Experience with adverse possession/quiet title
I’m curious what you guys have experienced with adverse possession cases when a land owner does not dispute the surveyed line but claims to the old fence regardless of the survey.
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In my case, it was a ditch, but yes. Both parties agreed that the centerline of the ditch was the property line (owners were farming the ground to the top of the ditch on both sides). My client had been farming to the top of the ditch over a strip of ground that was (to save a lot of words) “his neighbor’s.” I wrote the description for the sliver between my client’s property line and the centerline of the ditch and the neighbor conveyed the piece to my client with a Quit Claim deed. (attorneys were involved, of course)
Yes, lots of experience.
Agreeing to the described (deed) lines should be one of the elements of an AP claim.
This is something that is going to be very state-specific.
regardless of the survey…
Generally, I tell my clients; they don’t have to do anything.
life was great here on Primrose Lane SW until Dougie showed up! Why should you need to spend all that money?!? Just know that this will be shown on my Record of Survey and will show up in a title search, becoming an encumbrance to the titles of the affected properties. You can take my advice on how to make an equitable resolve; or you can take it to the attorneys and let them milk it for all it’s worth. We’ve all seen it happen…
They have 3 basic choices:
- Don’t do anything
- Take your surveyors advice and clean up your title
- Get out your check book and contact an attorney
YMMV
I hope everyone has a great day; I know I will!
Why are you thinking adverse possession? Could this boundary meet your state’s definition for an acquiesced boundary?
I mean….that’s going to be more than what I as the surveyor can handle. My opinion is laid out in my record of survey, and if a landowner elects to take it to court after the survey is complete…not much I can do about it.
If your state allows for Boundary Line Adjustments/Agreements, that might be an option, but for true adverse possession, they need an attorney rather than a surveyor.
“…people will come to love their oppression, to adore the technologies that undo their capacities to think.” -Neil Postman
The essential part is an MO old fence is off on one end of a 40 by more than 80′, as verified by local PLS. The encroachment is on land that has recently been sold by the heirs of the out of state owners who have never been on the land. Total encroachment is a few acres.
Buyer of land shares survey results with neighbors who have stated they will not give up or buy the occupied (fenced) land. Next logical step is? Do nothing? Do something?
RodStates are widely different with respect to AP.
Fences being off can create AP in one state and be totally irrelevant in the neighboring state.
But I believe that every state has well defined elements relating to AP.
Often there are remedies available for fence/deed line mismatches without evoking AP.
Put $20,000 on a table and you can begin to litigate an AP claim. Not finish it of corse, that will cost waaaayyyy more.
Nothing for you to do at this point. You’ve informed your client of the encroachment. They’ve discussed it with the encroacher, and been told “go away, or I will taunt you a second time”. It’s up to your client to decide if they want to storm the castle (get an attorney on the case), or leave the situation alone.
I worked as a tech doing the field work for a similar case a couple years ago. Rural properties with an old 3-string barbed-wire fence more or less along the boundary, a 1/16 line. The south property sold and the new owner had their property surveyed. Surveyor set pins, flagged the line, and filed a map, showing the fence. The fence was on the new owner’s property by as much as 75′. See the attached photo showing that portion of the survey. The new owner begins removing the old fence in preparation for presumably building a new fence on the surveyed line. The owner to the north sees the fence being removed and hires an attorney who files the necessary document to have the fence removal stopped. The company I worked for at the time gets hired by the north owner to survey the fence and provide expert testimony for the adverse possession case. I left that job before the scheduled court date, but I heard that the judge ruled in favor of the north owner’s claim of adverse possession. However, I haven’t seen any new survey maps filed to support holding the fence as the line, nor are there any reformed deeds that I can find. I will say that from my experience as a tech it was not a good way to foster neighbor relations. By the end of the ordeal both owners hated each other thoroughly, all the survey work had to be performed on days mutually agreed upon by both parties’ attorneys, and the south owner filmed us working the entire time in hopes of gathering some evidence to be used against us. Definitely avoid that type of situation if possible.
Typically, in my world, the cost of the litigation would far exceed the theoretical value of the land in question. It takes two people, on opposite sides, who possess more dollars than sense.
Example from a couple of weeks ago. We have a significant portion of the largest city in the county where all east to west lines run parallel with the north line of the quarter section while the north to south lines run parallel with the west line of the quarter section. The internal angle between those two lines is somewhere near 87 degrees. Most lots are roughly 150 deep by 50 feet wide. Fences, buildings, etc. laid out perpendicular to a front lot line look good, but, are normally using part of an adjoiner’s property. The lady of the house watched us set her SE corner about four feet over into her pea gravel driveway that was only eight feet wide. Her NE corner appeared to be two feet into her neighbor’s property (based on a chain link fence). Ner NW corner was about three feet to the south of said fence and her SW corner had a similar problem. The call for the survey came because the neighbor to the south appeared to be using some of their property. That turned out to be a very false assumption. She was stripping the flags and flagging from our bars about ten minutes after each had been set. She kicked dirt over the shiny new caps on the bars and piled pea gravel over the one in the driveway.
They had recently sold the property to the south, not realizing the harm they were doing to themselves.
“Typically, in my world, the cost of the litigation would far exceed the theoretical value of the land in question.”
In my world the real estate is a wee bit higher by the square foot than in yours but that statement still holds true. An AP Claim is rarely worthwhile in economic terms.
An AP case is rarely about where the line is and more about the pissing match the 2 neighbors got into. Money is no object; as long as we can make that SOB pay!
I hope everyone has a great day; I know I will!There is quite a bit to glean from the drawing. For starters, the 1/16th corners are about 30′ north of the east-west fence line.
Are they monumented math positions?
Were they determined from 5 existing original monuments?
I’m guessing no. So are they prorates built on prorates?
My point being is how historical is the fence, start with patents and work forward in time and figure out how old the occupation is before throwing it out. If the patentee established those 1/16th lines (even if incorrectly mathematically) it’s becomes difficult to reject it (the entryman can be the first surveyor). Even if the original monuments marking the NW and W1/4 are still existing (but I’m guessing they aren’t).
How do those fence positions relate to fences throughout the two sections. Who was the first patentee. If there is a way to accept the historical section breakdown then the claims of AP fade away. Clearly the fence is suspect since it doesn’t hold good line and wonders; a big check against accepting it. But, it’s probably not the only occupation evidence, the fence heading west into the next section is important and the fences running south and east from the CN1/16th will bear some weight. Once you work out all that, then it’s a big step to throw all the ownership into issue. Essentially the properties now have title problems reviled or created by the surveyor. While lawyers may like AP cases, I can tell you courts often do not. Honestly, in these situations, math means nothing, history means everything.
There definitely was a lot of math involved in the history of the section monuments out there, just as you suspected. The section corner to the north of that 1/16th monument was reset in the late 80s by double proportion, and for unknown reasons that 1/16 monument was set at the same time, despite having no apparent relevance to the property being surveyed at the time. Clearly the fence isn’t remotely straight, so I don’t know that arguing that the fence was intended to be built on the line of an aliquot part would do any good either. I believe the argument was purely AP and included testimony from previous owners in that area that the fence was assumed to be the property boundary.
As for financial motivation for the AP, there is an irrigation ditch in the disputed area. Water is gold.
That typically happens, a double prorate is used to control 1/16th lines and of course it seldom fits perfectly. Ditches work differently there it seems, here it’s irrelevant who’s property they are on, everyone gets access to a ditch if they have water rights attached to it.
Not all fences are intended to follow boundaries. That fence not being very straight makes me think that it was intended merely to “turn the stock” rather than to mark any claim of right. I have doubts that it would bear up to an AP claim. The burden of proof is on the claimant to show that the fence was intended to follow the claimed boundary. A simple denial would likely be sufficient to defeat an assertion that it was.
As others have noted, the provided map gives us no clue about the value of the claimed markers. Found or set and from what evidence?
In the 3 states I am licensed in the basic requirements of AP – exclusive, hostile, continuous, etc., etc. – are similar if not identical (notwithstanding Oregon’s “statutory AP” version, which makes successful AP claims post-1989 very rare) . But the nuances as to what actions constitute these elements vary.
For the record…I found very few examples of AP in the Oklahoma court decisions. The OK court greatly prefers practical locations.
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This reply was modified 5 months, 3 weeks ago by Norman_Oklahoma.
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This reply was modified 5 months, 3 weeks ago by Norman_Oklahoma.
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This reply was modified 5 months, 3 weeks ago by
Doesn’t dispute the survey but claims to the old fence? That’s a dispute my friend. My experience is when encountering conditions like this it usually isn’t AP or an encroachment. Usually acquiescence but not always. Can’t tell which without more facts.
A thing to consider in AP cases is trespass. AP happens the moment the statutory time period is met. The judge ruling in favor of the adverse possessor is essentially ruling that said person has owned the land in question since the all the requirements of AP were met. I’ve been involved in one AP situation where my client (not a nice guy) was sure he already owned the property by AP. If the situation had been reversed, and I was surveying for the abutter, the AP landowner would likely have sued me for trespass and/or damages if I’d cut anything on the property he was claiming. I’m not sure how that would play out in court since there’s an obvious gray area, but if a neighbor is telling your crew to get off his property, you may want to listen even if you know a judge has yet to formalize the adverse possession.
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