Activity Feed › Discussion Forums › Strictly Surveying › Boundary question–stone walls & trespass
Boundary question–stone walls & trespass
dave-karoly replied 4 years, 10 months ago 30 Members · 68 Replies
Steve, the wall isn’t an issue on the boundary, and therefore not considered in any priority of calls. The wall issue is solely AP, and whether it is a party wall or owned by one of the abutters. Not an issue of advocating for a client. The boundary line itself is locked in and not in dispute.
I have always been taught to show the facts without describing ownership. If a client or neighbor asked me about AP, I would direct them to consult an attorney. I as a surveyor cannot make that call. I am also a notary. Maybe I take a sworn affidavit, but I would never offer legal advice as regards AP. Let the lawyers fight it out
Ah, you’ve just opened the Pandora’s box of expert measurer versus professional (as in, PLS). I’ll leave you with a quote from Jeff Lucas:
“Any highly trained technician can gather and report facts. This is not professional-level work. Professional-level work is what the practitioner does with these facts in dealing with the people, the situation and the ideas, and in fulfilling the trust… What has been entrusted to the land surveyor is the security and welfare of the client’s property and associated property rights… Yet the cases involving land surveyors and boundary disputes are replete with example after example of surveyors who don’t understand that their survey is a professional opinion.”
That being said, in the case I raised, there’s no boundary dispute, and the issue of AP is before the superior court. The court will adjudicate the issue of AP–not surveyors–but the court will also expect the surveyors involved to render a professional opinion about probable time of possession, and whether the AP has been open and notorious.
If the monuments at all corners are in conformity with the deeds then the ownership follows the monuments, not the face of the wall and not the center of the wall. Absent calls to either the face or the center you are stuck surveying to the monuments. Claims of adjoining parties not supported by written evidence are to be resolved by the Court, not the surveyor, show what you surveyed and be an advocate for the truth. At best in my opinion the position of the wall has been acquiesced to by the adjoining parties, therefore the builder of the wall has a long standing easement to maintain it where it exists, but does not have fee to it all.
Paul in PA
What Paul said.
Thanks for the comment. Again, the boundary per se is not in dispute. Every surveyor who has run the line agrees. And the issue of AP is before the court, and the court is actively seeking professional opinion from the surveyors involved about the wall itself.
Fee may or may not flow from a court decision. That’s probably six to nine months away. But in pre-trial hearings, the issue arose about centerline of wall or outside face. The court is not seeking expert measurers; it is not seeking the “truth.” What it is seeking is professional opinion–and has overtly requested treatises and texts that might support leaning in one direction or another.
Mulford supports the outside face, presuming the wall is a “bank” or retaining wall. AP case law is all over the board. And I’m close to concluding that our hallowed survey texts–Robillaird, Brown, Grimes, Lucas, et al–are not, regarding the topic, definitive. That’s fine. My original post was intended to ensure I wasn’t missing something obvious in the literature.
Interesting reading. I assume you’re referring specifically to “… also
allows parties to settle their own boundary lines, and considers acquiescence in a
particular line or monument, for any considerable period, as strong if not conclusive
evidence of such settlement.”MHAn easement by prescription is probably easier to win than ownership by adverse possession. The adjoiner can have the satisfaction of owning to the line near the center of the wall, and the wall can stay in place.
.I found some good information at https://www.pobonline.com/articles/98011-unmistakable-marks-neighborly-accommodation-or-not.
MHIf you want to stir things up, start talking about duties. Each has a duty of lateral support to the other. If your guy doesn’t maintain the wall and it collapses onto the neighbor then he would be liable for cleanup, etc.. If the other side doesn’t allow maintenance or takes the wall down and your guys land collapses then other guy is liable. The Brown text has some talk about this if I recall. They each seem to want some or all control of the wall. I wonder if they know that means they’re taking on some or all of the liability depending on outcome. Does one want to tear it down and replace with something else and the other want to keep it and maintain it? By the time they’re done with attorneys and experts (and are still arguing about the wall regardless of judgement) they probably could have had the whole thing redone and split the cost, plus had leftover for week guided fishing trip in Ontario:)
If you could determine who built the wall, when it was built, and where it was meant to be built, ie, lot line down center, or all on lot A, or all on lot B, it would help.
It’s mystery is probably contained in its history.
N
“One of the basics is that when a person knows where his monuments are, they can not claim possession beyond those locations.”
Not true in Maine. “Under the Maine Rule, a claimant
can only establish adverse possession if he possessed with the correct
state of mind, which was described in, Preble v. Maine Central Railroad Co, as the intent ‘to claim the
ownership of land not embraced in his title'”Let me repeat, a surveyor surveys, and it appears all the surveyors agree where the property line should be. Your job is done, finding precedence is beyond your scope. Again I repeat, if owner A built the wall over the line, it appears owner B acquiesced to it, that is the principle of estoppel. Owner A has an easement to maintain the wall where it is. He does not however have fee to the land under the wall. Had he built the wall completely over the line, then one might be able to argue AP, but that is not the case here. Trespass was an issue that had to be raised in a timely manner, it is now a moot point.
If all the surveyors agree on the PL location, I would surmise they are all wise men. As for the landowners and their lawyers, not so much. I will not comment on the judge.
Some times it is necessary to consider that you return your fee and walk away.
Paul in PA
In my experience Judges presume Surveyors are expert in these matters and really want a Surveyors opinion. At trial level they don’t have to make far reaching legal conclusions, and usually don’t.
Had a case where shed was over line (had been for many years and not in good shape) and Judge said it remains, no maintenance allowed, take it down when becomes dangerous and re-build on correct side of line. Never mentioned easement, acquiescence, estoppel, adverse possession or anything else. Courts have the power of equity, and can use it to rule against (or for) any of the legal theories.
There’s an underlying reason they are arguing about ownership of the wall, and that needs to be addressed or they will be back wasting more of the courts time (and their money) with another lawsuit. As a well paid expert I would want to address that and help the court come to a reasonable solution.
Sometimes it’s best to up your fee and wade in as an impartial expert if you can find someone willing to foot the bill.
Trespass as an issue is raised when discovered. I trust that’s what you mean by timely.
Judges are hardly qualified to differentiate between retaining walls and farmer’s walls. They are not, nor are attorneys, experts in conventional wall use in a particular region. Reaching out for professional opinion to those who encounter these circumstances regularly is laudable. (And I agree with Duane’s last comment.)
- Posted by: Paul in PA
Let me repeat, a surveyor surveys, and it appears all the surveyors agree where the property line should be. Your job is done, finding precedence is beyond your scope.
Paul in PA
You are free to limit your services however you want, and it is prudent to stay within your areas of expertise, but this is the bread and butter for many of us. Its been years since I actually “surveyed”. A surveyor is usually the most qualified person to ask questions like this.
It won’t be a surveyor presenting the argument to the judge, but it will probably be a surveyor explaining what argument needs to be made to the attorney that will be presenting the argument to the judge.
I will give my “opinion.” This sounds like an ordinary established boundary to me, adverse possession has nothing to do with it. The surveyor that set the drill hole and rebar had no authority to move the decades old established boundary. Whether it runs down the face or down the center is the subject of common sense analysis, not technical rules in books. I refer the reader to Duane’s analysis posted above.
The common way it was done here on metes and bounds cut-out lots before the 1950s was the seller had a Surveyor lay out the new lot and set stakes or rebars or pipes or axles or whatever was readily available and the client was willing to pay for, no map was filed as required unless it was a subdivision plat. By the 1950s it was common practice to file a Record of Survey where a Subdivision Plat was not required probably because local ordinances began to regulate land division. Back to the 1930s, the Surveyor would give the bearings and distances (likely a sketch or letter sized plat) to the seller who would give that to the Lawyer (or Title Company). The Lawyer (or Title Officer) would write up the Deed and Description often omitting calls for monuments because everyone knew the law would recognize establishment so why not be concise? Some smarter, wiser Lawyers did include the calls for the stakes but it was not common. Then the buyer would ask “where are the corners” and the seller would show him the stakes the Surveyor set. The most basic surveying instrument, a string line, was used to lay out improvements, no need for Surveyors to run straight lines because those are expensive. If the original measurements were not great (in one case involving a hacked boundary they were 500 feet off) that didn’t matter because the stakes are the corners. If the string lines were crooked (trees, rocks, hill and dale) and the seller didn’t object within a reasonable time then those locations as they can be reestablished are the boundaries. It’s not adverse possession, it’s not an encroachment, it’s not an easement, it’s just a question of where is the boundary located?
My lead sentence when I started the post was, “I’m embroiled in a trespass case that hinges on ownership being to outside face of walls versus centerline.” I’ve mentioned several times that there’s no boundary dispute. The initial question was only about AP. By the way, there is no “decades old established boundary,” based on AP. Only a court can make that determination. The surveyor who set the DH and rebar about a decade ago was simply setting the subdivision lot corners, which were then confirmed by subsequent surveyors, including me.
It’s amazing, at least to me, how the thread veered off into issues of boundary when that never was an issue.
Thanks to all who have opined.
Establishment and AP are not the same thing. Unfortunately most Land Surveyors are woefully undereducated in this area of law. AP creates a new boundary, establishment physically establishes the described boundary. The Courts have long recognized that boundaries almost always get established inaccurately. The day a court is required to make my decisions for me is the day I hand in my license. I have yet to see a Judge out there surveying the boundaries, they expect me to do that.
The texts are great at describing how to mathematically lay out a deed description but nothing about when to do it or not do it that way.
Log in to reply.