A Case on Acquiescence

A very interesting case, well summarized.

It's the law now in Utah, but surveyors reading this case need to look to their own state case law, which may differ markedly from that in Utah. But knowing the law does not mean that you can practice it.

It's best to always remember that in boundary survey situations the deed description of the parcel will always prevail in the surveyor's eye if the original bounds and monuments in the description can be found and retraced upon the ground. Fences which contravene found original described bounds may have obtained a legal life of their own, but the surveyor is bound to respect the original surveyor and survey if possible.

Boundaries by acquiescence, by adverse possession, easements by prescription, are all subjects for courts of law, and as surveyors, we can be expert witnesses as to matters of fact, but not of law. It's best to know the difference.

Herein lies the rub: under acquiescence the acquiesced boundary IS the deed boundary so while you are out there surveying what you think is the deed boundary you are actually surveying a non-entity in the eyes of the law because the deed boundary is the acquiesced boundary.

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> It's the law now in Utah, but surveyors reading this case need to look to their own state case law, which may differ markedly from that in Utah. But knowing the law does not mean that you can practice it.
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True, we as surveyors cannot practice law, but we had better know the law, and just as importantly FOLLOW the law, which our profession requires that we do.

> It's best to always remember that in boundary survey situations the deed description of the parcel will always prevail in the surveyor's eye if the original bounds and monuments in the description can be found and retraced upon the ground. Fences which contravene found original described bounds may have obtained a legal life of their own, but the surveyor is bound to respect the original surveyor and survey if possible.
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Yes, usually however our job is to find the current boundary, not where it should have been, nor where it used to be, or where it may be in the future, but where it is now.

> Boundaries by acquiescence, by adverse possession, easements by prescription, are all subjects for courts of law, and as surveyors, we can be expert witnesses as to matters of fact, but not of law. It's best to know the difference.

First lumping adverse possession with acquiescense, agreement, etc. is not appropriate. They are different animals. Secondly our job is more than the hawaii 5-0 line of "just the facts ma'am". We can and should express a professional opinion concerning the location of the boundary, if that is what we were hired to do.

Sidetrack - TV reference

The quote "just the facts, ma'am" is from Jack Webb's character Sgt. Friday on Dragnet.

I don't think the phrase was common on 5-0. Book 'em, Danno.

"Yes, usually however our job is to find the current boundary, not where it should have been, nor where it used to be, or where it may be in the future, but where it is now."

The current boundary is where the original boundary existed. If you can find that, you are done with your survey. As a surveyor, you have no legal right to do anything else, if that can be done. Theoretically, under a variety of legal principles, the actual boundary may be found to be somewhere else by a court. You, as a surveyor, are not a court, but merely a witness as to matters of fact, not law.

Once you get it into your head that you can set boundaries which do not depend on attempting to follow record descriptions, but which are based solely on your reading of fences, occupation, etc. you are walking the legal plank and you are all by yourself.

If the boundary has been acquiesced to and established by the landowners, what gives the land surveyor the right to try and change that? Is it your land?

The only thing this case changed about Utah law was to state that acquiescence is determined by the courts by clear and convincing evidence instead of a preponderance of the evidence. The case pretty well defines that it is the actual actions of the parties over time and not the mental state of thought of the parties. So under this standard it is clear and convincing evidence if adjoining landowners, through their actions, treat a visible line as the boundary for a long period of time (20 years).

So not much has changed, same law for many decades now.

What I would like to know is what made Mr. Kay decide that his boundary was not along the fence. Was it a stakeout survey of the "record" boundary. Knowing some about the area (next county, I don't do any work there) it could have been as simple as the County Recorder showing him the GIS map over the counter. I've seen that so many times while doing research. Actually in Utah the County Recorders are way out front in showing folks where there boundaries are. Why not, it's free, they are very helpful and want your vote.

It's a big ole 8 page opinion. Doesn't really change anything. In the end the justices thru Mr. Kay a bone. Bet the bone cost the guy about $50,000 and the boundary remains along the acquiesced to fence line. If some surveyor started this snowball rolling into the courts he should be sued and pay triple damages.

Sidetrack - TV reference

You are correct. Dang I'm getting old 🙁

> The current boundary is where the original boundary existed. If you can find that, you are done with your survey. As a surveyor, you have no legal right to do anything else, if that can be done. Theoretically, under a variety of legal principles, the actual boundary may be found to be somewhere else by a court. You, as a surveyor, are not a court, but merely a witness as to matters of fact, not law.

I'm not certain precisely where or when that line of thinking started. From my research, I'd surmise that it began its rise in the late 40's or early 50's after WWII. The transition from surveying boundaries during the settlement phase of our country to surveying residential subdivision developments caused a shift of focus for surveyors. The old-school knew how to survey boundaries, the new-school applied engineering techniques to stake construction projects.

When you read the pre-1940 surveying texts, especially the post civil war era, the surveyor was expected to precisely follow the rules of the court when making any boundary determination. As Thomas M. Cooley, Chief Justice of the Supreme Court of Michigan, out of his frustration after witnessing the impact surveyors had in two landmark cases, stated to a room full of surveyors during their second annual conference:
>"Public policy requires that such lines be not lightly disturbed, or disturbed at all after the lapse of any considerable time. The litigant, therefore, who in such a case pins his faith on the surveyor is likely to suffer for his reliance, and the surveyor himself to be mortified by a result that seems to impeach his judgement. ... But he would do mischief if he were to attempt to "establish" monuments which he knew would tend to disturb settled rights ... The peace of the community absolutely requires this rule. ... The surveyor, on the other hand, must inquire into all the facts, giving due prominence to the acts of parties concerned and always keeping in mind, first, that neither his opinion nor his survey can be conclusive upon parties concerned, and second, that courts and juries may be required to follow after the surveyor over the same ground, and that it is exceedingly desirable that he govern his action by the same lights and the same rules that will govern theirs." The Judicial Function of Surveyors, The Michigan Engineers’ Annual, 1880-1881
Nothing in the law and nothing in the court's expectations have changed. Cooley's writings chiding the land surveyors for their "technically correct but 'maverick'" approach to boundary determination are still the most often quoted subject in court cases today. It is apparent that the courts instructions on boundary determinations are being ignored.
> Once you get it into your head that you can set boundaries which do not depend on attempting to follow record descriptions, but which are based solely on your reading of fences, occupation, etc. you are walking the legal plank and you are all by yourself.
Actually, you will find yourself on a completely different level of expertise. One which the courts have longed for and one which earns their respect. You'll find yourself, not on a plank, but an endless plane of possibilities. Rather than performing cut-and-run $350 surveys, you'll find the level of expertise and the standard of care rise to a challenging level of requirement. Skills and knowledge of the laws including their history are required far beyond any necessary to throw numbers into a data collector, spit them back out, and blindly set a monument next to that "uncalled-for monument."

>"Can a surveyor monument the lines of ownership obtained by unwritten means? To my knowledge, absolutely nothing in the law prevents him from doing so. Clearly from my conversations with attorneys, this is not an unauthorized practice of law. If the surveyor chooses to claim that a possessory right has ripened into a fee title, he is certainly privileged to do so." Land Surveyor's Liability to Unwritten Rights, Curtis M. Brown (1979)

These concepts are not new. Our profession has simply been ignoring them long enough that we're beginning to hear them for the first time.

JBS

No.

Yes.

"The current boundary is where the original boundary existed."

Ted Madsen used teach that in cases where uncertain lines have been made certain by Establishment (including Acquiescence), that courts create a legal fiction, one that says "that's where the line always was".

A Case of Filling Seats in Seminars

Once you get it into your head that you can set boundaries which do not depend on attempting to follow record descriptions, but which are based solely on your reading of fences, occupation, etc. you are walking the legal plank and you are all by yourself.

"Actually, you will find yourself on a completely different level of expertise. One which the courts have longed for and one which earns their respect. You'll find yourself, not on a plank, but an endless plane of possibilities. Rather than performing cut-and-run $350 surveys, you'll find the level of expertise and the standard of care rise to a challenging level of requirement. Skills and knowledge of the laws including their history are required far beyond any necessary to throw numbers into a data collector, spit them back out, and blindly set a monument next to that "uncalled-for monument."

This is a very recent and very dangerous concept in surveying which tells the surveyor he can ignore the responsibility to attempt to follow the record description in the first instance and then look for "facts" which might lead him to avoid the footsteps and evidence of the original surveyor and ignore the written document recording the intent of the parties to the legal conveyance. That document and those footsteps are the first stop for any surveyor attempting to retrace a boundary. "Retrace" is the difficult concept for some, who are immediately attracted by fences, shrubbery, etc. and fail in their basic duty to begin a retracement correctly.

And don't set up "straw men" and knock them down. I don't do $350 surveys or blindly set monuments. Ad hominem attacks do nothing to help you make your point.

Acquiescence, of course, which is the topic of this thread, can occur and fix a boundary in only two ways- an express written agreement between the parties, or an acceptance by a court of an implication of acquiescence based on testimony presented as to facts. The surveyor has a role in each of these situations, but only as to a witness of facts, not law. As Justice Cooley points out, the surveyor can have only a quasi-judicial function in the first instance based on the reliance of the parties in his opinion. In the second instance, Justice Cooley makes clear that the surveyor has no actual judicial role at all. I have never seen any court cases or treatises by legal experts which would indicate that any court needs help from a surveyor other than as to matters of fact. Courts seem to be able to interpret the law without the assistance of surveyors.

From Justice Cooley:

"In any case of disputed lines, unless the parties concerned settle the controversy by agreement, the determination of it is necessarily a judicial act, and it must proceed upon evidence and give full opportunity for a hearing. No arbitrary rules of survey or of evidence can be laid down whereby it can be adjudged."

The actual level of important expertise in surveying today is having the knowledge of what surveying actually is under state and case law, and being able to differentiate it from the actual practice of law. Without that expertise, it's just mischief making.

A Case of Filling Seats in Seminars

"Acquiescence, of course, which is the topic of this thread, can occur and fix a boundary in only two ways- an express written agreement between the parties, or an acceptance by a court of an implication of acquiescence based on testimony presented as to facts".

In Utah acquiescence is not "an express written agreement between the parties."

Also, you don't need to go to court for acquiescence to occur. Once the facts as you call them exist the acquiescence is confirmed. A landowner can go to court if they wish to challenge the facts.

So I'd say the land surveyor better search out and gather the facts including those of boundary by agreement. No the surveyor can't adjudicate but let's switch it around. If the facts would support boundary by acquiescence, then isn't a surveyor adjudicating by placing the line where it is not now established. Part of retracement should be discovering what the landowners did to establish the boundary. A lot of that you may not find in any survey record. If the boundary has been established by the landowners in a certain location, sure you may retrace some previous location but what's the point? You can certainly show them where their boundary isn't.

My experience is that where landowners have established boundaries by various agreement doctrines, its because there is not evidence to retrace the boundary. If they have good boundary evidence they use it. If they don't they don't always resort to getting it surveyed. If you are selling property you don't have much interest in paying for a survey if you don't have to. Also getting it surveyed when there is not evidence to retrace doesn't do much other than give landowners something to use to establish their boundaries. Too much land has been subdivided down through the years without surveys. How to you retrace what was never done. Staking out a deed after the land on both sides of the line is in separate ownership is not retracement. It's adjudication. Some say it is an original survey but I don't buy into that. Could be an original survey if both parties agree to it being an establishment of the boundary (boundary by agreement).

The Utah Supreme Court recently restated the law on boundary by agreement, several flavors.

You can read it HERE.

Obviously it must be different in your state.

Any time a surveyor tries to place a boundary where it isn't, they are trying to adjudicate a boundary. If the boundary has been established by one of the boundary by agreement doctrines what gives a surveyor the right to move it or adjudicate it. Whine about practicing law all you wish but someone needs to apply the law. As the only professionals licensed to deal with boundaries, who else is going to do it. The judges don't want to see our sorry ##### or clients in court. That's why they keep publishing all these opinions to inform us about the law.

I realize that land surveying is serious business. You are directly dealing with peoples property rights. It takes a special person to take such responsibility. You need to know the law about boundaries. This trying to hide out that a surveyor can't apply the law or even give opinions on boundaries is nonsense. Someone needs to do this for society. If it's not land surveyors then they should do away with us and give it to someone else willing to learn what needs to be known and go forth.

The easy surveys are where there is lots of retraceable evidence, good records, existing monumentation and the landowners haven't got lost so to speak. That's probably how a great deal of boundary work is, doesn't take much specialized knowledge to do this. But there is a lot out there that doesn't fall into this category, different story there. Unfortunately someone needs to deal with the crap and all the crap being produced every day.

Who's it gonna be, Judge Judy.

A Case of Filling Seats in Seminars

Leon, Thanks for bringing that case to light. It is a very good summarization of boundary doctrines in Utah, and I'm guessing it will be cited, studied and used by other states where applicable.

Every surveyor in Utah (probably all states) should read and understand this well written decision. For those in other states, I'd recommend they study and compare the doctrines as outlined by the Utah court with recent decisions concerning similar doctrines on their state(s).

The possibility that a boundary by acquiescence claim may have the effect of depriving a party of its property, the claim has to be established by clear and convincing evidence.

> It's the law now in Utah, but surveyors reading this case need to look to their own state case law, which may differ markedly from that in Utah.
In my study of laws across the country, there are few that actually "differ markedly" from the fundamentals. I've only found three jurisdictions, so far, that I'd say "differ" enough that they've had to devise an alternative solution to achieve the same result. Even those have the same foundation and the same principles.
>But knowing the law does not mean that you can practice it.
There's a HUGE difference between "practicing" the law and "obeying" the law. As surveyors, when it comes to boundary determinations, we are required to "obey" the law. In order to "obey" the law, we must "know" the law and properly "apply" the law. Show me one attorney (who doesn't have a surveyor's license) in any state who is allowed to determine boundary locations. Every time surveyors express an opinion regarding the location of the boundary, they're applying a legal principle to the facts discovered to derive their opinion.
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> It's best to always remember that in boundary survey situations the deed description of the parcel will always prevail in the surveyor's eye if the original bounds and monuments in the description can be found and retraced upon the ground.
That's not what the law requires. Sometimes deeds control; sometimes survey monuments control; and sometimes occupation lines control. It's up to the surveyor to determine the location of the boundary based upon the best available evidence and the applicable legal principle. If you haven't gathered the evidence or properly applied the law, then you're just guessing where the boundary is.
>Fences which contravene found original described bounds may have obtained a legal life of their own, but the surveyor is bound to respect the original surveyor and survey if possible.
That's not the law either. If the fence has "obtained a legal life of their own," the fence is now the "boundary." The surveyor isn't bound by the deeds, the monuments, or the fences. The surveyor is bound by the laws designed for the purpose of determining the boundary location. No other profession can do it; why do surveyors too often attempt to shun the responsibility?
> Boundaries by acquiescence, by adverse possession, easements by prescription, are all subjects for courts of law, and as surveyors, ...
Yes they are "subjects for courts of law." The subjects have been tried over and over and the courts in each jurisdiction have consistently made known the fundamental principles needed to prove the boundary location in each instance. The courts have consistently chided the land surveyors for failing to properly apply the principles laid down by the courts. When will we begin to listen?
>... we can be expert witnesses as to matters of fact, but not of law. It's best to know the difference.
That notion completely contradicts the rules of evidence regarding expert witnesses. Lay witnesses are FACT witnesses (Rule 602). They get paid $18.50 a day for their testimony. Expert witnesses can testify in the form of an opinion (Rule 702) based upon sound methods and techniques applied to the facts of the case (Rule 703). As an expert, I don't testify what the law is (the courts have already set the principles as well as the evidence required to meet the principles); I testify about the application of the law to the facts which leads me to my professional opinion regarding the ultimate issue before the court, i.e. "where is the boundary?" (Rule 704).

Every case in which I've testified concerning a boundary, the court wants to know what my opinion is and how I derived that opinion. There's simply no way to derive an opinion regarding the location of a boundary without the application of the law.

JBS