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Non-Surveyors and Boundaries by Acquiescence
Posted by JBrinkworth on December 21, 2015 at 3:50 pmDirectly related to the other thread on this topic…
Joe Blow has title to the entire SE1/4 of a rural section. Joe Blow Non-Surveyor wants to demarcate his lines for timbering. Of course this indicates he is in a high multi-path environment. Anyway, Joe Blow rents a network rover and goes to town tying in his corners. The friendly guys at the neighborhood survey rental shop even show Joe Blow how to key in a line with 2 points. Joe Blow sets his section lines out marked by tee posts every couple hundred feet.
Time goes on…
For 20 years no one questions the line.
I think I know the answer after reading all of the court cases recently posted, but I have to ask.
Boundary by acquiescence?
ridge replied 8 years, 4 months ago 11 Members · 21 Replies- 21 Replies
JBrinkworth, post: 349978, member: 6179 wrote: Directly related to the other thread on this topic…
Joe Blow has title to the entire SE1/4 of a rural section. Joe Blow Non-Surveyor wants to demarcate his lines for timbering. Of course this indicates he is in a high multi-path environment. Anyway, Joe Blow rents a network rover and goes to town tying in his corners. The friendly guys at the neighborhood survey rental shop even show Joe Blow how to key in a line with 2 points. Joe Blow sets his section lines out marked by tee posts every couple hundred feet.
Time goes on…
For 20 years no one questions the line.
I think I know the answer after reading all of the court cases recently posted, but I have to ask.
Boundary by acquiescence?
Well, maybe, but what does a network rover have to do with it? What if he had just used a compass and paced out the 200′ intervals? Also, does he actually cut timber to that line and continue to do so for 20 years? Does he plant grass or other crop to the line? I think his actions have to last for a longer time. Cutting timber one year might not “cut it”. One might question a bunch of t-posts as opposed to a fence. (Point is, using the rover might be the least of the actions that help it ripen to full ownership.)
Tom Adams, post: 349990, member: 7285 wrote: …Cutting timber one year might not “cut it”…
Also depends on how obvious this is to the true owner. The absentee, non-resident owner of timber land may, in good faith, not become aware of the trespass until a number of years after the fact. Until he is aware of it he cannot acquiesce to it.
Tom Adams, post: 349990, member: 7285 wrote: One might question a bunch of t-posts as opposed to a fence.
I doubt this would be an issue. I’ve read cases where anything that reasonably defined a visible usage line was sufficient.
I agree that measurement methods don’t matter. How the line got there is irrelevant; it’s how the line is treated over the years.
Good point, Norman. Whereas adverse possession of a parcel may only require that an adverse usage be “open and notorious” etc with a responsibility for the true owner to check on their property, Acquiescence to a boundary requires both adjoining owners to take actions that treat the line as their boundary.
.First, we definitely need to know which state the land is located in.
Tom Adams, post: 349990, member: 7285 wrote: Well, maybe, but what does a network rover have to do with it? What if he had just used a compass and paced out the 200′ intervals?
Right. In the spirit of this thread Renting survey Equipment to non-surveyors. His example was a novice renting a GPS unit in a high multipath environment. Obviously, the results would be less than stellar. Hell, his example quoted 500 acres. I was trying to simplify it.
Tom Adams, post: 349990, member: 7285 wrote: Also, does he actually cut timber to that line and continue to do so for 20 years? Does he plant grass or other crop to the line? I think his actions have to last for a longer time. Cutting timber one year might not “cut it”. One might question a bunch of t-posts as opposed to a fence. (Point is, using the rover might be the least of the actions that help it ripen to full ownership.)
I am illustrating the fact that boundaries can be created by non-surveyors if the appropriate conditions are met. Change 20 years to 50 years with obvious occupation along the errant lines run by Joe Blow and acceptance by the adjoiners. I believe Joe Blow would have a case.
Brian Allen, post: 350006, member: 1333 wrote: First, we definitely need to know which state the land is located in.
Awww…come on Brian. Joe Blow lives in every state. I think the concept is generally the same. Specifics of how long and some other details are state-by-state. (Maybe you could assume it’s Idaho).
Bill93, post: 350005, member: 87 wrote: ….adverse possession of a parcel may only require that an adverse usage be “open and notorious”….
I think the same principle would apply to AP. In AP possession needs to be open and notorious so as to put the true owner on notice that his land is being encroached against. What “open and notorious” means varys with the geography and the various principals circumstances. An owner deployed on military service cannot be AP’ed against, for example, because he can’t be expected to be on such notice. The seminal Oregon AP case, Reeves v. Porta, includes a discussion of this. If the property is remote forest land suitable for nothing else but growing trees it might be perfectly reasonable for an encroachment to go unnoticed for decades. Such occupation would not be sufficiently open and notorious to satisfy AP.
The laws of your state may vary.
Tom Adams, post: 350008, member: 7285 wrote: ….Joe Blow lives in every state. I think the concept is generally the same…..
There is more variation than you might think. The Oklahoma court really likes fence lines and rules in favor of recognition and acquiescence often. The Oregon court sets a very high bar for AP and rules in favor of unwritten lines only rarely. The fact that you can often stand on the road and see all 4 corners of an entire section in Oklahoma, and not be able to see the right of way fence from your car in Oregon, may have something to do with that.
Norman Oklahoma, post: 350016, member: 9981 wrote: There is more variation than you might think. The Oklahoma court really likes fence lines and rules in favor of recognition and acquiescence often. The Oregon court sets a very high bar for AP and rules in favor of unwritten lines only rarely. The fact that you can often stand on the road and see all 4 corners of an entire section in Oklahoma, and not be able to see the right of way fence from your car in Oregon, may have something to do with that.
It’s very tough to get unwritten title transfered in some states, what works in one won’t in another.
MightyMoe, post: 350027, member: 700 wrote: It’s very tough to get unwritten title transfered in some states, what works in one won’t in another.
I thought this thread was on boundary acquiescence, which shouldn’t affect title. How did it get switched to title issues?
.Bill
You make a good point. This linked case gives clues regarding the difference.
AP a title questionBill93, post: 350052, member: 87 wrote: …..How did it get switched to title issues?
Um…somebody named Bill introduced the subject of AP.
Oh, that was just to emphasize the distinction when I was adding to your point about notice.
.Bill93, post: 350076, member: 87 wrote: Oh, that was just to emphasize the distinction when I was adding to your point about notice.
And it’s tougher to move a boundary from the written deed in some states.
I feel like he would be estopped as people would be relying on what he did and because he did what he did knowing it wasn’t necessarily the true line. But by him renting a GPS Rover and acting like a surveyor would make the neighbor accept his marks bc his false impersonation
Iowa=yes
California=no.California has some timberland agreed boundary cases that involve large hiatuses, one is 10 chains but those would have to be evaluated in light of recent case law.
JBrinkworth, post: 349978, member: 6179 wrote: Directly related to the other thread on this topic…
Joe Blow has title to the entire SE1/4 of a rural section. Joe Blow Non-Surveyor wants to demarcate his lines for timbering. Of course this indicates he is in a high multi-path environment. Anyway, Joe Blow rents a network rover and goes to town tying in his corners. The friendly guys at the neighborhood survey rental shop even show Joe Blow how to key in a line with 2 points. Joe Blow sets his section lines out marked by tee posts every couple hundred feet.
Time goes on…
For 20 years no one questions the line.
I think I know the answer after reading all of the court cases recently posted, but I have to ask.
Boundary by acquiescence?
HERE IS UTAH CASE LAW
B. Boundary by Acquiescenceå¦ 35 The doctrine of boundary by acquiescence is rooted in policy considerations of “avoiding litigation and promoting stability in landownership.” Staker v. Ainsworth, 785 P.2d 417, 423 (Utah 1990). It “derives from [the] realization, ancient in our law, that peace and good order of society [are] best served by leaving at rest possible disputes over long established boundaries.” Id. (internal quotation marks omitted). A successful invocation of boundary by acquiescence requires a showing of the following four elements: “(1) occupation up to a visible line marked by monuments, fences, or buildings, (2) mutual acquiescence in the line as a boundary, (3) for a long period of time, (4) by adjoining landowners.”[7] Id. at 420 (internal quotation marks omitted).
å¦ 36 The first element may be satisfied where land up to the visible, purported boundary line is farmed, occupied by homes or other structures, improved, irrigated, used to raise livestock, or put to similar use. See id. In evaluating whether this element is satisfied, courts should consider whether a particular “occupation up to a visible line” would place a reasonable party on notice that the given line was being treated as the boundary between the properties.
å¦ 37 The second element is satisfied where neighboring owners “recognize 66*66 and treat an observable line, such as a fence, as the boundary dividing the owner’s property from the adjacent landowner’s property.” Ault v. Holden, 2002 UT 33, å¦ 19, 44 P.3d 781. This element is met where neighbors do not “behave[] in a fashion inconsistent with the belief” that a given line is the boundary between their properties.Staker, 785 P.2d at 420. Failure by the record title owner to “suggest or imply” that the dividing line between the properties is “not in the proper location” suggests acquiescence. Judd Family Ltd. P’ship v. Hutchings, 797 P.2d 1088, 1090 (Utah 1990). Nonacquiescence in a boundary would be signaled where, for example, a landowner notifies the adjoining landowner of her disagreement over the boundary, or takes action inconsistent with recognition of a given line as the boundary, such as tearing “down significant portions of [a] fence and, without objection by [the adjoining landowner], proceed[ing] to plant trees and shrubs, store firewood, and construct a chain link fence in a different location.” See Staker, 785 P.2d at 421.
å¦ 38 To satisfy the third element, an unbroken period of no less than twenty years must pass during which each of the other elements is continuously met.[8] See id. at 420; see also Parsons v. Anderson, 690 P.2d 535, 539 (Utah 1984) (explaining that fifteen years of mutual acquiescence was insufficient). To satisfy the fourth element, “the parcels involved” must be “contiguous.” Staker, 785 P.2d at 420.
I think just the tee posts out through the woods at 200 feet spacing would be thin ice. If they logged it or cleared it up the the tee posts and then maintained a visible line along the posts it would probably go if the adjoiner never raised any question about the line. You just have to read the law and evaluate it up against the facts on the ground.
You do realize that the DIY’r could have lost some from his side of the section line also. I cuts both ways.
JBrinkworth, post: 349978, member: 6179 wrote: Directly related to the other thread on this topic…
Joe Blow has title to the entire SE1/4 of a rural section. Joe Blow Non-Surveyor wants to demarcate his lines for timbering. Of course this indicates he is in a high multi-path environment. Anyway, Joe Blow rents a network rover and goes to town tying in his corners. The friendly guys at the neighborhood survey rental shop even show Joe Blow how to key in a line with 2 points. Joe Blow sets his section lines out marked by tee posts every couple hundred feet.
Time goes on…
For 20 years no one questions the line.
I think I know the answer after reading all of the court cases recently posted, but I have to ask.
Boundary by acquiescence?
The pertinent question that is being raised across the country is not whether it is or isn’t under current statute and case law, but rather whether it should be. I would say no it shouldn’t ripen into acquiescence. And if trees were cut over the line it should be intentional trespass and damages assessed accordingly.
On the one hand you have cheap, haphazard lines that can easily be run by landowners themselves with modern technology. Couple that with strong acquiescence laws. Under this theory there is no need for licensed surveyors, which some would argue is a good thing. I think the time frame needs to be shortened for this to work well; maybe one year is appropriate. This would help to reduce/eliminate disputes on the ground. But it would make records evaluation even more difficult than currently, unless a hearing is required to register the line once established; which to be affective would require an expert survey (measurement not legal) of the marks so that a reliable new written record could describe the line sufficiently.
On the other hand you have the current system wherein old lines are difficult to retrace and costly, and marking a line that affects someone other than yourself is against the law. A licensed surveyor is required. This system works pretty good if surveyors are educated in evidence and procedure of boundary location, rather than the traditional education of only measurement science and technique. And if there are requirements that people actually retain a surveyor opinion before improving the property. Acquiescence law is still needed occasionally for those cases where lines were run many years before modern technology and evidence is gone or misinterpreted. But the time frame can be much longer. A case for this system needs evidence that it matters to have the surveyors opinion. That the majority of the time surveyors agree on a retracement survey, and on the contrary the majority of the time landowners on their own disagree and fall into dispute without the surveyor. The public and other professions are focusing on the instances where surveyors are in disagreement, but I wonder what percentage of the time that actually happens. Most of the disputes I see, read, or am involved in are due to a lack of surveying and homemade surveying at some time in the past. This brings about difficult evidentiary issues that educated professionals can disagree on. At the same time it must be acknowledged that there is no basic, structured legal education regarding land boundary retracement required to earn a license to provide that service to the public. Unfortunately, surveyors are against this, engineers are against it, attorneys are against it, college programs are against it, NCEES is against it. And the result are too many surveyor created disputes about basic issues that they should be in agreement on. Which results in a movement toward system one above. And the endgame is that engineers will once again be the ones doing property surveying as well as all other surveying (which already falls under their license).
Duane Frymire, post: 350174, member: 110 wrote: On the one hand you have cheap, haphazard lines that can easily be run by landowners themselves with modern technology. Couple that with strong acquiescence laws. Under this theory there is no need for licensed surveyors, which some would argue is a good thing. I think the time frame needs to be shortened for this to work well; maybe one year is appropriate. This would help to reduce/eliminate disputes on the ground. But it would make records evaluation even more difficult than currently, unless a hearing is required to register the line once established; which to be affective would require an expert survey (measurement not legal) of the marks so that a reliable new written record could describe the line sufficiently.
Strong acquiescence laws protect the public. Even though Joe Blow can run his own lines, it is also the duty of all adjoiners to be good stewards of their respective lines. A prudent landowner should not have rights ripening against himself/herself.
Duane Frymire, post: 350174, member: 110 wrote: At the same time it must be acknowledged that there is no basic, structured legal education regarding land boundary retracement required to earn a license to provide that service to the public. Unfortunately, surveyors are against this, engineers are against it, attorneys are against it, college programs are against it, NCEES is against it. And the result are too many surveyor created disputes about basic issues that they should be in agreement on. Which results in a movement toward system one above. And the endgame is that engineers will once again be the ones doing property surveying as well as all other surveying (which already falls under their license).
I think what should be reaped from all of the recent posts on acquiescence is just this. There are an awful lot of surveyors out there basing their surveys on measurements alone. It seems that our profession (as exemplified on this board) is divided into two general categories: those who rely on court precedent to make boundary decisions and those who survey the deed and note the differences between said deed and the facts on the ground. What is being taught in the universities, in my experience is the latter. Many local guys around here fall into the latter category as well. I don’t mean to sound as if in all cases one is better than the other and one size fits all. Sometimes, it just depends. BUT, we do need more consistency.
I think this supports an argument for tiered licensure whereby the lowest level is at the technician level that allows for layout and mapping. This would also provide motivation for young people to become involved in surveying again. Perhaps a spectrum of 3-4 different levels. The top license is represented by a boundary surveyor who has undergone rigorous boundary law education/experience. This level should be prestigious and difficult to attain. Perhaps this rigor would ‘weed out’ measuring experts and garner the respect for the profession that so many surveyors advocate.
JBrinkworth, post: 350187, member: 6179 wrote: Strong acquiescence laws protect the public. Even though Joe Blow can run his own lines, it is also the duty of all adjoiners to be good stewards of their respective lines. A prudent landowner should not have rights ripening against himself/herself.
I think what should be reaped from all of the recent posts on acquiescence is just this. There are an awful lot of surveyors out there basing their surveys on measurements alone. It seems that our profession (as exemplified on this board) is divided into two general categories: those who rely on court precedent to make boundary decisions and those who survey the deed and note the differences between said deed and the facts on the ground. What is being taught in the universities, in my experience is the latter. Many local guys around here fall into the latter category as well. I don’t mean to sound as if in all cases one is better than the other and one size fits all. Sometimes, it just depends. BUT, we do need more consistency.
I think this supports an argument for tiered licensure whereby the lowest level is at the technician level that allows for layout and mapping. This would also provide motivation for young people to become involved in surveying again. Perhaps a spectrum of 3-4 different levels. The top license is represented by a boundary surveyor who has undergone rigorous boundary law education/experience. This level should be prestigious and difficult to attain. Perhaps this rigor would ‘weed out’ measuring experts and garner the respect for the profession that so many surveyors advocate.
Personally, I think the Courts are holding our feet to the fire in California, whether they intend to or not. The old system was the Surveyor would stake the measurement then the Courts could waive that off using the Agreed Boundary Doctrine if the physical situation and facts warranted it. Mello v. Weaver, 36 Cal. 2d 456; 224 P.2d 691; 1950 Cal. LEXIS 260 is a good example of this; in that case a Land Surveyor staked the W 1/16th corner on the south line of fractional Section 6 but the Deed was based on splitting the distance between the south quarter and southwest corner of Section 6. The Court resolved the conflict by ruling the Agreed Boundary Doctrine applied. In the 1994 Bryant decision the California Supreme Court tightened up the requirements to enforce an agreed boundary under the doctrine; this decision may have been misunderstood to mean Deed descriptions rule in every case as evidenced by a couple of unpublished cases which highly confused some Land Surveyors, Knerr v. Mauldin and Nelidov v. the Buddhist Temple (something like that, not on Google Scholar). In those cases the Courts ruled in favor of old monumented although imperfect Surveys which is in line with the Court’s ruling in Bryant (9 Cal.4th 47).
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