> I have had to do "reverse encroachment surveys", that is what it was called in the task order. Due to erosion, the reservoir had crossed over the boundary line (what the government purchased), and the water was now on the private side of the US boundary line, so it was encroaching on the private landowner.
WHO 'called it'? Any d-fool can make out a work order.
Richard Schaut
You nailed it JOe. People pay us money to use the word ENCROACHMENT. When it is occuring, that is. That is exactly what we are hired to do. The word itself, is nothing to be scared of.
Stephen
> Your spot on with me Joe. I use it all the time. I ain't scared.
>
> My attorney said ,yes it's a legal term, but more often it's a descriptive term that in lay persons eyes is well understood.
I agree with Joe and Deral and have no problem calling out an encroachment, its called being a boundary surveyor brother, finding and reporting encroachments is your job.
Isn't the prime reason that you are hired as a land surveyor to tell your client (landowner) that a certain object is encroaching on his land, over the boundary that you have just determined?
Or are you simply trying to not have any liability?
Seems strange to me.
Keith
There are comments here that "encroachment" is a legal issue?
Well, ain't the survey that you just established a legal issue?
There is nothing that you do in the land surveying world that is not a legal issue!
Keith
AMEN!
For those who think we should monument the deed line and show any physical evidence of possession that differs from that deed line as an 'encroachment', you might want to study the text of Curtis Brown's 1979 talk about unwritten rights; specifically:
In my early writings, I generally advocated that surveyors should locate land boundaries in accordance with a written deed; all conveyances based upon unwritten rights should be referred to attorneys for resolution. Within recent years there have been cases, and one in particular, wherein surveyors have been held liable for failure to react to a change in ownership created by prolonged possession. The purpose of this paper is to re-examine what a surveyor should do in the event title has been altered by a legal transfer of title by prolonged possession.
The only 'legal' opinion we are required to make is whether or not the occupation line replaces the deed line as the legal boundary.
Also remember Black's definition of Alienation:
Alienation
In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.
Restraint on Alienation
A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.
Who determines the existence and boundaries of the parcels of land created by; "Every mode of passing it, (realty), by the act of the party, as distinguished from passing it by the operation of law.", if not the surveyor?
Richard Schaut
Would your use of the "E" word change if the party at fault came out and showed you a written, but unrecorded letter stating that the 2 parties had agreed to place the fence where you found it?
BTW I don't use the "E" word, just "adjoiner's fence onto subject property".
It depends.
Just because a feature crosses a boundary line doesn't mean it is encroaching.
Unless there is specific knowledge of ownership, we can't make that determination. We show it as it is. To say it is an encroachment, without all the evidence, is wrong and a disservice to the parties involved.
It's not about being scared or unprofessional, it's about understanding the meaning (and power) of words, that some, apparently, carelessly throw around.
:coffee:
thats always been my take on it - if you dont know whose it is- how can you say it is encroaching?
Thats also why I charge more than $199 to do a survey.
I do not use the term in my surveys and I too charge more than $199 for a survey. You can make your point without implying insult.
a couple of the current buzzwords are "intrusion" and "protrusion".
Depending on which side of the line you are on.
Usually you can tell. When you can't well, that is when you find other terms.
Stephen
Keith
> I don't have a problem with using the word, and don't believe it leaves a legal problem.
>
> Isn't an encroachment simply an object that is over the line; does not mean it is illegally over the line.
>
> Keith
That's the whole point. Encroachment is an illegal intrusion. It does mean it is illegally over the line.
I am not "afraid" to use it per se, but I think it would be better to show something over the line, without making a determination that it is there illegally. Someone in this thread laid out scenarios where a fence could be completely on one property but if it was built by the neighbor it might be an encroachment. Or an improvement might be crossing the line, but with permission. Or an out-and-out adverse and notorious property may be over the line but if adverse possession has ripened it would no longer be an encroachment.
Maybe you can make the determination that an object in fact meets all of the elements of being illegally over the line, but I think you need to jump through those hoops at least before you make the call. In the mean time, I would just choose to show it as it exists on the ground in relation to the property line.
adam
I am sure you know more about this than I do, but I am having trouble with the so-called legal definition of the word?
What makes an encroachment a legal term, rather than a technical term?
I hope that is stated right?
Keith
Keith
Keith, you certainly can use it as you see fit. I think I would know what you meant.
But, for example, if I am on someone's property with their permission, am I tresspassing? If a cop were about to cite me for tresspassing, I would say 'hey, they gave me permission to be here'.
Still, encroachment is a bit looser of a term than trespassing. You aren't wrong, but I am only suggesting that a more appropriate term might be used, so somone doesn't get the wrong idea.
How about when someone has a legal right to have his improvement there (in an area you called an encroachment), and the neighbor says 'hey you got to tear that thing down. It's encroaching on my property and I have a certified survey here to prove it.'
Just some thoughts. I am not a legal expert, that's for sure.
Tom
You said the key word 'opinion' because everything we do results in our opinion based on the best evidence - including the possible hostile occupation of our client's property.
Barron's Law dictionary says the definition of 'encroach' is to "gain unlawfully upon the lands, property, or authority of another..." so I would surmise that the correct usage on a survey would be to say "alleged encroachment" since one is implying that an unlawful act has occurred.
When a person is accused of a crime the charges are brought before the court as the prosecutor's opinion based on the evidence at hand. They use the term "alleged" because of the presumtion of innocence.
Never Encroachment....Always "apparent encroachment" , as others have said it is not my job to show who's who's only the evidence. Great descussion.
The word seems inflammatory to me, and yes attorneys would love to see it used.
There are other ways to show existing conditions with regard to boundary lines and
their relation to structures.
