The answer to this question depends on your state's laws and whatever solutions local regulators have at their disposal. The OP appears to be in Idaho.
Is the 9 foot difference explainable, as in are there good reasons that there may have been uncertainty in the past regarding the shape of the section, 1/4 section/ or 1/16th section? Do similar conditions exist along other lines? Doe's it appear someone ran the standard 1320' to establish the fence rather than subdivide the section? Or are all the GLO corners in and every survey in and around the section shows the same dimensions/same breakdown?
The fence can be the property line but not the 16th line. If you call the fence the 1/16th line, you may be affecting other boundaries dependent on the shape of the two 1/16th sections.
If you and the owners by your actions say the fence is not the deed/16th line, you will also be saying the fence on the north side of the 310' wide north parcel is not on the line described in the deed (assuming from your post that the parcel is the southerly 310' of the 1/16th section). If the 310' strip owner is OK with putting ownership of the "northerly" 6000 sq ft or so of his parcel into question, you might skip dealing with the north fence.
Good luck.
I forgot to say that if do you some kind of agreement, make sure you include words of conveyance so the owners are acting on the agreement, not just making an agreement.
BajaOR, post: 336992, member: 9139 wrote:
The fence can be the property line but not the 16th line. If you call the fence the 1/16th line, you may be affecting other boundaries dependent on the shape of the two 1/16th sections.
There is that distinction, but are you saying the the 16th line can never be anything but the mathematical, theoretical, point?
Here, in a case where we are certain the fence is not on the aliquot line, we would simply prepare a description for the sliver/wedge so that Party A could deed it to Party B. Party B now owns two tracts and Party A has a slightly smaller tract. No big deal. No agreement/adjustment BS to it whatsoever.
BajaOR, post: 336992, member: 9139 wrote: The answer to this question depends on your state's laws and whatever solutions local regulators have at their disposal. The OP appears to be in Idaho.
Is the 9 foot difference explainable, as in are there good reasons that there may have been uncertainty in the past regarding the shape of the section, 1/4 section/ or 1/16th section? Do similar conditions exist along other lines? Doe's it appear someone ran the standard 1320' to establish the fence rather than subdivide the section? Or are all the GLO corners in and every survey in and around the section shows the same dimensions/same breakdown?
The fence can be the property line but not the 16th line. If you call the fence the 1/16th line, you may be affecting other boundaries dependent on the shape of the two 1/16th sections.
If you and the owners by your actions say the fence is not the deed/16th line, you will also be saying the fence on the north side of the 310' wide north parcel is not on the line described in the deed (assuming from your post that the parcel is the southerly 310' of the 1/16th section). If the 310' strip owner is OK with putting ownership of the "northerly" 6000 sq ft or so of his parcel into question, you might skip dealing with the north fence.
Good luck.
I forgot to say that if do you some kind of agreement, make sure you include words of conveyance so the owners are acting on the agreement, not just making an agreement.
If the fence is the best evidence of the line it is the line. That is the important distinction to consider. We aren't talking about some other operation of law, such as AP or AQ. I agree that all owners must be on board. Where we part is agreement versus conveyance. Agreement is recognition that ambiguity exists and is being resolved with certainty. Making it a conveyance brings in all of the required elements, including planning and zoning.
The manner in which this is entered in the record may vary. I would resist anything that forced actual conveyance.
"I could use some advice on a situation involving a fence not matching up with the title line on a property."
First, I have no idea what a "title line" is. I'm assuming it is the "line" created on your computer screen when entering in the mathematical/theoretical bearings & distances from the description of the property. This ISN"T a boundary line - and a surveyors job (in retracement surveying) is to find boundary lines.
"The deed description for the south line of a property I'm surveying is the south line of the NW1/4SE1/4.
At its west end, a fence is about 9' north of this line. As the fence runs to the east, it bears south, to meet (within +/-1') the south line of the NW1/4SE1/4, so the east end of the fence is basically on the sectional line.
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."
Kinda sounds like you have found SOME evidence of WHERE the boundary may be located. Does the fence location represent a good faith location of the south boundary of the NW1/4SE1/4? It sure sounds like there has been some reliance on its location. What other evidence of reliance is still out there? What is a "good faith location"? Read the 2009 manual, and don't quit reading after chapter 3. If the location of the fence is a good faith location of the 16th line - all that is left is documenting your professional opinion .
IF the fence location isn't a good faith location, now what? What other boundary location doctrines remain to be investigated? It sure sounds like boundary by agreement/acquiescence would be the logical choices. What are the requirements for boundary by agreement? IF this is in Idaho, here you go:
A boundary by agreement requires two things: (1) an uncertain or disputed legal boundary and (2) an agreement between neighboring landowners as to what will be the boundary. Flying Elk Inv., LLC v. Cornwall, 149 Idaho 9, 13, 232 P.3d 330, 334 (2010). "Ignorance of the true boundary creates the uncertainty necessary to satisfy the first element." Id. If there is no express agreement, and if the doctrine is to apply, then the court must infer that there was an agreement between the parties based on their behavior. Griffin v. Anderson, 144 Idaho 376, 378, 162 P.3d 755, 757 (2007); see also Teton Peaks, 146 Idaho at 397, 195 P.3d at 1210 (stating that the agreement to make a boundary may be either express or implied). A fence between neighboring properties can imply an agreement. Griffin, 144 Idaho at 378, 162 P.3d at 757.
Evidence of a long-established fence creates two presumptions. Luce v. Marble, 142 Idaho 264, 271-72, 127 P.3d 167, 174-75 (2005). First, the law presumes an agreement fixing the fence line as the boundary when coterminous landowners have treated the fence as the property line for so long "that neither ought to be allowed to deny the correctness of its location." Id. at 271, 127 P.3d at 174. (internal quotation marks omitted). Second, the law presumes the fence was originally located as the boundary by agreement where there is a "want of any evidence as to the manner or circumstances of its original location." Id. at 272, 127 P.3d at 175. Accordingly, "the long existence and recognition of a fence as a boundary, in the absence of any evidence as to the manner or circumstances of its original location, strongly suggests that the fence was located as a boundary by agreement." Cameron v. Neal, 130 Idaho 898, 901, 950 P.2d 1237, 1240 (1997).
A boundary by agreement is also sometimes called a boundary by acquiescence. Griffel v. Reynolds, 136 Idaho 397, 523*523 400, 34 P.3d 1080, 1083 (2001). But an agreement, either express or implied, "is essential to a claim of boundary by acquiescence." Id. at 401, 34 P.3d at 1084. See also Cox, 137 Idaho at 495, 50 P.3d at 990 (holding that there was no boundary by acquiescence because the evidence failed to show an agreement to treat a fence as a boundary). "Since there must be an agreement, acquiescence `is merely regarded as competent evidence of the agreement,' and alone is not enough to establish a boundary by agreement." Flying Elk, 149 Idaho at 13, 232 P.3d at 334 (quoting Griffel, 136 Idaho at 400, 34 P.3d at 1083). Nonetheless, "[a] long period of acquiescence. . . provides a factual basis from which an agreement can be inferred." Griffel, 136 Idaho at 400, 34 P.3d at 1083. Moreover, "[a]llowing an adjoining landowner to improve the disputed land is [also] evidence of an agreement." Flying Elk, 149 Idaho at 13, 232 P.3d at 334.
Here is more:
Where the location of a true boundary line between coterminous owners is known to either of the parties, or is not uncertain, and is not in dispute, an oral agreement between them purporting to establish another line as the boundary between their properties constitutes an attempt to convey real property in violation of the statute of frauds (I.C. å¤å¤ 9-505 and 55-601) and is invalid. But, where the location of the true boundary line is unknown to either of the parties, and is uncertain or in dispute, such coterminous owners may orally agree upon a boundary line. When such an agreement is executed and actual possession is taken under it, the parties and those claiming under them are bound thereby. In such circumstances, an agreement fixing the boundary line is not regarded as a conveyance of any land from one to the other, but merely the location of the respective existing estates and the common boundary of each of the parties. Kunkle v. Clinkingbeard, 66 Idaho 493, 162 P.2d 892; Balmer v. Pollak, 67 Idaho 494, 186 P.2d 217; Clapp v. Churchill, 164 Cal. 741, 130 P. 1061; Tripp v. Bagley, 74 Utah. 57, 276 P. 912, 69 A.L.R. 1417 and Annotation 1433; Fallert v. Hamilton, 109 Cal.App.2d 399, 240 P.2d 1007; Tillinger v. Frisbie, 132 Mont. 583, 318 P.2d 1079; Annotation 113 A.L.R. 425; 11 C.J.S. Boundaries å¤ 77; 8 Am.Jur., Boundaries, å¤ 88.
"But the doctrine of an agreed boundary line and its binding effects upon the coterminous owners rests fundamentally upon the fact that there is, or is believed by all parties to be, an uncertainty as to the location of the true line. When that uncertainty exists, or is believed by them to exist, they may amongst themselves by agreement fix the boundary line, and that agreement will bind all the consenting parties. Acquiescence is merely evidence of the agreement and can properly be considered as evidence of an agreement only when a formal agreement would itself have made a binding contract. But a formal agreement to fix a boundary line is not valid, indeed is void, if the parties know, or one of them knows, that the agreed line is not the true line, or, in other words, if there be not an actual or believed uncertainty as to the true line." Clapp v. Churchill, 164 Cal. 741, 130 P. 1061, at pages 1062, 1063.
"Since it is now known where the south line of the NW1/4SE1/4 is..."
Are you sure yet?
"... could they still memorialize this boundary by an agreement, filed at the county?"
Yes, absolutely. But I'm not convinced this is necessary yet.
"Or would exchanging quit-claim deeds be a better solution?"
Possibly not, but without first finding the location of the boundary - this is way too premature to contemplate.
"On side note, the previous owners split the property on the north side of the sectional line, making the new parcel 310' wide. There is an fence to the north, 310' from the above fence in question, which indicates to me that they also believed and acted as though the fence in question was the south boundary of the parcel."
Sounds like more evidence...........
This thread is an example of our ongoing confusion of title vs. boundary.
The question of fact to answer is: where is the 1/16th line located? This is not necessarily a modern mathematical breakdown. Our Courts have always favored the stability of established boundaries.
In the United States Title is written and usually recorded. Insurance may be purchased against undiscovered defects.
Boundary, on the other hand is dependent upon oral agreement and physical evidence. It was never contemplated that 1/16th lines would continually shift to the latest precise position. Agreements do not have to be written, much less recorded. Our Courts have much more respect for old surveys than Surveyors do. Commissioning a Survey is an act of good faith, the property owners should not be penalized for acting in good faith.
CLSA missed this distinction in the Knerr vs. Mauldin amicus brief, that was a finding of fact as is normal in a boundary case and the appellate court almost certainly will not reverse a finding of fact due to the substantial evidence rule. The amicus brief was a waste of time and money.
Dave Karoly, post: 337021, member: 94 wrote: This thread is an example of our ongoing confusion of title vs. boundary.
With the way our title system works, for the surveyor, isn't the title line the boundary line unless some guy in black robes says otherwise? Sure there are unwritten means of transfer, but can a surveyor independently make that call without incurring possible liability? Will a title insurance policy insure title to anything other than the record title? I would say if they want this boundary line agreement memorialized they need to have a boundary line adjustment.
Bow Tie Surveyor, post: 337037, member: 6939 wrote: With the way our title system works, for the surveyor, isn't the title line the boundary line unless some guy in black robes says otherwise? Sure there are unwritten means of transfer, but can a surveyor independently make that call without incurring possible liability? Will a title insurance policy insure title to anything other than the record title? I would say if they want this boundary line agreement memorialized they need to have a boundary line adjustment.
I can't tell you if the "title" line is the "boundary" line or not, unless you first define "title" line. Please include a few authoritative sources, especially those sources that specify that finding the "title" line is what land surveyors are supposed to be finding. Where is it written that a licensed, professional land surveyor is prohibited from expressing his professional opinion on the location of a boundary line without the blessing of some "black robe"? Isn't finding the location of boundary lines what people hire us to do? If all we are allowed to do is slap the math on ground as stated in their "title", why do we need a license? I know many techs who are much better and faster at digitizing the measurements in deeds than I am.
Guess what, the "black robes" have been telling us "professionals" how to do our jobs for well over 100 years, but we refuse to listen to them - why is that? When did following false myths, erroneous rules, and professional witchery become the "norm in this profession? Please post at least one "black robe" case that states surveyors can only find "title" lines and are prohibited from expressing professional opinions on the locations of "where the boundary is located".
If you read the bold text portion of the "black robe" opinion I posted, you will find even the "black robes" agree that boundary line agreements are not transfers of land.
Most title policies do NOT insure location - see Dave's post about the continued confusion of title and boundary.
Looking back at the development of lands we see the original surveys, then patents issued and sections broken up into smaller pieces. Those sections weren't going to get a formal government survey (the government might not get closer than 9' anyway), nor were they going to get some local surveyor out there to divide them, they were going to be broken up by the entrymen.
If this fence marks the "original" breakup of the section then it has more weight as the 1/16 than a math solution with maybe no original monuments on the exterior recovered. We face this situation all the time, sometimes a fence is just a fence.
A fence of convenience is not marking the boundary, the poster mention a ditch, this fence might be shifted off the boundary to give room for it.
My default position would be to hold it as the 1/16th then look for reasons why I shouldn't. Prove the fence is in the wrong place not prove it's in the right place.
as an aside, 9' around here is dead on when compared to all the government surveys we have.
Bow Tie Surveyor, post: 337037, member: 6939 wrote: With the way our title system works, for the surveyor, isn't the title line the boundary line unless some guy in black robes says otherwise? Sure there are unwritten means of transfer, but can a surveyor independently make that call without incurring possible liability? Will a title insurance policy insure title to anything other than the record title? I would say if they want this boundary line agreement memorialized they need to have a boundary line adjustment.
In our land tenure system, title is uncoupled from location. This is why we have a fairly modern title record system but an antique location system which depends on evidence and oral agreement, the agreements almost never being reduced to writing much less recorded. Location depends on evidence, physical being considered the best, and reputation in the community.
Title in England was mostly oral until the Statute of Frauds required putting it in writing in the 17th century for obvious reasons. Location never received a similar update. I guess the hedges and ditches they use were considered sufficient and obvious to anyone who inspected the property.
The description in the conveyance may be accurate but not precise. "John's little acre" could be an accurate description if sufficient evidence can be found to precisely locate it. If it is followed by "more particularly described as follows" then that is more documentary evidence as to where John's little acre is located but still, being a description on paper, it is not necessarily perfectly precise.
If the description calls for the 1/16th line then that is legally where the boundary is located. The next question is "where is that?" It is not necessarily exactly at the chapter 3 mathematical location.
Deano, post: 336945, member: 6369 wrote: I could use some advice on a situation involving a fence not matching up with the title line on a property.
The deed description for the south line of a property I'm surveying is the south line of the NW1/4SE1/4.
At its west end, a fence is about 9' north of this line. As the fence runs to the east, it bears south, to meet (within +/-1') the south line of the NW1/4SE1/4, so the east end of the fence is basically on the sectional line.
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.
Since it is now known where the south line of the NW1/4SE1/4 is, could they still memorialize this boundary by an agreement, filed at the county?
Or would exchanging quit-claim deeds be a better solution?On side note, the previous owners split the property on the north side of the sectional line, making the new parcel 310' wide. There is an fence to the north, 310' from the above fence in question, which indicates to me that they also believed and acted as though the fence in question was the south boundary of the parcel.
A fence in place for 50 years is the boundary line...
Norman Oklahoma, post: 336964, member: 9981 wrote: 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.
Oh the horror! The world should never be opened up to the pandora's box of people being able to dispose of their property without the wisdom of those in the planning department.
It's true, Tommy. The land use laws in Oregon are strict. Your head would explode.
Those who willingly hand over the rights to control of their property to others deserve everything they DON'T get. Time for some revolutionary thinking and action.
Being a fairly conservative minded guy I can't really argue with that. But I can't argue with the fact that Oregonian property values are among the highest in the country, the liveablity of our cities is unparalleled, and the quality of the surveys and the land records is very good. The years I spent in Oklahoma really opened my eyes to the alternative.
Mark Mayer, post: 337081, member: 424 wrote: Being a fairly conservative minded guy I can't really argue with that. But I can't argue with the fact that Oregonian property values are among the highest in the country, the liveablity of our cities is unparalleled, and the quality of the surveys and the land records is very good. The years I spent in Oklahoma really opened my eyes to the alternative.
We have nested replies now?
Is it the comment button?
Yes it's the comment button.
Stare Decisis?
DDSM:beer:
Weird