Opinion
No. 37156-1-II.
May 5, 2009.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 05-2-01969-8, James J. Stonier, J., entered December 21, 2007.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Armstrong and Hunt, JJ.
UNPUBLISHED OPINION
Mark Horn appeals the trial court's ruling quieting title to property in favor of his neighbor, Bernard Eisenbarth. Horn argues that the trial court erred by relying on one of several surveys to establish the proper boundary line and that substantial evidence does not support the trial court's findings. Because we do not review credibility determinations and substantial evidence supports the trial court's findings and, in turn, its conclusions, we affirm.
FACTS
During the trial testimony, counsel and witnesses often indicated various places on exhibits without corresponding verbal explanations. This renders several parts of the record virtually incomprehensible. Moreover, the parties did not include the survey books relied on at trial so the record on appeal does not allow us to analyze this vague testimony.
Properties belonging to Bernard Eisenbarth and Mark Horn share a common boundary. Eisenbarth owns lot 3 in the Carrollton Crest subdivision to the west and Horn owns lot 18 in the Mt. Pleasant Acreage Tracts subdivision to the east. Old Highway 99 lies to the west of both disputed properties.
Eisenbarth testified that an old, north-south fence stood between his and Horn's properties for as long as he could remember. In addition, decades ago, Horn's family erected a cedar post and barbed wire fence approximately 25 feet east of the Eisenbarth fence on Horn's lot 18. A few years ago, Horn put up a third parallel fence approximately 20 or 30 feet west of the old Eisenbarth north-south fence, prompting this quiet title action. Eisenbarth's center fence was the subject of most of the trial testimony that referred to a fence.
We refer to this north-south fence as the "Eisenbarth fence" for clarity.
Horn called this third parallel fence a "t-post fence."
The original 1929 recorded plat established the property lines in the Eisenbarth-Horn area. Several surveys have been done since that time and, because "the intent of the new survey should be to ascertain where the original surveyors placed the boundaries," these surveys were considered at trial. Thein v. Burrows, 13 Wn. App. 761, 763, 537 P.2d 1064 (1975). The five surveys considered by the trial court included one by Cecil Donnelly, an original and an amended survey by Dorrell Germunson, a survey by Calvin Hampton, and a survey by Norman Oleson and Marvin Dunn.
"When a later surveyor traces an earlier surveyor's work, the later one is trying to retrace the earlier one's exact steps on the ground. If the earlier surveyor's monuments are found, they are conclusive as to his survey; it may be a correct or erroneous survey, but it is his survey." 18 William B. Stoebuck John W. Weaver, Washington Practice: Real Estate: Transactions § 13.4, at 95 (2d ed. 2004).
The parties also refer to an "Oleson" survey but this appears to be the Oleson-Dunn survey. And although the record of proceedings repeatedly mentions a survey by "Ollofson," we believe it to be a phonetic representation of "Oleson," the only surveyor mentioned in the briefs with a name beginning with an "O." Finally, a survey by Phil Guston was briefly discussed at trial but not introduced into evidence.
A. The Hampton Survey
Hampton, a professional land surveyor, is a principal of the Hampstur Corporation, a professional survey company. He performed a survey in 2001. Hampton's goal was "to find [] the common boundary as it was established in 1929." Report of Proceedings (RP) (Oct. 30, 2007) at 83.
Horn's counsel briefly referred to plats dating back to 1857 and 1884 but did not give further explanation. Hampton suggested these were related to United States General Land Office (GLO) surveys. Hampton testified that differences in distance of approximately five feet between his survey and surveys from 1929 are not "that bad of an error. They didn't have the equipment we have today." RP (Oct. 30, 2007) at 39.
Hampton reviewed all prior surveys of the property and obtained Cowlitz County's computer-aided design and drafting files of the area. He testified, "We accepted whatever we could find on the original plat. The intent was to resurrect that survey." RP (Oct. 30, 2007) at 78. Hampton related the "purported monument" used "to fix the southeast cormer of Mount Pleasant" to the the Cowlitz County "road right of way of the Old . . . Highway 99 . . . because . . . that would be a very high order of evidence, it would be a semi-permanent man-made natural monument." RP (Oct. 30, 2007) at 98. Although the county later widened Old Highway 99, the work did not change the location of the highway center line.
Hampton also accepted a number of other monuments in the vicinity, including an iron rod located at the southeast corner of lot 1 of Carrollton Crest. The rod appeared to mark the sixteenth line, presumably the east-west line between Carrollton Crest and Mt. Pleasant Acreage Tracts. In addition, he accepted a two inch iron pipe at the northeast corner of Carrollton Crest. From the record, it appears that Hampton found all four corners of Carrollton Crest.
Based on the Old Highway 99 right of way and the other identified monuments, Hampton concluded that the location of the old Eisenbarth fence was within a foot of Germunson's amended survey and that this fence was "the common line between the two subdivisions." RP (Oct. 29, 2007) at 65. Hampton testified, "In our opinion, that is the most logical location for a common boundary. We took no interest in anybody's ownership or anything else when we determined it. We went in to take . . . kind of an unbiased point of view." RP (Oct. 29, 2007) at 118.
B. The Germunson Amended Survey
Carl Germunson is also a licensed land surveyor and Dorrell Germunson's son. Carl worked for his father when Dorrell performed the two surveys and Carl testified at trial about the surveying process. Hampton's survey substantially agreed with their amended survey and Hampton "accepted all of [Germunson's] monumentation." RP (Oct. 30, 2007) at 41. Both Hampton's and the amended Germunson survey showed that Horn did not own any property west of the old Eisenbarth fence. The location of this fence as the east-west boundary between Eisenbarth's and Horn's properties comported with other landmarks, such as the Old Highway 99 and Kingsbury Road.
The deeds for the Eisenbarth and Horn properties described their location as abutting a sixteenth line. But when Hampton calculated the theoretical sixteenth line, it was 30 feet to the east and did not fit the other measurements. Accordingly, he did not use the theoretical sixteenth line because the property owners and their predecessors-in-interest had bona fide rights back to 1929. "By [Hampton's] calculations, the plat fits everything. If we'd of went to the sixteenth line, Carrollton Crest would've gained a lot [of property]." RP (Oct. 29, 2007) at 145. In fact, if he had determined that the boundary between Carrollton Crest and Mt. Pleasant Acreage Tracts was the theoretical sixteenth line, "[i]t would [have] shorten[ed] the east/west distance in all the lots in the whole subdivision, because you'd have to take that total distance from the sixteenth line over to wherever the north/south center line would be, and prorate it out, and it sort of would affect every lot." RP (Oct. 30, 2007) at 85.
C. The Donnelly Survey
The 1992 Donnelly survey found a "three-quarter inch iron pipe, fifteen inches high" in the southwest corner of lot 19 in Mt. Pleasant Acreage Tracts and accepted this iron pipe as the "iron rod" monument on the original 1929 plat. RP (Oct. 29, 2007) at 74. The decision to accept this monument fixed the southwest corner of Mt. Pleasant Acreage Tracts in a different location than Hampton's survey. When Hampton located this pipe, it was surrounded by a mound of stones, which surprised Hampton because Donnelly did not mention any stones. Hampton ultimately rejected the iron pipe as a monument because "[i]t d[id]n[']t come close to fitting anything for both subdivisions" and there must be a basis for accepting a monument. RP (Oct. 29, 2007) at 75.
Hampton testified that Donnelly found a "three-quarter inch iron pipe eighteen inches high." RP (Oct. 30, 2007) at 56. Kenneth Chamberlain, Eisenbarth's expert witness, also testified that Donnelly found a pipe "eighteen inches high." RP (Oct. 30, 2007) at 96.
Hampton testified that an iron pipe and an iron rod are "not even the same monument." Therefore, he considered them to be "two different points." "[A]ll of the other evidence fit together, except for that pipe." RP (Oct. 30, 2007) at 57, 60, 67. Hampton explained:
[Y]ou've got to have a preponderance of the evidence around any monument. You just can't accept what we call a goat stake. You know, in our profession, we've seen too many landowners go out and drive a pipe in the ground to try to fool a surveyor. . . . They can fool us sometimes, you know. Unfortunately, there's a lot of surveyors that go out and find one or two monuments and say, that's it. That doesn't form a figure. You get three monuments that form a mathematical picture you know they haven't been moved, or at least they're close. If you get one that's thirty feet off, you know that wasn't set by a surveyor. I don't know where [the pipe surrounded by stones] came from, but it wasn't set by a surveyor.
RP (Oct. 29, 2007) at 137.
Hampton testified that Donnelly appeared to have used this pipe's location in his calculations and that doing so "drastically short[ed] all the lots in Carrollton Crest" located along the eastern boundary with Mt. Pleasant Acreage Tracts by roughly 30 feet. RP (Oct. 29, 2007) at 77. And Donnelly did not use the center line of Old Highway 99 as a monument, even though Old Highway 99 was higher in the "hierarchy" of monuments than the iron pipe. RP (Oct. 30, 2007) at 138. For these reasons, Hampton disregarded the Donnelly survey. Hampton testified, "[W]e don't agree with anything Donnelly did in his survey. He made some bad assumptions. All his corners are off." RP (Oct. 30, 2007) at 57.
D. The Oleson-Dunn Survey
Hampton also disregarded the Oleson-Dunn survey because he believed that it contained errors that cast doubt on its findings, "[H]ow [the surveyor] calculated his lots in Mt. Pleasant was totally against the book, it's wrong." RP (Oct. 29, 2007) at 113. Hampton testified that the Oleson-Dunn survey added approximately 30 feet to the western edge of Horn's lot 18 without subtracting any land from the lot's eastern edge. And there was too much information missing from the survey for Hampton to determine whether this survey was accurate.
Hampton likely referred to the Manual of Surveying Instructions published by the United States Department of the Interior, Bureau of Land Management [BLM]. This manual has also been adopted by reference in WAC 332-130-030 for the "reestablishment of lost GLO or BLM corners and the subdividing of sections." But neither party here argues that the Manual helps resolve this matter, except for Hampton's testimony that the Oleson-Dunn survey was "against the book." RP (Oct. 29, 2007) at 113-14.
E. Cowlitz County Surveyor
Donald Day, a Cowlitz County Public Works surveyor, agreed with Hampton's survey, noting that it "matched precisely" with the county's attempts to determine the proper property lines. Day also agreed with Hampton that the Oleson-Dunn and Donnelly surveys made similar mistakes.
Day further testified that the Oleson-Dunn survey projected its errors across the westerly lots, causing a 50 foot wide discrepancy.
F. Expert Witness
Kenneth Chamberlain, a retired surveyor, testified as an expert witness for Eisenbarth. He concluded that Hampton was correct to reject the disputed monument accepted by the Donnelly, Oleson-Dunn, and the original Germunson survey. Disregarding the purported iron pipe monument was proper, he testified, because it was an iron pipe instead of an iron rod. and "the character of the monument is different." RP (Oct. 30, 2007) at 97. Chamberlain further testified that the purported iron pipe monument was 30 feet too far west.
Chamberlain criticized the Oleson-Dunn survey, stating that the surveyor "ignore[d] a lot of what he [found]." RP (Oct. 30, 2007) at 111. According to Chamberlain, this surveyor failed to provide bearings and distances necessary to understand the survey. RP (Oct. 30, 2007) at 112. The Oleson-Dunn survey discounted the county's location of the Old Highway 99 monument because, like Donnelly, the Oleson-Dunn surveyor simply assumed that the highway's true center line was west of the center line monument. Finally, Chamberlain stated that the Oleson-Dunn surveyor had enough information to put him on notice that he "possibly had the wrong monument, and almost every piece of evidence on this plat, other than the physical monument there, tells you to question it." RP (Oct. 30, 2007) at 116.
Based on all the surveys, Chamberlain explained that this iron pipe monument was placed in error and that he would "absolutely" reject it. RP (Oct. 30, 2007) at 104. Thus, he concluded that the disputed area between the old Eisenbarth north-south fence and Horn's new fence is on Eisenbarth's lot 3.
G. Horn's Testimony
Horn testified that he worked on the construction project widening Old Highway 99 in 1996 and that he observed no "plat marks, quarter section marks, sixteenth section marks, . . . or any kind of monuments or markers on the road surface." RP (Oct. 30, 2007) at 200. Horn also testified that he and his family erected a cedar post and barbed wire fence 25 feet short of the western edge of Horn's lot 18 when he was 15 years old. Its location was based on a marker along the boundary line of Eisenbarth's lot 3 and Horn's lot 18 that has since disappeared.
Horn refers to this highway as the "old Pacific highway" in his brief. Br. of Appellant at 2.
The trial court quieted title of the disputed property in Eisenbarth. Horn appeals.
ANALYSIS
Horn argues that the trial court erred by relying on Hampton's survey and that substantial evidence does not support the trial court's findings. We disagree.
I. Standard of Review
"`[W]hat are the boundaries is a question of law, and where the boundaries are is a question of fact.'" DDL, Inc. v. Burgess, 51 Wn. App. 329, 335, 753 P.2d 561 (1988) (alteration in original) (quoting Rusha v. Little, Me. 309 A.2d 867, 869 (1973)). We review de novo issues of law and a trial court's conclusions of law. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003). And we review findings of fact "under a substantial evidence standard, which requires that there be a quantum of evidence in the record to persuade a reasonable person that a finding of fact is true. If substantial evidence supports [a] finding of fact, [we should] not substitute [our] judgment" even though we may resolve the factual question differently. Pardee v. Jolly, 163 Wn.2d 558, 566, 182 P.3d 967 (2008) (citation omitted). "A trial court's findings of fact must justify its conclusions of law." Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 353, 172 P.3d 688 (2007).
The parties agree that we review under a substantial evidence standard. Thus, because this case turns on which monument and survey the trial court accepted as the most reliable, it appears that the proper standard of review for the boundary itself is substantial evidence. See Thompson v. Schlittenhart, 47 Wn. App. 209, 212, 734 P.2d 48 (1987). We review de novo the legal conclusions flowing from the trial court's decision about the location of the boundary. Sunnyside, 149 Wn.2d at 880; DDL, 51 Wn. App. at 335. Finally, we do not review the fact finder's credibility determinations. In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002).
II. Determination of Proper Monuments
Horn argues that we should reverse the trial court's decision based on its acceptance of Hampton's survey using the center line of Old Highway 99 as a primary monument instead of an iron pipe in a mound of stones used by the Donnelly, Oleson-Dunn, and the original Germunson survey.
The evidence at trial was devoted to the various property surveys and the underlying monuments the surveyors relied on in reaching their conclusions about the boundary line location. The trial testimony, therefore, did not focus on the legal question of "what are the boundaries," according to the plats, but on the factual question of "where the boundaries are" relative to the land itself. See DDL, 51 Wn. App. at 335 (quoting Rusha, 309 A.2d at 869).
Eisenbarth's statutory warranty deed reads, "Lots Two (2) and Three (3), Block Four (4); Lots Four (4) and Five (5), Block Five (5), Carrollton Crest, according to the plat thereof recorded in Volume 7 of plats, records of said County. SUBJECT TO: Easements and restrictions of record." CP at 23. Because the deed describes the property solely by reference to the plats, its plain language does not help resolve the boundary location issue. And the parties presented no testimony or other evidence regarding the intent of Eisenbarth, Horn, or their grantors to assist in determining the intended boundaries for any of their property.
A. Boundaries and Monuments
"A `boundary' is the dividing line between two parcels of land." DDL, 51 Wn. App. at 331 n. 3. "`The term monument means a permanent natural or artificial object on the ground which helps establish the location of the boundary line called for.'" Ray v. King County, 120 Wn. App. 564, 590-91, 86 P.3d 183 (2004) (internal quotation marks omitted) (quoting DDL, 51 Wn. App. at 331 n. 3). "[A] monument is `a point capable of being mathematically ascertained.'" Kesinger v. Logan, 113 Wn.2d 320, 329, 779 P.2d 263 (1989) (quoting Matthews v. Parker, 163 Wash. 10, 15, 299 P. 354 (1931)).
The boundary lines comprising the four sides of a piece of property are identified by various descriptive elements, such as monuments, courses and distances, area, or by a combination of such elements. A "call" is the general term used to describe any or all of the aforementioned descriptive elements used to identify boundary lines. . . . Natural monuments include such objects as mountains, streams, or trees. Artificial monuments consist of marked lines, stakes, roads, fences, or other objects placed on the ground by man.
DDL, 51 Wn. App. at 331 n. 3.
"Where a boundary is uncertain, it may be established by the best evidence available. . . . Where the evidence conflicts as to the validity of a monument used to begin the original survey, the trial court, as finder of fact, may determine a boundary based on a modern survey." Thompson, 47 Wn. App. at 212 (citations omitted). Finally, if monuments "are inconsistent with the calls for other monuments, and it is apparent from all the other particulars in the deed that they were inadvertently inserted, . . . they will be rejected as false." White v. Luning, 93 U.S. (3 Otto) 514, 525, 23 L. Ed. 938 (1876).
Here, Horn relies on Martin v. Neeley, 55 Wn.2d 219, 222, 347 P.2d 529 (1959) for the proposition that "[g]enerally, if competent evidence establishes that a monument does not accord with a survey or plat, the monument as established on the ground must control." Br. of Appellant at 5. But Horn misstates the rule from Martin. Martin dealt with whether a corner on a government survey was "lost" or "obliterated," and the court said:
Although Horn cites only to Martin, he appears to quote DDL, "Where it is shown by competent evidence that a monument does not accord with a survey or plat, the monument as established on the ground must control." 51 Wn. App. at 336. For this proposition, DDL cites Martin. 55 Wn. App. at 336. But here, neither Hampton nor Chamberlain believed that the iron pipe was the "iron rod" monument from the 1929 plat, so the rule cited by Horn would not apply.
"While presumptively quarter section corners are set upon a true line and at a point equidistant between section corners, it is well known that it is not always so. In fact, the carelessness and inattention marking the original government surveys in this part of the country have led the courts to say of their own judicial knowledge that a survey is seldom correct.
When it is made to appear by competent evidence that a government monument does not accord with the survey or plat, the corner as established on the ground must control." Martin, 55 Wn.2d at 222 (emphasis added) (citations omitted) (quoting Hale v. Ball, 70 Wash. 435, 439, 126 P. 942 (1912)).
The instant case involves a privately-placed monument, the iron pipe, so Martin does not apply. Moreover, neither party claims that any of the corners were "lost" or "obliterated." Horn's arguments are unpersuasive and we hold that the trial court did not err by relying on the Hampton survey.
"`[A]n obliterated corner may be identified as one of which no visible evidence remains of the work of the original surveyor in establishing it but of which the location may be shown by competent evidence. [But a] lost corner is one which cannot be replaced by reference to any existing data or sources of information, although it is not necessary that evidence of its physical location may be seen or that one who has been the marked corner be produced.'" Wash. Nickel Mining Alloys, Inc. v. Martin, 13 Wn. App. 180, 181, 534 P.2d 59 (1975) (internal quotation marks omitted) (quoting Martin, 55 Wn.2d at 222).
B. Challenged Findings and Conclusions
Horn assigns error to four findings of fact: 9, 10, 12, and 13. These all relate to the location of the common boundary line.
The trial court characterized 9, 10, 12, and 13 as findings of fact. But number 12 appears to be a mix of findings and conclusions and number 13 appears to be a pure conclusion of law. Because "conclusion[s] of law erroneously described as . . . finding[s] of fact [are] reviewed as . . . conclusion[s] of law," to the extent that number 12 and number 13 are actually conclusions, we analyze them accordingly. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986).
1. Findings of Fact 9 and 10
Finding of fact 9 states:
Calvin Hampton, [Hampton] a licensed surveyor and a principal of Hampstur examined three surveys of the area. Hampton properly concluded that the Germunson survey (recorded January 16, 1998), the Donnelly survey (recorded August 18, 1992), and the Oleson-Dunn survey (recorded June 1, 2001) each committed surveying errors by relying upon the same purported monument (an iron rod and mound of stone or an iron pipe) and by failing to use the original road right-of-way of Old H[igh]w[a]y 99 as specified in Carrollton Crest as a monument. These surveying errors wrongfully moved the Common Boundary approximately twenty-five feet west of its true location at the boundary between Lot 18 and Lot 3, and improperly set the southwest corner of Mt. Pleasant so as to enlarge the lots specified in Carrollton Crest and reduce the lots specified in Mt. Pleasant.
CP at 20.
Similarly, finding of fact 10 states:
The Hamp[]t[on] survey is the most comprehensive recorded survey of Carrollton Crest and Mt. Pleasant. It is accurate and reliable in that it preserves the integrity of the lot sizes in both Carrollton Crest and Mt. Pleasant plats and correctly monuments the forty-two year old [Eisenbarth] fence as the boundary between Lot 18 and Lot 3.
CP at 20.
Horn argues that Hampton's survey was not conducted with an intent "to ascertain where the original surveyors placed the boundaries rather than to determine where new and modern surveys would place them," contrary to Thein. 13 Wn. App. at 763. But this argument ignores Hampton's testimony that his goal was "to find [] the common boundary as it was established in 1929." RP (Oct. 30, 2007) at 83. He testified, "We accepted whatever we could find on the original plat. The intent was to resurrect that survey." RP (Oct. 30, 2007) at 78.
The trial court heard testimony from four surveyors, including an expert witness. The professional surveyors discussed the five surveys done subsequent to the original 1929 plat and the choice of monuments the different surveyors relied on to establish the boundary between the Eisenbarth and Horn properties. They also contrasted and compared the basis of and relative accuracy of the surveys. Eisenbarth and Horn testified about the installation of three fences purporting to mark the boundary line between their properties.
Ultimately, the trial court rejected the Donnelly, Oleson-Dunn, and the original Germunson survey. It accepted Hampton's modern survey as the "best evidence available." Thompson, 47 Wn. App. at 212. Its decision relied partly on the credibility of Hampton, Day, Chamberlain, Carl Germunson, Eisenbarth, and Horn; so to that extent we defer to the trial court's credibility determinations. Burrill, 113 Wn. App. at 868.
Furthermore, substantial evidence supports the trial court's finding that Hampton's survey was the most accurate and comprehensive. Given the detail and breadth of trial testimony describing proper surveying methods, including when and why to accept or reject purported monuments, the trial court's decision that the original Germunson survey, the Donnelly survey, and the Oleson-Dunn survey were all inaccurate is also based on substantial evidence. Thus, the trial court properly rejected these surveys in favor of the Hampton survey.
2. Conclusions of Law 12 and 13 (Denoted as Findings of Fact)
Because the trial court's finding that Hampton's survey accurately established the boundary between the Horn and Eisenbarth properties was based on substantial evidence, its legal conclusions "[t]hat [Horn] erected a wire and steel fence on [Eisenbarth's] property," and "[t]hat [Eisenbarth] is entitled to have [Horn's] fence removed from [Eisenbarth's] property," were supported by the findings of fact and were not erroneous. CP at 20.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG and HUNT, JJ., concur.