed wire fence.

That answer didn’t sit well with Schlittenharts, so they hired their own surveyor to survey the Thompson’s property. That’s odd? Why didn’t the Schlittenharts simply seek to survey their own property? The answer – if not mistaken – is that this is because the Thompson’s legal description was excepted property from the Schlittenharts’ real property and those exceptions weren’t identically represented. So, of the two Schlittenharts’ surveyor McKiddy appears – from the limited information provided by this opinion – to have chosen the description which would be more advantageous to his clients. Hmm?

Yet, I find it very interesting that for Baumgras the legal description didn’t close and the “courses were incomplete and inconsistent”, whereas McKiddy “used the calls exactly as they were found in the Thompsons’ deed.” McKiddy “saw his duty as faithfully following the description in the Thompsons’ deed”.

Does this mean that McKiddy sought to have the court believe that a survey which didn’t close was valid? Though not a surveyor and despite my nascent understanding of much of it, I do know that the requirement of achieving closure is probably one if not the most fundamental tenets taught. Why wouldn’t the court have thrown out McKiddy on that fact alone?

Regardless, the court appears to have made its decision more based on legal principles than survey principles. This brings up the interesting question of whether courts – when confronted with both – will chose to approach the matter by looking at the issues through lenses for which lawyers are more able to understand (even if less concrete) than deciding to use simple survey principles (for which most lawyers probably do not have a clue).

At any rate, the second and third rules are really not that helpful. What if Schlittenhart’s legal description gave them exactly what they wanted and had no discrepancies contained within it? The rule suggests that where their are inconsistencies in the legal description, they may then go outside to determine what’s proper … “if necessary.”

Well, under that situation, it wouldn’t be necessary. And so despite the fact that there is a problem with the neighbor’s legal description, as long as the Schlittenhart’s legal description matches, things would then be deemed to be fine … right? 

The answer I’m seeking to prompt here is that if you are involved in a boundary dispute, instead of relying on the survey that your opposing neighbor has provided, at the very least have a surveyor conduct a documentary review of the adjoining legal descriptions to make sure that after you get everything settled, you haven’t inadvertently introduced a new problem because while your property would then snugly adjoin that property, it may create a gap or overlap with respect to another adjoining property. That would be a shame … right?

Fact Pattern Oddity Analysis – Why did Thompson’s built their chain link fence inside the barbed wire fence line? What wasn’t stated – but seems to have occurred – is that the chain link fence was built outside the deeds’ overlap. If so, is it possible that this was done to prevent the need for having the chain link fence pulled down if Lulu Conger investigated and found that there was a deed overlap?  

Why did the Thompsons decide to remove the barbed wire fence and continue to mow up to it as a fence line? Doesn’t all that seem pretty odd? 

I suspect Thompsons may have had knowledge of the overlap when they decided to build the fence and then came up with the idea that if they just continued to mow the area the would be able to continue to hold onto already perfected – but not judicially recognized – ownership of the overlap.

If so, the Thompsons had a great opportunity to assert this right just prior to when Lulu Conger’s property was sold the Schlittenhart. If this was the situation though, Thompson’s would have needed to arrange for the fence to be built. Also, there is a fair likelihood that Lulu Conger moved out of her house due to aging health reasons and to make the play at that time, though completely legitimate, may have drawn opprobrium from other neighbors … perhaps.

So ten years later (more or less) which just happens to be the statutory period – when the roadway was altered – that caused the survey, which in turn created the rationale for the Thompsons to bring this suit which included damages for trespass. What damages? Trespass for the most part is a tort which doesn’t have damages. So, what was the issue there?

In every boundary dispute that goes to litigation, there is the story which is litigated AND there is the story (i.e. the motivations) which drive that story. It would be very interesting to know what that story was here and when did its plot commence?gray-small.png