The barber’s chair is the podium of every layperson’s infinite wisdom. There’s just something in hair tonic that makes the jaws flap and the blowholes blow. The price of a haircut normally includes the vocal airspace within a 2½ foot radius of the chair. A person is free to declare, resolve, and self-adjudicate all worldly problems within this bubble of self-evidence. This month the guy next to me is suckin’ up all the good wind in the room and I’m digging what this cat is laying down. Bob Zierman is the managing attorney at Justice Smiles, PLLC, in Seattle, Washington. He has studied and practiced boundary dispute law generally and the law of Quiet Title/Adverse Possession specifically since opening his law firm in 2008. Bob has offered up one of his blog rants which, along with his outstanding formal work can be found at www.boundarydisputelaw.com. So, without further adieu, I’m gonna sit back under a hot towel wrap and enjoy Bob’s spin on Reitz v. Knight, 62 Wn. App. 575, 814 P.2d 1212, Division One, from August of 1991. For the case text see archive.amerisurv.com/docs/ReitzVersusKnight.docx
Reitz v. Knight—Case Review
By Bob Zierman on 2017.07.19
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 surveyor’s 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 20’ 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 are a couple of other interesting rules were restated within the context of this case.
- 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).
- 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).
- 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).
- 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.
- 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.
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