Congratulations dad & daughter! ?ÿWell done. ?ÿPerseverence. ?ÿNasty neighbors move out. ?ÿNice neighbor moves in. ?ÿVery good.
When adjoining owners treat a line as being the boundary between them, though that line may be different from the boundary described in their deeds, and when those actions continue uninterrupted for twenty-one years (whether by a single owner or a succession of owners), the parties are deemed to have established the line as the boundary, through recognition and acquiescence, regardless of the boundary described in their deeds. Indeed, this is the law even if during the 21-year period one or both of the properties is conveyed by deed(s) that use(s) the ??record? boundary.?ÿZeglin?ÿv. Gahagen, 571 Pa. 321, 326, 812 A.2d 558, 561 (2002);?ÿLilly?ÿv. Markvan, 563 Pa. 553, 566, n1, 763 A.2d 370, 371n1 (2000);?ÿCorbin v. Cowan, 716 A.2d 614, 617 (Pa. Super.1998);?ÿMoore?ÿv. Moore, 2007 Pa. Super. 61, __, 921 A.2d 1, __ (Pa. Super. 2007);?ÿPlauchak v. Boling, 439 Pa. Super. 156, 653 A.2d 671, 675 (1995);?ÿPlott v. Cole, 377 Pa. Super. 585, 593, 547 A.2d 1216, 1221 (1988);Inn Le??Daerda, Inc. v. Davis, 241 Pa. Super. 150, 162, 360 A.2d 209, 215 (1976).
It is not even necessary that the parties specifically?ÿconsent?ÿto the line so defined. It is sufficient that their actions consistently honored the boundary.?ÿDimura v. Williams, 446 Pa. 316, 319, 286 A.2d 370, 371 (1972);?ÿSorg v.?ÿCunningham, 455 Pa. Super. 171, 178, 687 A.2d 846, 849 (1997).?ÿ The fact, if true, that the parties?? beliefs as to ownership were based on inadvertence, ignorance, or mistake is irrelevant.?ÿZeglin v. Gahagen, 571 Pa. 321, 328 n.5, 812 A.2d 558, 562 n.5 (2002).?ÿ The statute of frauds does not apply. The boundary is binding even when it is not reflected in a writing. The reason for this rule is that??even though the practical effect of establishing a boundary by consent and acquiescence is to modify a boundary line (and thereby, in effect, ??convey? the land between the line established by the land records and the land recognized by consent) ?? no ??estate,? as contemplated by the statute is created.?ÿ?ÿHagey v. Detweiler, 35 Pa. 409 (1860).
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Yes sir.?ÿ This is why we need to learn the law, how to properly gather relevant evidence, be willing to knock on doors and make phone calls, etc.
It is not acceptable to ignore evidence that isn't contained in "the record".?ÿ Anybody notice how old these legal principles are??ÿ Why has our profession ignored them for so long??ÿ How many law suits/court cases could be avoided if we properly apply these legal principles?
"Why has our profession ignored them for so long?"?ÿ Because the focus of our profession is on precision measurement.
"'Why has our profession ignored them for so long?'?ÿ Because the focus of our profession is on precision measurement."
I agree, but the question then becomes, why is the focus of our profession on precision measurement??ÿ Is it because boards of licensure can more easily codify rules for precise measurement??ÿ Is it because universities pine for status and pay more attention to maintaining their ABET accreditation than the occupational needs of survey students or the safety of the public??ÿ ?ÿIs it because buyers, sellers, and lenders, in real estate transactions, show through their actions that they view the risk of boundary related issues to be negligible??ÿ?ÿ
Another possibility, that I don't want to agree with but I'm having difficulty arguing against, is that our measuring skills are more valuable than our research skills.?ÿ Now that I've worked within an engineering firm I know that there is no possible way that I could make as much money surveying boundaries alone.?ÿ Assuming equal time and effort (solo or with a large firm), it will always make more sense for me to pursue building monitoring or other technical measurement related tasks if money is my main motivator (which it is not).
I am not trying to argue that a PLS should be excused for not being aware of acquiescence, I'm just saying that I can understand why outside forces lead some surveyors to place less emphasis on, oftentimes, open ended legal determinations.
"'Why has our profession ignored them for so long?' Because the focus of our profession is on precision measurement."
Now that measurement technology has made it easier to be precise and accurate, it is time to move boundary surveying education from the engineering schools to the law schools.
A legal question of more general interest arises. I think it's settled that if a property owner A gives permission for an adjoinder B to make some use of A's property, the clock for adverse possession or acquiescence does not begin to run. But what if B sells to C. Does A have to contact C and tell C to either agree the use is by permission and the permission may be withdrawn, in order to prevent the adverse possession/acquiescence clock from running, or failing such agreement, cease the use?
A legal question of more general interest arises. I think it's settled that if a property owner A gives permission for an adjoinder B to make some use of A's property, the clock for adverse possession or acquiescence does not begin to run. But what if B sells to C. Does A have to contact C and tell C to either agree the use is by permission and the permission may be withdrawn, in order to prevent the adverse possession/acquiescence clock from running, or failing such agreement, cease the use?
In an AP case the burden of proof is on the claimant. The claimant always has to prove that the use is not permissive (ie/ adverse) in the first place. Permissive use is the a priori assumption, in other words. So if A can show that permission was once given - and, again,?ÿ the assumption will be that it was so the standard of evidence will be low-?ÿ C will have to prove that it was positively withdrawn at some point.?ÿ ?ÿ
As a practical matter I'd think that A would be well to renew the permission from time to time, especially when ownership changes hands.?ÿ
Proving up a boundary by agreement, eg/a practical location, is quite a different thing.?ÿ ?ÿ
In the present case I'd think that the encroached upon adjoiner should be receptive to a full on boundary line adjustment rather than just an easement.?ÿ She is going to be paying taxes on that 20' strip while enjoying absolutely no use of it for the foreseeable future.?ÿ?ÿ
The opinion John cited does not mention uncertainty but it is usually required for acquiescence therefore I agree with Linebender on its probably not an established boundary and with Mark that a boundary line adjustment would be the best solution.
The cite reads like more of a hybrid AP slash Acquiesce Doctrine, however so uncertainty may not required. I may find time to look at my Pennsylvania Digest later to see what the requirements might be.
The opinion John cited does not mention uncertainty but it is usually required for acquiescence therefore I agree with Linebender on its probably not an established boundary....
I'll one up your statement about uncertainty as to the "true" boundary line - it is an absolute requirement for any form of agreed boundary line doctrine. To be otherwise violates the statute of frauds. Now, the true line doesn't necessarily need to be difficult to ascertain. Just so the owners don't know it.?ÿ
Right, the legal reasoning is that the neighbors don't know where the boundary is located so they are only establishing it, not moving it. The legal fiction is that the boundary has not moved so there is no exchange of land so the statute of frauds does not apply because there is no conveyance requiring a written deed.
Given the facts as stated, at least at the time of the original agreement, the neighbors had to know where the boundary was located because one sought permission from the other to build a driveway on the neighbor's property so there is no boundary establishment and even if there was it would not be valid because they were improperly using a boundary line agreement to adjust a boundary.
However, the PA Court did allow that the boundary may have moved so their Doctrine seems to look a bit more like another form of AP.
Even then, given the facts as stated this seems to be permissive and that seems to kill any acquiescence.
Pennsylvania has a lot of cases.?ÿ One term that is new to me is they call it a "Consentable Boundary."?ÿ Most of the cases either uphold the physical boundary or say there is insufficient evidence to do so.?ÿ This is typical.?ÿ I have only found one case in California, for example, which explicitly says the owners can't agree to a different boundary location when they know where the true boundary is located (in that case a Section Line that had recently been flagged by the US Deputy Surveyor, they agreed to a location 10 chains to the south).
For example:
254. Moore v. Moore
Superior Court of Pennsylvania. March 6, 2007 921 A.2d 1
Headnote: There was no evidence that western landowner or his predecessor occupied disputed land for the requisite period of 21 years so as to establish boundary by acquiescence at tree line east of highway; western landowner's act in ??allowing? another to use the land was comparatively recent, western landowner only held title to the land for five years, and western landowner's grantor testified that she made no claim to the land on the eastern side of the highway.
1 Case that cites this legal issue
Document Summary: REAL PROPERTY - Boundaries. Eastern landowners had claim of right to land on the
eastern side of highway.
Consentable Boundaries doctrine:
255. Lilly v. Markvan
Supreme Court of Pennsylvania. December 20, 2000 563 Pa. 553
Headnote: Total absence of evidence which could support grant of additional one-half acre to neighbors under theories of adverse possession and consentable boundaries rendered award of additional one-half acre manifestly unreasonable, and remand for reformation of decree to limit conveyance to land actually adversely possessed was necessary, where additional half-acre was not occupied or used by neighbors continuously for required period of time, there were only two or three isolated complaints that neighbors may have been dumping or cutting down trees on land, and invasions were always objected to by landowners.
Document Summary: REAL PROPERTY - Adverse Possession. Lack of evidence to support award of
property under adverse possession theory required remand.
Consentable Boundaries doctrine:.......
This link explains the meaning of "Consentable Boundaries" more fully. It seems to me to be just another flavor of Recognition & Acquiescence.?ÿ
Consentable Boundaries doctrine:.......
This link explains the meaning of "Consentable Boundaries" more fully. It seems to me to be just another flavor of Recognition & Acquiescence.?ÿ
I think the 1817 case mentioned is probably?ÿPerkins v. Gay, 3 Serg. & Rawle 327 (1817) but I don't have a copy of that one.?ÿ Numerous cases cite it.
Hunt v. Devling, 8 Watts 403, 405 (1839), 1839 WL 3602:
The charge was in substance correct. A devise to children of portions assigned them by a line marked on the ground by the devisor himself, must be taken to have been predicated in reference to such boundary, though it be not expressly referred to in the will; and it will consequently govern in preference to the quantity called for, which is matter of description. But the recognition of this line by the devisee, or those who claim under them, would itself be conclusive. A line fixed as a permanent boundary by those who do not exactly know their rights, and who profess to act on that supposition, is fixed in the very spirit of compromise. It is what we call a consentable line, peculiarly sacred in cases of family arrangement, which requires not the previous existence of a flagrant contest in addition to the act of the parties to constitute it. But the occupants have since held in conformity to it, by adverse possession, for more than one and twenty years, and they are reciprocally barred by the Statute of Limitations. The court did right, therefore, not to leave the question to the jury as an open one.
Plauchak v. Boling, 439 Pa.Super. 156, 165 (1995), 653 A.2d 671:
The doctrine of consentable line is a rule of repose for the purpose of quieting title and discouraging confusing and vexatious litigation. Plott v. Cole, 377 Pa.Super. at 592, 547 A.2d at 1220. See generally George M. Elsesser, Note, Consentable Lines in Pennsylvania, 54 Dick.L.Rev. 96 (1949) (discussing the history and application of the doctrine of consentable line in this Commonwealth). There are two ways in which a boundary may be established through consentable line: (1) by dispute and compromise, or (2) by recognition and acquiescence. Niles v. Fall?ÿ Creek Hunting Club, Inc., 376 Pa.Super. 260, 267, 545 A.2d 926, 930 (1988) (en banc ). As the en banc court explained in Niles, the doctrine of consentable line is a separate and distinct theory from that of traditional adverse possession, although both involve a twenty-one year statute of limitation. Id. at 267-68, 545 A.2d at 930.
The Law Review Article should be very interesting to PA Surveyors (Consentable Lines in Pennsylvania, 54 Dick.L.Rev. 96 (1949).
PA has a single Established Boundary Doctrine which they call the Consentable Boundary Doctrine with two different methods of compliance:
1) If the property owners have a dispute, they may compromise and agree to a physical boundary.?ÿ It appears that a dispute is necessary but I haven't read every case (many State Courts state an actual dispute is not necessary, mere uncertainty is sufficient).?ÿ The Statute of Limitations is not a factor, the boundary will be enforced under a theory of estoppel.
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2) If the property owners have recognized and acquiesced in a physical boundary for at least 21 years then the Court may find that is the boundary.
They have cases with the usual statements such as the doctrine does not affect a title transfer, the parties hold title via their existing deeds, it is not within the Statute of Frauds therefore no written deed or agreement is required.?ÿ The agreement may be inferred from the evidence, direct evidence of an agreement is not required.
