§8.2 - Boundary Litigation

JurisdictionWashington

§8.2 BOUNDARY LITIGATION

Disputes between adjoining landowners as to the true boundary lines between their parcels arise more frequently as land is put to more intensive use. A practitioner often can avoid boundary problems by careful drafting and interpretation of land descriptions. Title insurance does not preclude boundary problems because the standard policy excepts from coverage those discrepancies that would be revealed by an accurate survey including, specifically, conflicts in boundary lines, shortage in area, and encroachments. See Volume 1, Chapter 13 (Surveys, Land Descriptions, and Boundaries), of this deskbook. See also §8.3, below.

Boundary disputes most often arise because of discrepancies between the boundaries as stated in the conveyance and as they exist on the ground. Washington has a statutory procedure for establishing lost or uncertain boundaries. Any other disputed boundary must be resolved by reference to one or more of the five common-law doctrines discussed below.

This section also discusses problems arising when water or watercourses are a described boundary, and the validity of surveys and their role in boundary litigation.

(1) Statutory procedureChapter 58.04 RCW

Chapter 58.04 RCW was adopted by the Washington legislature to "provide alternative procedures for fixing boundary points or lines when they cannot be determined from the existing public record and landmarks or are otherwise in dispute." RCW 58.04.001. The statute expressly does not impair, supplant, or modify any other remedy available at law or in equity. Id.

RCW 58.04.007 sets forth the procedures by which parties may resolve boundary disputes and fix the boundary point or line between two or more parcels. The first alternative is to resolve the dispute by agreement; the second alternative is to resort to a civil action. RCW 58.04.007(1) states:

If all of the affected landowners agree to a description and marking of a point or line determining a boundary, they shall document the agreement in a written instrument, using appropriate legal descriptions and including a survey map, filed in accordance with chapter 58.09 RCW. The written instrument shall be signed and acknowledged by each party in the manner required for a conveyance of real property. The agreement is binding upon the parties, their successors, assigns, heirs and devisees and runs with the land. The agreement shall be recorded with the real estate records in the county or counties in which the affected parcels of real estate or any portion of them is located.

This agreement provision was added to the statute by the legislature in 1996 to provide parties a method for resolving boundary disputes outside of litigation. In the event that such an agreement cannot be reached, RCW 58.04.007(2) states that any affected landowner may bring suit for determination of lost or uncertain boundaries. However, even when the parties commence litigation to resolve boundary issues, RCW 58.04.020(2) permits the court to order mediation of the matter before the civil action is allowed to proceed.

RCW 58.04.020(1) provides for a civil action to establish lost or uncertain boundaries:

Whenever the boundaries of lands between two or more adjoining proprietors have been lost, or by time, accident or any other cause, have become obscure, or uncertain, and the adjoining proprietors cannot agree to establish the same, one or more of the adjoining proprietors may bring a civil action in equity, in the superior court, for the county in which such lands, or part of them are situated, and that superior court, as a court of equity, may upon the complaint, order such lost or uncertain boundaries to be erected and established and properly marked.

RCW 58.04.030 authorizes the court, in its discretion, to appoint no more than three commissioners, at least one of whom shall be a surveyor, who shall survey and properly mark the boundaries and prepare a plat of the survey together with an advisory report in support thereof, to which either party may take exception. RCW 58.04.040 directs the court to apportion the costs of the proceedings equitably, and the costs so apportioned are a lien upon the properties involved.

RCW 58.04.011 provides statutory permission for any surveyor authorized by the court to perform surveying duties under the statute to enter upon land or waters without liability for trespass. This provision does require such persons to announce and identify themselves and their intention before entering upon private property in the performance of their duties. Id. RCW 58.04.003 defines "surveyor" as "every person authorized to practice the profession of land surveying under the provisions of chapter 18.43 RCW." The statute also includes a provision making it a gross misdemeanor for any person to intentionally disturb a survey monument placed by a surveyor in the performance of his or her duties. RCW 58.04.015.

(a) Availability of statutory action

Equitable relief under Chapter 58.04 RCW is not available if the parties may seek relief under the basic common-law doctrines, discussed in §8.2(2), below. The court in Stewart v. Hoffman, 64 Wn.2d 37, 42, 390 P.2d 553 (1964), held that a survey accepted and acted upon by the parties, and later confirmed by two subsequent surveys, fixed the boundaries under the doctrine of acquiescence. In Booten v. Peterson, 47 Wn.2d 565, 569, 288 P.2d 1084 (1955), overruled on other grounds by Chaplin v. Sanders, 100 Wn.2d 853, 861 n.2, 676 P.2d 431 (1984), the court found Chapter 58.04 RCW inapplicable because adverse possession was properly pleaded in the complaint. See also Reitz v. Knight, 62 Wn.App. 575, 583-84, 814 P.2d 1212 (1991).

Unless both parties contend that a boundary is lost, the statutory action under Chapter 58.04 RCW cannot be used. Rushton v. Borden, 29 Wn.2d 831, 190 P.2d 101 (1948). In other words, if both parties contend that a different, existing boundary is the true division line, Chapter 58.04 RCW is inapplicable. Stewart, 64 Wn.2d 37.

(b) Evidence

In an action brought under RCW 58.04.020, hearsay or evidence of general reputation is admissible (subject to certain limitations) to establish the location of a lost or obliterated boundary line or corner. Inmon v. Pearson, 47 Wash. 402, 404, 92 P. 279 (1907). The rule admitting out-of-court declarations of parties concerning the locations of corners and boundaries is subject to certain limitations: (1) the declarations must have been made before any controversy arose touching the matter to which it relates; (2) the declarations must have been made by a person shown to have means of knowledge; and (3) the person making the declarations must be shown to be dead or for some other reason incapable of being summoned and sworn as a witness. Alverson v. Hooper, 108 Wash. 510, 513, 185 P. 808 (1919).

When there is a discrepancy between a survey and a plat of land, the survey controls. Stewart, 64 Wn.2d 37. In addition, known monuments and boundaries of the original plat take precedence over other evidence of boundaries not based on original monuments and boundaries. Staaf v. Bilder, 68 Wn.2d 800, 415 P.2d 650 (1966); Roads v. Stangair, 41 Wash. 583, 84 P. 405 (1906).

When ambiguity in a deed results in a boundary dispute, the court will look to parol evidence to ascertain the parties' intent. Knutson v. Reichel, 10 Wn.App. 293, 518 P.2d 233 (1973), review denied, 83 Wn.2d 1009 (1974); Powell v. Schultz, 4 Wn.App. 213, 481 P.2d 12, review denied, 79 Wn.2d 1002 (1971); Strom v. Arcorace, 27 Wn.2d 478, 178 P.2d 959 (1947).

(2) Basic common-law doctrines

Boundaries between adjoining properties that are at odds with the true boundary, as revealed by subsequent survey, may be established under appropriate circumstances through the following doctrines, all of which have been recognized in Washington: (1) adverse possession, Scott v. Slater, 42 Wn.2d 366, 255 P.2d 377 (1953), overruled on other grounds by Chaplin v. Sanders, 100 Wn.2d 853, 861, n.2, 676 P.2d 431 (1984) (see §8.1, above); (2) parol agreement of adjoining landowners, Rose v. Fletcher, 83 Wash. 623, 145 P. 989 (1915); (3) estoppel in pais, Thomas v. Harlan, 27 Wn.2d 512, 178 P.2d 965 (1947); (4) location by a common grantor, Strom, 27 Wn.2d 478; and/or (5) mutual recognition and acquiescence in a definite line by interested parties for 10 years or more, Lamm v. McTighe, 72 Wn.2d 587, 434 P.2d 565 (1967); Waldorf v. Cole, 61 Wn.2d 251, 377 P.2d 862 (1963); Thomas, 27 Wn.2d 512.

Practice Tip: A party may, under appropriate circumstances, plead the various common-law doctrines simultaneously when seeking to quiet title to a strip of land and to establish the actual boundary. See Lamm, 72 Wn.2d at 591 (adverse possession and mutual recognition/acquiescence pleaded simultaneously); Scott, 42 Wn.2d 366 (adverse possession and mutual recognition/ acquiescence pleaded simultaneously); Thomas, 27 Wn.2d 512 (estoppel in pais and mutual recognition/acquiescence pleaded simultaneously); see also Booten, 47 Wn.2d 565 (by affirmative defense and cross-claim, defendants advanced theories of adverse possession and location by common grantor). Note that adverse possession and mutual recognition/acquiescence are separate and independent doctrines and must be pleaded separately to give fair notice to a defending litigant. Green v. Hooper, 149 Wn.App. 627, 639-40, 205 P.3d 134, review denied, 166 Wn.2d 1034 (2009). The holding in Green likely extends to all the common-law doctrines.

(a) Adverse possession

Adverse possession, including as a means of resolving boundary disputes, is discussed fully in §8.1, above.

(b) Parol agreement of adjoining owners

The doctrine by which a boundary dispute may be resolved according to a parol agreement of adjoining owners, and the evidence required for proof of such, is discussed below.

(i) Statement of doctrine

An oral...

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