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Landscape edging establishes boundary
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81 Replies
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Interesting.
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Interesting that Iowa has statute law addressing R&A.
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Isn’t creating a new parcel A in lot 4 messing with title? Didn’t the court rule that the boundary of Eddy’d deed Lot 3 was the bump out? Surveyor’s can’t seem to get their minds to wrap around this location concept. It seems to me this clouds title.
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That’a even more liberal than Utah’s law. Utah requires 20 years and it’s common law not in the Utah code.
I don’t see any objective uncertainty in the Iowa statute. Just like Utah, treat it as a boundary for the required time and it becomes the boundary. Puts the responsibility squarely on landowners to maintain their boundaries (as I believe it should).
I’ve been surprised at the number of times I’ve got a call from someone in a brand new house in a new subdivision and they don’t know where the boundaries are. You give them a price to show them and they just sit on it or do some DIY thing. 20 years later (10 in Iowa) and you have the boundary established somewhere other than the original marks. It makes perfect dense to me but not so much for many others.
This case sticks out because its not even a straight line, it should have been obvious to anyone looking at the subdivision plat (or even GIS) that something wasn’t right.
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The appeals court doesn’t say anything about a new parcel being created. They do affirm the district court ruling. Maybe take at look at the district court judgment.
I wouldn’t think it correct to create another parcel, just show the boundary location. Now what many others might do like some title companies, public officials, trial lawyers, whomever, I can see them trying to do it as a new parcel.
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You guys know what this means right? Landscape contractors & architects will have a de facto surveying license.
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What this means is folks really, really….really need to be aware of their property boundaries. A boundary should be determined or restored at purchase…with aggressive continuous maintenance throughout the owner’s tenure recommended. Snoozing is losing, plain and simple.
I plan on using this case as an example for the “get-er-done” argument when it comes to explaining to clients why it is important to know where your bounds lie.
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Yeah, I’ve thought about that also.
In my rural area the 20 years passed over 50 years ago but most surveyors just blow it off and layout the deed anyway. And it don’t stop there. The only ones that seem to understand is the old landowners that don’t want their established fences messed with. There is not much to be gained being a “surveyor” with these folks, they been messed with and continued to be messed with by surveyors all the time. I’m going to try and take advantage of that side of the issue, “If your boundary has been messed with and you want a second opinion in line with the law, call …..”
Folks are all over the place on this issue. Had one last year, guy wanted a survey because the fence was off. I asked him “how do you know the fence is off, no direct answer just the neighbor had told him the fence was off (I think based upon a county GIS map that changes every couple years, the new fence will be off before too long). Anyway, I’m familiar with this fence and it’s been there a long time. I started to explain to him that this is probably an established boundary line based upon the law even if the fence is “off” which we didn’t know yet. His response was he wasn’t going to cheat his neighbor over the fence that is off, I got the feeling that he thought I was trying to cheat his neighbor. So then I said well we can do a boundary line adjustment between you and the neighbor and put the line where you want it. Sounded OK, so then we got around the the price to do the work. Geezz, then he really let me know I was trying to cheat some one. I didn’t back down or reduce my price, as far as I know they didn’t do anything.
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linebender, post: 349433, member: 449 wrote:
Isn’t creating a new parcel A in lot 4 messing with title? Didn’t the court rule that the boundary of Eddy’d deed Lot 3 was the bump out? Surveyor’s can’t seem to get their minds to wrap around this location concept. It seems to me this clouds title.
I dont know iowa law, but here creating a new parcel would be the correct way to do it. By state statute platted lot lines can only be altered through the platting process. The courts dont have the authority to move a line. They do have the authority to decide who has title to any particular piece of property. So a ruling like this creates a new parcel inside the platted lot. There is no cloud on title, unless there is a pending apeal to the supreme court. The courts rulling is decisive.
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The partiesÛª predecessors in the land testified they understood the semicircular landscaped edge as the property boundary. The partiesÛª behavior shows the treatment of the area as a boundary.
Next, the Eddys argue they did not mutually consent to the semicircular edge as a boundary line.
Acquiescence may be inferred by the silence or inaction of one party who knows of the boundary line claimed by the other and fails to dispute it for a ten-year period. Acquiescence is said to be “consent inferred from silenceÛÓa tacit encouragement[ÛÓand] involves notice or knowledge of the claim of the other party.”Statements of prior owners are moot since they did not transfer the property per the irregular line. Secondly because the property was not transferred per an irregular line there is no other notice of claim available to the neighbor.
That the landscaping was by the developer it may reasonably be assumed it was part of an overall scheme of improving the whole area of the subdivision and not any particular lot.
I disagree with the court and feel further appeal should be made.
Also acquiescence can be implied as license and is not strictly a transfer of property. So the neighbors may continue to use and enjoy the landscaping but they in fact do not necessarily own it.
On further review the Sate has taken land from the Eddys and not compensated them . To further burden them with the Court costs is a double whammy. The Eddy’s should now sue for compensation, from the Court and/or from the neighbor.
Paul in PA
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That is really freaky, there is a kinda famous case from the Wyoming Supreme Court (2008) Cook Vs. EDDY, it was an adverse possession case. An awful case really, but worth looking at.
What’s with this Eddy guy anyway;-)
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The court ruled on a boundary by acquiescence. They accepted a new boundary. They didn’t create a new parcel.
The surveyor’s plat shows Parcel A only to identify the area in dispute.
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The prior owners transferred the parcel they owned, with all and only the rights associated with that ownership. The history of their acquiescence was critical to the case and their testimony proved that the statute requirements were met for the new boundary.
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I suppose Iowa is a tacking state.
Indiana is a tacking state, whereby a new buyer might already have 5 years of unwritten rights accrued against them as ‘allowed’ by the previous title holders (sellers). With respect to adverse possession, that’s half of the time requirement in Indiana. Although acquiescence is a bit of a different animal here.
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Looks like a slam dunk to me. Look at the brevity of that appeals opinion. They recite the state statute and the facts. Boundary by acquiescence, over!
Courts are loath to override legislation. I think that statute has been around for decades, probably been tested several times before. There is laws we all don’t like but that doesn’t void them.
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This case is not that remarkable, other than most states do not have a statute defining acquiescence. What is remarkable is that far too many surveyors do not understand acquiescence as a boundary establishment doctrine. The courts understand it. The legislature understands it. But it seems that too many professionals who are licensed to be experts in the location of boundaries canÛªt leave the math to alone long enough to subsequently wrap their heads around the boundary location doctrines.
Acquiescence has nothing to do with title. It has nothing to do with creating a ÛÏnewÛ parcel. It does not ÛÏmoveÛ a boundary. It doesnÛªt create a ÛÏnewÛ boundary. It merely establishes the uncertain/disputed location of the boundary on the ground.This case NOT about adverse possession. It is about the landowners and their mutual responsibilities and rights concerning the establishment and maintenance of THEIR boundaries. Surveyors don’t create boundaries, the landowners do.
From the decision:
ÛÏIf it is found that the boundaries and corners alleged to have been recognized and acquiesced in for ten years have been so recognized and acquiesced in, such recognized boundaries and corners shall be permanently established.Û Iowa Code å¤ 650.14.
The meaning of ÛÏacquiescenceÛ under section 650.14 is well settled. It is the mutual recognition by two adjoining landowners for ten years or more that a line, definitely marked by fence or in some manner, is the dividing line between them. Acquiescence exists when both parties acknowledge and treat the line as the boundary. When the acquiescence persists for ten years the line becomes the true boundary even though a survey may show otherwise and even though neither party intended to claim more than called for by his deed.This explains it quite nicely.
ÛÏWhere the location of a true boundary line between coterminous owners is known to either of the parties, or is not uncertain, and is not in dispute, an oral agreement between them purporting to establish another line as the boundary between their properties constitutes an attempt to convey real property in violation of the statute of frauds … and is invalid. But, where the location of the true boundary line is unknown to either of the parties, and is uncertain or in dispute, such coterminous owners may orally agree upon a boundary line. When such an agreement is executed and actual possession is taken under it, the parties and those claiming under them are bound thereby. In such circumstances, an agreement fixing the boundary line is not regarded as a conveyance of any land from one to the other, but merely the location of the respective existing estates and the common boundary of each of the parties.
Downing v. Boehringer, 82 Idaho 52, 56-57, 349 P.2d 306, 308-309 (1960) (citations omitted).In other words, the acquiesced boundary is the true boundary. It is the “platted line”. It is the “deeded line”. It is the “title line”. It is the boundary between the two contiguous land owners – mathematics, calculations, straight lines, etc., be danged. Is our job to locate current location of the boundary, or argue with laws/doctrines that have been settled (and apparently codified) for many, many, many decades?
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linebender, post: 349416, member: 449 wrote: http://cases.justia.com/iowa/court-of-appeals/2014-13-1157.pdf?ts=1401376207
Here is Iowa code 650. Seems like in Iowa retracement surveying has been made irrelevant. A landowner can dispute any boundary however clear and appeal to the court even if 4 surveyors are in agreement on the line. If it makes it to a commission of surveyors, then those surveyors are directed to investigate acquiescence. If this isn’t adverse possession masquerading as acquiescence I don’t know what is. How does this process “permanently” establish the line? Isn’t this more of a forced title registration (Torrens) process? All lines are in dispute until this process takes place according to the statute. Might as well not put any monuments in on a subdivision. Whoever occupies a lot for 10 years first gets to say where its boundaries are.
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Brian Allen, post: 349511, member: 1333 wrote: This case is not that remarkable, other than most states do not have a statute defining acquiescence. What is remarkable is that far too many surveyors do not understand acquiescence as a boundary establishment doctrine. The courts understand it. The legislature understands it. But it seems that too many professionals who are licensed to be experts in the location of boundaries canÛªt leave the math to alone long enough to subsequently wrap their heads around the boundary location doctrines.
Acquiescence has nothing to do with title. It has nothing to do with creating a ÛÏnewÛ parcel. It does not ÛÏmoveÛ a boundary. It doesnÛªt create a ÛÏnewÛ boundary. It merely establishes the uncertain/disputed location of the boundary on the ground.This case NOT about adverse possession. It is about the landowners and their mutual responsibilities and rights concerning the establishment and maintenance of THEIR boundaries. Surveyors don’t create boundaries, the landowners do.
From the decision:
ÛÏIf it is found that the boundaries and corners alleged to have been recognized and acquiesced in for ten years have been so recognized and acquiesced in, such recognized boundaries and corners shall be permanently established.Û Iowa Code å¤ 650.14.
The meaning of ÛÏacquiescenceÛ under section 650.14 is well settled. It is the mutual recognition by two adjoining landowners for ten years or more that a line, definitely marked by fence or in some manner, is the dividing line between them. Acquiescence exists when both parties acknowledge and treat the line as the boundary. When the acquiescence persists for ten years the line becomes the true boundary even though a survey may show otherwise and even though neither party intended to claim more than called for by his deed.This explains it quite nicely.
ÛÏWhere the location of a true boundary line between coterminous owners is known to either of the parties, or is not uncertain, and is not in dispute, an oral agreement between them purporting to establish another line as the boundary between their properties constitutes an attempt to convey real property in violation of the statute of frauds … and is invalid. But, where the location of the true boundary line is unknown to either of the parties, and is uncertain or in dispute, such coterminous owners may orally agree upon a boundary line. When such an agreement is executed and actual possession is taken under it, the parties and those claiming under them are bound thereby. In such circumstances, an agreement fixing the boundary line is not regarded as a conveyance of any land from one to the other, but merely the location of the respective existing estates and the common boundary of each of the parties.
Downing v. Boehringer, 82 Idaho 52, 56-57, 349 P.2d 306, 308-309 (1960) (citations omitted).In other words, the acquiesced boundary is the true boundary. It is the “platted line”. It is the “deeded line”. It is the “title line”. It is the boundary between the two contiguous land owners – mathematics, calculations, straight lines, etc., be danged. Is our job to locate current location of the boundary, or argue with laws/doctrines that have been settled (and apparently codified) for many, many, many decades?
So just to get this straight. If you were the surveyor in 2009 that “In November 2009, the Eddys had their lot surveyed. The survey showed the semicircular area was actually part of lot four. The Eddys installed a chain-link fence just inside the surveyed lot boundary, running through the semicircular area. The Eddys have maintained the semicircular property since the 2009 survey and the placement of the fence.” you would of at that time monumented the semicircular area? Or would you advise the two parties of what the courts are likely to rule and suggest an equitable resolution? Just asking, Jp
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What a landowners responsibility is when they move into or build in a new subdivision (or any parcel for that matter) is to locate the subdivision monuments and occupy accordingly. What’s surprised me through the years is how many of them don’t!
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LRDay, post: 349437, member: 571 wrote:
This case sticks out because its not even a straight line, it should have been obvious to anyone looking at the subdivision plat (or even GIS) that something wasn’t right.
It could be not obvious at all. It looks only to be a 10’+/- encroachment which would not be recognized by a layman with no marker reference.
I was involved in a survey many years ago with the same circumstances. I was surveying a lot in a country club. These rear of the lots lines the fairway.
I was getting ready t set the front right corner where the adjacent lot owner was working on his flower bed that was small and circular in nature near a tree on his property. I wa getting ready to set the iron when he put his head up and said ” I hope you are not doing what I think you are doing”. I replied “Yes”. He vane over and we looked and it appeared that his flower bed with edging, irrigation, plant and much were encroaching about 8 ft. He was annoyed. I don’t know with me or himself. I told him not to sweat it. It only a real prck of a neighbor would object to his landcscaoing. Plus, there was a S/D covenant that forbid fences on lots along the golf course. I told him to just make believe that I wasn’t there that day and he never saw me.BTW. this neighbor was a fairly well known TV/radio sports anchor/reporter/ columnist in Louisiana for the CBS affiliate. It was said that he could have been easily been a national sports commentator but decided to stay in the New Orleans area and be a big fish in a little pond instead of going to NYC, LA or CNN as such. Plus he wanted to raise his kid in Louisiana.
He has been the voice of the Saints for decades.
So we chatted local sports for a few minutes and I went on my way….As for the case here. I don’t like the decision. The landscaper erred. It should not have had an effect on the line especially by the use of simple edging material.
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