I’ve picked on Florida, I’ve picked on Missouri, I’ve picked on Alabama and I’ve picked on a few other states in this column relative to the way land surveying is practiced, and especially with reference to the minimum technical standards (sometimes referred to as standards of practice) and how they allow for bad practice to go unabated and even touted as exemplary. This month we are going to Washington state for a number of reasons.
The first is that the case I want to discuss is a Washington Court of Appeals case. I am also familiar with the way surveying is practiced in Washington. I’m not licensed there but I have presented seminars there, I have been involved in a project that studied surveying practice there and I have been involved in a board disciplinary hearing where the subject matter was proper survey practice. I have also heard from a great number of surveyors in Washington, some of whom have assailed me as a blasphemer and others who have sent me real-life examples to back up what I am saying. I will also say that I read Jerry Broadus’ book, “Washington State Common Law of Surveys and Property Boundaries,”1 prior to going to Washington last winter. By the way, it’s a great read and I highly recommend it.
But the No. 1 reason I want to write about this Washington case is because, in my estimation, Washington is absolutely one of the worst when it comes to deed stakers2 who trample on private property rights with impunity. This is not to imply that every surveyor in the state is a flaming deed-staker, as our case will bear out and as my many contacts with surveyors in the state confirm. But in my experience the polarization between the deed staker and the other surveyors in the state is complete.
The most common example of the deed-staker mentality is the continual need to subdivide a section over and over again, every time a survey of an aliquot part is conducted. This is part of the problem with the case we are going to discuss. But there is nothing in federal law or the manual3 that requires this. I’m going to stop short of saying that there is nothing in Washington law that requires this, because I know for a fact that the board has gone after surveyors who do not re-subdivide the section every time an aliquot part of a section is surveyed. What I’m saying is that there is no federal law to back this practice up.4 The only result of continually subdividing and re-subdividing a section and prorating supposed “lost” corners is that property boundaries and the sections corners will continually move over time, as our case demonstrates.
I am also familiar with how metes and bounds surveys are performed in Washington. Here again, the deed-staker school of thought requires that the bearings and distances in the deed be staked out upon the ground even when the results are ridiculous. (See Figure 2). Called for monuments are to be ignored if they do not conform to the bearings and distances. The idea that a section corner has moved over time is completely ignored even when it is known that the existing section corner was recently set, say in 1982 (See Figures 1 & 2), by proclaiming the long accepted corner as lost and prorating in a new location. We saw this in the Missouri case of Adamson v. Innovation5 that I covered in “A Second Class Profession” (August 2012).
The case we are going to consider is Butler v. Coyle, Washington Court of Appeals (2012), unpublished.6 Both Butler and Coyle trace their title back to a common grantor, Reforestation Inc. This, of course, implicates the common grantor doctrine and the doctrine of monuments (if anyone is interested), in that the called for monument in both deeds for the common boundary between what later become the Butler and Coyle properties was the “lane road,” referred to and in existence at the time of the original conveyance. This is the same road shown in Figures 1 and 2.
The bearings and distances shown in both figures are the same bearings and distances that describe the centerline of “lane road” in both deeds. Both deeds began at the northwest corner of section 5, proceeded by bearing and distance to the centerline of “lane road,” and then two courses along the centerline terminating at the centerline of “LaPray-Bridge Road,” now called Corkscrew Canyon Road. Both parties stipulated at trail and “lane road” has been in the same location since at least 1961. This is information that both surveyors could have easily obtained, if they were interested.
We are not told when the Butlers bought their property, but in the spring of 2007 when Coyle bought her property, they were already in peaceable possession in conformance with the road as the boundary between the two properties, living the proverbial American Dream.
Enter the “Dream Crusher,” a.k.a., the deed-staking land surveyor. In October of 2007, Coyle hired a surveyor (we’ll call him “Expert,” for his expert measurement skills), “to survey the boundary line between her property and the Butler property in anticipation of erecting a fence.” Notice that she wants to know where her property line is located—this is why Expert was hired. Expert began his survey at the then existing northwest corner of section 5, which later testimony indicates was set in 1982, 32 feet east of the old existing section corner location, because the 1982 surveyor considered the corner lost and—well, you know the rest of that story—he prorated in a new location. This new corner was also set subsequent to the subdivision of the property by Restoration, Inc. and the description for “lane road.” This information was also readily available to anyone who cared to look for it.
Well, of course, Expert puts the property line as shown in Figure 2, and this is when all hell breaks loose. To Expert’s credit he did reveal the discrepancy to both his client, Coyle, and the Butlers and tried to get them to agree to the road as the boundary, but they failed to come to an agreement. The only problem with this is that the line put on the ground by Expert is a fantasy—a total figment of Expert’s imagination. As the appellate court observed in its opinion: “At trial, he [Expert] could identify no reason why he relied on the metes and bounds description from the deeds rather than the actual center line in depicting the boundary line between the Coyle and Butler properties.”
The surveyor the Butlers hired (we’ll call him “Retrace,” for his ability to retrace existing boundaries), testified that Expert’s survey “should have reflected the actual center line of the road as the boundary, because the road, being a monument, ordinarily takes precedence over an inconsistent metes and bounds description in a deed.” With regard to the northwest corner of section 5 that was set for the first time by “1982 Surveyor” in a place where it never existed before,7 Retrace testified that “it was improbable that [1982 Surveyor] had reestablished the northwest corner at precisely the same point as its earlier location.” Improbable! How about impossible. Retrace also noted that Expert’s survey did not terminate at the centerline of Corkscrew Canyon Road. Expert’s survey never will because, as explained earlier, all evidence that contradicts the measurements in the deed are to be ignored.
From here the case digresses into chaos as Coyle, working pro se, spirals into oblivion including an order finding her in contempt, fighting for the boundary line that Expert, in essence, told her was her property line. Isn’t that what she asked him to do in the first place, survey her property? Ultimately, however, her appeal boils down to a very deed-staker-kind-of-argument; whether the road, as a monument, takes precedence over course and distance. Citing many published Washington cases and authority on the subject, the court’s answer can be succinctly wrapped up with the following quotation from the opinion:
In cases of conflicting calls in a deed, the priority of calls is: (1) lines actually run in the field, (2) natural monuments, (3) artificial monuments, (4) courses, (5) distances, (6) quantity or area.
If only surveyors could get a handle on these concepts. Of course, there is no need to if your actions are sanctioned by the local surveying community and the board. In most cases the only people damaged by these cases are the landowners who rely of these surveyors. So who really cares?
2. The term “deed staker,” as I have explained in the past, is a colloquialism for a land surveyor who ignores all other evidence of the location of property lines, except for the bearings and distance in the deed. I have also referred to this surveyor as the “expert measurer.” This is one extreme of the spectrum. The other extreme is the “fence-line surveyor.” That shouldn’t need any explanation. Between these two extremes, is generally where the correct answer will be found. However, neither the deed staker nor the fence line surveyor are interested in the “correct” answer, and this is a problem for the profession as a whole.
6. I have covered unpublished cases before in this column and have thoroughly explained the reasons for doing so. Therefore, I will be brief. The No. 1 reason is for the fact scenario. The No. 2 reason is it is still good law and citable cases are always referenced in the opinion on the major points of law. Lastly, being unpublished does not necessarily preclude it from being cited in other jurisdictions and this column is aimed at all 50 of them.
7. This is because the only guaranteed result of prorating a “lost” section corners is that you will never be in the original corner position. The process is not designed to do that. It is designed for an equitable distribution of uncertainty based on new measurements and new math from what, in most cases in the real world (meaning private practice), are other re-set section and quarter-section corners, not original GLO positions.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.
Don't miss Jeffery Lucas’ latest book, “The Pincushion Effect.” The book can be purchased through the Point of Beginning Store http://www.pobonline.com/products.