What difference would it make if it could be demonstrated that the fence(remnants) served a utilitarian purpose as opposed to marking a boundary? Say, excluding stock or deer from an orchard? Guess I'm just not sure how the age of the wire would demonstrate the intent of the fence, which seems to me the real question at the heart of the matter. Did it evidence a boundary agreement or just keep critters in or out.
That looks to be quite the hash!
Just because I'm paranoid, doesn't mean they aren't out to get me.
Whose orchard? Does the use of the orchard have any bearing on an adverse possession claim?
pedanticism: It's not "Parole evidence," it's parol evidence unless it has to do with avoiding being sent back to prison.
There are approximately 450 patents for barbed wire and all but a handful date from 1875 - 1893, so patent date won't tell you much.
I've seen wire in relatively good condition that I know was at least 100 years old because the company that manufactured that particular design went out of business before the turn of the 20th century.
The best book on the market, by far, for identifying barbed wire is "Barbed Wire Identification Encyclopedia" by Harold Hagemeier
I finally gave up. There was a research project set up at Kansas State University about 1930 something where a variety of types of barbed wire were used to construct a series of short fences on a plot on a big hill just north of the main campus. Scientific analysis of negative activity was conducted annually for at least 65 years. I know this took place, but, I cannot find proof of it on the internet tonight. I believe the plot was removed in just the past few years to permit something else to happen. Professor Fred Fenton was involved for the first 40 some years, but even that detail didn't help to find anything reporting on the research.
Clearly, different results would occur in different areas of the country. Exposure to saltwater mist and acid rain would be negatives. Perennially dry conditions would be positive. Overstretching to cause diameter reduction would be another negative. The effects of tree sap would be interesting to know. Are they a good thing or a bad thing?
Now, I must admit chuckling at the idea of attempting to restrain livestock with a three-wire fence. None of my livestock would give it any respect. My standard is six-wire fence and in a small lot situation I have installed eight-wire fence. A three-wire fence would simply be a notice of claim of ownership.
Let me add kudos to Kent's statements.
If you are worried that the wire came from somewhere else look for splices. In our area of 30" of rain annually fences are so overgrown by brush and trees in 15 years the wire must be cut in places to extract it. Short spaces between random splices in the wires is a good sign that the fence has been moved.
While true that smooth wire was used prior to the innovation of barbed wire, barbed wire, having its origins from 1876-1880, is pretty old stuff itself.
I've spent 20 years trying to date wire by the Barbed Wire Books and conclude that it cannot be done. The best that you can do with the books is to identify the type and be able to throw the lingo around. The only dating that you can do from the books is the patent dates, which in 99.99% of the cases were before 1885.
In the same 20 years I've noticed that some fence wires are galvanized and some are not. The ones that are not are rusty and brittle. It takes a lot to rust through the zinc of galvanized wire.
There is another aspect to rusty v. galvanized. I've noticed that in northern Idaho any Homestead that was patented after 1910 has galvanized wire in its fences and these wires look almost like new. Homesteads before this time are bounded by rusty fences. Why? Why indeed, galvanized wire was an option from day one (1876).
Here is my opinion. A 160 Acre homestead had to be bounded by two miles of fence, plus another mile of cross-fences. The wire and posts were a bigger expenditure than equipment, barns or home and cost more than the land itself. Galvanized wire was more expensive, heavier and weaker (the heat anneals the wire and the zinc alloys the outer layer) thus the homesteader could realize a substantial savings with bare wire, which was cheaper, less freight and could span greater distances between fence posts. After 1910 it appears that only the galvanized wire was available. While my opinion is confirmed by a hundreds of observations, and I never found an exception, never-the-less it is difficult to "prove".
On the other hand it could just be that it takes a hundred years to electrolyze the zinc off of fence wire.
Either way, it can be safely stated in Northern Idaho that rusty fence wire without splices predates 1915. I've noticed about the same in Arizona, except that AZ wire which is in contact with the ground loses its zinc more rapidly.
When you have a fence with all strands being rusty and few splices, you don't need witnesses and testimony to establish that that fence is more than 80 years old, and is probably from the Homestead era; the fence speaks for itself. At least in Northern Idaho.
FENCE LINE TREES: After getting permission, cut the fence line tree down like a Tootsie Roll, one segment at a time, Cut between the strands and then split the segments with an ax to expose the wire and its ring count. Be sure to have witness, video and pictures.
Be aware that turgor pressure in a tree will push the ends of loose wires together. In other words, the ends of a loose wire that was originally north-south will appear as two wires entering the tree from either east or west, depending on which side of the heartwood the wire is stapled.
Chad Erickson
So a fence alone changes the boundary? My neighbor and I have a fence that is not on the line. We both know it. It is a fence of convenience. Have they been paying taxes on the area possessed? Is there any evidence that they have put the world on notice that this is theirs and theirs alone and if anybody else doesn't like it they can look up the barrel of a shotgun? And when the judge decides to just split the difference then what happens?
Damn autocorrect:-@
> What difference would it make if it could be demonstrated that the fence(remnants) served a utilitarian purpose as opposed to marking a boundary? Say, excluding stock or deer from an orchard? Guess I'm just not sure how the age of the wire would demonstrate the intent of the fence, which seems to me the real question at the heart of the matter. Did it evidence a boundary agreement or just keep critters in or out.
>
> That looks to be quite the hash!
I could rephrase that now that I have more insight and ask, "Has a boundary location ever been substantiated by dating barbed wire?" or "Is the date of the wire less important than when it was installed?"
This fence, allow me to explain, is by no means the kind of fence you would see on a ranch in Texas or some other cattle wrangling state. Something that has to hold in hundreds of thousands of dollars worth of potential dinners and breakfasts. There isn't post one. The fence goes straight up over a hill that some people would find impossible to scale let alone a cow.
The difference I see is this. If it's used for cattle and there are no more cattle, there is no need for the fence. Chance of said "fencer" getting the 7 acres: None.
If, however, it was used to mark a boundary, no matter if it's not where it should have been, and given the long standing evidence on the ground and lack of opposition, that possession line has successfully ripened into a time-honored boundary line to be memorialized. This takes the temporary nature of a grazing agreement out of the picture. That's the only solution I have for this issue that, without proper arbitration and negotiation, will end up in a courtroom.
There is a whole lot more to this issue than I've mentioned. I've received much information by asking a simple question and then blabbering on about what case I'm working. I'll say that I've learned that most of the barbed wire fences I've seen were not to hold in cattle. It's rare to find a fence with as many as 8 strands of wire all stretched nice and tight with anchors at the corners and splices fixing damaged areas. I find them but more often it's just down through the woods on trees and the occasional section of posts.
Through parol evidence, the orchard belonged to the fencing party. Apple and peach. The orchard will no doubt come into play. It's been said that at one time part of the area in question was used for cattle.
Here's another interesting question:
When you let pasture go back to woods, what's one of the first species of tree you will find?
I've heard that locust would be the first one to start the reclamation.
You can also look for weevil deformed pines, they are only present when the pine saplings were in direct sunlight, this can help you age the time of abandonment.
I highly recommend the book Forest Forensics by Tom Wessels.
> So a fence alone changes the boundary?
I've yet to see any example of this, and have yet to hear anyone seriously advocate such a position.
> My neighbor and I have a fence that is not on the line. We both know it. It is a fence of convenience.
Great. I'd suggest that you and your neighbor find someway to preserve this evidence for future owners of your respective parcels. It is your land, it is therefore your responsibility to maintain the boundaries and the evidence of its location. I sure wouldn't entrust anyone else to take on this responsibility for my land.
> Have they been paying taxes on the area possessed?
[sarcasm]Ask Linda Blair, or maybe your local clergy?[/sarcasm] sorry, couldn't resist.......
> Is there any evidence that they have put the world on notice that this is theirs and theirs alone and if anybody else doesn't like it they can look up the barrel of a shotgun? And when the judge decides to just split the difference then what happens?
This is why the preservation of the boundaries and evidence is crucial.
I haven't become familiar with the intricacies of PA boundary law, but a quick search revealed this interesting case
Three wire is typical in NY as well. And no, it didn't work all that well. From my great-grandfathers diary "...Studor's cow broke the wire and into my potatoes AGAIN...".
Wire tends to disintegrate once on the ground in these acidic soils, but bits and pieces from 1800's can still be found with metal detector. Lots of parcels with both smooth and barb wire remnants.
But I agree with those who question the importance of precise age in this thread. It's obviously a fence of utility. Along the top of bank, orchard on the other side, not close to any deed line. And not difficult to prove it is old enough for acquiescence or adverse possession discussion with the testimony available.
Based on the pictures it seems clear there is ambiguity in the true location of the deed lines which would set up a case for acquiescence but probably not color of title toward adverse possession (not sure if that's a requirement in PA).
I doubt AP will be the answer in this case. An agreed line might prevail over a deed line at this point, but will depend on the testimony.
Some of my great-great-great-great grandparents spent time in your State long before the invention of what we know as barbed wire. I fully understand the concept of installing a few strands along a perceived boundary line to serve notice to wanderers of any kind that they are attempting to enter someone else's land. That would be a rare situation west of the Mississippi River as a percentage of all the miles of barbed wire fence that has been installed and maintained. I will confess to having a stretch maybe 150 feetlong along the north side of my property that has never had livestock on one side and not for more than 45 years on the other side, but its still sort of there. It wouldn't slow down a dying animal of any size. But, my sister wants it to remain as a symbol of where her land starts and mine stops. So the lawn mowers on both sides have to be very careful mowing near it and then weed eat too much to get the rest to look nice.
A good compromise might be for one party to pay the other party some fraction of the expected cost of litigation in return for a quit-claim.
1939
I was contacted today by a surveyor from this board. He gave me the location of historical photos. Penn State offers these maps for free. I've found lots of overhead photos but this one answers a couple of my questions. From this point, the areas begin to grown in. I've said that the inception of this title dates back to the 20s and I would argue that this photo backs up parol evidence and physical evidence that the line never really went straight through despite what the records might indicate. That tail was cleared at one time and fenced around the perimeter of the clearing. This photo is from 1939
Thanks, "Al" Pepling, for the nudge in the right direction.
Privity of Estate
Thanks for the link. Somerset Co. is right next door.
I have found this property to have been in the family since 1927. Tacking would be appropriate due to the privity of estate. My whole case, minus some of the ugly details, is laid out for all to see. We can all ask more questions and try to wrap doctrines around it and look for legal standing. These are the things we do.
Does the age of the fence have anything to do with its purpose? No. Does it matter that there is very little evidence of the fence besides remnants in trees? I'm not sure how important it is but I'm required to investigate it and locate it and show it. I think it has become more important now that the clearing has grown full. The twenty-one year statue was fulfilled in the 40s.
Can you now abandon an ancient line in favor of a an ancient description with patent error?
I'm glad I don't have to make the decision. I must, however, have a professional opinion: The property in question was cleared, fenced and used for the statutory period. Remnants of this occupation still exist. The lines stood in repose and uncontested until only most recently. What more can we do?
1939
I notice also a completely clear portion that looks suspiciously similar to the difference between two sets of monuments you show in one of the other posts. At any rate, there is still nothing to indicate that the clearing or fencing was an attempt to lay out the deed, rather the photo bolsters the pasture fence theory in my view.
I like Bill's idea. I had one similar to this a few years ago. I put three differing agreements on the map and suggested the parties pick one of them. Much to my amazement they did. I left spaces below each suggestion for each to sign and a notary space. In my case they chose to agree on the fence with all it's twists and turns (not what I would have liked). They both signed in front of a notary and returned the map to me and I filed it. Might or might not stand up in court right away if one of them wanted to rescind it, but 10 years down the road I'm sure it will.
But, point is that if you can give them real options spelled out to pick from, you might get results. Whereas if they have to try on their own they usually can't get anywhere but court. Of course if attorneys are already involved it might be too late. You have to go through the attorneys once people are represented in the matter.
1939
>there is still nothing to indicate that the clearing or fencing was an attempt to lay out the deed, rather the photo bolsters the pasture fence theory in my view.
They weren't necessarily laying out the deed. The deed indicates a jog to the south and they went right along the top of the hill and began possessing it. Nobody objected at the time. An adjacent property (next to the "injured party") calls itself out to be unseated land. The specific deed being "injured" doesn't mention unseated land but perhaps the landowners weren't schooled in such things and went ahead and grabbed the land. Clearing it and fencing it and occupying it indicates an intention to possess it. The photo is great evidence to that theory.
1939
So you have some bounds calls that could be interpreted as taking in the area? That would certainly be important. Do acreages favor one or another interpretation?
Privity of Estate
I sounds like you have it under control. Here's another case that discusses quite a few issues that be important, including how substantial the "fence" may have to be.