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Hold the monuments (uncalled for) or not?
Establishing the section line is not an issue and the occupation lines up with the section line.
1907 (rural area, poor ag land, low value even today):
Beginning at the point of intersection of the northeasterly right-of-way of the railroad with the section line, thence north along the section line one hundred two and one-half poles, thence leaving said section line at right angles westerly twenty five and one-half poles to the railroad right-of-way, thence southeasterly along the railroad right-of-way to the point of beginning.102.5*16.5=1691.25
25.5*16.5=420.75Establish the point of beginning is simple, there is plenty of evidence of the railroad right-of-way and the section line is monumented. Run north 1691.25 feet, 1.5 feet south is an ancient fence corner post assembly. Run west at right angles about 440′ to the railroad right-of-way.
Alternatively if the ancient fence corner post assembly is held for the corner and run westerly along the fence about 10 degrees south of west (S 80 W) you intersect the railroad right-of-way at 421.05′. The neighbors have occupied up to this fence since at least 1959 and probably before. 1959 is significant because there is an unrecorded Survey Plat which shows a heavy line in the position of the fence. The Surveyor did a lot of surveys in the area and the County Surveyor recently obtained his files (he is deceased).
What to do?
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36 Replies
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My immediate response is to hold the fence for bearing which also matches the distance to the RR. You have ambiguity since holding the called bearing does not match the called distance to the railroad but the field evidence for the bearing on the fence matches the distance, that evidence seems to support all the other parts of the description (outside of the “right angles bearing” if I understand you correctly.
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> 1907 (rural area, poor ag land, low value even today):
> What to do?
There is no real evidence that the fence is intended to mark the boundary. My thinking is that 1.5 feet is not a significant difference in this case. I’d stick with the deeded dimensions.That is, pending a viewing of the adjoiners deed description, which may alter my thinking if not compatable.
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Is there any ambiguity in the acrage the parcel is being assessed for in taxes? By the time you get to the railroad the two lines diverge by almost 70′ which is about 1/3 of an acre.
Per Civil Code of Procedure 325
325. (a) For the purpose of constituting an adverse possession by a
person claiming title, not founded upon a written instrument,
judgment, or decree, land is deemed to have been possessed and
occupied in the following cases only:
(1) Where it has been protected by a substantial enclosure.
(2) Where it has been usually cultivated or improved.
(b) In no case shall adverse possession be considered established
under the provision of any section of this code, unless it shall be
shown that the land has been occupied and claimed for the period of
five years continuously, and the party or persons, their predecessors
and grantors, have timely paid all state, county, or municipal taxes
that have been levied and assessed upon the land for the period of
five years during which the land has been occupied and claimed.
Payment of those taxes by the party or persons, their predecessors
and grantors shall be established by certified records of the county
tax collector.Brad Luken, LS
(AZ, CA, NV & OR) -
You are taking a distance along the section line measured with an apparent precision of one-half pole or 8.25 feet and converting it to a distance with a precision of one hundredth of a foot, and then being concerned about “missing” the fence by 1.5 feet.
Am I missing something?
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> You are taking a distance along the section line measured with an apparent precision of one-half pole … and then being concerned about “missing” the fence by 1.5 feet.
>
> Am I missing something?
Yes, I think you are. The question, I think, is whether the fence corner is a monument of a previous “original” survey which should be held. -
There is no call in the description for any original monument. That question is not on the table. In that case we need to look for the best evidence we can find which indicates a reliance on the original survey. The ancient fence corner fits the original description exactly according to the precision of the original survey, in which the smallest count is one-half pole. The fact that we are an expert measurer does not by itself negate the fence corner in any way. The modern measurement we have reinforces it’s acceptance in my opinion.
In addition, the fence corner has apparently been relied upon by the adjoiners since 1959. I don’t see any reason to overturn the best evidence and set a new corner where the original “should have been”.
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Anybody still around that was involved with the sale/purchase of the property you are surveying? Interviews with the original parties or heirs to those properties might reveal more details about the nature of the fence you are considering.
At a minimum I would talk to current owners of the property and adjoiners.
Good luck.
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I’m with you Carl!
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> 1.5 feet south is an ancient fence corner post assembly.
[sarcasm]Did you measure to the wrong side of the fence corner post?[/sarcasm]
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Amen!!
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> There is no call in the description for any original monument.
Indeed. And I am aware of no court that has granted any dignity to this “original surveyor” dictum. No survey or monument is called for, only a distance. So the deed line is at the distance call.> In addition, the fence corner has apparently been relied upon by the adjoiners since 1959.
The fence may be the boundary line on the basis of an unwritten transfer of rights. But not on this imaginary “original survey” theory. -
In 1907 the entire northeast quarter was in single ownership with the fee strip railroad cutting through it diagonally. A reasonable hypothesis is the fence already existed and they just measured it up to write the description to parcel off the triangular parcel. It could be no fence existed but the buyer measured and laid out the fence himself.
The 1959 Surveyor did a lot of work in the neighborhood and probably was familiar with most of the owners. Unfortunately he didn’t put any notes on the map explaining holding the fence which is typical of Survey Plats of that era, just take my word for it, I’m licensed seemed to be common.
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This is not a case of Adverse Possession which is a Title Doctrine and requires clear and convincing proof.
This is a question of boundary location which requires a preponderance of the evidence. Where the boundary is located is a question of fact to be developed from the evidence properly weighted.
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Do you have access to old aerial photos of the area to see if the fence was there first?
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So is it possible for this boundary to ever become established and be retraced OR does it just get re staked from the deed continually until some unknown precision is reached like maybe 1 millimeter?
Are we retracing here or doing the original survey? Since this deed doesn’t meet some proper qualification to establish the boundary is it too late to ever establish the boundary? Do the landowners even count in this situation?
So if the landowners have accepted the old fence as the boundary line for the last 40-50 years, why can’t the surveyor? How do you think the fence got there so close to math in the deed? Counting smokes riding or horse or maybe somebody was “surveying” with instruments. So what the heck if they weren’t licensed, or filed a survey or put absolute calls in the deed. Looks like they measured it off pretty good to me! Even if the landowners did it it should qualify as a survey.
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> What to do?
Well, I’d want to know first whether the “ancient” fence looks old enough to have been built before 1907 or not. If so, the hypothesis that the boundary description was intended to run along and parallel with the average line of the old fence seems much more reasonable than the prospect that some later surveyor would have carefully calculated the bearing of a line that would intersect the railroad right-of-way at 25.5 poles and a fence was built to that line.
If the “ancient” fence is really just twenty-five years old, none of that would apply, of course.
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What to do?
What to do?
Quit giving scenario’s of a half ass*d situation when the work is half ass*d done. If you can’t figure it, maybe you should try another profession. Or are you trying to present a PDH/CEU moment?
Pablo B-)
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> So is it possible for this boundary to ever become established and be retraced OR does it just get re staked from the deed continually until some unknown precision is reached like maybe 1 millimeter?
If a future surveyor has the ability, the budget, and the inclination to measure to the millimeter then yes, he/she could restake the corner. That is what I’m saying. This “original surveyor” idea a simply has no basis in law. If I’m wrong, show me the case law.> Are we retracing here or doing the original survey? Since this deed doesn’t meet some proper qualification to establish the boundary is it too late to ever establish the boundary? Do the landowners even count in this situation?
We are running out the deed. The land owners can do a lot line adjustment if they want to move the property line. Keep in mind that Dave is in a recording state. If we were talking about monuments from a survey that were found 1.5 feet off and the source, the timing, and the owners involved were known I’d be more inclined to accept that monument. Monuments are set to define boundaries. Fences are built for all sorts of reasons and many, if not most, have nothing to do with defining boundaries.> So if the landowners have accepted the old fence as the boundary line for the last 40-50 years, why can’t the surveyor?
Just because a fence stands there doesn’t mean the owners have ever given it a moments thought, and it certainly doesn’t mean they have ever had any discussions about it, let alone an agreed boundary. It can just be a convenience fence. The Oregon court, for example, has expressed that in order for there to be an agreement, there first has to be a disagreement. So if the adjoiners just never discuss it, there can be no agreement line. Furthermore, the existence of an agreement, if there is one, has to be proven by clear and convincing evidence, not just the imaginings of a surveyor.>How do you think the fence got there so close to math in the deed?
Dave doesn’t know what those people back then had in mind and interviewing a chain of adjoining owners is well outside of the scope of what any surveyor would ever be expected to do. Fences are often built near a property line but with out an the intention to define the line by the fence. A farmer with a rag tape who is just trying to enclose his land, but too cheap to hire a surveyor, is never going to be legally bound by that fence line. -
What to do?
> What to do?
>
> Quit giving scenario’s of a half ass*d situation when the work is half ass*d done. If you can’t figure it, maybe you should try another profession. Or are you trying to present a PDH/CEU moment?Well, there are two components to the problem, aren’t there? The first is what the parties most likely intended in 1907 as deduced from the writing. The second is what evidence there is that will support that conclusion. It’s a balancing act in my view.
The original deed had a latent discrepancy that is reconciled well enough by letting the call for “at right angles” be “approximately at right angles”, which I, while unfamiliar with California practice, would think to be consistent with a deed written in poles and half-poles (not to be confused with Pooles and Loprestis), i.e. an unsophisticated effort.
But if the fence remains appear to be of sufficient age to have been in place in 1907, then that is evidence that would support using the old terminal posts of the fence as monuments on the boundary and just extending or shortening the line defined by them to intersect both the right-of-way line and the section line which I assume were boundaries of the tract divided in 1907.
NB: If the units are actually in Pooles, you should look for a precast concrete monument at each of the corners in question. Whether you drill a hole in the center of its top is up to you, but it would probably be smartest to post to an internet formum asking permission to do this. Now if you are dealing with a Half-Polish survey, you probably ought to survey all the structures along the railroad for several miles in order to have something substantial to post to an internet forum. Hopefully, there will be spirals. As for the section line, there should be plenty of time to start at one of the township corners and retrace all of the surveys that were ever made in the township to present.
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“We are running out the deed.”
So is that a retracement survey (boundary established indicated by what physical evidence being retraced)?
Or is that the original survey (line never established and no physical evidence)?
Are you authorized to do anything else except original surveys and retracement surveys (such as run out deeds – put paper on the ground)?
If you are doing the original survey have you been authorized by all the landowners (to run out the deed and establish their boundary between them)?
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