Some years ago I subdivided property that that been surveyed about 25 years before. The western lines agreed with 3 recorded surveys by 2 surveyors of the adjoining property to the west, all from 15-25 years previous. But there was also a survey of the property to the west from 40 years ago that showed that line differently. It was what I would call a meander fence line. Crooked line with X's, a +/- distance and no bearing. To scale it was generally similar but somewhat different. I rejected it because the fence was gone so I couldn't follow it and the more modern surveys had been accepted by both sides.
My survey was challenged by the adjoiner who claimed to remember where the fence used to be. I think a title co. made some settlement without my input, so it's not a pressing issue, but I wonder:
If a property owner hires a surveyor, pays for and signs for a survey to be recorded, don't they loose the right to claim that that survey is wrong unless they can maybe show fraud on the part of their surveyor?
I seems like aquiescence would apply, although the cases I have heard about are different.
Adverse possession is 15 years here and an owner's signature is required to record a survey, but that signature might not have always been required.
It would appear that 25 years ago the property owners were uncertain where their boundary was located so they hired a Surveyor to run it in for them. They have acquiesced in the Survey ever since. They apparently did not think the fence was the boundary or did not agree that it was the boundary (shown on a Survey 15 years before that). The fence has apparently been removed which is further evidence that they did not agree to it.
I would call it an agreed boundary.
See Boyd's Lessee v. Graves, 17 U.S. 513 (1819), 4 L.Ed. 628, 4 Wheat. 513.
https://supreme.justia.com/cases/federal/us/17/513/
Boyd's Lessee has a similar fact set.
I agree with Dave.
However it is possible that the old survey was hotly disputed, or maybe it was actually an agreed boundary. The same could be true for the newer "not publicly disputed" surveys.
Insurance companies choose what they think is going to cost Them less money to make it go away... so that is a red herring.
Many land owners don't really know about a survey in the public records, they just see a crew or some flagging and assume it goes away with time... so implying acquiesce may be challenged.
Buy me a plane ticket, I will come down and make a thorough assessment. 🙂
I like this quote from Jackson ex dem. Goodrich v. Ogden, 7 Johns. 238 (New York-1810), which is not entirely on point but it's good:
If we assume the fact to be, that the description followed the patent, the question will then be on the effect of the acts of the parties in locating their deeds. It is a mere question of location, and not of paper title. The courses and distances and marked trees, spoke one language, and the map another.
Justice Duvall, who delivered the majority opinion in the case I linked in my first reply above, has been named the most insignificant U.S. Supreme Court Justice...
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5461&context=journal_articles
"... If we assume the fact to be, that the description followed the patent..."? how do you patent something that is not described within the patent... circular logic I think. 🙂
Poor Duvall (and his heirs) to have that handle to be noted as the Most Insignificant...
(your link is on my reading list)
Peter Ehlert, post: 364443, member: 60 wrote: "... If we assume the fact to be, that the description followed the patent..."? how do you patent something that is not described within the patent... circular logic I think. 🙂
Poor Duvall (and his heirs) to have that handle to be noted as the Most Insignificant...(your link is on my reading list)
I'll have to read that. The case involves a gap between two New York State patents (not PLSS).
Larry Best, post: 364383, member: 763 wrote: If a property owner hires a surveyor, pays for and signs for a survey to be recorded, don't they loose the right to claim that that survey is wrong unless they can maybe show fraud on the part of their surveyor?
Where adjoining owners, whose division line is susceptible of exact location, have a survey made, which is afterwards discovered to be erroneous, the fact that both parties, having no previous opinion as to the location of the line, express themselves as satisfied with the survey, and acquiesce therein for five years, does not estop either of them from insisting on the true boundary. Sanford v. McDonald, 53 Hun. 263, 6 N. Y. S. 613, 25 N. Y. St. 721.
One was from Arkansas...
DDSM:beer:
Boyd's Lessee v. Graves, 17 U.S. 513, 517 (1819), 4 L.Ed. 628, 4 Wheat. 513
This court cannot consider the agreement of the parties, although by parol, to settle the dividing line between them by a surveyor, mutually employed, as affected by the statute of frauds, as is contended by the counsel for the plaintiff. It is not a contract for the sale or conveyance of lands; it has no ingredient of such a contract. There is no quid pro quo: and the court do not consider it as a conveyance of title from one person to another. It was merely a submission of a matter of fact, to ascertain where the line would run, on actual survey, beginning at a place admitted and acknowledged by the parties to be a boundary, where the line must begin. The possession subsequently held, and the acts of the parties, *518 evidenced by their respective sales of parcels of the land held by each, under his patent, bounding on the agreed line, amount to a full and complete recognition of it; and in the opinion of this court, precludes the plaintiff, after such a lapse of time, from denying it to be the dividing line between him and the defendants; and neither ought now to be permitted to disturb the possession of the other, under a pretence that the line was not correctly run.
He refers to the plaintiff's version of the line as his "pretensions" in the opinion. No information is given about why the plaintiff thought his line should be other than the established line, whether he had a survey or measured himself or found a tree is not known.
Peter Ehlert, post: 364419, member: 60 wrote: Buy me a plane ticket, I will come down and make a thorough assessment. 🙂
Such an amenable guy.....willing to help out in a pinch.
Peter Ehlert, post: 364443, member: 60 wrote: "... If we assume the fact to be, that the description followed the patent..."? how do you patent something that is not described within the patent... circular logic I think. 🙂
Poor Duvall (and his heirs) to have that handle to be noted as the Most Insignificant...(your link is on my reading list)
I'm wading through it.
I think what happened was in 1790 Surveyor Wattles (really, that was his name) contrived through fraud to get a patent from New York State for lots 15 & 16 which according to the map were joined. Lot 16 included what they call a supernumerary lot between it and 15, in other words I gather 16 was twice as large as indicated by patent. Wattles granted 16 to the predecessors of plaintiffs (by new description?). Wattles later granted a parcel by metes and bounds between 15 & 16 to predecessors of defendants.
The controversy is should plaintiffs get all of lot 16 or only what Wattles granted out (a smaller lot 16). Since plaintiffs acquiesced for many years to the limit of their lot location and the defendant's extra land the defendants prevail.
They all considered the premises as a distinct lot, not included either in No. 15 or No. 16. They located according to the facts addressed to the senses, without having recourse to the secretary's office; and when the question of location was thus rendered ambiguous or uncertain, by the contradiction between the map and the survey, (and both were referred to in the patent and early deeds,) a practical location and construction given by the parties, and acquiesced in through a series of transfers, and for a great number of years, until the lands had become cultivated and had grown into value, cannot but operate with great, if not with decisive *242 force. It would be extremely inequitable for the plaintiffs now to be able to say, with the aid of the court, We have been all along under a mistake, and so have those from whom we derived title, and we have equally contributed to deceive the defendants, and him from whom they purchased; we can now go beyond our location, and the land which we supposed we had purchased, and can recover the defendant's farm, which we have constantly declared did not belong to us. On the motion for a new trial, for the mistake of a jury, the courts will always, in the exercise of a sound discretion, take some notice of the injustice of the claim. A man standing by and suffering another to build on his land, and setting up no right, though conusant of it, does, by this conduct, in equity, lose his land; (East India Company v. Vincent, 2 Atk. 83.) and in one case, such conduct has been held, at law, in an action of ejectment, a forfeiture of his right. (Tarrant v. Terry, 1 Bay's S. C. Rep. 239.) Though I do not acquiesce in the last decision, yet these cases show how unfavorably such claims have been viewed by courts.
There is a fairly scathing dissent, he says this is a misuse of acquiescence which is supposed to determine the boundary between two titles, not create a huge gap out of nothing.
Dave Karoly, post: 364385, member: 94 wrote: It would appear that 25 years ago the property owners were uncertain where their boundary was located so they hired a Surveyor to run it in for them. They have acquiesced in the Survey ever since. They apparently did not think the fence was the boundary or did not agree that it was the boundary (shown on a Survey 15 years before that). The fence has apparently been removed which is further evidence that they did not agree to it.
I would call it an agreed boundary.
See Boyd's Lessee v. Graves, 17 U.S. 513 (1819), 4 L.Ed. 628, 4 Wheat. 513.
https://supreme.justia.com/cases/federal/us/17/513/Boyd's Lessee has a similar fact set.
More likely, the property owners wanted to divide the property among the family or sell a piece to pay the taxes. They would claim to not understand the survey that they commissioned. And their surveyor(s) found it easier to copy the mistakes with hard data and new monuments than search for the old fence that marked the true line and cause trouble.
I'm very happy to spark such a debate every few years. And while I haven't gotten a clear answer to my question, I have been reinforced in my belief that if I can't figure it out, it's probably not so simple.
Thank you
Larry Best, post: 364528, member: 763 wrote: More likely, the property owners wanted to divide the property among the family or sell a piece to pay the taxes. They would claim to not understand the survey that they commissioned. And their surveyor(s) found it easier to copy the mistakes with hard data and new monuments than search for the old fence that marked the true line and cause trouble.
I'm very happy to spark such a debate every few years. And while I haven't gotten a clear answer to my question, I have been reinforced in my belief that if I can't figure it out, it's probably not so simple.
Thank you
We can only guess not having seen the Deeds, title history, and survey history.
