Dan B. Robison, post: 361880, member: 34 wrote: ...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. FarmersÛª 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. FarmersÛª Bank & Trust Co., 104 Ark. 99, 148 S.W. 513.
DDSM:good:
my goodness, I hope you got a book your looking at. because if all that case law is floating around in your noggin your either a super genius or one step away from crazy. great to see it either way thanks for taking the time to post it. I enjoy reading the case law stuff.
smitty, post: 362039, member: 11387 wrote: my goodness, I hope you got a book your looking at.
I've been collecting Arkansas quotes into a word document for a number of years.
The crypto quotes put me one step from crazy;-)
DDSM:beer:
Dave Karoly, post: 362035, member: 94 wrote: That's an interesting case. The Court reversed on the ground that the description was not sufficient to describe the fence (there being no dispute that claimant had adversely possessed the strip). Most courts I am familiar with would've reversed and remanded to the trial court to receive more evidence on the location of the fence but Nebraska simply told the claimant they lost, no second chances.
Very interesting. I've seen Arkansas Courts remand with instructions to clarify the description. Sometimes the description is "fence as shown per survey book/page".
"As the parties do not dispute the accuracy of the Witulski survey conducted pursuant to the legal description of the property and it is the only survey in evidence addressing the boundary of Vermaas' property as platted, this survey marks the boundary between the two tracts at issue and shall provide the basis for the relief upon remand."
I wonder what the court would have decided if the "only" survey was challenged by another survey showing the 1950 fence as the established boundary between tracts one and two?
DDSM:beer:
Dan B. Robison, post: 362050, member: 34 wrote: Very interesting. I've seen Arkansas Courts remand with instructions to clarify the description. Sometimes the description is "fence as shown per survey book/page".
"As the parties do not dispute the accuracy of the Witulski survey conducted pursuant to the legal description of the property and it is the only survey in evidence addressing the boundary of Vermaas' property as platted, this survey marks the boundary between the two tracts at issue and shall provide the basis for the relief upon remand."
I wonder what the court would have decided if the "only" survey was challenged by another survey showing the 1950 fence as the established boundary between tracts one and two?
DDSM:beer:
Apparently both Surveyors showed the same "true" line.
Dave Karoly, post: 362051, member: 94 wrote: Apparently both Surveyors showed the same "true" line.
Oops...missed the other surveyor named W...
Still wonder what would have happened IF...
What the hell does "DDSM" stand for, anyways.
... and another Thanks to all y'all and da'board. A great way to wind down from a full day.
Good weekend, everybody.
They are letters that follow my name...
Dan B. Robison, RLS, PLS, PS, CFM, DDSM
Doctor of Divinity, Surveying, Mapping???
Naw...
Dan Dan the Survey Man
DDSM:beer:
10 4. You aren't friends with Chuck Barris, are you? :plumbbob:
So, does the elusive boundary only follow the fence or does it extend across the entirety of both lots with the line being wherever the extension of the easternmost section of the fence would indicate?
Holy Cow, post: 362063, member: 50 wrote: So, does the elusive boundary only follow the fence or does it extend across the entirety of both lots with the line being wherever the extension of the easternmost section of the fence would indicate?
Me thinks that is a very good question, and I would figure the answer is not a or b, but cB-)
Holy Cow, post: 362063, member: 50 wrote: So, does the elusive boundary only follow the fence or does it extend across the entirety of both lots with the line being wherever the extension of the easternmost section of the fence would indicate?
Yes, that's a very good question. The case Cecil v. Gagnebin (146 Idaho 714, 202 P.3d 1(2009) addresses this issue. My reading of that case indicates that the Supreme Count only allowed the fenced portion of the disputed line to be established by agreement/acquiescence. That case may apply in this instance, as well.
Brian Allen, post: 361897, member: 1333 wrote: 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.
Yes, in Idaho.
Dave Karoly, post: 361965, member: 94 wrote: Could you elaborate on the tree? This is the first mention I see on it.
When I talked to the neighbor, I was under the impression that the wire was so old that the tree actually grew around ("swallowed", so so speak, so that wire became embedded in the tree). It may be that the tree was just very close to the wire. It would take a pretty long time for a tree to grow around the wire. I don't know that the wood/wire fence was old enough for that to have happened.
Even a small tree will begin to grow into the wire if the first shoot went between two wires. Did they say how big the tree was when removed?
Brian Allen, post: 361940, member: 1333 wrote: 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 ÛÏoffÛ. Proportioning, calculating, and computing are appropriate tools to create search areas, but are always the LAST resort in retracement.
I believe that I have. The original plat is from 1890's. The property is bounded on the east by 50' of platted R/W, and to the south by 60' of platted R/W. , (11' of which has been vacated, in 1947, to the abutting lots on the north side of the street). Only one other survey (filed in 1992) was found in this block, which used the same control as I found. No other signs of occupation were visible around the boundaries of the properties in question. The boundary we are working to resolve is the north-south boundary between the E1/2 and W1/2 of lots 11 and 12.
Brian Allen, post: 361940, member: 1333 wrote: 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 ÛÏsurveyÛ is not required to be recorded, in fact it isnÛªt 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 ÛÏlostÛ and then re-established? 6) Most importantly, where is it located today?
I'm working to find when the property was split into the E1/2 and W1/2. From what I understand from first gentlemen I talked to, the church owned the whole of Lots 11 and 12 at one time.
It does not appear that the church ever had the property "surveyed". As I mentioned in my OP, the first gentlemen I talked to, there was, at one time, a chain link fence located about 9.5 - 10' west of the vinyl fence, closer to where the "deed" line would be. Whether the church had that fence put in at the time of the property division b/t E1/2 and W1/2 is unknown. That fence no longer exists, except in the recollection of the gentlemen I talked to. That might answer 1) - 4). But that location has not been maintained.
6) That is definitely what I'm trying to figure out.
Does the church's action of letting the neighbor have the vinyl fence where it is satisfy the "agreement requirement" for establishment of the boundary by agreement/acquiescence? Note that the vinyl fence is a complete enclosure around the neighbor's back yard, indicating exclusive use of the area.
But since the church knew that the original location of the wood/wire fence was just to keep animals contained, and not to be accepted as a boundary, does that constitute the church's not accepting the fence as the boundary (as Dave K. posted above). And if they did know and still let the neighbor put in the vinyl fence are they estopped from claiming anything else as the boundary? (as Tom Adams posted above)
Brian Allen, post: 361940, member: 1333 wrote: This is why we are licensed professionals. The answer to the ÛÏwhere is the boundary questionÛ 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.
Agreed. Working on the "understanding the establishment doctrines intimately." Lots of good discussion here to help out with that.
Holy Cow, post: 362126, member: 50 wrote: Even a small tree will begin to grow into the wire if the first shoot went between two wires. Did they say how big the tree was when removed?
No mention of how big the tree was.
smitty, post: 362039, member: 11387 wrote: my goodness, I hope you got a book your looking at. because if all that case law is floating around in your noggin your either a super genius or one step away from crazy. great to see it either way thanks for taking the time to post it. I enjoy reading the case law stuff.
Dan is crazy like a fox. Very smart, but works very hard to not let anyone know it. Good guy too.
Jerry
In most cases, my approach would involve getting both sides present as I unveiled where the math would put the divide line. Then would simply ask them how they want to resolve the matter. Do nothing. Have me set a new line at a designated place and write the description to be used to fix things. They might agree to a plan of action that would not be on my list of thoughts. The one thing I attempt to avoid is encouraging my client to boldly attack the other party in some fashion. In nearly all cases the actual value of the real estate is a small fraction of what it would take to fight with the neighbor in court.
In the case presented here I would anticipate the church organization would be willing to sign over rights to the other party. They have had no real use for the area and were probably content initially (many years ago) that there was less grass to mow. However, some of you live in places where you have allowed minor, normally unknown, bureaucrats to dictate your lives. If this is one of those places, the church may need to fight to regain the area in dispute to stave off problems brought on by the mindless bureaucrats with their critical checklists.
It is odd that, assuming the chain link fence was 10 to 12' west, that the church would let renters build a new fence 10' closer to their building. That doesn't seem like something a reasonable person would agree to knowing the chain-link fence was 10' west and the new fence was only 4' from the building.
Historical aerial photos should be looked at to get a better idea of the history and location of the fences. It may be the current fence location is evidence of the original boundary, and the acquiescence is evidence of the original boundary, not evidence of an aquiesced/agreed boundary.
In California, half a subdivision lot is divided exclusive of the streets which is a rebuttable presumption. One possible guess would be they split centerline to centerline but that put it into the church so they agreed to back off to a minimal distance from the building but this is pure speculation on my part. But if the fence shows up in an aerial photo from the late 1960s that could be evidence it was an original boundary.
The existence of the chain link fence is not proven at this point.
I haven't read all the posts in this thread, just the OP and a few bits of other posts here and there. Hopefully, I'll get more time later. That said, some very knowledgeable surveyors have responded here, so I may be repeating what has already been said.
I didn't read anywhere where there was an agreement to locate the boundary. I read where there was permission to place a fence to contain some critters, and then later permission to replace that fence at the same location. Was there any indication that both parties believed that to be the boundary location? Is there any indication that the current landowner had let church representatives know of her belief that the fence was at the boundary?
What is the basis for the neighbor's belief of the boundary location other than the existence of the fence?
Unless I've missed some important info in this thread, I see permissive use by the church and a mistaken belief by the neighbor, but no agreements, express or tacit as to the actual boundary location.
There seems to be still too many unknowns to be forming opinions about acquiescence, boundary agreements, or AP. And from what you've related, the present location of the fence does not seem to be evidence of the originally established location of the boundary. I'd look deeper into both possibilities (express or tacit agreement, and original boundary location).
I understand that there may be no original monumentation other than the block corners, and that there appears to be no other indications of original occupation lines beyond any existing fences. Indications of original boundary locations can also come in the form of improvements and occupation that is not direct evidence of an occupation line, like a fence.
If the houses, outbuildings, driveways, or other improvements were made about the time the original lots were created or shortly thereafter, those improvements can be better evidence of the lot lines than are the block corner monuments. You may need to look at the other lots in the block to discern patterns, or to investigate if there were common setbacks that were adhered to in the original development of those lots.
In a recent survey I was asked to consult on, the lot dimensions and re-established block corners placed the boundary about 2' from one house and about 8 from the house on the adjacent lot. Evidence from two unrecorded surveys showed the existence of both houses in 1939, and an existing fence along a portion of the boundary in the 1939 survey, and remnants of that fence in a 1965 survey. Although the surveyor couldn't find what zoning ordinances existed when the houses were built (or even if there were such ordinances), experience told him that 5' was a common minimum setback adhered to in that old part of town. A line that was about 5' from either house lined up very well with the location of the old fence.
If you can find out what the minimum setback was by regulation or by common practice, you may be able to find other evidence that supports boundaries that follow that pattern. That would be better evidence of the individual lot lines than are calculated locations from the block corners. If you can't find any patterns by old improvement locations, the block corners may be your best indicators remaining.