The phrase "as fenced and used upon the ground" has been quite commonly employed by land surveyors in Central Texas, particularly in metes and bounds descriptions. It pretty much appeared out of nowhere in the sense that I don't think I've ever seen it in a 19th century description, but after WWII it's common to find it in the descriptions of old rural lands written by surveyors for conveyancing and other purposes.
Usage varies. The purest use would apply to situations where a fence post is assumed to replace the mark of the original survey and there is nothing else to conclusively show that the post is not in fact in the position of some stake or stone no longer in place. So, the fence post might be described as the corner of such-and-such a survey "as fenced and used upon the ground" as a sort of shorthand explanation.
Another perfect use would be where the grant contains some ambiguity that is resolved by examining the pattern of fencing and occupation. Given two or more possibilities, that which is "fenced and used upon the ground" from a time near the transaction would have some natural advantage as the proper solution.
However, at some point, it all went bad in the hands of careless surveyors with the result that a fence that wanders more than 100 feet off line and obviously can't be the line between two corners is described as "the line of the such-and-such a survey as fenced and used upon the ground" when "thence with an irregular pasture fence of undetermined origin" would be the actual statement of fact.
Essentially, the "as fenced and used upon the ground" has become a call for a fence that a surveyor has dressed up by pretending that the fence itself is the best evidence of the location of a line, even when the calls clearly cannot describe the line supposedly followed, as in the case of a snakey pasture fences run on some merely convenient route.
So, the question is this: is some variation of "as fenced and used upon the ground" common in the jurisdiction where you survey and what does it really mean there other than "I didn't really spend much time trying to figure this one out, but sure surveyed every angle point in this fence that nobody knows who built, when, or why".
Kent,
I have never seen that phrase used in my neck of the woods. I have been working in the Greater Memphis area for almost 20 years.
Jimmy
No.
Usually descriptions don't change except for further subdivisions of the land.
> Usually descriptions don't change except for further subdivisions of the land.
That is the downside to the modernization of metes and bounds descriptions. One mistaken survey like a fenceline survey slips into the chain of title and later surveyors tend to view their task as just to follow that description, now of record, instead of revisiting the question of the actual boundaries of the tract before the "as fenced and used upon the ground" bit arrived.
Usually descriptions don't change except for further subdivisions of the land.
I wish that were true BUT it's not, not in Utah. Descriptions get rewritten all the time and surveyors are not the biggest abusers. Title companies, landowners, public officials (tax folks). Lots of times, to figure out what happened I need to go back to the original description before the rewriting began to resolve the issues.
It's a free far all! A better description would be a colossal mess.
That is a phrase that arrived in this area some 35± years ago by the insistence of a buyer that had decided that he was not going to pay for any more land than was fenced and most of those insisted that they were also not buying any land within any county or logging road that was legal access to other property.
It appeared to be a phrase used by those low ball surveyors so they could finish a job early and have time to stop for beer on the way back to the office.
A few title officers and bank officials would insist that they would not insure any land or loan any money on lands outside of where fence lines were located.
I can remember hearing my mentor reminding many of them where they could stuff the notes and letters he had received asking that he change his surveys to accommodate their requests in order that closings happen without problems.
Have also seen in a paragraph after the description where a lawyer would include a phrase similar to "and any other portions of the original tract of land owned by the seller as not included in the above description".
Another term that I have seen from that period was "I, Noel Havins am conveying all my lands as owned in _____ County, Texas to Big Dufus".
After many a lengthy deed search it was found that there was no land to sell.
> That is a phrase that arrived in this area some 35± years ago by the insistence of a buyer that had decided that he was not going to pay for any more land than was fenced and most of those insisted that they were also not buying any land within any county or logging road that was legal access to other property.
>
> It appeared to be a phrase used by those low ball surveyors so they could finish a job early and have time to stop for beer on the way back to the office.
Yes, the "as fenced and used upon the ground" definitely caught on with the low ball, quick turnaround types because it just simplified all that research and actual search for evidence to a few wraps of flagging around some fence posts and there ya go!
There are limits to even that approach, though. A few years ago, I ran across a survey that had been made on the theory that some very old pasture fences were something other than just very old pasture fences (the land had all been under one ownership until quite recently), but that had failed to actually connect the dots on the fence shots correctly! So the line of a tract "as fenced and used upon the ground" ran through a dwelling and attempted to convey about an acre and a half of someone else's land by total misadventure.
It wasn't just a practice of low ball surveyors, because it was a requirement not too long ago by the Veteran's Land Board of Texas in Austin that no land outside of a fence could be included in a tract being financed by the VLB. Any survey plat which showed a fence near a property line, but within a tract was sure to get the application rejected until it was "corrected" and the fence line followed. It was common practice to survey along the fences until you reached a property line, then continue along the property line to cut out the VLB tract. Another set of field notes would then be prepared for those slivers of land outside of the fence and those slivers would be conveyed separately to the new buyer and not financed by the VLB. Many times those sliver tracts did not get transferred or recorded because the buyer didn't know anything about purchasing or owning land or protecting the title. Most only knew that since he was a Veteran, he was qualified to be a land owner. Thankfully, those VLB practices have stopped.
I have seen things like this originate in wills for various reasons.
Never seen that particular phase. However, I have seen many calls along an old fence line. In the area where I live, a survey in the 40's required picking up and dropping off the County Surveyor and his helper, paying him $5 per day and feeding him lunch. The adjoining land owners would be present and often "helped" with the survey. Often times, the land owners would agree that the fence, turn row, woods line, road, terrace or ditch was the property line as the tract was surveyed. Usually no written agreement was signed as "a man's word was his bond". The property owners were ok with this as sometimes the cost of putting the fence on line would cost more than the land involved. sometimes that old County Surveyor's calls are just good enough to make you crazy.
Jeff Opperman has it!
I agree with Opperman.
Then later the thing caught on among realtors that would tell me, "the buyer is only buying what is fenced", as if that was the only thing that was defendable in case of a dispute.
There was a surveyor here once who used "occupation fences" on almost all rural jobs. Things get really screwed up for other surveyors.
i have and do use that phrase, and neither do i consider myself a lazy, lowball surveyor nor agree with the inference that it necessarily indicates as much.
in fact, quite the opposite. i don't use it often, and when i do it's almost always in conjunction with qualifying language, an alternate description, and/or a report and consultation with interested parties- and never without a detailed survey that graphically and verbally indicates the source of ambiguity. prescriptive roadways and, yes, long standing lines of occupation tend to prompt me to include this phrase, and it takes quite a bit to get me there- usually surveying 2 or 3 or more tracts beyond the original scope of what i signed up for. but again, i'll only use it when i've done a thorough examination of the issues and there appears to be no clear indication one way or another.
at some point the decision is out of my hands. i can plainly describe what i'm describing. i can give an explanation for why i'm describing as much, and i can give another description that varies from the first and the reasoning behind that one. i can't force a title company to insure either or both, and i'm not a judge (as much as i'd like to fantasize as much sometimes). knock on wood, in the handful of boundary issues i've been involved in that went litigious, i've yet to be found negligent or in gross error. and i'm fairly certain i haven't caused any surveyors that follow me any headaches. maybe only the ones who aren't willing to do thorough homework themselves or at least pick up the phone and give me a call...
so, i don't feel the least bid bad about using it in the context i do, and don't intend to remove it wholesale from the phrases i have available to me.
> Usage varies. The purest use would apply to situations where a fence post is assumed to replace the mark of the original survey and there is nothing else to conclusively show that the post is not in fact in the position of some stake or stone no longer in place. So, the fence post might be described as the corner of such-and-such a survey "as fenced and used upon the ground" as a sort of shorthand explanation.
>
> Another perfect use would be where the grant contains some ambiguity that is resolved by examining the pattern of fencing and occupation. Given two or more possibilities, that which is "fenced and used upon the ground" from a time near the transaction would have some natural advantage as the proper solution.
Kent, I would be interested in the verbiage that you would used to describe this situation? As well as any other surveyors verbiage.
> i have and do use that phrase, and neither do i consider myself a lazy, lowball surveyor nor agree with the inference that it necessarily indicates as much.
Maybe you don't get out much, but "as fenced and used upon the ground" applied to a fenceline survey is pretty much a universal indicator of low-information surveying. It's code for "I don't know where any of the corners are, but here are the fences".
> It wasn't just a practice of low ball surveyors, because it was a requirement not too long ago by the Veteran's Land Board of Texas in Austin that no land outside of a fence could be included in a tract being financed by the VLB. Any survey plat which showed a fence near a property line, but within a tract was sure to get the application rejected until it was "corrected" and the fence line followed.
That very well may be the origin of "as fenced and used upon the ground" when describing fenceline surveys. I'm pretty sure that another one of the quirks of the VLB was that at one time in the early days of the program they required concrete monuments at some minimum number of corners of a tract. Unusual calls for concrete monuments in an old description that has been used in later conveyances of rural land usually means there's a sale to the VLB in the 1950's somewhere in the abstract.
just like rtk=bad?
frankly, your willingness to apply binary judgement to issues belies how thorough and extensive I know you to be in practice.
> > Another perfect use would be where the grant contains some ambiguity that is resolved by examining the pattern of fencing and occupation. Given two or more possibilities, that which is "fenced and used upon the ground" from a time near the transaction would have some natural advantage as the proper solution.
>
>
> Kent, I would be interested in the verbiage that you would used to describe this situation? As well as any other surveyors verbiage.
Basically, the way I'd describe something like that is to describe the nature of the actual fences in a way that establishes the evidence of their age (a "very old 8 in. Cedar Post with remnants of very old Barbed Wire" is obviously different than "a new-appearing treated Pole Post") and to recite the connections that show the overall pattern in relation to lines and/or corners of more certain identity from which the surveyor made a conclusion.
The whole purpose of the record is to present the most important evidence from which the surveyor reached a conclusion and to do it in a way that some future surveyor will be able to follow the logic and either agree or disagree with those facts in view.
What am I missing?
> The phrase "as fenced and used upon the ground" has been quite commonly employed by land surveyors in Central Texas, particularly in metes and bounds descriptions.
I really don't read into this statement that the fences ARE the boundary. A parcel can be contiguously fenced and still retain a properly monumented boundary.
The relationship of the fence to the boundary line would be detail that may or may not indicate any survey issues. Around here occupational evidence usually still falls in behind a properly located and monumented boundary line.
> frankly, your willingness to apply binary judgement to issues belies how thorough and extensive I know you to be in practice.
No, it's just an obvious observation from years of practice. "As fenced and used upon the ground" is invariably smoke and mirrors cover for lack of either research or field investigation, particularly when the phrase is applied to an original land grant line.
Whenever I see "as fenced and used upon the ground" in a deed, the very first thing that comes to mind is to actually go find the corners that the fenceline survey missed. Probably more than 2/3 of the time they can still be located.
The interesting wrinkle that RTK adds to fenceline surveying is that the RTK folks tend to be perfectly happy to get a shot wherever they can easily hold a rover pole. So the corner "as fenced and used upon the ground" becomes a thing orbiting whatever post is in place at the time.
What am I missing?
> > The phrase "as fenced and used upon the ground" has been quite commonly employed by land surveyors in Central Texas, particularly in metes and bounds descriptions.
>
> I really don't read into this statement that the fences ARE the boundary. A parcel can be contiguously fenced and still retain a properly monumented boundary.
The phrase is typically used in a metes and bounds description of a boundary. For example, the record East line of a tract may be the East line of the original land grant known as the Joseph Doak Survey No. 615 that runs SOUTH for 950 varas. That morphs into 30 calls that follow the meanders of some fence built at some time in the past by some unknown person that gets described as "the East line of the Joseph Doak Survey No. 615 as fenced and used upon the ground" as if the original survey line has added 29 angle points.
