I am working on a boundary survey in a rural area of approximately 150 acres. The person who owns the subject property has owned it for about 8 years. He doesn't live on the property; he purchased it for the timber. The properties to the southwest, west and north are owned by a man who has lived on the adjoining property for over 80 years. He is 84 years old and gets around those hills like a 16 year old. He met with me the first day I was on site and showed me where all of the corners were which were common corners with his property. I have verified all of the corners. My question here is about the line between two of those corners. (See maps below)
I found the stone called for at one corner and the stump of the old black oak called for at another corner. There is a large drain that begins near where the stone is located. It runs down the hill and curves a little to the left. Note: if you have worked much in the hills or ever staked a property line on a hill, you know that when you look from a high point down the hill along that line, it can look like it curves even though it doesn't. From the top of the drain, where the stone was found, looking down to where the black oak stump is located, it looks like a straight line even though there is a curve to the drain. Based on what the old man said, he and one of the previous owners of the property I am surveying ran barbed wire from the stone to the black oak (back when it was still standing). I recovered remnants of that barbed wire fence along the drain. I haven't recovered anything along the actual straight line between the stone and the black oak stump. There is approximately 1.5 acres between the straight line and the line ran by the landowners. The owner of the subject property is not disputing the location of the fence. I have attached two maps for reference. The deed reads, "...to a stone with sugar tree and hickory pointers. S 72 1/2 E 68 poles to B.O. on south side of Michael Branch on small ridge..." The other deed reads the same except it calls for a stake instead of a stone. I would love to hear your opinions about the location of the boundary in this situation.
Does that call mention following a drain or a fence along a drain or a fence?
Is there presence of intent for the boundary to follow the fence or the drain?
You may have found an intrusion to your client's property or you may need to describe the boundary in more detail to show it that it is not straight.
Show that on your drawing and let the client know the facts and explain his options.
If the deed did not call for the fence or the drain I would tend to keep it straight, especially if shown the corners by the old man. I would show the encroachment of the fence on the drawing and put a note on the drawing stating that the 1.5 acre encroachment may have ripened into color of title depending on the laws in West Virginia. On the other hand if you could get both owners to agree on the corners and the straight line between the two as stated in the deed then it makes this an easy decision. I would have both parties sign the plat and get your client to record it. Even if it is only an attachment to a quit claim deed to put the new survey and description to record.
Matt
Not an uncommon situation to resolve here in M&B Appalachia.
Given that you found the called for monuments, and the description states a bearing and distance between them, I would hold to a straight line and not the fence, especially since it appears to be down and not maintained, and that it was not erected at the time of the creation of the boundary line.
> Based on what the old man said, he and one of the previous owners of the property I am surveying ran barbed wire from the stone to the black oak (back when it was still standing). I recovered remnants of that barbed wire fence along the drain. I haven't recovered anything along the actual straight line between the stone and the black oak stump. There is approximately 1.5 acres between the straight line and the line ran by the landowners. The owner of the subject property is not disputing the location of the fence. I have attached two maps for reference. The deed reads, "...to a stone with sugar tree and hickory pointers. S 72 1/2 E 68 poles to B.O. on south side of Michael Branch on small ridge..." The other deed reads the same except it calls for a stake instead of a stone. I would love to hear your opinions about the location of the boundary in this situation.
>
As in all surveys, we first need to decide if we are performing a retracement of an established boundary or is this the "creating" survey. Obviously this is not a new boundary line, so our only question is where on the ground was the boundary established? How are boundaries established? By a conveyance and the marking of the boundaries on the ground. There obviously was a conveyance at some point in time, and also the corners were marked. That leaves the questions of 1) were the lines marked between the corners and 2) where were the lines marked and placed between the corners?
A little more data may be necessary. When was the original split of the two properties? Was there ever a line marked before the 84 year old man & the neighbor ran the fence or is this the only attempt? Was the running of the fence intended to be on the boundary line (good faith effort)? When was the fence line run? Is the previous owner (the one that helped the old gentlemen run the line) available, if so what does he say?
Assuming you cannot find contrary evidence, it appears you have found no evidence of the line being marked on a "straight" instrument line (lets leave curvature out at this time). It sounds like you may have found the established boundary line. Now what? I'm not familiar with WV law on boundary by agreement, but assuming it is similar to most other states, all you need to do is perpetuate the evidence of the actual location of the boundary as run in good faith by the landowners. You are fortunate, at least one of the parties are still available. Are you a recording state? I would also recommend that the landowners execute a boundary line agreement and record it.
I don't know about WVA, but here in KY the common law presumes the line is straight between controlling monuments located in their original positions unless there is sufficient evidence to the contrary. If the only "markings" (made at the time of the originating grant) were the corner monuments, then there is indeed evidence of the line being "instrument" straight.
"The law presumes that a boundary line running from one point to another is a straight line, and this presumption can be overcome only by satisfactory evidence to the contary." Grover v. Queen, 189 S.W. 2d 672, 300 KY 704
"A boundary line described in [an] instrument will be interpreted as being straight across from one designated point to another, in absence of apparent contrary intent of the parties, as where intermediate monuments along a diversion are mentioned or there is apparent purpose to follow course of stream or ridge" Edwards v. Williamson, 211 S.W. 2d 862, 307 KY 584
Now, you have this:
"The actual marking of a boundary line on the ground, such as an established fence, overcomes presumption that a straight line is intended." Siler v. Cannon, 130 S.W. 2d 742, 279 KY 328
In that last case, I think the obvious interpretation is that the reference to "an established fence" means one erected at the time of the creation of the grant creating the line, not at some later time.
In Mr. Lee's retracement survey, this last case would not apply in my opinion because the fence was erected after the fact. Of course, this does not prevent the current owners from agreeing to the fence, and exchanging quitclaim deeds documenting the agreement. Here in E KY, that is not necessarily economical for the parties to do, they just want the surveyor to decide.
> I don't know about WVA, but here in KY the common law presumes the line is straight between controlling monuments located in their original positions unless there is sufficient evidence to the contrary. If the only "markings" (made at the time of the originating grant) were the corner monuments, then there is indeed evidence of the line being "instrument" straight.
As I noted above, evidence needs to be sought IF the line was previously marked in a straight line.
> "The law presumes that a boundary line running from one point to another is a straight line, and this presumption can be overcome only by satisfactory evidence to the contary." Grover v. Queen, 189 S.W. 2d 672, 300 KY 704
The (so far) uncontested parol evidence from the 80 year resident adjoiner is quite probably "satisfactory evidence to the contrary".
> "A boundary line described in [an] instrument will be interpreted as being straight across from one designated point to another, in absence of apparent contrary intent of the parties, as where intermediate monuments along a diversion are mentioned or there is apparent purpose to follow course of stream or ridge" Edwards v. Williamson, 211 S.W. 2d 862, 307 KY 584
Again, you have evidence that the boundary line was apparently established and monumented with the fence by the parties, and has been assumedly so, long held.
> "The actual marking of a boundary line on the ground, such as an established fence, overcomes presumption that a straight line is intended." Siler v. Cannon, 130 S.W. 2d 742, 279 KY 328
>
> In that last case, I think the obvious interpretation is that the reference to "an established fence" means one erected at the time of the creation of the grant creating the line, not at some later time.
I haven't been able to locate the Cannon case yet.
One interpretation is only a fence existing or established at the time of the original conveyance controls. However, if the line was not marked at the time, the subsequent actions of the landowners is evidence of the intent. KY also recognizes agreed boundary lines, and when agreed and located with uncertainty or dispute of the "true" line is binding on successors with notice, and is not a violation of the statute of frauds.
Wolf v Harper, 233 S.W.2d 409 (1950) (this may be current or not, I haven't fully researched KY):
The rule is well stated in that case as follows: "While the validity of parol agreements to settle disputed boundaries was long resisted on the ground that, in effect, they passed the title to real property without the solemnities required by the statute, it is now settled that, where the dividing line is uncertain and there is a bona fide dispute as to its location and the parties agree on the dividing line and execute the agreement by marking the line or building a fence thereon, such an agreement is not prohibited by the statute of frauds, nor is it within the meaning of the provisions of the law that regulate the manner of conveying real estate. The reason for the rule is that the parties do not undertake to acquire and to pass the title to real estate, as must be done by written contract or conveyance. They simply by agreement fix and determine the situation and location of the thing that they already own, the purpose being simply by something agreed on to identify their several holdings and to make certain that which they regarded as uncertain."
> In Mr. Lee's retracement survey, this last case would not apply in my opinion because the fence was erected after the fact.
This is not a hard, fast, and exclusive rule. Subsequent actions and intentions of the landowners can establish a previously unestablished line.
Again, we do not have all the information (evidence and WV specific law) we need to definitively decide this issue, but if this situation was in Idaho, the presumptions created by the fence and supported by the evidence we have so far, this is pretty cut and dried.
> Of course, this does not prevent the current owners from agreeing to the fence, and exchanging quitclaim deeds documenting the agreement.
Absolutely. If the current landowners agree, this is a simple solution that needs to be documented and placed in the records. Cross quit claim deeds may or may not be the best tool to do so.
> Here in E KY, that is not necessarily economical for the parties to do, they just want the surveyor to decide.
I'm not understanding this. Is it more economical to go to court? The surveyor cannot "decide" and have it be binding, he should suggest the appropriate actions, and if they do not want to follow thru, the surveyor at the most, can only express his opinion in accordance with the evidence found and the properly applied law.
If it was me, I'd become intimately familiar with the state laws, be sure I had all the evidence and act accordingly. When the landowners agree, it doesn't get much simpler, why create a problem where none exists?
The parol evidence from the 80 year old adjoiner relates to his actions regarding the fence, and not how the property line was originally created. I guess I'm having a hard time subscribing to the idea there was no boundary line until they erected the fence. I do see some cases in my case law book referring to the erection of fences made at the time the line was originally run, or shortly thereafter, and that these fences may control the line once the monuments disappear. Ryan v Boucher, 144 A.D.2d 144, 534 N.Y.S. 2d 472 (3d Dept' 1988).
I don't think the Wolf V Harper case applies because the original monuments are still there and the OP did not state the reason for placing the fence arose out of the desire to resolve a bona fide dispute. My interpretation of the actions as described by the OP is that some time in the past, the two owners built a fence, but due to the terrain the fence they erected ended up not being on a straight line between two undisputed monuments. Again, not sure of WV law but that doesn't sound like the line was not locatable, and therefore the placing of the fence may not create an agreement binding on future owners. Of course, subsequent actions by the fence builders in the placing of improvements up to the fence and actual reliance of the fence may establish a new line based on unwritten rights. In other words, the fence might be the true line now, but not because the two previous owners erected it, but rather due to the actions of the parties since then.
Perhaps Mr. Lee will chime back in on whether there is evidence of occupancy, possession, actual physical reliance up to the still-standing and clearly defined fence by the adjoiner; or rather the fence was built one day, and left to slowly decay without continued acquiescence from the time it was built.
I would feel out both sides before I voiced a firm opinion, and would certainly finish the survey in accordance with the common desire of the owners, and have them place any agreement in the record with the assistance of an attorney.
my take would be straight line unless other evidence was found. The barbed-wire is not usually considered as marking property lines, it is in most places assumed to be for the purpose of keeping livestock in.
Yes, I agree. This scenario is a good illustration of the reasoning behind the case law. Here you have direct testimony and the original called for monuments to back up the reasoning.
People fenced between their corners as well as they could. This does not change the location of the boundary. The fence is an accessory used to find the original corners, and especially in hilly areas there are curves and bends in the fence. Were there no testimony and no original monuments (as is usually the case) I would use the ends of the fence along with other evidence and place monuments as close as possible to where they were. The line would still be straight between them.
Typically a fence used for livestock (no attempt to erect along a line) would be more irregular. And the fence here is remnants, not a substantial and well maintained boundary of any sort, so unwritten rights are unlikely.
> The parol evidence from the 80 year old adjoiner relates to his actions regarding the fence, and not how the property line was originally created. I guess I'm having a hard time subscribing to the idea there was no boundary line until they erected the fence.
Understandable. Maybe it was marked on the ground before the fence, but we do not have that evidence yet. Right now, what we have is parol evidence that is wasn't.
> I don't think the Wolf V Harper case applies because the original monuments are still there and the OP did not state the reason for placing the fence arose out of the desire to resolve a bona fide dispute.
Is there any evidence that the parties were intentionally transferring land from one party to another? What is the presumption of a long standing fence that erected by the parties (or under their direction) and has been treated as the boundary for many years under WV law?
> My interpretation of the actions as described by the OP is that some time in the past, the two owners built a fence, but due to the terrain the fence they erected ended up not being on a straight line between two undisputed monuments.
I have not found anywhere in the law the landowners are required to be exactly perfect in their actions. If their intention was to mark the uncertain boundary line location, and if it has been treated as such, why is it not the boundary line?
Looks like a follow-up conversation with the 80 year old man is in order.
When I have ran into instances like this, it has often been easily solved by showing the neighbors what is happening on the ground. You may need to flag out the straight line so that the gentleman can see that the fence is not straight. As you have indicated, the eye can be easily deceived as to if a line is straight in that terrain. When the line is marked straight, the curved fence is easily seen.
The neighbor then is aware of what you have found and will let you know his stance on it. If the 1.5 acres contains the remains of three beloved family pets, he may want to claim the land. If it is underbrush, he may say run it straight as it is called for. Either way, you can then resolve the matter.
I appreciate the comments. The man that owned the land back when the fence was ran was one of 4 brothers that received large tracts here from their father and the owner of the original subdivided tract. The son and the 85 year old man I talked to ran the fence in the 50's for the purpose of defining their boundaries and it has been treated as such since then. The land is timbered regularly. I recovered remnants of the original fence. There is also newer, maintained fence along the same line. Along the rest of the property, they were able to stay pretty straight with the fence; it meanders but stays within a couple feet of a straight line between corners. This is the only area that they strayed from a straight line and it is easy to see how it happened.
Near the bottom of the drain, just onto my clients property, is the location of the graves of two small children of the original owner that were buried "about 25 feet from the property line", based on what the 85 year old man said.
> In Mr. Lee's retracement survey, this last case would not apply in my opinion because the fence was erected after the fact. Of course, this does not prevent the current owners from agreeing to the fence, and exchanging quitclaim deeds documenting the agreement. Here in E KY, that is not necessarily economical for the parties to do, they just want the surveyor to decide.
In WV and KY, exchanging quitclaim deeds usually isn't the best option in a situation like this because there isn't really a conveyance taking place. They are just establishing the boundaries of the land they already own. The proper course of action would be to have them sign a boundary line agreement and put it on record.
I discussed this with the 85 year old owner of the adjoining property again. He maintains that the fence was built to mark the boundary.
After locating the fence, I have discovered that the distance along the fence matches the distance listed in the deed. The straight line distance between the monuments is much shorter.
All the evidence collected so far points to that fence as marking the boundary.
