6266

AN ACT Relating to the establishment of lost and uncertain boundaries; amending RCW 58.04.020 and 58.04.040; adding new sections to chapter 58.04 RCW; repealing RCW 58.04.010 and 58.04.030; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Surveyor" means a professional land surveyor as defined in chapter 18.43 RCW.

(2) "Auditor" means the county recording official in the county in which the disputed boundary is situated.

NEW SECTION. Sec. 2. Any line or disputed corner or boundary may be determined and permanently established by written agreement of all affected parties. The agreement must be signed and acknowledged by each as required for conveyances of real estate, clearly designating the same, and accompanied by a survey map which shall be recorded as an instrument affecting real estate. The agreement is binding upon the heirs, successors, and assigns of the parties to the agreement. The use of this section shall not conflict with the requirements of chapter 58.17 RCW or any ordinance adopted by a legislative body of a city, town, or county.

NEW SECTION. Sec. 3. (1) When a dispute exists between two or more surveyors or landowners concerning the location, establishment, reestablishment, or acceptance of a land corner or corners, the surveyors or landowners may request the dispute be resolved by the department of natural resources. The department of natural resources may grant the request only if the surveyors or landowners agree that the decision of the department is binding on them, and that they will correct and refile any of their surveys of record to reflect the decision of the department. Each surveyor or landowner bears an equal portion of the costs incurred by the department in resolving the dispute.

(2) The department of natural resources shall adopt rules to implement this section.

(3) In a proceeding under this section, the department shall select one or more disinterested surveyors, agreed upon by the parties, to determine the true and correct location of the corner or corners in dispute.

(4) Upon final determination of the location of the disputed corner or corners, the department shall file or have filed the determination in the office of the county auditor. A record of survey is required as part of the determination and shall be filed under chapter 58.09 RCW. The record of survey shall contain the recording data of the filed determination.

Sec. 4. RCW 58.04.020 and 1886 p 104 s 1 are each amended to read as follows:

(1) Whenever the boundaries of lands between two or more adjoining ((~~proprietors shall~~)) landowners have been lost, ((~~or by time, accident or any other cause, shall have become obscure, or uncertain~~)) destroyed, or are in dispute, and the adjoining ((~~proprietors~~)) landowners cannot agree to establish the same, one or more ((~~of said adjoining proprietors~~)) landowners may ((~~bring his~~)) commence a civil action in equity, in the superior court, for the county in which such lands, or part of them are situated((~~, and such~~)). The action will be against the owners of the other lands, as shown by the records of the county assessor, who will be affected by the determination or establishment of the boundary. The superior court, as a court of equity, may upon such complaint, order such lost or uncertain boundaries to be erected and established and properly marked.

(2) In an action commenced under subsection (1) of this section, the court shall refer the question of the location of the boundary to a commission of three disinterested surveyors for resolution under the procedures set forth in section 8 of this act. The court shall fix the compensation of the commissioners and any assistants, if needed by the commissioners.

(3) The court shall accept the survey commission's decision unless the court concludes that it is arbitrary, capricious, contrary to law, or unconstitutional. If the commission cannot reach a decision, the court shall excuse the commission and request another three disinterested surveyors under the procedures set forth in section 8 of this act. All information collected by the excused commission shall be provided to the new commission.

(4) Any corner and boundary established by the survey commission and accepted by the court shall be fixed forever as the true and correct location and shall be surveyed and marked on the ground.

(5) Nothing in this chapter abrogates the rights of landowners under the doctrines of adverse possession, parol agreement of adjoining landowners, estoppel in pais, location by a common grantor, or mutual recognition and acquiescence in a definite line by interested parties for ten years or more.

NEW SECTION. Sec. 5. Upon final determination of an action commenced under section 4 of this act, the court shall record the judgment in the office of the county auditor and provide one copy to the department of natural resources. The survey commission shall provide a record of survey to the court and the court shall file or have filed the record of survey under chapter 58.09 RCW. The record of survey shall contain the recording data of the filed judgment.

Sec. 6. RCW 58.04.040 and 1886 p 105 s 3 are each amended to read as follows:

The proceedings under this chapter shall be conducted as other civil actions, and the court, on final decree, shall apportion the costs of the proceedings equitably((~~, and~~)). Those costs may include the costs of the court proceedings, survey commission proceedings, and survey recording fees. The costs so apportioned, shall be a lien upon the ((~~said~~)) lands, severally, as against any transfer or incumbrance made of, or attaching to ((~~said~~)) the lands, from the time of the filing of the complaint((~~: PROVIDED,~~)). However, a notice of lis pendens((~~, is~~)) must be filed in the auditor's office of the proper county, in accordance with law.

NEW SECTION. Sec. 7. Notice of an action commenced under this chapter shall be given as in other cases and if the defendants or any of them are nonresidents of the state, or unknown, they may be served by publication as provided by chapter 4.28 RCW.

NEW SECTION. Sec. 8. (1) When requested by the court, the board of registration for engineers and land surveyors as established by chapter 18.43 RCW shall provide to the court the names of three disinterested surveyors licensed to practice in the state of Washington and competent in the extent of the dispute. Upon acceptance of the court, the three surveyors submitted by the board shall become the survey commission. If for any reason the court rejects any surveyor or a surveyor declines to serve, then the court shall request from the board of registration additional names of disinterested surveyors until the survey commission is accepted and formed.

(2) Before entering upon their duties the commissioners shall take and subscribe an oath that they and each of them will fairly and impartially and to the best of their judgment ascertain the true location of the boundary in dispute. The commissioners may enter upon any lands for the purpose of ascertaining and deciding the location of the boundary and they have the power to examine witnesses under oath and to inquire fully into the questions in dispute. The commissioners may acquire the use of assistants or consultants to perform their duties.

(3) The survey commission shall determine the location of boundaries and corners referred to it by the superior court under RCW 58.04.020. In a proceeding under this section, the members of the survey commission shall act as referees under RCW 2.24.060. The survey commission shall file with the referring court its final written decision and a record of survey under chapter 58.09 RCW.

NEW SECTION. Sec. 9. (1) Any authorized assistants, employees, agents, appointees, or representatives of the department of natural resources may, without liability for trespass, enter upon any land or waters and remain there while performing their duties. Any surveyor and their employees may, without liability for trespass, enter upon any land or waters and remain there while performing the practice of land surveying as defined in RCW 18.43.020. The persons named in this section may, without liability for trespass, construct or place a monument or reference monuments for the position of any land boundary mark, general land office corner, or subdivisional corner. When practical, the persons named in this section shall announce and identify themselves and their intention before entering upon private property in the performance of their duties.

(2) A landowner or other person in lawful possession and control of any lands or waters is not liable for unintentional injuries to a surveyor who enters upon those lands or waters in accordance with this section.

NEW SECTION. Sec. 10. A person who intentionally disturbs survey marks or markers placed by a surveyor in the performance of the surveyor's duties is guilty of a gross misdemeanor and is liable for the cost of the reestablishment.

NEW SECTION. Sec. 11. The following acts or parts of acts are each repealed:

(1) RCW 58.04.010 and 1895 c 77 s 9; and

(2) RCW 58.04.030 and 1886 p 105 s 2.

NEW SECTION. Sec. 12. Sections 1 through 3, 5, and 7 through 10 of this act are each added to chapter 58.04 RCW.

NEW SECTION. Sec. 13. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.