Boundary by Agreement; after survey

My first question would be easy. Are you certain the fence isn't on the 1/16th line? It was placed there for a reason and may well be evidence of an earlier establishment. Barring evidence of intentional departure from sound practice it should remain where found. Do you have competing evidence other than math?

I would think a boundary line agreement would work.

thebionicman, post: 336948, member: 8136 wrote: My first question would be easy. Are you certain the fence isn't on the 1/16th line? It was placed there for a reason and may well be evidence of an earlier establishment. Barring evidence of intentional departure from sound practice it should remain where found. Do you have competing evidence other than math?

Assuming he doesn't, it might not be a bad idea to get some sort of statement on record that they both recognize the fence as the boundary. You never know when the next expert measurer will come along.

If this is Oregon the owners will need to go through a boundary line adjustment process. This would include filing a Record of Survey and new deeds.

Your other option - a good one, I think - would be applying the "ancient fence doctrine", which is saying the fence line is evidence of some old survey line, and you are accepting the fence as a monument of that survey. If so you would certainly want to document your findings and decision on a survey and record it.

Are you sure the fence isn't the best indication of where the original aliquot line was?

There is also a legal principle called "acquiescence", Some states have laws on the books regarding acquiescence, otherwise it might be more governed by case law. Essentially if two parties have agreed to the boundary location for a certain number of years, it becomes the line by acquiescence. But I don't know if you need a court ruling to the effect.

The general principle of Boundary Line Agreements are when a boundary can't be determined, a BLA can be made. This may or may not apply in your case, but if you can get it done, if you write up a description of where the fence lies, and the two parties sign an agreement, and they record it, there might not be much arguing.

Another alternative is to exchange quitclaims as you suggested.

Anyway, some thoughts.

Tom Adams, post: 336953, member: 7285 wrote: Are you sure the fence isn't the best indication of where the original aliquot line was?

There is also a legal principle called "acquiescence", Some states have laws on the books regarding acquiescence, otherwise it might be more governed by case law. Essentially if two parties have agreed to the boundary location for a certain number of years, it becomes the line by acquiescence. But I don't know if you need a court ruling to the effect.

The general principle of Boundary Line Agreements are when a boundary can't be determined, a BLA can be made. This may or may not apply in your case, but if you can get it done, if you write up a description of where the fence lies, and the two parties sign an agreement, and they record it, there might not be much arguing.

Another alternative is to exchange quitclaims as you suggested.

Anyway, some thoughts.

I have seen similar statements made for years. Will certain states not allow parties to file an agreement in the deeds office stating what the boundary line is between their tracts?

Norman Oklahoma, post: 336951, member: 9981 wrote: If this is Oregon the owners will need to go through a boundary line adjustment process. This would include filing a Record of Survey and new deeds.

Your other option - a good one, I think - would be applying the "ancient fence doctrine", which is saying the fence line is evidence of some old survey line, and you are accepting the fence as a monument of that survey. If so you would certainly want to document your findings and decision on a survey and record it.

I'm very curious what mechanism forces the requirement. In the event of a true ambiguity nothing is being adjusted. If in fact the 1/16th line is recovered in a different place than the fence I would say it's an adjustment. I'm still not convinced that's the case...

thebionicman, post: 336948, member: 8136 wrote: My first question would be easy. Are you certain the fence isn't on the 1/16th line? It was placed there for a reason and may well be evidence of an earlier establishment. Barring evidence of intentional departure from sound practice it should remain where found. Do you have competing evidence other than math?

No, I don't have any evidence that the fence is *NOT* on the 1/16 line, other than the math. I guess you're saying the 1/16 line could have been established by the entrymen? Not sure about that, but at least it appears they established the boundary line.
I do have another survey from 1981 showing the fence being off 9' to the north and a monument being set there (what would be the CS1/16 corner). This monument was not found, but was set based on the math.

Just trying to figure out the easiest way to resolve and/or document the discrepancy.

Tommy Young, post: 336955, member: 703 wrote: I have seen similar statements made for years. Will certain states not allow parties to file an agreement in the deeds office stating what the boundary line is between their tracts?

The complaint I hear more often is a county clerk or some county official who doesn't understand the difference between "Boundary Line Agreements" and "Boundary Line Adjustments" telling the parties that they can't do an adjustment without the appropriate approvals.

There is also the consideration that the original intent of BLA's is to be an inexpensive way for two parties to resolve boundaries between themselves when the actual location of the line can't be determined. I don't know much about the fine legal points and overcoming a zealous clerk who decides that they can lay down the law.

Here are a couple of Colorado Statutes that address some of this:

38-44-109. Corners and boundaries established

The corners and boundaries finally established by the court in proceedings under this article, or an appeal therefrom, shall be binding upon all the parties, their heirs and assigns, as the corners and boundaries that have been lost, destroyed, or in dispute; but if it is found that the boundaries and corners alleged to have been recognized and acquiesced in for twenty years have been so recognized and acquiesced in, such recognized boundaries and corners shall be permanently established. The court order or decree shall be recorded in the grantor-grantee index of the real property records of the county or counties in which the land lies.

38-44-113. Establishment of boundary corner

The establishment of a boundary corner through acquiescence confirmed by a court of competent jurisdiction, or by written agreement pursuant to section 38-44-112, shall not alter the location or validity of any existing or properly restored public land survey monument in the vicinity. Such existing or properly restored public land survey monument may be used to control future land surveys in the region when such surveys are not related to the boundary corner established by acquiescence or agreement.

Acquiescence. Note on plan: "Ancient fence-line held as property line".

Deano, post: 336958, member: 6369 wrote: No, I don't have any evidence that the fence is *NOT* on the 1/16 line, other than the math. I guess you're saying the 1/16 line could have been established by the entrymen? Not sure about that, but at least it appears they established the boundary line.
I do have another survey from 1981 showing the fence being off 9' to the north and a monument being set there (what would be the CS1/16 corner). This monument was not found, but was set based on the math.

Just trying to figure out the easiest way to resolve and/or document the discrepancy.

I feel your pain on this one. You are cleaning up a mess that was either known about or created by another Surveyor nearly 35 years ago.
Improvements and possession as evidence can be a touchy subject. I would encourage you to consider the possibility the fence may be such evidence. 10 feet in a quarter mile isn't all that much in some early patents. You are the guy on the ground and I appreciate that you aren't taking thus the wrong way. Try setting the math aside and looking at everything else. The problem might just go away...

thebionicman, post: 336957, member: 8136 wrote: I'm very curious what mechanism forces the requirement. In the event of a true ambiguity nothing is being adjusted. If in fact the 1/16th line is recovered in a different place than the fence I would say it's an adjustment. I'm still not convinced that's the case...

By that comment I mean that the county assessor isn't going to recognize the "new" boundary unless the owners go through the BLA process. The title would be clouded by the QC's. There was an attempt to pass a bill creating a new boundary line agreement process in Oregon a few years back that failed because it would have given people the power to adjust property lines while doing an end run around county planning departments.

Norman Oklahoma, post: 336964, member: 9981 wrote: By that comment I mean that the county assessor isn't going to recognize the "new" boundary unless the owners go through the BLA process. The title would be clouded by the QC's. There was an attempt to pass a bill creating a new boundary line agreement process in Oregon a few years back that failed because it would have given people the power to adjust property lines while doing an end run around county planning departments.

Gotcha. That is one reason I discourage the abuse of quit claim deeds as opposed to a boundary agreement. While some States have no provision defining a process, one can usually be gleaned from other sections of code and case law.

Doing a BLA on some rural property isn't likely to be some big cluster F... it's just a form, a Record of Survey, and a pair of new descriptions recorded. BLA's on urban property can be just a little more difficult because the new property has to meet current zoning regs, and a lot of urban lots are already at minimums.

Deano, post: 336958, member: 6369 wrote: No, I don't have any evidence that the fence is *NOT* on the 1/16 line, other than the math. I guess you're saying the 1/16 line could have been established by the entrymen? Not sure about that, but at least it appears they established the boundary line.
I do have another survey from 1981 showing the fence being off 9' to the north and a monument being set there (what would be the CS1/16 corner). This monument was not found, but was set based on the math.

Just trying to figure out the easiest way to resolve and/or document the discrepancy.

I was going to say to do all you can to hold the fence as the 1/16th line also, but now you have an older survey to mess with.
That makes it more difficult to do.
I always try to find out if the line is a patent line, just how old is the line as a boundary?
Here it would be a boundary line adjustment plat and legals, no quit claims.

Norman Oklahoma, post: 336969, member: 9981 wrote: Doing a BLA on some rural property isn't likely to be some big cluster F... it's just a form, a Record of Survey, and a pair of new descriptions recorded. BLA's on urban property can be just a little more difficult because the new property has to meet current zoning regs, and a lot of urban lots are already at minimums.

By BLA do you mean agreement or adjustment? I see a lot of people spending an extra few grand to follow adjustment processes when they aren't needed. That's why I was curious about the mechanism used to leverage things from owners. Recognizing that possession is better than no evidence shouldn't require approval....

"The parties are OK with the fence being the boundary line."

What a wonderful world we live in where that can happen. The particular mechanism to memorialize their wishes is subject to debate; but if headaches develop contemplate if the situation were where the two owners disagree.:pissed:

Deano, post: 336945, member: 6369 wrote:
The fence has been in place and maintained there for at least 50 years, both parties have used and maintained up to the fence, and there are some old irrigation improvements (headgate, pipe, etc.) on the south side of the fence, within about 1-2 feet of the fence. The parties are OK with the fence being the boundary line.

I think the answer depends somewhat to which state you are in. The landowners are in control of where their boundaries are established. According the the Utah Supreme Court that boundary would be fixed along the fence. Now just because that is the common law doesn't mean that everybody else will go along with just leaving it the boundary and living in the same peaceful existence that has been in place for fifty years. A lot of public officials and title people will want quit-claim deeds or boundary adjustment or what ever. Many will cringe over the math of the boundary not being WHERE the boundary is established. Anyway the virtual paper record not controlling the boundary instead of the landowners and their long term actions will just drive these folks nuts and they will demand whatever suits their version of the solution.

If you are processing something through a public entity such as a city, county and such, well you got to feed these folks and their version of the "boundary" law. So instead of a simple boundary line agreement to state the status qua, at least in Utah even with the common law firmly in place, you would need to execute some sort of conveyance to make a new virtual paper record appear to be WHERE the boundary has been established for over 50 years.

Many times I find myself firmly knowing WHERE the boundary is and has been but needing to get landowners to convey to each other what they already own to satisfy the virtual paper record gods!

Interestingly there was a Utah Appeals case a year or so ago that said such an established boundary (such as 50 years along a fence) couldn't be moved to some other location without a conveyance. i.e you'd need a boundary line adjustment to move the boundary to the "surveyed" 1/16 line breakdown. Not sure this one has worked its way all the way through the system, the case had some other problems understanding boundary law.

thebionicman, post: 336973, member: 8136 wrote: By BLA do you mean agreement or adjustment? I see a lot of people spending an extra few grand to follow adjustment processes when they aren't needed. ....

Strictly speaking, I mean adjustment. It's the only process for properly documenting an agreement and getting it into the record. By getting it into the record I mean the system as a whole and not just filing a deed in the recorders office.

But, in this case, there is nothing to stop a surveyor from accepting the fence as the remaining evidence of an earlier unrecorded survey, or of some long forgotten practical location of the line of this aliquot part.

This is the state that wrote Dykes v. Arnold. A monument placed in good faith and long relied on is controlling even if the work could have been done better. Oregon is a recording state, and Oregonian Records of Survey require that there be a narrative description of the surveyor's reasoning. No better place to fully explain the circumstances than that. And the property description would continue to be NW1/4SE1/4....

BTW, I'm not talking about doing a fence line survey. I'd show the ties to the section corners and the differences between the fence and the mathematical division. I'd thoroughly discuss why I accepted the fence and not the math.