Acquiescence/Agreement/Estoppel & Remedies

There are others here that will probably disagree with me, but here goes..

I only see one sentence concerning the location of the boundary: "No original monuments were found in the block, so lots/blocks were computed from existing monumentation found at adjacent street center line intersections."

If I were performing the survey, I would probably be a whole lot more concerned about the boundary location than a remedy to the erratic occupational evidence. I mean if I was going to show a fence on a drawing that was a specific proximity to a "lot line"; I would have a good deal of evidence explaining how I determined the lot line's location in the absence of monuments.

Your documentation of parol evidence concerning the fence is indeed important. And I feel you've done well in that respect. Maybe it is just the way you've worded the post, but it seems you're more concerned with providing your client with a remedy than retracing the platted boundaries. Don't get the cart in front of the horse. In my mind it would be best to determine the boundary first; second with locating the improvements and occupations relative to those lines, then last advising your client as to which way to go. And remember: If you try and please everybody, somebody is going to get mad.

Two things come to my mind here:

1. Calculating platted lines is an exercise that sometimes never seems to actually fit anything.
2. If you're not finding ANY evidence of previous surveys....you're either looking in the wrong place, or not digging deep enough.

$0.02

How does an informal verbal agreement as to an acceptable fence location become a formal agreement as to a property line location? I doubt the church ever agreed to any such thing and I doubt it would stand up in court either.

I agree with Paden. The southerly shift is a question too.

It doesn't sound to me like anyone acquiesced in the fence as a Boundary. The Pastor asking for permission to remove the fence panels is just being a good neighbor. The fence belongs to the neighbor but it is not necessarily a boundary monument. The purpose of the fence was to contain dogs and was built there with permission from the property owner. The element of uncertainty is present but I don't see evidence of mutual agreement in it as the boundary.

I don't know whether it has ripened to be a boundary location, but it does appear that the current adjoiner built the vinyl fence with the complete knowledge and approval of the church, and with the understanding (by the builder of the fence) that it was indeed the property line. It seems like the church should have said something before allowing the lady to build an expensive vinyl fence on their property. Whether the approval was "informal" or "formal"; not objecting is a real concern. Look up laches and estoppel.

It just isn't right for a neighbor to allow an improvement to be built on their property then say, thanks for the cool fence. Either they thought it was the property line as well, and that is why they acquiesced to it, or they knew where the property line was, and watched while their neighbor built on their property.

Whether it's up to a surveyor to make the final decision is another discussion. I agree that the survey should work out the boundary based on all other adjoining evidence, and work with the owners as to a adequate solution.

12 Am. Jur. 2d Boundaries section 76:

To prove that title or a boundary line is established by ‰ÛÏacquiescence,‰Û a plaintiff must prove four elements by clear and convincing evidence: (1) possession up to a visible line marked clearly by monuments, fences or the like; (2) actual or constructive notice of the possession to the adjoining landowner; (3) conduct by the adjoining landowner from which recognition and acquiescence, not induced by fraud or mistake, may be fairly inferred; and (4) acquiescence for a long period of years, such that the policy behind the doctrine of acquiescence, which is that a boundary consented to and accepted by the parties

for a long period of years should become permanent, is well served by recognizing the boundary. 2 This is a rule of repose for the purpose of quieting titles and discouraging confusing and vexatious litigation. 3 A boundary established by acquiescence is binding on the parties and their successors in interest. 4

Also from the Cumulative Supplement:

An agreement between neighboring landowners as to what will be the boundary, either express or implied, is essential to a claim of boundary by acquiescence. Huskinson v. Nelson, 152 Idaho 547, 272 P.3d 519 (2012).

I sure wouldn't go there, sometimes a fence is just a fence

The mere existence of a fence or some other line without evidence of mutual recognition cannot sustain a finding of a boundary by acquiescence. Warren v. Collier, 262 Ark. 646 (1978)

For a party to prove that a boundary line has been established by acquiescence, that party must show that both parties at least tacitly accepted the non-surveyed line as the true boundary line. The mere subjective belief that a fence is the boundary line is insufficient to establish a boundary between two properties. Webb v. Curtis, 235 Ark. 599, 361 S.W.2d 87 (1962)

A boundary line by acquiescence is inferred from the landowners‰Ûª conduct over many years so as to imply the existence of an agreement about the location of the boundary line. We have been clear that it is the agreement and acquiescence, not the fence itself, that controls.
Stacy v. Dixon, 2014 Ark. App. 314 [p3]

A long-established fence is better evidence of actual boundaries settled by practical location than any survey made after the monuments of the original survey have disappeared. Diehl v. Zanger, 39 Mich. 601 (Justice Cooley)

Dave made me do it...

DDSM:beer:

From Am Jur 2d:
Although neither the mere existence of a fence nor one party's subjective belief that a fence is the boundary line will sustain a finding of acquiescence, express recognition or agreement between the parties is not necessary; tacit acceptance will suffice, and silent acquiescence is sufficient where mutual recognition of the boundary line can be inferred from the conduct of the parties over a period of years. Thurlkill v. Wood, 2010 Ark. App. 319, 374 S.W.3d 790 (2010).

...and I'll raise...

When the boundary lines between two estates is indefinite or unascertained, the owners may, by parol agreement, establish a division line, as the effect of such agreement is not to pass real estate from one party to another, but to define ht boundary line to which their respective deeds extend. Sherman v. King, 71 Ark. 248, 72 S.W. 571.

Persons owning adjacent lands may by agreement establish the boundaries between their lands, regardless of the lines of the Government survey. Cox v. Daugherty, 75 Ark. 395, 36 Ark. 184.

The owners of adjoining tracts of land may by parol agreement settle and establish a permanent boundary line between their lands, which, when followed by possession according to the lines so agreed upon, is binding and conclusive, not only upon them, but upon their grantees. Miller v. Farmers‰Ûª Bank & Trust Co., 104 Ark. 99, 148 S.W. 513.

Where there is a doubt, dispute or uncertainty as to the true location of a boundary line, the parties may by parol fix a line which will, at least when followed by possession with reference to the boundary so fixed, be conclusive upon them, although the possession is not for the full statutory period. Malone v. Mobbs, 102 Ark. 542, 145 S.W. 193; Diedrich v. Simmons, 75 Ark. 400, 87 S.W. 649; Payne v. McBride, 96 Ark. 168, 131 S.W. 462.

It is the policy of the law to encourage agreements between adjacent landowners as to their boundaries, and to give effect thereto when shown to exist. Miller v. Farmers‰Ûª Bank & Trust Co., 104 Ark. 99, 148 S.W. 513.

DDSM:good:

I love seeing all this case law quoted! It means we are advancing and learning as professionals. However, is it safe to assume that Deano is in Idaho?
As we all know, even though the boundary establishment doctrines such as agreement/acquiescence, estoppel, etc., are loosely similar in most states, there are varying degrees of differences in how each state may employ the doctrines.

From a brief scanning of the original post, I think he is on the right path, but I'll have to delve into it more later on.

Sorry...old Sword Drill habits...

DDSM:beer::angel::beer:
(And Brother Dave was egging me on...:plumbbob:)

å¤ 144.Generally, 11 C.J.S. Boundaries å¤ 144:

A boundary line may be established by recognition of, and acquiescence in, a particular line, 1 based on the principle of ratification or estoppel. 2 Under the doctrine, the acts of the parties and their predecessors serve as a substitute for the actual record of title. 3 Acquiescence in the establishment of a boundary line involves the idea of notice or knowledge of conditions and that a party, with such notice and knowledge, did something that indicated an assent to such conditions and acquiescence in them. 4 The correct inquiry is whether the parties treated the line as the proper boundary line for the statutory period. 5 The distinguishing feature of acquiescence is that proof of an agreement to locate and fix a boundary on a certain line is not required. 6

Adverse possession distinguished.
The doctrine of boundary by acquiescence evolved from the doctrine of adverse possession, 7 but is distinct from adverse possession, 8 and is somewhere between adverse possession and estoppel. 9 The doctrine of acquiescence is seen as a supplement to the older rule of adverse possession, and provides that land could be acquired by adverse possession if the true owner acquiesced in such possession for a period of 20 years. The newer rule ameliorates the rule of adverse possession by allowing mutual acquiescence to substitute for adverse intent. 10

and

Compared with boundary by agreement
The courts of at least one jurisdiction hold that ‰ÛÏboundary by acquiescence‰Û is simply another name attached to the doctrine of boundary by agreement; it is not a separate legal theory.
Idaho‰ÛÓDowney v. Vavold, 144 Idaho 592, 166 P.3d 382 (2007).

å¤ 146.What constitutes acquiescence, 11 C.J.S. Boundaries å¤ 146

The question as to what constitutes a boundary by acquiescence must be decided from the particular facts of the case, and no absolute rule can be applied to every case. 1 Generally it depends on the acts or declarations of the parties interested, 2 on inferences or presumptions from their conduct, 3 or on their silence. 4 Failure to object to an encroachment with knowledge that its owner claims to that line may amount to acquiescence establishing the line as a boundary. 5 However, a mere license or permission to an encroachment, 6 or the existence of an encroachment without the knowledge of the landowner encroached on, 7 will not amount to acquiescence establishing the boundary line, although it has been held that a landowner acquiesced even though the original use of a parcel was permissive. 8 Also, mere passive acquiescence is not sufficient to establish a dividing line. 9

Construction and maintenance of fence.
Although the construction and maintenance of a division fence when mutually regarded as a boundary may constitute recognition and acquiescence, 10 the mere existence of a fence between adjoining landowners is not of itself sufficient. 11 Mere acquiescence in the existence of a fence as a barrier and not as a boundary is also not such recognition and acquiescence as will amount to an agreement as to the boundary or establish it as the true line. 12

Here is another Idaho comment from å¤ 654.Implied agreement or acquiescence, 2 Tiffany Real Prop. å¤ 654 (3d ed.)

Idaho. Evidence that a fence existed and was maintained for over 60 years, that adjoining landowners maintained exclusive use of their respective properties, and that their true boundary was uncertain until recent survey, was sufficient to find an implied agreement that the fence was to act as the legal boundary under the doctrine of "boundary by agreement." Johnson v. Newport, 960 P2d 742, 131 Idaho 521 (Idaho).

‰ÛÏNo original monuments were found in the block, so lots/blocks were computed from existing monumentation found at adjacent street center line intersections.‰Û

This is an important part. If you have not correctly retraced the original lot lines according to the best available evidence (that means all evidence including considering acquiescence as evidence of the original locations), you can hardly expect to have any starting point from which to call any occupation lines ‰ÛÏoff‰Û. Proportioning, calculating, and computing are appropriate tools to create search areas, but are always the LAST resort in retracement.

‰ÛÏThe church at one time owned all of lots 11 and 12, but the current description of the E1/2 goes back to at least 1966. The current owner of the W1/2 bought the property in May of 2008.‰Û

When exactly were the lots split into the E1/2 and W1/2? Who were the parties? Are they still available to talk to? Was a survey performed (remember, the ‰ÛÏsurvey‰Û is not required to be recorded, in fact it isn‰Ûªt a requirement that a surveyor did the work, the landowners could have marked the boundary themselves). What happened at that time? The basic questions that need to be answered are 1) Was the boundary created on the ground? 2) When was it created? 3) How was it created? 4) Where was it created? 5) Has that location been maintained, or has it been ‰ÛÏlost‰Û and then re-established? 6) Most importantly, where is it located today?
Far too many surveyors get hung up on the erroneous and irrelevant question of ‰ÛÏwhere should have the boundary been created?

This is why we are licensed professionals. The answer to the ‰ÛÏwhere is the boundary question‰Û is mostly a legal exercise, not a mathematical exercise. This is why we need to know how boundaries are established, and how to gather all the appropriate evidence so we can make the correct legal determination. An essential skill in retracing boundaries is understanding the establishment doctrines intimately. I applaud you for asking your questions.

‰ÛÏThe vinyl fence is between 11.7' and 11.9' east of the computed deed location.‰Û

Don‰Ûªt get too hung up on the ‰ÛÏcomputed deed location‰Û, because at this time it means absolutely nothing ‰ÛÒ it is apparently only ‰ÛÏcomputed‰Û from questionable control, and you probably still have a ton of evidence to find and sift thru.

One of my favorite Idaho cases is Day v Stenger, but I'd also recommend, in addition to the ones you've mentioned: Campbell v Weisbrod, Downing v Boehringer, Edgeller v. Johnston, Cox v. Clanton, Flying Elk Investment LLC v. Cornwall, just to name a few.

Remember, you may not be able to gather enough convincing evidence to form a well-reasoned opinion on the location question, then you can help the landowners to fix the problem(s) they currently face - do all you can to keep it out of court.

‰ÛÏWhere to go from here?‰Û Well, you can either continue to gather evidence or possibly start the mediation process. Sometimes when faced with the costs of thoroughly searching for evidence the parties are more receptive to reaching an agreement.

‰ÛÏHow should I best inform my client?‰Û This can be difficult. Many times surveyors reveal the wrong things at the wrong time to the wrong client and end up making the mess even bigger.

‰ÛωÛ?what should I recommend as a remedy to the situation?‰Û This is completely dependent upon the actual problem that is to be solved, and especially how the landowners have agreed to solve any problems.

‰ÛÏShould I recommend that a boundary agreement be drafted and recorded to document the findings, along with the record of survey?‰Û No matter how the problem is resolved, be sure to properly document the evidence and/or solution. This is of course dependent upon the specific circumstances.

"Is there another remedy that should be considered?" Possibly yes. It depends!!

Good luck!