
Quoting
eapls2708
As a boundary surveyor, I'm going to basically agree with JK and Newton, but disagree a little bit with Newton.
You asked : "Am I incorrect to assume that this property still belongs to me?"
Answer: Yes, you are incorrect to assume. However, it is possible that the fence is encroaching onto your property as you suspect. The first thing you need to do is have your boundary professionally located. Find a surveyor who specializes in boundary retracements as a major part of his or her practice. A surveyor must have several years of a combination of education and experience to become licensed, and is the only professional trained and licensed to locate property boundaries. Virtually all surveyors are well versed in the math associated with boundary retracement, but not all are completely familiar with proper research and resolution of boundary discrepancies.
Here is where I am going to disagree with Newton somewhat. The boundary surveyor's job is to locate the boundary as it was originally established, not necessarily to stake out the "record line" on the ground. This is because sometimes the record is not correct. For example, your property describes, by courses of bearing and distance a certain geometric figure. It is very likely that your neighbors' descriptions also describe the geometric shapes of their properties. But, descriptions were not always based upon carefully surveyed measurements. Sometimes they were based either upon measurements which were made poorly by modern standards, or they were based upon assumed dimensions. In cases like that, it is not uncommon that there might be an 8 foot discrepancy.
The surveyor will have to take various pieces of evidence into account: Which parcel was created first (a concept called seniority or senior rights)? Were the parcels created simultaneously (neither parcel senior)? How and by whom were the lines established on the ground? When, in relation to the deeds creating the parcels, were the lines established on the ground? Do the fences coincide with the first established lines? How long have the fences been in place?
If the fences have been in place essentially since the creation of the parcels, it has been my experience that they are most often, not always, very good indicators of the original and valid location of the property boundaries. If the fences were first built several years later, it's less likely that they were built upon the originally established boundaries. Misplaced fences are sometimes so placed for convenience, sometimes because the builder thought the boundary was at that location and built it in good faith, sometimes as a wild *** guess, and sometimes for less than honorable motives. Your surveyor will have to have enough knowledge to properly evaluate the fences, the record (chain of title), and the express or apparent actions of current and past landowners.
So, your "record line" may not be where the dimensions of your deed might indicate, or they may be. They may be at the existing fences, or they may be at some different location. The reason I disagreed with Newton is that he may, and even some surveyors not well versed in the legal principles of boundary location tend to think of the "record line" being at, and only at the location where the dimensions recited in the deed would place it. The first of many problems with that thinking is that the surveyor must first decide which side of the geometric figure that is your description he is going to hold the physical evidence as valid, and which side he is going to reject it. That's where most who stick to the dimensions run headfirst into the law. What would be your problem with that, is that neither of you would know it until you pay several thousands or tens of thousands to litigate it.
Newton may already be aware of all that I've just discussed and I merely misinterpreted him on the semantics. But I wanted you to make certain that the surveyor you hire is well versed in boundary principles, and if your survey shows that each course of your boundary is exactly as your deed states (there is almost always some small variation, so exact matches are a red flag), that you question him on it and that he is able to explain the legal principles as to his determination of the location of each line. That's not to badger your surveyor, as I said, it's possible that your deed describes your boundary dimensions quite well, it's to ensure that if you move forward with any action for ejectment and recovery that the boundary survey you have is defendable in court where it will be assessed according to legal principle and possibly with no regard for the math.
Assuming that the dimensions of your deed are correct, and the fence is encroaching, your surveyor's ability to assess the fence and other indications of occupation and use of the portion of your record property on the other side of the fence will come into play. Your surveyor will need to determine the age of the fence. The fence location should be shown on the Record of Survey map (WA is a mandatory recording state for surveys), and any other details about the fence and property use should either be included as notes on the survey, or in a survey report for your reference and use by your attorney. It is possible that even though you have valid record title to the property, that the fence and use of that property may be the basis for a valid claim of Adverse Possession.
The surveyor can go so far as to locate the physical indications and determine particulars about them pertinent to a potential AP claim, but that's where the attorney takes over. If, once you have your survey completed and it shows encroachments and has determined the other particulars I've mentioned, the attorneys on this forum, and especially your locally retained attorney will be able to advise you better as to the viability of moving ahead with action for ejectment and recovery of property.
I hope you find this helpful.