Hello All,
I own 30 acres in Wisconsin.?ÿ An adjoining neighbor owns a 300ftx300ft parcel.?ÿ Due to a gross error say 100 years ago, it happens that the neighbor believes (incorrectly) that one third (a 300x100ft strip) of his parcel shifts onto my land, and is his.?ÿ County land services maps and recorded surveys tell my neighbor he is wrong.
Despite this, my neighbor hires a surveyor to validate his claims.?ÿ The surveyor and neighbor enter my property and bury rebar on the encroaching corners he desires.?ÿ This occurs late in 2020.?ÿ The County Surveyor tells me that no surveys have been filed or recorded by my neighbor's surveyor.?ÿ A County Deputy mentioned to me that the neighbor's "survey" was unrecordable.
My question is: although Wisc allows surveyor's a right to enter when subdividing or locating a section corner (avoiding a charge or trespassing), does the neighbor's surveyor in fact trespass because he never filed or recorded a survey??ÿ Meaning essentially that there never was a bona fide survey...?ÿ the guy just went on my property to bury markers.
Thanks for your thoughts.
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Two issues.
First, there are numerous laws that can change the answer on this. Any firm answer here is from a Wisconsin Attorney, a guess, or both.
Second, there are more important questions on the table. The most important would be: What are the laws on establishing boundaries in Wisconson? You would do well to pay a few hours fee to an attorney specializing in boundary and title law. Your rights to that 100' by 300' strip could be in jeopardy.
I'm not a surveyor in Wisconsin so don't know the standards of practice there.
For what it's worth, in my area of practice (Massachusetts), there is no requirement to file or record retracement surveys. Therefore, it is perfectly possible to perform a valid survey and stake out lot lines without any government official having any notice of the activity.
Who has occupied the strip in question and for how long? In what way has the strip been occupied and by whom? What would lead the owner of the parcel to believe that they own the strip??ÿ
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As for trespass the act of placing markers is surveying so the non-survey approach doesn't fly. If WI requires recording a retracement survey by law and the survey has not been filed in the requisite time frame assuming the surveyor is licensed?ÿ a complaint to the registration board could be filed.?ÿ
Another thought: Gross error existing for 100 years is unlikely. A definition that has helped me determine gross error is an obvious error of a magnitude coterminous owners would never acquiesce in for a statutory period under normal circumstances.?ÿ ?ÿ
There are a lot of unanswered questions in that one. Was the line the he monumented on a section line? Why would the "survey" be considered "unrecordable"? In Wisconsin a survey, unless it is a Plat or Minor Land Division is not required to be recorded, but instead "filed" with the county surveyor's office.
Your trespass question to me seems a bit beyond the situation at this point. We don't know that he set the points in the right or wrong place. What about junior/senior rights regarding the deeds? It could be possible that you don't actually own the whole 300 x 300 foot parcel as you think and trespass questions could be moot. Is a tie in distance possibly in error?
County mapping is not always the bible as they are not compiled by surveyors, just mapping technicians sometimes without a complete understanding and they do not try to resolve conflicts. The mapping itself is not always accurate and may not disclose exactly what is on the ground. I just finished a survey that looks nothing like the GIS mapping.
My best advice at this time would be to hire your own reputable surveyor to examine all the deeds for your parcel and your neighbor's and complete a full boundary survey for you. You may or may not appreciate the final results, but the gray zone would disappear. You might also want to try to contact the other surveyor for an explanation. The answers to your questions may be simpler than it appears.
I would forget about the trespass issue and concentrate on figuring out the ownership claim.
If the neighbor is basing a claim of ownership on a survey, he should provide you a copy of that survey for your evaluation and comparison to other relevant surveys.
What was the gross error long ago?
As mentioned, the county maps are usually just cartoons to identify who owns a piece of property for taxing purposes. They are not definitive, and often not accurate, as to where the limits of the property lie.
Working here in Wisconsin the trespass issue isn't a big deal.?ÿ I would hire a surveyor of your own based on a recommendation from the county surveyor as to who to hire, most will tell you the ones doing good work in some way or another.?ÿ Then figure out your entire property and the possible junior/senior rights and get it cleaned up with a good surveyor.?ÿ?ÿ
If we set a corner we are also required to file/record a survey with the county surveyor or other office that collects them at the county level within 60 days of completion.?ÿ Typically I take that to mean 60 days after we have been paid.?ÿ If you know who did the other survey you can report them to the survey board.?ÿ To my knowledge reporting a surveyor as a citizen may get something to happen but reporting another surveyor as a surveyor nothing happens.?ÿ Good luck and reach out to myself if you are in the Western side of the state I'd be happy to look at it.?ÿ?ÿ
Hey All,?ÿ some great feedback already!?ÿ Thank you!
In response, some items:?ÿ both me and neighbor have occupied periodically from time to time, so no adverse possession.?ÿ Also, the observation on filing versus recording is correct, but the survey was still: not "filed."?ÿ Regarding monuments, my 30 has a section corner which has an extraordinary and spectacular marker which has been verified by many surveyors with bearing trees, etc. planted in say 1930 or so.?ÿ And should govern.?ÿ This corner informs my neighbors survey that he is encroaching 100feet into my 30.?ÿ I did in fact have a gold-plated survey done 15 years ago and was filed/recorded with the County.?ÿ My survey reconciles with my section corner, and county land info, as cartoonish as it may be.
Given all this, my point is that an unprofessional? surveyor should not be planting rebar 100 feet into my property without filing a map, talking to me, ignoring records, etc. etc.?ÿ Boils down to me concluding he was trespassing among other things.
My observation/question is, what makes you so sure that your neighbor is wrong??ÿ If you haven't had your property surveyed, and monuments set, what are you basing this on?
Contrary to popular belief by the general public, surveyors don't just take money from a client to put rebar in the ground where they're told.
I wonder if the "surveyor" was moonlighting on his own and not operating under a COA or is even licensed.?ÿ Did he produce a plat of survey showing the results??ÿ The Deputy County Surveyor's comments is what makes me question it.
Couple more details:?ÿ My 15 yr old survey/surveyor, also had rebar installed along boundary, and again filed/recorded that survey back then.?ÿ This new surveyor having access to that record, still planted different rebar 100 away, with no public record.?ÿ I called the guy, a licensed surveyor, a while back to get his story and he hung up on me.?ÿ His client may have a map/drawing, but that might be it.?ÿ Two groups of rebars, one recorded, one not.?ÿ Suggests to me the unrecorded has problems.?ÿ?ÿ
Benchmark TNH, what town do you live in?
You should hire a surveyor that is licensed in Wisconsin. Preferably one that practices in your local area. There could certianly be some issues that they can help you with.
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A County Deputy mentioned to me that the neighbor's "survey" was unrecordable.
You might contact this surveyor, and get a copy. We on this forum would LIKE to see a copy of it!!
Nate
My first thought (knowing very little) is just proving ownership "once and for all", especially if there's some question of an error way back.?ÿ Who has senior rights to the patch in question??ÿ That's the idea of "first in title, first in rights" and requires a title search back to the originating deeds.?ÿ It's likely that the surveyors who've recorded maps with your county since then have based those surveys on this historic research, but it's unfortunately not a given and will probably have to be done or at least found completely in recorded documents to settle this dispute.?ÿ Depending on your state laws, it's also even possible that senior title (dominant right) isn't guaranteed by the original recording dates, but by dates of notification of recording to the successive property owners.?ÿ Thus the need for thorough research that includes successive owners and a probably a tip of the hat from an attorney.
