Who Controls Fence Placement - Easement vs Property Line

[violetcrumble]

We’re in Washington State. I will be grateful for any opinions.

I want to replace a deer fence stapled to trees along a line that has been a deer fence line for 50 years but is between 3 and 8 feet inside my neighbors’ property line. The trees are roughly along the center line of a scrappy wooded strip separating the two houses. Because the fence is what it is--nylon woven “invisible fence” stapled to trees--it eventually collapses, and when the deer find out and get destructive again I, like former owners of my property, put up a new one. The fence line also roughly skirts my drainfield, a portion of which is on the neighboring property, a grandfathered situation that arose as a title issue when I bought 22 years ago, resolved then by a recorded easement for which I compensated the previous owner of the neighboring parcel. The easement boundary extends to 25’ inside their property line, much farther than the deer fence line.

The wooded strip--an approximate 30-foot wide strip of unimproved forest between the clearings for their house and mine--is the visual boundary between the two properties, but it’s deceptive; what looks like the property boundary isn’t. Rather, the property line runs inside “my” side of the wooded strip and passes directly over my drainfield; hence the easement. I have used and maintained (planted ornamentals, installed drip irrigation, mowed, cleaned up storm-felled trees, etc.) everything on ‘my’ side of that wooded strip, and the neighbors have similarly used everything on their side of it. To state it again: the entire wooded strip and some of what I’ve cared for on my side of it are within their property line. At the same time, my drainfield easement includes the area I’ve maintained plus the wooded strip itself to “their” side. The property and easement boundary lines are near mirror images of one another, each including the wooded strip.

New owners, who bought in 2007, don’t want the deer fence in the forested strip where it has been. They want me to put it up along the property line, which runs rougly parallel to the wooded strip 2 to 6 feet on “my” side, thus fencing out the area I’ve improved and maintained over the years. Eventually they want to put up a permanent fence along the same line. To do that—whether deer fence now or permanent later—means the fence crosses directly over my drainfield. All 3 local septic/drainfield companies tell me “no way” should there be post holes in a drainfield and say the 25’ easement is about right. There are some aesthetic and possible tax considerations, as well, but for simplicity I’ll stick to the easement/drainfield question.

My neighbors are nice people, as am I, but they’re resolved that I can’t replace the deer fence in the wooded strip, and I’m resolved that it follow the old fence line through the visual barrier, inside the easement but well away from the drainfield.

I do not challenge the property line. I do want the deer barrier in the same place as always, so that it does not cross my drainfield or block access to it. Whose interest prevails in this situation?

[LandSurveyor]

What does the original easement document grant?

Without knowing that it is just a guess.

If it is solely for the drainfield, the deer fence will have to move. And the fence the neighbors propose will be a non-starter.

[violetcrumble]

Easement is "for the installation, maintenance, repair and future improvement" of the drainfield and includes an area 25' by 85' in the corner of the neighboring property.

[jk]

very simply put,with no further action, the neighbors interests are superior to yours in this situation.


You cannot fence an owner from his own property if you have an easement (unless, of course, the easement specifically allows it) so fencing off the drainfield is out.

as to the deer fence; unless you could make a claim for an adverse possession, the fence being on the neighbors property is up to them. If they say move it, then it moves. You may look in to adverse possession. That would actually give you ownership of the strip of land.

A prescriptive easement would allow you to use the land on your side of the current fence but it would not allow you to replace the fence where it is now.


as to crossing the drain field; again, that is their property and you cannot keep them off it. You will need to run the fence on the property line or on your side (when going around the drain field) or forget about it.

[LandSurveyor]

Easement is "for the installation, maintenance, repair and future improvement" of the drainfield and includes an area 25' by 85' in the corner of the neighboring property.

So the deer fence will be moving.

And your neighbors will not be interfering with your easement or limiting your access to it by fencing you out of it.