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Interesting boundary issue
Posted by WA-IDSurveyor on February 15, 2017 at 1:00 amLong time lurker but have never really had an opportunity to make a post until now.
Here is the situation: There are two adjacent properties that share a common boundary along a section line. This is clearly described in the original deeds. At some point in time one of them puts up a fence, This fence does not follow the section line, it goes north and south of the line by 14 feet in areas. In 1980 a Judment is made for the owner to the north claiming the fence as the actual proeprty boundary. In that judgment a new description is created that follows the fence. This description is carried forward over several transactions to today, so in my opinion the north boundary and ownership are solid.
The parcel to the south is carried forward over several transactions using the original description that specifically calls out the section line without refence to the fence. This creates a gap and overlap with the owner to the north. The gap is my only project related concern as it is in an area we need for right of way. The local assessor has finally picked up on this issue and rejecting the latest deed because of this.
Due to the nature of this project it is not my resonsibilty to resolve this issue as I am not working for either owner. Who would you say owns the gap? I am inclinded to say the current owners to the south own the gap irregardless of the issues with the description. One of my collegues is saying that the owners to the south should have updated there ownership description at the time of the Judgment, similar to what the northern owner did, to avoid confusion. While I do believe it would of been beneficial for the owner to the south to update their description, they didn’t. It certainly would of been smoother for everyone if they did.
duane-frymire replied 7 years, 6 months ago 23 Members · 57 Replies -
57 Replies
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On its face the fence is the line. Period. Sounds like a judge decreed it. There is no gap, the judge has spoken.
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As far as I know there are two parties that can “change” a boundary location, courts by judgement, and land owners by agreement, bad karma follows when those agreements or judgments are not respected.
How difficult is it to simply report the facts?
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There is no gap or overlapp; the assessor has the power to reject a deed there? These title hiccups happen, the line is along the fence. Title insurance should kick in on this one to clean up the chain.
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I agree, unless a new boundary line agreement has been made the fence referenced in the original agreement should hold.
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In my opinion, this is a Title Problem not a survey location problem. If they are looking for an absolute determination of ownership, I would get the Title Co. involved as this would seem to be a basic element that Title Insurance would cover.
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MightyMoe, post: 414140, member: 700 wrote: There is no gap or overlap; the assessor has the power to reject a deed there? These title hiccups happen, the line is along the fence. Title insurance should kick in on this one to clean up the chain.
Yes, they reject them all the time if they find a gap or overlap or for a variety of other reasons including but not limited to not having enough curve data in the description to be able to map out the description with their software. Regardless of the fact that any surveyor could map them.
I’ve had my rounds with them, believe me. With a little push back they usually concede, but will refuse to change their stance so the easy solution is to also concede so as to not have to deal with the gestapo tactics.
Back on topic, the entire issue stems from the fact that the last 6 transactions on the southern property make no reference to a fence and each of the title reports fail to mention the Judgment. I will simply point them in the right direction and see what happens.
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WA-ID Surveyor, post: 414118, member: 6294 wrote: Long time lurker but have never really had an opportunity to make a post until now.
In 1980 a Judment is made for the owner to the north claiming the fence as the actual proeprty boundary. In that judgment a new description is created that follows the fence.
Upon what doctrine was the judgment based, AP, acquiescence, agreement, etc., and what state is the property in?
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The issue has been correctly identified as a title (records) problem. What hasn’t been said is that we are the only people qualified to deal with both title and location. There is absolutely no reason to pass this on to anyone. In fact, a Professional Surveyor should be the one to clean this up.
Get the record cleaned up and create harmony. That’s what we do. In the meantime work on that Assessor. We should have a good relationship with that office in every County we work in. At the same time they need to stay within the authorities granted them in the law. -
WA-ID Surveyor, post: 414155, member: 6294 wrote: Yes, they reject them all the time if they find a gap or overlap or for a variety of other reasons including but not limited to not having enough curve data in the description to be able to map out the description with their software. Regardless of the fact that any surveyor could map them.
I’ve had my rounds with them, believe me. With a little push back they usually concede, but will refuse to change their stance so the easy solution is to also concede so as to not have to deal with the gestapo tactics.
Back on topic, the entire issue stems from the fact that the last 6 transactions on the southern property make no reference to a fence and each of the title reports fail to mention the Judgment. I will simply point them in the right direction and see what happens.
Its good they stay in the office and don’t go out. If they did they’d fall into a gap or get permanently trapped in an overlap. The virtual “paper”world they exist in turned into reality would do them in.
I understand your problem from long experience with these sort of folks.
From an century old California case:
Once the original language in the deed has been effectively changed in accordance with the acquiesced boundaries, a conveyance by that original description should be presumed to have been intended to refer to the boundaries as fixed by such acquiescence unless there is specific language to the contrary. Young, 95 P. At 891.
Once boundary has been fixed, the description should be interpreted to go to the established lines. A judgment should fix a boundary.
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Brian Allen, post: 414186, member: 1333 wrote: Upon what doctrine was the judgment based, AP, acquiescence, agreement, etc., and what state is the property in?
Idaho and the Judgment identifies the fence as the new common property line. There may be more info in the actual court documents, but the Judgment itself is short.
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thebionicman, post: 414190, member: 8136 wrote: The issue has been correctly identified as a title (records) problem. What hasn’t been said is that we are the only people qualified to deal with both title and location. There is absolutely no reason to pass this on to anyone. In fact, a Professional Surveyor should be the one to clean this up.
Get the record cleaned up and create harmony. That’s what we do. In the meantime work on that Assessor. We should have a good relationship with that office in every County we work in. At the same time they need to stay within the authorities granted them in the law.I do not work for the owners and therefore cannot clean it up. I would pass it on to another surveyor if the owners did come to me to clean it up.
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WA-ID Surveyor, post: 414196, member: 6294 wrote: I do not work for the owners and therefore cannot clean it up. I would pass it on to another surveyor if the owners did come to me to clean it up.
Out of curiosity, why pass it to another?
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It doesn’t meet our criteria for projects we want to pursue. Private client, moderare risk, low pay, and lots of potential headaches. Plus, we have an extremely heavy workload.
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I’d obtain a copy of the judgment and provide copies to the title company, assessor, etc. If they want to argue with the court, so be it.
What a messed up world we work in. First, many claim that any deviation from exact description MUST be certified by a judge, Then when a judgment is made, it is called into question because the “old” description doesn’t exactly match the judgment!!!!! WTH??
Anderson v Hayes, 185 P.3d, 253:
If a boundary by agreement is established, “the parties to the agreement are no longer entitled to the amount of property provided for in their deeds and must absorb the effect of any increase or decrease in the amount of their property as a result of the new boundary.” Stafford v. Weaver, 136 Idaho 223, 225, 31 P.3d 245, 247 (2001). The new boundary then is binding on successors in interest who purchase with notice of the agreement. Duff v. Seubert, 110 Idaho at 870, 719 P.2d at 1130 (1985).Campbell v Weisbrod, 245 P.2d 1052:
The particular rule applicable here is that where the seller and the buyer go upon the land and there agree upon and mark the boundary between the part to be conveyed and the part to be retained by the seller, the line thus fixed controls the courses and distances set out in the deed executed to effectuate the division agreed upon. Martin v. Lopes, 28 Cal.2d 618, 170 P.2d 881; Lake, for Use and Benefit of Benton v. Crosser, 202 Okl. 582, 216 P.2d 583; Nebel v. Guyer, 99 Cal.App.2d 30, 221 P.2d 337; Millikin v. Sessoms, 173 N.C. 723, 92 S.E. 359; 170 A.L.R., note, 1144. In S. S. M. Realty Co. v. Boren, 211 N.C. 446, 190 S.E. 733, it was held that a boundary line, established by tenants in common going upon the premises and marking the dividing line and making deeds intending to divide the property along the line thus marked and agreed upon, controls over the courses and distances set out in the deeds; and that by so doing and thereafter dealing with the land with reference to the line thus established they estop themselves and their privies from thereafter claiming a different line under the calls in the deeds. -
thebionicman, post: 414190, member: 8136 wrote: The issue has been correctly identified as a title (records) problem. What hasn’t been said is that we are the only people qualified to deal with both title and location. There is absolutely no reason to pass this on to anyone. In fact, a Professional Surveyor should be the one to clean this up.
Get the record cleaned up and create harmony. That’s what we do. In the meantime work on that Assessor. We should have a good relationship with that office in every County we work in. At the same time they need to stay within the authorities granted them in the law.Would you agree that this is an issue that Title Insurance would cover? If so, why would you take it entirely upon yourself to solve the problem given the Title Co. has a responsibility? I agree that in many cases Title is inextricably connected to location but see this as different as evidenced by judgement which has clearly separated the two. Out of curiosity, how exactly would you go about “cleaining up the record”?
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WA-ID Surveyor, post: 414118, member: 6294 wrote: Long time lurker but have never really had an opportunity to make a post until now.
Here is the situation: There are two adjacent properties that share a common boundary along a section line. This is clearly described in the original deeds. At some point in time one of them puts up a fence, This fence does not follow the section line, it goes north and south of the line by 14 feet in areas. In 1980 a Judment is made for the owner to the north claiming the fence as the actual proeprty boundary. In that judgment a new description is created that follows the fence. This description is carried forward over several transactions to today, so in my opinion the north boundary and ownership are solid.
The parcel to the south is carried forward over several transactions using the original description that specifically calls out the section line without refence to the fence. This creates a gap and overlap with the owner to the north. The gap is my only project related concern as it is in an area we need for right of way. The local assessor has finally picked up on this issue and rejecting the latest deed because of this.
Due to the nature of this project it is not my resonsibilty to resolve this issue as I am not working for either owner. Who would you say owns the gap? I am inclinded to say the current owners to the south own the gap irregardless of the issues with the description. One of my collegues is saying that the owners to the south should have updated there ownership description at the time of the Judgment, similar to what the northern owner did, to avoid confusion. While I do believe it would of been beneficial for the owner to the south to update their description, they didn’t. It certainly would of been smoother for everyone if they did.
There is no gap.
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Brian Allen, post: 414218, member: 1333 wrote: I’d obtain a copy of the judgment and provide copies to the title company, assessor, etc. If they want to argue with the court, so be it.
What a messed up world we work in. First, many claim that any deviation from exact description MUST be certified by a judge, Then when a judgment is made, it is called into question because the “old” description doesn’t exactly match the judgment!!!!! WTH??
Anderson v Hayes, 185 P.3d, 253:
If a boundary by agreement is established, “the parties to the agreement are no longer entitled to the amount of property provided for in their deeds and must absorb the effect of any increase or decrease in the amount of their property as a result of the new boundary.” Stafford v. Weaver, 136 Idaho 223, 225, 31 P.3d 245, 247 (2001). The new boundary then is binding on successors in interest who purchase with notice of the agreement. Duff v. Seubert, 110 Idaho at 870, 719 P.2d at 1130 (1985).Campbell v Weisbrod, 245 P.2d 1052:
The particular rule applicable here is that where the seller and the buyer go upon the land and there agree upon and mark the boundary between the part to be conveyed and the part to be retained by the seller, the line thus fixed controls the courses and distances set out in the deed executed to effectuate the division agreed upon. Martin v. Lopes, 28 Cal.2d 618, 170 P.2d 881; Lake, for Use and Benefit of Benton v. Crosser, 202 Okl. 582, 216 P.2d 583; Nebel v. Guyer, 99 Cal.App.2d 30, 221 P.2d 337; Millikin v. Sessoms, 173 N.C. 723, 92 S.E. 359; 170 A.L.R., note, 1144. In S. S. M. Realty Co. v. Boren, 211 N.C. 446, 190 S.E. 733, it was held that a boundary line, established by tenants in common going upon the premises and marking the dividing line and making deeds intending to divide the property along the line thus marked and agreed upon, controls over the courses and distances set out in the deeds; and that by so doing and thereafter dealing with the land with reference to the line thus established they estop themselves and their privies from thereafter claiming a different line under the calls in the deeds.NAILED IT.
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Title insurance doesn’t cover much, but not including changes like this to a boundary line is what they usually do cover.
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I’m dealing with a situation where the recorder ÛÏrejectedÛ a deed because it was missing the ÛÏ to indicate minutes. The deed was recorded but marked ÛÏNCÛ for no change in ownership. A letter was sent but it took two years for them to record another deed. By that time the ownership had changed (guy died – pased to heirs) and the new deed was also marked ÛÏNCÛ this time because granter wasn’t considered owner. The original owner had signed the corrected deed but it hadn’t been recorded before he died. The recorder and assessor never updated the the maps and never placed the parcel on the tax rolls. I was asked to do some surveying, part of which, is this parcel. So I get the maps and can’t figure it out, why is this parcel not mapped. I got a copy of the deed from the client and also got it all from the recorders office. It’s been over ten years now and they have never paid taxes on the parcel although they occupied it by building a regulating reservoir an the parcel for their irrigation system.
Its a homeowners association and is loaded with a couple real good lawyers. They hope to get the current ÛÏownerÛ of the pond to sign a new deed as the ÛÏbestÛ way to resolve the problem. This could be easy to fix or become very interesting. I wish they’d sue the recorder but don’t expect that to happen.
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