Old Line -vs- Surveyed Line

[Selchie]

I live in Washington State and I have a problem involving 5 acres... 330' by 660', regarding my back line.

An old fence had been up for about 30+ years. When I moved in, the original owner of all this land (in his 70's) told me that the fence on my back line was off by 20' or so. He said that when he divided it up he had made a mistake and shorted this acreage, but had never moved the fence. When I moved in I left the fence as it was and let him live out his years in peace. When he passed away the land was purchased by a rich guy that was hardly ever there and he did nothing with the place.

A survey was done about 10 years ago by a new neighbor that was moving in on a different side of me. Since the boundary lines in this area were confusing and had not been done for about 80 years, the county requested that the surveyors stake out about 180 acres of area around here. My surveyed property back line was found to be 27 feet into the neighbors side and the fence is 27 feet into my property... back neighbor owes me 27 feet. This boundary line is clear and exact and is actually a township line and a latitude line. It extends all the way into the city and is used there as well. The neighbor behind me that owes me the 27 feet pulled out all the survey stakes and flags, both metal and wooden... so now there are no marks to find... how convenient for him.

Five years ago this back neighbor was taking down the old fence to begin putting up a new fence on the same line as the existing old fence... in the wrong place. I went out there and told him that he owed me the 27' but he would not move the fence to where it should be. I told him it had been survey staked and he said there were no stakes to prove that. I told him if he hadn't pulled them out there would be. Since I had been saving to be able to replace this old fence myself and I thought that maybe we could work out a deal. So I asked him if I paid for all of the supplies (fence wire, posts, nails and let him use my tractor) and he just did the labor, would he agree to put the fence on the correct line... he said "yes". We both knew pretty close to where the correct line should be. I thought this was great as the labor part was the concern for me. This cost me $980, but I figured if it got the fence to where it needed to be it would be very much worth it.

I had been ill for several months and during this time I was diagnosed with MS. I was bedridden for a long time and I was not able to get back out to the fence line to check out the new fence. When I finally made it out to see it I was horrified... he had taken my money and put the new fence on the old (incorrect) line... same place as the old fence had been in. I called him and asked him why and he told me that since the old fence had been on that line for so long that he owned that land now. And because the new fence was put up on the old line there was nothing that I could do now.

This was the dividing wedge for me and this young man. We had never been close or friends or anything and we both kept to ourselves and repsected each others privacy. But what he did was wrong. I vowed to save my money again and this time get that land back if I could.

Three years ago another survey was done by a different neighbor and I got a chance to see where the true line was and how much land was involved before the stakes were yet again pulled out by the back neighbor. 27' by 330' is alot of land, but I did not have the money back then to hire a lawyer and fight to try and get it back. Now I have enough money saved up and I want to persue this. I am older and I want to get this land issue cleared up before I pass on and my children inherit my home. I don't want them to inherit this boundary line problem too.

My plan is to have my own survery done and then proceed. I now know that it is illegal for him to remove the metal stakes and I will report it now if he does it again. He has never used this land for anything although once in a great while he will mow it... maybe once or twice a year... some years not at all. He has horses on his land but he has them in an area that is fenced inside of the property line fence... to me this proves that he knows that land is not his.

Our land description on our county tax records shows the survey line and that we own this land... it is a complete 330' by 660' on our deed and the back neighbors tax records show his 20 acres as a complete 660' by 1320'. We have been paying the taxes on the 330' by 660' all along, but we only have acces to 330' by 633' because of the fence being in the wrong place. There is nothing in writing that has ever given him access to this land... and nothing verbal either.

So my question is... do you think I have a chance in winning a case like this or am I out of luck? I have enough money now to fight this and I think it is important to get this cleared up before I pass on. I have never been friends with this neighbor and do not intend on that in the future, so I am not worried about any hard feelings or anything like that. I just want to be legal and informed in all my proceedings. I would like to know if I have a chance before I make the decision to persue this fully or if I just need to forget about it and count my loss.

Thank you for any info and advise.

 

[BelizeBreeze]

Get a copy of the most recent survey then sue him for tresspass.

 

[STMN]

In Washington all Boundary Surveys have to be recorded. So, say you were in King County, it would be recorded in the King County recorder's office. A boundary survey should show any encroachments on or around the property line. If the fence is 27 feet within your property there is a good chance that it might not have been picked up on the survery. To get a copy of the RofS in King County is fairly easy and requires a parcel number, an address, or a nearest intersection. Otherwise you might also need the section breakdown information (i.e. XX 1/4 of the XX 1/4, Section XX, Township X X, Range X X, X Meridian).

There are a couple of ways that you could possibly save money on a new survey. If the company that did the original survey is still in buiness (their name and address would be on the RofS), and they still have the field notes and reference files (most keep them for quite a long time, if not forever), you should start with them. You say that another neighbor had one done 3 years ago, you can contact that company too. Either one of them might be able to give you a significant reduction in the amount it would cost to do the boundary survey because most (if not all) of the preliminary "legwork" would be done (calculations and tie-ins to monuments, surrounding reference material, etc). They also might be able to only survey the line in question, rather than having to survey the entire property, but with such a large property you might just want that done and "set" with markers once and for all.

If that fence does not show up on the prior RofS you probably should have a new survey done of that property line to establish the exact fence location.
When you go to sell your property and the title insurance company does a search of records for the property the RofS should show up. There could arise questions and problems from a buyer or even from the Title Company issuing Title Insurance.

My understanding is that it is illegal to remove a survey marker (and that includes hubs (stakes), tacks, rebar, etc) in Washington. Not to mention, they are quite expensive for the surveyor to come out and replace, and it does not make them very "happy" at all.

EDITED TO ADD: the is also a slight chance that the fence was picked up in the field notes, but not included on the RofS. If it was you might be able to work out some kind of agreement with the surveryor to create a signed drawing for you.

 

[Selchie]

Wow... really? Do you think he could claim adverse possession?

 

[STMN]

In Washington it takes 10 years of usage to claim Adverse Possession. We have been researching it for ourselves (to protect a strip of our property). There are quite a few hoops for him to jump through to do it, but yes, it is very "do-able" here. I have been told that a letter can be written to the person giving them "permission" to use the property and that it should cover you from adverse possession, but it has to be worded just right, and the proper steps (which we are in the process of finding out what those are) have to be taken. But, apparently, once those steps are taken the document ("letter") can be recorded in the Recorder's Office and it would make it very nearly impossible to claim adverse possession

 

[Selchie]

Sorry to be so uninformed... but this is where it gets confusing for me. If I were to write him a letter and give him permission to use this land, then how could I ever be able to move the fence to the surveyed line?

This guy is really mean and I want the least amount of contact with him. I already have a harrassment and restraint order against him to stay away from me... involving other issues. He is well known by our police dept. I just want to get the fence on the legal line if at all possible. I understand that if I give him permission to "borrow" my land then he can never claim it, but how do I move the fence then?

 

[STMN]

I have no idea, sorry. I have the same question. But, like I said, I am in the process of researching this. Do you have access to the Seattle Times? There might be a letter in the Homes section this Sunday addressing this issue.

One thing that I do know is that there is a free mediation service offered by King County to be able to sit down and work out the problem with your neighbor. But, your neighbor sounds like ours, and this would not be an option for us.

 

[Selchie]

Not an option for me either.

Thank you for your info. I'm trying to learn before I jump straight into this too. I like the idea of sueing him for trespass, but I'd like to know that I have a pretty good chance of winning first before I spend my money. I think the survey information and anything recorded that I can find and then a good real estate lawyer will be my plan of attack. This neighbor has more money that he knows what to do with and I know that once the battle begins he will have more money to give to lawyers than I could ever wish for. That is one reason I want to be very prepared first.

I also read on another post about getting him to prove his burden of proof... not me. I like that alot too. Kinda puts me in the right and he has the burden then.... very good point. I thought about just moving the fence and then seeing what happens. He would have to prove me wrong.

I will definitely pick up a Seattle Times this weekend.

I live in Port Townsend, WA Jefferson County.

 

[STMN]

Good luck. I hope that it all works out for you, without too much hassle. I wonder if he could be ordered to pay your fees if he loses.

 

[Selchie]

THAT would be a Blessing

Thank you... Good Luck to you too.

 

[STMN]

Thanks. Our neighbor has made it his mission in life to hassle us as much as possible. I think it is his hobby..........

 

[Selchie]

If anyone has any ideas about me just moving the fence... after I have a good survey in hand and new property stakes in place... please let me know.

I'm still considering what is best first move here... other than the suvery and a lawyer.

I don't want him to move the fence because he will try on purpose to do a lousy job of it and my animals will get loose. Beside that I paid ALL the material cost of the fence.