Finding out that its very weak in the states i work in
Where to look:
Westlaw 59 Boundaries key 46 Agreements between Parties
Westlaw 59 Boundaries key 48 Recognition and Acquiescence
Need to be careful, each state is quite different
That's right, you search under those headings specifying the State you are interested in. That will return a list of headnotes and case cites for that State. Then you can read actual cases rather than just going on hunches or feelings.
Court cases are part of the story, you also need to research statutes.
Much like how statutes contol how adverse possession is applied, in one state it's fairly "easy" to win an adverse possession case, might as well forget about in the neighboring state.
Point being, don't infer too much about your own state from cases in another.
I thought we were talking about acquiescence, not adverse possession?
Most of the acquiescence cases I have read are really original boundary cases and the acquiescence doctrine was simply used as a tool by the Court to get the correct answer, adverse possession has nothing to do with it. It is common to see a Court using acquiescence or agreed boundaries to get around Surveyors ignoring evidence. Sometimes they are enforcing an old survey commissioned by the owners because the even older original survey was lost.
In California, about 2/3rds of Agreed Boundary (acquiescence) cases that reach the Appellate level fail; about 1/3 are found to be a valid Agreed Boundary, all of those are affirms (meaning the trial court found the boundary established by the Agreed Boundary Doctrine and the Appellate Court affirmed the judgment). This is since 2002. Most of the cases are unpublished and Westlaw returns no unpublished cases before 2002. There has not been a reverse of a trial court judgment against an Agreed Boundary since at least the 1994 Bryant case.
Does this mean the doctrine is weak? I don't think so. I think it mainly means 2/3rds of the trial attorneys, appellate attorneys, and Land Surveyors don't understand the doctrine very well. If a police officer issues 67 speeding citations for 55 in a 55 and 34 speeding citations for 65 in a 55 and therefore the court only convicts 1/3 of the motorists does this mean the speed law is weak or does it simply mean that officer doesn't know his job?
And don't expect "Practical Location" to be a successful argument in MA! But of course if it's "practical" it wouldn't come from a judge! LOL
Colorado has an acquiescence statute which helps to define the terms and application.
I assume the Colorado Courts interpret and apply the State's Statutes like everywhere else.
Dave Karoly, post: 398439, member: 94 wrote: I assume the Colorado Courts interpret and apply the State's Statutes like everywhere else.
No doubt
Utah law has recognized that in a sense acquiescence is a special case of implied agreement and that doing nothing by a landowner is agreement. Only the side of the line claiming the doctrine needs to show the conditions for treating the visible line as a boundary for 20 years meets the requirements. Actual proof that there was an agreement by both parties is not required.
There also is a recent case where some parties tried to make the case that the boundary didn't become effective as far as the title line until a judicial action ruled that way (this was the ultimate cop out for title folks and even surveyors). The court rejected that totally and made it clear that once the elements for boundary by acquiescence are met the ÛÏtitle has transferred.Û This is not new law just making it clear what the law has always been, put it in your face.
I believe a surveyor could be charged with slander of title for not recognizing that the elements for boundary by acquiescence are met. That requires searching out the facts concerning the boundary line and goes well beyond the deed or even found original monuments at the ends of the line. If there is a visible marking of a boundary (like a fence) the surveyor should sort it out as to how long its been there and whether it is being treated like a boundary. Your calc's and computer drawing aren't gong to give you the answer for this. You won't find these facts in the deeds either.
I think the Utah law here is totally right and on track. We have had so much do it yourself land boundaries and avoidance of proper surveying and legal descriptions since the beginning that most attempts to make it fit the descriptions, which are some of the poorest in the nation (metes WITHOUT bounds), that WHAT THEY DID AND HAVE RESPECTED may be the ONLY equitable way to solve boundary disputes. Landowners, you sleep in the bed you made, what ever costs you (grand parents) avoided at the time you and the buyer staked the boundary can't be recovered now by a precision survey of the record hacked on the kitchen table, attorney's office or title company.
I know this is not the case in many, if not most, of the states, a couple in particular. I only work in Utah.
LRDay, post: 398472, member: 571 wrote: Utah law has recognized that in a sense acquiescence is a special case of implied agreement and that doing nothing by a landowner is agreement. Only the side of the line claiming the doctrine needs to show the conditions for treating the visible line as a boundary for 20 years meets the requirements. Actual proof that there was an agreement by both parties is not required.
There also is a recent case where some parties tried to make the case that the boundary didn't become effective as far as the title line until a judicial action ruled that way (this was the ultimate cop out for title folks and even surveyors). The court rejected that totally and made it clear that once the elements for boundary by acquiescence are met the ÛÏtitle has transferred.Û This is not new law just making it clear what the law has always been, put it in your face.
I believe a surveyor could be charged with slander of title for not recognizing that the elements for boundary by acquiescence are met. That requires searching out the facts concerning the boundary line and goes well beyond the deed or even found original monuments at the ends of the line. If there is a visible marking of a boundary (like a fence) the surveyor should sort it out as to how long its been there and whether it is being treated like a boundary. Your calc's and computer drawing aren't gong to give you the answer for this. You won't find these facts in the deeds either.
I think the Utah law here is totally right and on track. We have had so much do it yourself land boundaries and avoidance of proper surveying and legal descriptions since the beginning that most attempts to make it fit the descriptions, which are some of the poorest in the nation (metes WITHOUT bounds), that WHAT THEY DID AND HAVE RESPECTED may be the ONLY equitable way to solve boundary disputes. Landowners, you sleep in the bed you made, what ever costs you (grand parents) avoided at the time you and the buyer staked the boundary can't be recovered now by a precision survey of the record hacked on the kitchen table, attorney's office or title company.
I know this is not the case in many, if not most, of the states, a couple in particular. I only work in Utah.
My immediate reaction to this would be that I would want to show the line created by title and show the evidence of acquiescence on the plat as well.
But in afterthought, I have always argued that the land surveyor is showing his opinion as to where the property line falls. The fact that acquiescence fixes the boundary line in the deed (if I'm not mistaken), then the opinion should reflect that fact. Of course that puts a lot of legal weight on a land surveyor's shoulders. Still it should be the surveyor's job to show his client where, in his expert opinion, the property is.
California decisions are clear, there is no title transfer and the boundary has not moved. Our doctrine is more strict, though.
Dave Karoly, post: 398482, member: 94 wrote: California decisions are clear, there is no title transfer and the boundary has not moved. Our doctrine is more strict, though.
Utah law also says there is no title transferred and thus the statute of frauds doesn't apply. Considering how hard that is to understand I think the courts in that last instance just went with ÛÏthe title has transferredÛ to make it clear that the boundary by acquiescence IS THE BOUNDARY. Maybe not, but its hard for me to imagine the supreme court not getting it right. So the boundary line is established and if you want to argue about title transfer (which all title folks, landowners,and many others want to know) the court in our face states that ÛÏthe title has transferredÛ end of story. I don't think they mean the title has transferred via conveyance but rather inside the established boundary line the landowner owns the land (the title has transferred). But I suspect in some future case that issue will be brought forth and another supreme court ruling will clear up any confusion.
Tom Adams, post: 398474, member: 7285 wrote: My immediate reaction to this would be that I would want to show the line created by title and show the evidence of acquiescence on the plat as well.
But in afterthought, I have always argued that the land surveyor is showing his opinion as to where the property line falls. The fact that acquiescence fixes the boundary line in the deed (if I'm not mistaken), then the opinion should reflect that fact. Of course that puts a lot of legal weight on a land surveyor's shoulders. Still it should be the surveyor's job to show his client where, in his expert opinion, the property is.
I agree with you and Leon. Our job is to find the boundaries. To do so we MUST be not only aware of, but fully knowledgeable in, recognizing and applying the location doctrines as defined and explained in our state courts and/or statutes). Our professional opinion should only be expressed after gathering all the evidence, properly evaluating the evidence, and properly applying the correct law(s) to the facts. The only "legal weight" on our shoulders is that we had better know how to do our job, and to do it. Ignoring doctrines such as acquiescence and agreement is NOT doing our job.
If, as Leon explained, acquiescence has made the long held occupation line the boundary as defined in the title/deed (yes, this may vary from state to state), then shouldn't we be finding the boundary line as defined in the title/deed? Is showing the "conflict" expressing a professional opinion on the location of the boundary, or is it an obvious admission we don't know how to do our job?
LRDay, post: 398496, member: 571 wrote: Utah law also says there is no title transferred and thus the statute of frauds doesn't apply. Considering how hard that is to understand I think the courts in that last instance just went with ÛÏthe title has transferredÛ to make it clear that the boundary by acquiescence IS THE BOUNDARY. Maybe not, but its hard for me to imagine the supreme court not getting it right. So the boundary line is established and if you want to argue about title transfer (which all title folks, landowners,and many others want to know) the court in our face states that ÛÏthe title has transferredÛ end of story. I don't think they mean the title has transferred via conveyance but rather inside the established boundary line the landowner owns the land (the title has transferred). But I suspect in some future case that issue will be brought forth and another supreme court ruling will clear up any confusion.
Sometimes Appellate Court Justices write self contradictory things. It's not a precise cookbook recipe. The reason no decree is required is because the Court only recognizes what the owners already agreed to.
Even in A.P. it is said there is no title transfer, the record title is extinguished and a new title springs forth in the possessor which is not marketable until a decree is handed down.
There is a lot of confusion between acquiescence and adverse possession.
Dave Karoly, post: 398504, member: 94 wrote: There is a lot of confusion between acquiescence and adverse possession.
Link to page with summary of Utah case. You can read the case by the link in the link.
http://propertyrights.utah.gov/2016/03/29/new-case-summary-q-2-v-hughes/
Here is another summary of a recent Utah acquiescence case.
http://propertyrights.utah.gov/2016/06/28/new-case-summary-anderson-v-fautin-2/
LRDay, post: 398515, member: 571 wrote: Link to page with summary of Utah case. You can read the case by the link in the link.
http://propertyrights.utah.gov/2016/03/29/new-case-summary-q-2-v-hughes/
Here is another summary of a recent Utah acquiescence case.
http://propertyrights.utah.gov/2016/06/28/new-case-summary-anderson-v-fautin-2/
Surveyors dont transfer title, title people dont transfer title, lawyers and/or courts dont transfer title.
Landowners do, by their actions written and unwritten.
Surveyors don't transfer title, title people don't transfer title, lawyers and/or courts don't transfer title.
Landowners do, by their actions written and unwritten.
I agree that surveyors don't transfer title. I've never read a case that said they did.
Landowners actions do establish boundaries.
So, say in Utah, 1995, a landowner hires a surveyor to survey his 40 acres, a å? of a å? of a section. Landowner shops around and gets the lowest bid. Low bid surveyor finds what he thinks is a section corner maybe a real one. Surveyor goes NES&W 1320 feet, marks the corners, collects his 2 bits and moves on to the next victim. Did the surveyor find the boundaries, probably not.
BUT, the landowner takes action and before the end of 1995 has constructed fences according to the survey and builds a new home on the property (occupies the parcel). His neighbors don't really care, they got a free survey of their boundaries and a spanking new fence also for free to keep their livestock under control. Things just exist in this state until 2016 (21 years), total peace in the neighborhood.
In 2016 one of the neighbors considering selling for big bucks to rich New Yorker, pays just value for a survey. 2016 surveyor roots out all the required original section corners to define the å? of a å? section. Fences don't fit (no surprise). Under Utah laws the 1995 survey and resultant fences with the actions of the landowners over the 21 year period meet the requirements for boundary by acquiescence and the ÛÏtitle has transferred.Û
So the 1995 surveyor didn't transfer any title but he did set up the events for the landowners by using his 2 bit survey to establish the boundaries of the property (not according to a proper section breakdown).
If a legit survey was done before 2015 (less than 20 years after the fence construction) a landowner could fix the problem, claim his original title location for the property. Good reason to get a proper survey I'd say and don't let it go for more than 20 years, at least in Utah.
