Ditch as BoundaryPosted by kscott on April 11, 2012 at 10:25 pm
Does anyone have a citation where a man maintained ditch was held or not held as a boundary. I am working in a land dispute where a boundary line is referred to as being 5′ west of a ditch. Only now the line varies from within the ditch to 5′ east. The deeds were generated by a survey about 30 years ago “to clarify the boundary”. The deeds were executed three weeks subsequent to the survey. I have examined aerial photography back to 1937 but it is inconclusive due to registration and resolution. I have no evidence that the ditch has moved but it might have.
I appreciate any help you can offer.
- 25 Replies
- MemberApril 11, 2012 at 11:50 pm
Excellent question. I will be interested in any answers forthcoming. I received a call once about locating such a tract, but, the client backed out when I gave him an estimate of the cost. In that case the call went to the center of the ditch. The caller said it was something like 50-feet wide and completely overgrown with trees.
- MemberApril 12, 2012 at 1:04 am
Check your county drain commissioner’s office for records maybe
- MemberApril 12, 2012 at 2:11 am
Does the adjoining match?
- MemberApril 12, 2012 at 2:26 am
I would talk to neighbors that have lived in the area many years. Maybe former owners as well. It might be an issue where their accounts on the ditch history, might have the most weight. Also the Road Dept/ Public Works for any improvements, maintenance, etc.
- MemberApril 12, 2012 at 2:31 am
> Only now the line varies from within the ditch to 5′ east.
Just curious, what evidence do you have to support this?
RadarI hope everyone has a great day; I know I will!
- MemberApril 12, 2012 at 2:43 am
If you could dig some cross sections with a small backhoe you might see a difference in soil layers if ditch was moved.
Also who has senior ?
- MemberApril 12, 2012 at 2:46 am
> boundary line is referred to as being 5′ west of a ditch..
My expert opinion as a brush ape would be that..
the location of the property line is 5 feet west of the ditch at the time property description was recorded.
If the ditch moved, the property line would not.
- MemberApril 12, 2012 at 3:16 am
No cite here just a comment.
If the ditch hasn’t moved then isn’t it simple, the boundary is offset 5 feet from the ditch. What caused the dispute? A man made ditch would be like any other natural monument like a road.
If you are trying to make a mathematical line fit a ditch you might consider how the described line came into being. Did a “surveyor” go out and take a few shots 5 feet offset the ditch and then connect them with straight lines when the ditch wondered a bit. Did someone draw some lines on a photo and then convert that into a series of straight sections to create a math line. How complex would you need to get to create a description that went straight down the center of the ditch without doing a little fudging?
If the ditch truly has moved I can see an issue. If the ditch is basically in the same place as the day the description went into the record isn’t it really simple as the boundary is 5 feet offset the center of the ditch and its the math that is not exactly precise. Follow the ditch not the mathematics!
You say its an irrigation ditch. Is is concrete lined. Do they maintain it with backhoes (dirt ditch). Why all the fuss? The ditch probably has and easement (prescriptive at least if not statutory). Sounds like a couple of neighbors just looking for a way to waste some money to me. What you going to do with the banks of a irrigation ditch anyway?
- MemberApril 12, 2012 at 3:18 am
Thanks for all of the input. The ditch is about 2-4 wide. It predates the parcel I am surveying. The original deed simply stated the intent was to convey the land between the section line and a line about 5′ west of the ditch. The property is slightly over 1 acre. The section line is well monumented and questions of its veracity are not a factor. The part I am struggling with is the 1980 era survey which resulted in Quit Claim deeds from the 2 adjoiners on the other side of the ditch to the property I am surveying. So there is no deed conflict in the bearing and distance.
The conflict arises with the deeds still referring to a line 5′ west of the ditch. These deeds all have the statement that the purpose is to clarify the boundary! The survey shows the ditch 5′ east of the boundary line. It also shows a house and other features which still exist and the ties to the boundary all check within 1 foot or less. I have queried the ditch company which resulted in no help due to limited records and no long time employees.
The neighbors already have their attorneys lined up to fight it out. I have located trees and stumps which indicate that the ditch, at least in some areas would have had to have been moved 10′. For 2/3 of the line in question the boundary basically falls in the ditch.
So my puzzle is how did the surveyor get everything but the ditch right or did the ditch get moved? And, is the court likely to rule that the call to the ditch (5′ offset) is controlling like a natural monument. That is why I am searching for a citation where a court made the differentiation between a natural waterway and a maintained irrigation ditch.
Thanks for the recommendation of the trench examination. I had not thought of that and I will pass that along to the legal team. I don’t think I will try it without a court order as I have already been cursed and threatened.
- MemberApril 12, 2012 at 3:30 am
I don’t consider a man-made and maintained irrigation ditch a natural monument. One of my own outfall ditches was once moved by a neighbor to go around the east side of his house where it had previously gone on the west side. I generally don’t give natural monument status to roads either although I often find them to be the “best available evidence” to a vague location.
The surveyor in the 1980’s was the source of the description. I forgot to mention that both parties in this feud have surveys by him showing the same data.
Thanks for your comments.
- MemberApril 12, 2012 at 3:54 am
Whether a ditch is a natural monument I can understand but it certainly is visible and locatable. So a call to it would control over the bearings and distances. The ditch is a monument whether a natural one or not. But a ditch can be moved just like a road, pipe, bar or stone. So I’d say unless it can be shown that the ditch has moved that it controls regardless of the bearings and distances in the description.
Its no different than a pipe called for in a description that doesn’t fit the bearings and distances. It controls unless it can be shown that it was moved or disturbed.
- MemberApril 12, 2012 at 4:00 am
Not sure I fully understand the issues. Is the problem that the courses and distances from the ’80s survey do not match the described boundary 5′ west of the ditch?
Monuments are more controlling than courses and distances. There are many cases that state that basic premise.
I would believe that the presumption is to the called for monument, rebuttable upon proving the ditch “moved” between the time the deeds were written and now. However, if the ditch moved and the respective owners still acquiesced in the “new” position of the ditch, then that line may hold.
It sounds like you have a little more research and investigation to do. Find all the relavent evidence, analyze it, apply the applicable law(s), and professionally present your opinion to the owners.
Ditto what LR Day said.
Oh yea, I almost forgot – collect $$$$$
- MemberApril 12, 2012 at 4:18 am
Once called out it’s a monument. Natural or not is not an issue.
If you can find it in the field and locate it, it’s up to your adversary to prove you wrong.
- MemberApril 12, 2012 at 9:57 am
I would make the argument that if the ditch was moved after the quitclaim then no transfer in property has taken place. The ditch became controlling until it was moved . If both parties signed the quitclaim then then intent of the parties would be by bearing and distance . It would be then a case of adverse claim perhaps . If the ditch is in its original place then someone screwed a survey.
- MemberApril 12, 2012 at 10:28 am
Gunsmoke, season 8, episode 7
Here’s my citation, Matt says the boundary moves with the ditch!;-)
Just kidding, I agree with the brush ape below (above?).
- MemberApril 12, 2012 at 11:15 am
> So my puzzle is how did the surveyor get everything but the ditch right or did the ditch get moved?
A Surveyor is a fact finder. Report the facts that everything in the original survey was found to be correct except the ditch.
Spend some more time talking to the old-timers in the area for parol evidence about the ditch issue.
Hire an expert to examine the possibility that the ditch was moved and let the lawyers fight it out.
It might be helpful to flag up the centerline of the ditch per original plan to aid in determining whether it was moved. If there were big trees w/ established root systems, this would tend to disprove the theory that the ditch was moved. WIth a little digging, a soil scientist should be able to determine if the original soil structure was disturbed and if siltation had occured from the original ditch.
- MemberApril 12, 2012 at 11:47 am
> > So my puzzle is how did the surveyor get everything but the ditch right or did the ditch get moved?
> A Surveyor is a fact finder. Report the facts that everything in the original survey was found to be correct except the ditch.
> Spend some more time talking to the old-timers in the area for parol evidence about the ditch issue.
> Hire an expert to examine the possibility that the ditch was moved and let the lawyers fight it out.
> It might be helpful to flag up the centerline of the ditch per original plan to aid in >determining whether it was moved. If there were big trees w/ established root systems, this would tend to disprove the theory that the ditch was moved. WIth a little digging, a soil scientist should be able to determine if the original soil structure was disturbed and if siltation had occured from the original ditch.
:good: I agree 100% with you Perry, I can’t see how a Surveyor’s forensic soil analysis would hold up in any Court other than a Kangaroo one (unless the Surveyor has some expertise in that area). The Surveyor was hired to provide a professional boundary opinion if he needs to hire another Expert to provide more information then that’s what he should do.
- MemberApril 12, 2012 at 11:56 am
I fail to see the difference between a ditch and torrential creek.
- MemberApril 12, 2012 at 12:00 pm
> > The Surveyor was hired to provide a professional boundary opinion if he needs to hire another Expert to provide more information then that’s what he should do.
Exactly Ralph, That’s why I suggested hiring a Soil Scientist. Sure, it’s a black art but some people actually believe in it.
A mentor once told me that the Primary Duty of a Surveyor is to minimize his liability.
Kris, I think it’s a man vs. nature thing.
- MemberApril 12, 2012 at 12:43 pm
i’m not sure of a court citation but i do know of boundaries conveyed by ditches. i’m not sure if it should be considered a natural monument, would one expect the ditch to move over time?
was it a scribner’s error where the intention was to convey 5′ east of the ditch per the surveyor’s plan and the lawyer gummed up the wording by typing west? how is the reputation of the previous surveyor? if he did good work great, if his crew has a reversed scope, then not so great. (i worked with a guy who would leave the scope flopped every so often. it kept me on my toes.)
who the heck would not just make the boundary the ditch? a 5′ swath on the side of a ditch is pretty useless except for the maintenance of the ditch. leads to the question, who maintains it? or better yet, who maintained it for the years following the cross conveyances? that would get you some information on the original intention.
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