My Property Line is Obvious – Or is it?
Most buyers of real property do not wonder “what land did I buy?” Usually that question has an easy, intuitive and straightforward answer. But not always. Your legal description is the law’s expression of your property’s dimensions. Absent claims like adverse possession, a buyer of real property effectively purchases whatever is provided in his or her legal description. Surveyors are employed to translate a legal description into the physical boundaries. Surveyors visit the property and routinely mark out the legal description on the ground itself.
Legal descriptions vary, but most are based off government plats, metes and bounds descriptions, or use physical landmarks to indicate property dimensions. But what type of legal description is most reliable? How do I really know what property I own? What happens if I’m wrong? The recent Washington Court of Appeals case McDonald v. Stern, 83566-1-I, 2023 WL 4704077 (Wash. App. Div. 1 July 24, 2023) considered these very questions – and it is a cautionary tale.
McDonald v. Stern – The Facts
McDonald and Stern owned adjacent properties in Mercer Island. Stern cut down some trees near their mutual property boundary. While the cutting of another’s trees may be insignificant to some, in Washington, this offense can be considered timber trespass and the violator can be liable for treble (triple) damages and attorney’s fees (see this related blog post and webinar from lawyer Todd Cook of our firm: https://beresfordlaw.com/washingtons-timber-trespass-statute-rcw-64-12-030/, https://beresfordlaw.com/webinar-washington-timber-trespass-act/).
Stern argued that he owned the land where he cut down the trees, and he pointed towards a survey by Surveyor X to prove it. As the basis of his survey, X used a historical landmark that had admittedly shifted from its original location. The X survey attempted to reconcile and modernize the original government survey line. It examined the landmarks as they were as opposed to where they should have been with respect to the original survey line.
Conversely, McDonald argued that he owned the land where Stern cut down the trees. To prove it, he pointed to a survey by surveyor Y. Surveyor Y used the legal descriptions, site plans, and the location of landmarks as the basis for its survey. The Y survey attempted to replicate the original government survey line, examining the landmarks where they should have been with respect to the original survey. The court determined the Y survey more closely resembled the original government survey line.
McDonald v. Stern – The Holding
The court held that “the intent of a new survey should be to ascertain where the original surveyors placed the boundaries rather than determine where a modern survey would place them.” In so holding, the court found in favor of McDonald, holding Stern liable for $64,194 in timber trespass, $89,210 for waste, and $393,333 for nuisance on McDonald’s property along with attorneys’ fees and costs.
Considerations
The lesson from McDonald is simple: know your land boundaries. Regardless of your intent, be careful about maintenance near your property boundary until you are certain about the boundary location, or you have permission from your neighbor. Failure to do so may be costly. If you have questions regarding boundary issues, damage to land, or timber trespass, please call us directly.
To learn more about My Property Line is Obvious – Or is it?, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.
