Warren v, Burnham

OMG  Rich people problems.

Not really. This neighborhood is somewhat above entry level, but not near “swanky”. But there is no question that the parties had to have enough wherewithal to enrich a few attorneys.

Interesting case to read about.  I feel the appellant court nailed it.  I’m very much impressed with the record of survey.  Based on that alone, I would have thought there was no grounds for adverse possession.  

Thanks for sharing!  

"Your land should be mine because I mowed it and I'm too uninterested to find out where my own property line is. And not only that, I only mowed it for 5 years. I'm relying on my predecessors who mowed it previously."

The lady should rot in her own misery and frustration. 18" along a 36' long driveway cost her and the defendants how much money? Ludicrous! 

Posted by: @lurker

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The lady should rot in her own misery and frustration.

I'm sure that she won't be invited to the neighborhood barbeque. Also, we can't see the fence that was built in the street view pictures, but I'm sure that it is tall, stout, stockade fence. 

When I first started reading Law in the 1970s, I thought the goal of Courts was to draft an opinion that was fair to all parties. I learned that fairness isn't even on the horizon. Courts run on two principles; finality and uniformity. In general, evidence ends with the first court of record. You don't get two bites at the apple. Uniformity means if you have the same set of facts and the same legal argument, you will get the same results. Change either the facts or the legal argument and you can get a different result. Courts only consider the legal arguments presented to them and not the Law at large.

Fairness is subjective and means something different to each individual. Law is objective, giving an individual to know what actions are in his favor.

Attorneys could learn from this case. It's unwise to take a boundary case without a surveyor on the litigation team, even if your client's claim is adverse possession.

As a surveyor for the plaintiff, what suggestions would you have for his attorney?

Just my opinion and I'm not an attorney.

Finally, a surveyor willing to admit the monuments all still exist where the record said they were put.  To the nearest arc second and 0.01 foot.  That enabled them to set the lone monument needed at the perfect spot as well.  However, I hooted and belly-laughed at a "corner post" being found two inches from the found bar.  A single "T" post wedged as tightly as possible against the side of the monument does not "a corner post" make.  Guard stake, maybe, corner post, no.

The mostest ludicrousest ridiculousest preposterousest and laughable-est waste of publicly-funded judiciary time.

Thanks for posting, though.

Posted by: @holy-cow

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The mostest ludicrousest ridiculousest preposterousest and laughable-est waste of publicly-funded judiciary time.

We have to acknowledge that she prevailed in district court, and this appeal reversed. State Supreme court anyone? 

With regard to the survey ... the falling calls on the fence are a bit absurd. That fence is on the line. Period. You know what else is absurd? The detailed attention paid to specifying a Basis of Bearings, and detailing the source monuments. As if those two in particular were singularly significant. Oregon State law requires that a BOB be specified, and the County Surveyors reviewing these things take that very seriously.  A statement that the plat of "Crystal Creek No.2" was the basis would be abundantly sufficient.  State Law also requires that the measured and record dimensions be shown, and we all know that the measured dimensions didn't all match record exactly. But nothing is to be gained, and plenty to be lost, by showing measured dimension that are a few hundreths different from the record.   So what we see here is not common practice, because it is technically not legal. Don't hate the player, hate the game. Note that the survey is dated mid August and records in early November. It has been through at least one round of review, maybe a couple. The filing fee is currently $475.

I'm always glad to see a legal case posted here for surveyors to study and post their opinion. Then I'm disappointed that the comments have little to do with the legalities of the case.

Back on June 17, 2011 12:42 pm, jbstahl said in part:

"Our profession is in an incredibly sad state, in my opinion. We have failed to teach and learn the laws which govern real property which our profession is charged with protecting. As a result, we make ill-informed decisions which foster litigation, rather than prevent it."

The whole post: https://rpls.com/forums/strictly-surveying/the-evil-word/paged/3/#post-111798

I like the format that the Arkansas opinions use, giving the review process for each case and the legal principals to be considered. Maybe I like it just because I read so many. The following is a common thing to see in an opinion for boundary and adverse possession:

We traditionally review quiet-title and boundary-line actions de novo. Rio Vista, Inc. v. Miles, 2010 Ark. App. 190, 374 S.W.3d 698. We will not, however, reverse findings of fact unless they are clearly erroneous. Id. Further, whether possession is adverse to the true owner is a question of fact. Id. We will not reverse a trial court’s finding regarding adverse possession unless it is clearly erroneous. Id. A finding is clearly erroneous if, “although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed.” R.K. Enters. LLC v. Pro-Comp Mgmt. Inc., 372 Ark. 199, 204–05, 272 S.W.3d 85, 89 (2008). In reviewing a trial court’s findings of fact, the appellate courts give due deference to the trial court’s superior position to determine witness credibility and the weight to be accorded their testimony. Thurlkill v. Wood, 2010 Ark. App. 319, 374 S.W.3d 790.   

I had a post drafted yesterday that didn't get posted when I got distracted. It estimated the cost of litigation for a simple boundary case common to Arkansas. The draft went in the trash can. I've seen other surveyors from other states talk about the huge expense of litigation. Today I went looking for records from the trial court. In Oregon the actual documents are available for a fee, docket entries are free. Those Oregon lawyers sure like to push paper. Those guys could write a book on how to milk a simple case for everything a client would pay. Winning on the merits is not their strong suit. 

I'm told that Oregon Court Houses have computer terminals for the public to view the case documents for free, paper copies for a fee. It's not clear if the terminals allow printing or saving to a flash drive. Photos of the monitor could be done, but that would not be practical for a trial transcript. The case is 21CV31980 in Washington County.

It's common for the garden variety boundary case to have one party claiming to a location based on title records, while the other claims by way of actions of the owners such as adverse possession, agreement, or estoppel. The best prepared side usually wins. In Warren v. Burnham this was the defendant. But if the plaintiff had added a claim of boundary by agreement to the pleadings and sited Blaisdell v. Nelsen 674 P.2d 1208, the result might have been different. 

Posted by: @pls8xx

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Those Oregon lawyers sure like to push paper. Those guys could write a book on how to milk a simple case for everything a client would pay.

A contributing factor might be the cost of real estate in this area. Entry level is about $500,000, the neighborhood of this case is in the $700k range.

Posted by: @pls8xx

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But if the plaintiff had added a claim of boundary by agreement

Testimony from several predecessors in title was that there had never been any discussion one way or the other about where the boundary was, let alone any disagreement, resolved by an agreement, nor any positive action to mark out an agreed boundary. All of which are necessary in Oreogn. So I don't think that a boundary by agreement would fit this circumstance.  

Gibbons v. Lettow

Ross v. DeLorenzo initiated the idea of wrapping up all the various flavors of boundary by agreement into a single unified doctrine in Oregon. Gibbons v. Lettow put the bow on that package.  

WOW  3514 views in the first four days.  That might be a record.

Notes of the opinion: