Wisconsin Supreme Court settles long-standing boundary ....

Pablo

I served as an expert on a case where the defendant blocked the client's access easement. I did the research at the Recorder's which wasn't too difficult.

The Judge essentially cut off the Attorneys and led me down the path of "yes there is an easement" with a line of obvious questions mostly answered right out of the documents which I had in order. Finally the Judge just borrowed my file and had the clerk copy it so he could write his decision. This Judge seemed to have experience with land titles. I always thought if me and the Judge could sit down in the conference room and review the maps and documents it would've taken about a half hour or so but I realize it doesn't work that way.

I couldn't understand why the Defendant's Attorney didn't just tell their client to save their money and quit blocking the easement. I think my client would've gone for a "no harm, no foul, let's just be friends" settlement. I don't think the Defendants got good advice and they are immigrants with limited English so that probably played into it too.

In this decision, the Supreme Court gives an extensive discussion of the principles of boundary law as accepted here in WI. It is important to note that they point out that a description may be unambiguous in one fact set and the same description may be found ambiguous in another.

There is no 'cut and dried' format for determining when record descriptions need to be corrected but there is universal agreement that some of our land records are inaccurate.

It is the primary professional obligation for the surveying profession to be able to detect and provide a means to correct inaccuracies in our land records system, especially when our legal system defines an inaccurate record description as a 'title defect that will not be found by an attorney's search of the record'.

Richard Schaut

Yes, it seems like in this case (as many) the surveyor tried to correct the theoretical system. To make the original "plan" work rather than recognizing evidence of the original actual consumation of the plan.

Pablo

Do you know the exact details of the case and the parties involved?

Just curious.

Pablo

> Do you know the exact details of the case and the parties involved?
>

No. All I know is what is reported in the rulings.

JBS

It didn't just happen in Wisconsin

I'm sure you can find other similar sections throughout PLSSia. What was laid out on the ground and what was drawn on a pretty plat and described in beautiful handwriting are frequently found to be quite different.

> Maybe if I studied the case record thoroughly it would be clear to me, but I'll be lazy and ask.

Briefly, the history of the corner goes like this:

1.Original Survey, time not specified
2. 1880's - Henn Road established
3. early 1900's - Section resurveyed and monumented (original monuments in area lost), litigation regarding location of road vs. section lines.
4. 2005 - rediscovery of section monument set in early 1900's triggers new round of litigation.

So the "section monument" is in the area specified in the corner record - 600 feet from the road.

Wisconsin Supreme Court settles ... uh what?

> Wisconsin Supreme Court settles long-standing boundary dispute along Henn Road

Derek, in the link you provided, it wasn't clear whether the Wisconsin Supreme Court had held that that the section line as established by government survey ran along Henn Road or whether merely some established boundary that wasn't coincident with the section line ran along Henn Road. Which was the case?

If the latter, presumably some court is going to have to correct all of the legal descriptions that recite some particular tract as being out of a section other than it actually is, with the corrected descriptions also describing the boundary as established by the court decree, right?

The images above were taken from Google Earth with the GCDB section lines depicted in magenta. Did a bit more poking around and found these maps:

Ashland County, WI GIS

1984 USGS Quad Map

Seems like everything is fine in 1984. Section line right where the landowners and the court said it was since 1912. GIS map and 2005 survey seem to "upset the neighborhood" slightly...

JBS

From the appellate court:
¶ 15 Thus, the circuit court's obliteration finding conflates the location of section lines with property lines. As a result, its final judgment states:

Judgment affirmed in part; reversed in part, and cause remanded with directions.

The appellate court ruled that because the circuit court ruled boundary by Aqu. that would prohibit them from ruling it as the true section line because Aqu. requires that the true line is in dispute, therefore it could not be identified.

The Supreme's affirmed the part of the decision that the boundary is Henn Road. The supreme's were not asked to review the reversal of the appellate court of the circuit court ruling that part of the judgment suggesting Henn Road is the section boundary, and remand for the circuit court to enter judgment declaring the road is the property boundary.

They did come as close as they dared to reversing that ruling that they were not asked to rule on. They ruled that Henn Road was not the boundary by the "legal doctrine of aqu." but by evaluating evidence of common usage and aqu. In other words they refused to say the boundary is determined by the doctrine but it is the boundary because it is the best available evidence. They did not agree with the contention that the aliquot deed was unambiguous and therefore extrinsic evidence is not permissible. Of course most competent surveyors know the best available evidence is pointing to an obliterated line. Let's look at the best available evidence of obliteration:

¶7 We begin the history in July 9, 1886, with the
original survey of Henn Road. The Butternut Town Board laid out
a public highway, Henn Road, described as beginning at the
"southwest corner of section 9 (nine) thence north on the sec
line to the north west corner of section 9 (nine)."
¶12 Based on the evidence introduced at trial(1912), the parties
stipulated that the common corner of Sections 4, 5, 8, and 9 in
Township 41 North, Range 1 West, Ashland County, Wisconsin, is
at the intersection of the center line of Henn Road, setting
Henn Road as the boundary between Sections 5 and 8.
¶14 One example of reliance by the government and property
owners upon that common corner can be found in the 1935
conveyance of land from the then-owners of parcels in Section 8
to the State of Wisconsin for the purposes of building a new
Highway 13 through Section 8 and the plat of the right of way
required. The conveyance described the land conveyed by
reference to the northeast corner of Section 8, and the Plat of
the Right of Way Required shows the common corner of Sections 4,
5, 8, and 9 at the original intersection of the north/south and
east/west parts of Henn Road
¶53 Henn Road is the landmark that was laid out closest in
time to the original government survey. The records of the
boundary dispute litigation between neighbors owning property in
Sections 8 and 5 in 1909 and 1917 (involving the 1912 survey
relied upon by the Boersts) provide supporting evidence that
Henn Road was reputed to lie on the boundary line and that the
center line of Henn Road has been relied upon by the property
owners in the area as the boundary line for many, many years.
Finally, as stated in City of Racine, resurveys may be
unreliable as evidence of a boundary line

So the supreme's did not rule on Henn Road as an obliterated section line but they also did not rule that the boundary was established by the legal doctrine of aqu. Instead the ruled on boundary by best evidence. The same evidence should have been used in re-establishing an obliterated corner. Future surveyors would be wise to consider this decision as direction to monument the corner on Henn Road and leave the aliquot descriptions alone.

> So the supreme's did not rule on Henn Road as an obliterated section line but they also did not rule that the boundary was established by the legal doctrine of aqu. Instead the ruled on boundary by best evidence. The same evidence should have been used in re-establishing an obliterated corner. Future surveyors would be wise to consider this decision as direction to monument the corner on Henn Road and leave the aliquot descriptions alone.

My read would be that the S.C. did rule that the section line WAS obliterated, not lost. And that the 2005 survey failed to recognize the "best available evidence" being the 1908 survey of Henn Road followed by the court rulings and continued reliance (made evident by acquiescence) since that time. Any time a section line is determined by "best available evidence," it is being treated as "obliterated," not "lost."

JBS

It seemed to me the court was avoiding the issue if the actual original corner turned up. They are not going to break the rule that the original lines can't be moved, that's funamental.

I don't know whether it was new law but the court specifically sorted out the issue of whether a mistake would leave open forever going back if original evidence was found. As most times when repose (long time) is at issue the court said that after the statute of limitations was past there was no going back even if a mistake in locating the boundary was involved.

So even if the original GLO corner popped up it appears to me the court is set up to say that Henn road is the boundary between the landowners, but not the section line.

So a section line isn't some holy line that can't be subject to agreement when unknown (for a statutory period). It's just another line, it's not sacred when it comes to the origin of title.

The court is doing what is best for society, not for archeologist surveyors digging up old bones from the past. It's just common sense that once a boundary has been respected for a hundred years that old bones shouldn't disturb the peace.

Surveyors need to be cognizant that they are messing with peoples property and lives when on the land. The laws given us by the courts should be front and center. It's not just some scientific, mathematical exercise, there are humans involved here with lots at stake for the property owners and the peace.

The court got it right!

My read would be that the S.C. did rule that the section line WAS obliterated, not lost.

Absolutely. However at the same time they stated that they were not asked to rule on the matter of the location of the true corner. They also stated that the location of the corner could not be determined by convincing evidence for either location. Finally however they turned to the best evidence of the boundary and perhaps inadvertently or on purpose ruling why it was also best evidence of section line. It almost seems like they remanded section corner to the county surveyor who should have accepted the corner the 2nd. 2005 surveyor attempted to file.

Wisconsin Supreme Court settles ... uh what?

The court only heard the evidence and ruled on the two properties, The line is where the court held it for those two properties only. They did not, nor do they have the authority to disrupt any other established boundary's based on the occupation and evidence of the location of the original line. Any surveyor who believes that the courts intent was to disrupt others had best ask the Attorney General of the State if he could support such a view.
jud

Wisconsin Supreme Court settles ... uh what?

> The court only heard the evidence and ruled on the two properties, The line is where the court held it for those two properties only. They did not, nor do they have the authority to disrupt any other established boundary's based on the occupation and evidence of the location of the original line. Any surveyor who believes that the courts intent was to disrupt others had best ask the Attorney General of the State if he could support such a view.

Jud, the question, though, was whether the court held that the section line was in some position other than originally placed by the government survey or whether they simply upheld a boundary that was mistakenly recognized in some position other than the section line. It really boils down to how the adjacent properties will be described after the decision, i.e. whether Party A who had record title only to land in Section X will have his title judicially amended to reflect ownership in Sections X and Y as would, I believe, be required by Wisconsin statutes had the case been brought as one of title by adverse possession.

Wisconsin Supreme Court settles ... uh what?

The parties have two adjacent titles. All the court ruled, which is pretty standard for boundary by agreement in many states, is where the line between the parcels is. It's really that simple, the line was unknown and established in this position. There was no transfer of title and there doesn't need to be. At this point for the two parcels concerned, it does not matter where the section line is nor would it change if the original corner was proven. The court ruled that even if a mistake was made, after the statute of limitations for time has run, the line won't be corrected.

For mathematical purposes a description of the shape of the parcels could be written for computer users. For title nothing needs to be done other than be aware of where the court said the line is, Henn Road, you can find that with your car.

Wisconsin Supreme Court settles ... uh what?

> The parties have two adjacent titles. All the court ruled, which is pretty standard for boundary by agreement in many states, is where the line between the parcels is.

Yes, but the obvious question (you know, the one that I asked above) is how the boundary will be described, i.e. whether the court has judicially moved the section line or whether the court will require a metes and bounds description of the separate pieces tied to the original government subdivision to establish title by judicial decree. If the latter (which Wisconsin statutes would appear to favor), then one party will now have record title to land in one section in which they previously did not.

Wisconsin Supreme Court settles ... uh what?

I read the Appellate and SC opinions. Nothing was said about how to describe the parcels. Nothing was said about correcting any descriptions. Most boundary line disputes result in opinions that never addresses this supposed problem.

I suppose if you really need natts butt on mathematical description you just go and survey down Henn Road and on around the perimeter, drop the aliquot parts part, tie it out to a couple of solid record control points and let her ride. Do you really need to fuss with all the archeological part of origin of title, You got a supreme court ruling you can reference for the boundary line. It's a problem only in the minds of nerds like us. I suspect the court would think anyone, even a surveyor, could find Henn Road.

Wisconsin Supreme Court settles ... uh what?

> I read the Appellate and SC opinions. Nothing was said about how to describe the parcels. Nothing was said about correcting any descriptions. Most boundary line disputes result in opinions that never addresses this supposed problem.
>

Exactly so. Hence my question. Wisconsin statutes, as I recall, are clear about the immutability of the government subdivision, so the only option that the court will have is to deliver record title to land that wasn't within the abstract of one of the parties and to describe it that way.

Wisconsin Supreme Court settles ... uh what?

The court never made any ruling about where the section corner was but instead relied upon the best available evidence which the court ruled was Henn Road.

So, I suppose as far as the court is concerned with regards to these parcels title, Henn road is the section line.

If the top of your priority as far as where the boundaries are is the record description, at least where I work you have big problems. There is a record world and a real world. The title folks have worked for a long time making it all fit together on paper (mostly math, no monuments) and get all warm and fuzzy about it. The real world has a totally different set of dimensions. To resolve these problems either the record or the physical world must yield, that is if you want the record to describe the real. In my mind it's easier to bend the record than the real. It would be one heck of a construction project to make my county a set of perfect square sections (like the record). You'd probably need to move trillions of yards of dirt and relocate all the improvements. People stuck in the record world just don't get it for some reason. Maybe at the second coming God will fix it, so there is hope!