This is the final 2 paragraphs from Marek v. Lawrence:
"I concur in the Court's opinion. Judge Bradbury clearly erred in concluding in his written decision on reconsideration that a section line can be located where parties think it should be, rather than where a survey would show it to be. Section lines do not move. They are located where a valid survey establishes them to be. When a legal description in a deed utilizes section lines, half-section lines, or quarter-section lines, those lines are established by survey and do not move depending on what parties to the deed may think more appropriate. There can be differences between surveys but those are to be adjudicated based on presentation and consideration of competent expert evidence.
The Johnson-Adamson Deed is clearly unambiguous. Johnson conveyed to Adamson the E½ of the NE¼SE¼ of Section 27, less the south 36 feet of that surveyed parcel and less the parcel described in the Right of Way Deed recorded as Instrument No. 108078, Clearwater County records. It may be odd that the Johnson-Adamson Deed specifically exempted the right of way deeded to Clearwater County in Instrument No. 108078 (apparently leaving Johnson as the owner of the land underlying the County's road right of way), but that is the effect of the deed and no amount of parol evidence can change it. Where the language of a deed is unambiguous, a court may not rewrite it."
This will be a great disappointment to those that think people can agree on a boundary regardless whether they are right or wrong.
Can this be listed as "When is a Section line not a property line?"
Clearly the section lines, once correctly established will not change, but circumstances can create new property lines, i.e. adverse possession.
Depends on why the fences were placed where they were, we have many that were placed near a section line and others did a lot of wandering about, few of those fences were ever intended to represent ownership claims. In range land fences are built where they can be built, used to manage pasture, water and movement. Where the land has been farmed, usually the fences were intended to represent ownership claims and many of those fences are the best evidence of where the GLO set their original corners, but before accepting a fence corner, it must be checked to see if it is in agreement with other evidence around it. Most of the natives know this and when surveying their lands know that the fences probably will not be on their ownership lines, they accept that and often quickly move the fences to the ownership lines. The kids returning from the city's or the government and school teacher types are the only ones that have difficulty recognizing that fences do not always indicate a claim of ownership and their right of possession.
jud
:good:
Interesting old opinion from Oregon
The case of Brunswick v. Rundell, from Douglas County, Oregon - not far from Jud's part of the world - is interesting here as it describes how a fence came be where it was at time of trial. The posts went wherever the joints in the outcropping rock allowed.
> This is the final 2 paragraphs from Marek v. Lawrence:
>
> "I concur in the Court's opinion. Judge Bradbury clearly erred in concluding in his written decision on reconsideration that a section line can be located where parties think it should be, rather than where a survey would show it to be. Section lines do not move. They are located where a valid survey establishes them to be. When a legal description in a deed utilizes section lines, half-section lines, or quarter-section lines, those lines are established by survey and do not move depending on what parties to the deed may think more appropriate. There can be differences between surveys but those are to be adjudicated based on presentation and consideration of competent expert evidence.
> The Johnson-Adamson Deed is clearly unambiguous. Johnson conveyed to Adamson the E½ of the NE¼SE¼ of Section 27, less the south 36 feet of that surveyed parcel and less the parcel described in the Right of Way Deed recorded as Instrument No. 108078, Clearwater County records. It may be odd that the Johnson-Adamson Deed specifically exempted the right of way deeded to Clearwater County in Instrument No. 108078 (apparently leaving Johnson as the owner of the land underlying the County's road right of way), but that is the effect of the deed and no amount of parol evidence can change it. Where the language of a deed is unambiguous, a court may not rewrite it."
>
> This will be a great disappointment to those that think people can agree on a boundary regardless whether they are right or wrong.
Not sure who has represented the opinion of "...that think people can agree on a boundary regardless whether they are right or wrong." There is however, the legal doctrines of boundary by agreement, etc., which have specific requirements to be met. There is also such a thing called "a good faith effort" to establish interior 16th lines, etc., which are fully covered in the 2009 Manual.
This case opinion is not very remarkable unless one reads things into it that are not there. The decision essentially says that landowners cannot move a section line, or represent an erroneous location as a boundary described as being the section line. Some of the language is not as clear as it could be such as "They are located where a valid survey establishes them to be." This taken by itself can easily be mis-understood. A survey doesn't "establish" a section line during a re-survey or retracement; a valid, correct, and properly performed survey can find the section line, and no it does not move from its original location.
The principle of common repute is a powerful one used by many
attorneys. I have seen townships of 36 sections where some
sections lacked occupation evidence that agreed with anything.
Even the owners said their fence was a best guess at an aliquot
division of a section. Location of original posts in mounds with
two quarts of charcoal, common in Illinois, sometimes require
massive seaches in meandering gravel roads. Recovery of these
posts requires a careful search but like lighterwood posts in Florida
are many times well preserved. Sand and clay soils are excellent
preservatives of posts in mounds. Located orignal posts often do not
match possession because the early land owners did not know where they
were, when building their improvements aka fences, dirt lanes along
section lines, and buildings.
:good: :good:
