March April 2018

Professional Land Surveyors of Oregon | www.plso.org 23 The Federal Land Rights Series Vanderpol had prevented Swinger from obtaining that amount from Whatcom County, as compensation for the creation of a conservation easement covering the disputed area, and in addressing that point he accused Vanderpol of wrongdoing. Vanderpol maintained that he was not guilty of any wrongdoing, when he informed the county in 2011 that Swinger was trying to create a legally bogus conservation easement, situated upon land which Swinger did not own, therefore he was entitled to over $10,000 in damages, and the appellate panel agreed. In so holding, the Court of Appeals notified Swinger that he was the one who was guilty of wrongdoing, rather than Vanderpol, and that his accusations of bad faith against Vanderpol held no merit, effectively applauding Vanderpol for revealing the scam which Swinger had attempted to pull off. The appellate court expressly confirmed, with reference to land rights on this occasion, that “information provided by citizens concerning po- tential wrongdoing is vital to effective law enforcement and the efficient operation of government”, while noting that the Wash- ington Legislature has statutorily verified the right of all citizens to “make good faith reports to appropriate governmental bod- ies” whenever they observe such developments. In the eyes of the law, while justifiably defending his own land rights, Vander- pol had also performed a valuable public service, by preventing county funds from being wasted, so Swinger had no valid basis upon which to charge Vanderpol with wrongdoing, since Van- derpol had properly blown the whistle on Swinger’s illicit plan to derive public funds from land to which he held no title. Thus Vanderpol emerged victorious, both financially and on the ri- parian title and boundary issues, despite the collapse of his own QTA action, because Swinger had severely bungled his avulsion case, making it unnecessary for Vanderpol to ever directly ad- dress or overcome any evidence of avulsive river movement in order to silence Swinger’s boundary and title assertions. Like a multitude of others who have acquired riparian prop- erty in various places throughout our country, with little if any knowledge of riparian boundary law, Swinger lost because he failed to comprehend that strong evidence is virtually always necessary to prevail in a title conflict of riparian origin on the basis of avulsion. Swinger’s mistakes were highly typical of those made by unwary or poorly advised grantees of riparian proper- ties, beginning with his failure to investigate the history of the land that he was acquiring before buying it. Had Swinger rec- ognized that the land he intended to acquire had a problematic history from a boundary perspective, he could easily have tak- en appropriate steps to bring clarity to his acquisition, but his failure to take notice of the presence of genuine boundary and title issues resulting from historical river movement doomed him to eventual defeat. If Swinger had consulted a profession- al land surveyor with sound knowledge of riparian boundary principles and the value of historical evidence pertaining to river movement, prior to making his acquisition, he would have been well positioned to achieve victory, but because he neglected to do so he was destined to forge ahead in a state of ignorance, without the key advice and information he needed to succeed. An astute senior land surveyor, with experience addressing ri- parian boundary issues, could have gathered and assembled an impressive array of historical evidence including surveys, maps and photos, clarifying when and how the river’s move- ment had occurred, which would have been quite convincing in court, and would therefore have been highly valuable to Swing- er, as tangible support for his assertion that avulsion had taken place. Moreover, had he obtained such land surveyor input at the outset, Swinger would have known prior to investing in the subject property that a serious title conflict linked to riparian boundary issues existed, so he could have either required his grantor to resolve those issues before selling the land to him, or he could have simply bypassed this acquisition and select- ed another property, in order to avoid becoming engaged in what ultimately proved to be very costly and futile litigation. As Swinger learned, much to his regret, while GLO plats always represent one highly valuable form of boundary evidence, re- liance upon a river boundary location shown on a GLO plat is unjustified, unless it can be definitively proven that any sub- sequent relocation of that river occurred by way of a specific avulsive event, since a mere hint or suggestion of avulsion is legally insufficient. Neglecting to seek research assistance from a licensed land sur- veyor was certainly not the only error made by Swinger however, and his errors compounded themselves, eventually placing him in a hopeless position, despite the existence of evidence upon which he could have prevailed. Swinger’s title report clearly alerted him to the presence of riparian title issues, stemming from historical river movement, thereby informing him that substantial boundary ambiguity afflicted the subject property, yet rather than focusing on learning what had historically trans- pired, which would have prepared him for litigation, he chose to attack his title company, although he was unprepared to do so successfully. Thus his decision to view his own title report neg- atively, rather than properly treating it as important advisory information, set in motion a sequence of events which made it impossible for him to secure any title to the contested ground between the old and new river channels. In reality, as we have seen, Swinger’s original 2011 action had no chance of success, because it was filed without regard for a relevant federal land rights interest, comprised of Lot 9, yet his failure to bring forth any convincing evidence during that futile action sealed his fate, leaving him with no open legal avenue down which to subse- quently proceed, as he finally discovered much to his chagrin in 2016. Although Swinger was presumably a competent attor- ney, due to his apparent unfamiliarity with riparian title issues he was unable to see that he needed to partner with a profes- sional land surveyor, familiar with riparian boundary issues, to compile the essential materials he needed to make his case. Had he realized that partnering with a boundary expert rep- resented his best path to success, this story could well have played out quite differently, potentially becoming a successful avulsion case, and forming a fine example of the positive re- sults of interdisciplinary professional collaboration. In the end, Swinger learned the great legal significance of historical bound- ary evidence the hard way, after enduring the legal tribulations outlined here, but that knowledge came to him too late to op- erate to his benefit in 2016, because his own prior evidentiary shortcomings had become matters of record, legally disabling his ability to ever secure his purported riparian title to the area in contention. As has often been wisely noted, “a little knowl- edge is a dangerous thing”, and as it turned out Swinger had enough knowledge of riparian land rights to effectively paint himself into a corner, but not enough to get himself out of that unfortunate predicament.  x See the photo gallery on pages 24–27 T