Boundary Establishment Theories

Darn good questions JB. The speaker of the seminar I attended last week who is associated with NSPS would say 1 is most correct although I am unsure if he would set the rear corner first. I'm sure about the call an attorney part because he stated as much and he was specific about seperating the deed line and the occupation line.

I would say the task at hand requires that the surveyor's opinion where the one legal boundary is. In the end that's why the experience and education requirements are so high to become a representative of the court. (licensed) I will assume that other states besides mine require that the survey is conducted accordance with ALL state laws, not just the rules for measuring.

Someone once said 9 out of 10 will never get their day in court other than before the surveyor.

First off, I wouldn't set the rear corner the way you described it. If you are set on the center of the road, and sight through something in the curb line, it seems like that would be taking a short back site and extending it a long way, but maybe I don't understand the scenario correctly.

Assuming I do end up with a corner location that is 4.7 feet off the fence using whatever methods I think are correct, I would probably set the corner and tell the owner the fence is off.

I'm not sure I can put it into words, but I treat fences different on lot surveys in town than I would a rural fence. In my mind, fences in a platted subdivision, the owner should know or could know where the corners are when he builds a fence. In rural areas, the fences often show where people think the boundaries are.

> Darn good questions JB. The speaker of the seminar I attended last week who is associated with NSPS would say 1 is most correct although I am unsure if he would set the rear corner first. I'm sure about the call an attorney part because he stated as much and he was specific about separating the deed line and the occupation line.
According to the court ruling (which is consistent with rulings I've read from multiple jurisdictions, the parties' agreement established the location of their boundary and did not create a "new line." So, in effect, the occupation line = agreed line = lot line = true line = deed line = boundary. What "other" line is there to stake? What "deed" line? What "lot" line? What "occupation" line? You mean the "boundary" line?

Which really brings up the question, "According to the court, where is the rear lot corner between Lots 413/414? If the surveyor were to set a monument at the platted dimensions to the rear corner, would that be the "true" lot corner?

These cases are very simplistic in their application of the law, but the results often really tweak a surveyor's brain. Is our expectation getting in the way of correctly applying the law?

JBS

Before you do anything else, make sure you're on the right PK nail. I think the one you set is 4.7' farther away. 😛

2

now to cherry pick the words of others:

A professional land surveyor’s responsibilities in regard to performing a boundary retracement survey are composed of two dependent parts. First, the surveyor is required ‘to follow in the footsteps of the original surveyor. To be accurate, the original surveyor’s footsteps, recognizable in the form of marks and monuments, are not by themselves determinative unless given recognition in the description found in the operative muniments of title. Accordingly, the surveyor’s duty may be described as locating the boundaries that are described in the operative description(s). The second part of the surveyor’s responsibility is to provide their client with a defensible professional opinion on the location of the boundary (i.e., original footsteps) communicated in a useful and understandable manner.

...marketable title is title that is reasonable free from claim by another. Where the occupation lines differ from the record lines the title is not marketable.

The surveyor has a responsibility and the client has a right to be informed where there is a difference between the record boundary and other potential claims evidenced by fences or the boundary location described in the neighbor’s deed. The practitioner’s portrayal of line of occupation as the boundary may prevent concern and worry but the simplistic portrayal does not cure a problem simply by non-disclosure of the problem. Because there are conflicting boundaries and improvements, ownership is questionable, subject to dispute, and the marketability of the title is put into doubt. The surveyor has a duty to prepare opinions and communications that are objective and truthful for the client and reasonably foreseeable third parties.

by Knud E. Hermansen

you should always weigh the options and pick your fights. There are several questions you need to ask;

Can I win?
What will I gain if I win
What will I lose if I lose?
What resources could I expend to win?
What situation will be left if I win?
What situation will be left if I lose?

Some of those questions are more difficult to answer than others but all need to be considered.

Only a court can grant an adverse possession, etc. claim. We as surveyors cannot alter an established line. I'll listen to the seminars on how we should do things but ultimately it's our professional judgement.

It may be different in other areas but in Rhode Island the parties can't make a boundary line agreement unless the line is not reproducible. Most subdivision lines can be placed on the ground and the original surveyor apparently found enough evidence and original monumentation to set property corners per a deed / subdivision.

If this were in a rural area with ambiguous deeds then the fence may hold if the parties both consider it the line, however, fences are not always property lines just because someone thinks it is. If that were the case no one would need a surveyor and people would think we're incompetent because all we did was walk up the fence and pound in a pin. Why should they pay for that?

The last step should be an attorney, they can't change anything anymore than we can. If the parties want to proceed to court then an attorney can represent them so the court can make a decision. Most court cases cost more than the land is worth, I've represented people who've paid $50K each to fight over an area not worth a fraction of that.

[sarcasm]I'd load my shotgun with quit claim deeds and blast away so that the title companies and their reps in the legislature would be happy![/sarcasm]

"We as surveyors cannot alter an established line."

I'd agree with that, so what if after you gathered all the evidence and applied the law (in Utah according to Imus) the line is established along the fence? Are you going to attempt to alter that by pounding in some steel at the mathematical by deed location. Wouldn't that be altering the established line?

First step in this situation is to determine whether the line is established or not. You can't simply do that by measurement.

> Should the surveyor 1) set the lot corner at the platted location, disclose the discrepancy and inform the owners they need to call an attorney, or should the surveyor 2) perform the research necessary to discover the origin and circumstances of the fence line? What should the surveyor do with the information if they choose to investigate?
>
> JBS

Number 2. Inform both landowners of the facts and my opinion as to where I believe the boundary exists based on the current statute and common law of the jurisdiction. The owners will either agree with my opinion as to the location of the line, decide on their own agreed upon location or resort to some form of meditation be it arbitration or court. My experience is that most landowners, and their attorneys, will agree with a surveyors opinion if it is well reasoned and based on the law. Once the landowners are in agreement, I strongly recommend that they correct the public record to reflect what exists on the ground. So that 20 years from now when all the parties involved are gone, and possibly even the fence, there is a written record of what was done and why. In my jurisdiction that would be the filing of a boundary line agreement.

> It may be different in other areas but in Rhode Island the parties can't make a boundary line agreement unless the line is not reproducible. Most subdivision lines can be placed on the ground and the original surveyor apparently found enough evidence and original monumentation to set property corners per a deed / subdivision.

Is it that they can't make an agreement unless the line is not reproducible as opposed to, say "unknown"?

A person might argue that the line is "unknown". Why? Because there is evidence that the line is in one position because of occupation and that it is in another position because of the deed location. Even though courts might be the ones to finally rule on whether adverse possession has occurred, if it has occurred it happened as of the time that all elements have been satisfied and ripened. (or what about "acquiescence" by their actions?) To me, if there is strong evidence of long-time adverse possession or acquiescence, the title is at best clouded. Of course, I don't know, but I would think that there is a good possibility that a boundary-line agreement might hold. (I mean I don't know about RI and I'm not a lawyer, just pointing out some thoughts)

RI law

TITLE 34
Property
CHAPTER 34-7
By Possession and Prescription
§ 34-7-1 Conclusive title by peaceful possession under claim of title. – Where any person or persons, or others from whom he, she, or they derive their title, either by themselves, tenants or lessees, shall have been for the space of ten (10) years in the uninterrupted, quiet, peaceful and actual seisin and possession of any lands, tenements or hereditaments for and during that time, claiming the same as his, her or their proper, sole and rightful estate in fee simple, the actual seisin and possession shall be allowed to give and make a good and rightful title to the person or persons, their heirs and assigns forever; and any plaintiff suing for the recovery of any such lands may rely upon the possession as conclusive title thereto, and this chapter being pleaded in bar to any action that shall be brought for the lands, tenements or hereditaments, and the actual seisin and possession being duly proved, shall be allowed to be good, valid and effectual in law for barring the action.

We have a similar rule in NH

From RSA 472

Section 472:4
472:4 Agreement in Writing. – A writing, reciting that the parties signing the same are adjoining owners, that the division line between their lands is in dispute, that the line described in their respective deeds or in the deeds of any of their predecessors in title cannot be located on the ground by reason of the loss or obliteration of the monuments and boundaries therein named and described, and containing a full and complete description of the line thus agreed upon and established, and the volume and page where their said respective deeds are recorded, or if title was not acquired by deed, a statement identifying each owner's other source of title, shall be signed and acknowledged by the parties to the agreement before any officer having authority to take the acknowledgment of deeds, and recorded with the registry of deeds for the county where the lands are located, and, when the volume and page of an owner's deed is set forth in said agreement, the register of deeds shall note the recording of said agreement on the margin where the said respective deeds of the parties to said agreement are recorded. In those registries recording on microfilm, in lieu of noting the recording of said agreement on the margin where the respective deeds of the parties to said agreement are recorded, the register of deeds shall list all parties to the agreement in both the grantor and grantee indices.

The big idea here is that if the line is not recoverable the parties can fix their line by agreement. If Mr. X and Mr. Y always thought their shared line was along a treeline, lets say, and a surveyor shows them that the line is actually 10' east of there, they cannot fix that line by agreement to follow the treeline, that would require a boundary line adjustment and would need to be approved by the Planning Board.

> Only a court can grant an adverse possession, etc. claim. We as surveyors cannot alter an established line. I'll listen to the seminars on how we should do things but ultimately it's our professional judgement.
Boundary establishment theories do not include adverse possession. AP is a title doctrine intended to resolve title problems. Establishment theories only deal with the location of the boundary and the laws which govern their establishment.

JBS

In Utah boundary by agreement only requires that the landowners who make the agreement don't know the location of the boundary. Under this an original corner marker could actually be in place but, say buried a foot, and the landowners didn't find it or hire a surveyor to find it. They could then agree to establish a line and if they carried through and built improvements to the agreed line it would stand.

The whole Imus Vs Bahr case should be read for understanding but here is the part I'm referring to:

¶ 43 An oral agreement “between adjoining owners as to the location of a boundary line” does not violate the statute of frauds, “provided the agreement is followed by actual ? possession by each of the owners up to the line so agreed upon, and provided further, that the proper location of the line is uncertain or in dispute.” Id. (internal quotation marks omitted). “[I]f the location of the true boundary is not known to the adjoining owners, a parol agreement between them fixing its location is not regarded as transferring an interest in land but merely determining the location of existing estates.”9 Brown, 232 P.2d at 207. This exception to the statute of frauds has “long been recognized” by the courts of this state, Hummel, 265 P.2d at 411, and we reaffirm it here.

Typically the requirement of uncertainty is uncertainty in the mind of the property owners under Boundary Establishment Doctrines such as Acquiescence and Implied Boundary Line Agreements. It can be subjective and it can be based on a mistake. If the property owners don't know where the boundary line is and their intent is to establish the boundary location, typically they can do that.

Just to say the opposite may be shown, I have seen cases in California where the Court ruled against the Doctrine apparently because the location of the boundary is not objectively uncertain although the property owners didn't know the location when the built the fence or wall.

For JB

What was the concensus(if there was)to the following questions at the forum?

Where is the Imus/Bahr boundary in 2003? (before the court was involved)

Should the 2003 survey show the lot line as the boundary?

Should the fence show the fence as the boundary?

Can the surveyor finish the survey?

Can the surveyor show the boundary agreement?

Please follow up with the answers as you see them.
thanks

I know people must be downloading your material because when I got to it yesterday your bandwidth was used up.

For JB

> What was the consensus(if there was)to the following questions at the forum?
>
This case raised a lot of eyebrows at the forum. It provides some real brain twisters from the typical surveyor's perspective. The consensus was that we need to seriously re-think how we deal with issues discovered during a survey. At the first indication that there is a potential issue, the surveyor needs to STOP, contact the client and begin a thorough investigation to determine the factual circumstances. Once the issues are resolved to the surveyor's satisfaction, then the surveyor should complete the survey referencing the evidence of the resolution. That's different for every survey.
> Where is the Imus/Bahr boundary in 2003? (before the court was involved)
>
The boundary was established at the moment the terms of the oral agreement were fulfilled. The fulfillment occurred in 1983 as soon as the fence construction was completed. Oral agreements do not require a time element to ripen. And, they don't require a court action to recognize them. The reason the doctrine exists is to eliminate the need for litigation and strife over boundaries.

"¶ 56 ... All four elements of boundary by agreement are accordingly satisfied under the undisputed facts of this case, and the Imuses were entitled to judgment as a matter of law under this doctrine. ... ¶ 57 Doing so gives effect to the policies that underlie boundary by agreement through "set[ting] at rest" this boundary line dispute that has been the "subject of [much] strife" between the Bahrs and Imuses."

> Should the 2003 survey show the lot line as the boundary?
>
No. The boundary was located along the agreed boundary which was evidenced by the fence line. The original lead plug in the curb marked the front line, and the fence corner in the rear of the lot marked the rear line. Because the boundary had been established at the time of the 2003 survey, there was no separate lot line to show.

The more straight-forward answer is, the 2003 survey should not have been completed. It should have been placed on hold and completed after the final ruling was handed down. The surveyor should have gathered the information and assisted in resolving the issue. Once the resolution was reached, the surveyor could then complete the survey showing the record and measured dimensions of the lots as established by the parties' agreement.

> Should the fence survey show the fence as the boundary?
>
No. The survey should have been stopped. Exhibits could have been prepared depicting the issue such that the owners could make an informed decision about how to document the agreement. Personally, I wouldn't recommend showing two lines as, according to the law, there is only one boundary in the agree-upon location. The current owners have no authority to undo the agreement entered into by the prior owners. The current owners were bound to the agreement boundary. They have no option to ignore the agreement. They can either choose to document the agreement or to enter into a new agreement.
> Can the surveyor finish the survey?
>
Yes, he can, but only to his peril. There is no law that prevents the surveyor from expressing their opinion. The surveyor's opinion, however, is irrelevant when it comes to a conflict as the surveyor has no authority. Only the landowners have authority to address the issue. In my opinion, it does no good for the surveyor to step into the proverbial pit. The surveyor should remain a disinterested party and offer assistance in understanding the issues and the various possibilities for remedy.

Once the surveyor discovers the issue, the surveyor's duty changes to one of a mediator whose task is to keep the parties at the table by assisting them to settle the matter. The surveyor's opinion is again, irrelevant. If the surveyor as mediator is successful in documenting the agreement, then the survey could be finished. If not, and the parties choose to litigate, then the surveyor takes on the role of a consultant during the discovery process. If the case continues to trial, then the surveyor takes on the role of an expert witness and can express their opinion on the witness stand. Their opinion, still non-binding, may assist the "trier of fact" (the judge and/or jury) to reach their decision. Once the final judgement is entered, then the surveyor can put his "surveyor" hat back on and finish the survey, documenting the final resolution.

> Can the surveyor show the boundary agreement?
>
Absolutely. The form of the agreement will be different with different jurisdictions and will show up in different parts of the record system depending upon the jurisdiction and the stage where resolution was reached. A BLA should be indexed in the title record. A stipulated agreement should be filed in both the court records and the title record. A final judgment will be filed in the court records and a copy should be filed in the title records as well.

In Utah, the boundary agreement takes the form of owners' joint affidavits which are recorded in the title record and then referenced on the survey which is filed in the County Surveyor's office. An exhibit is often included in the affidavits. There is an example of a boundary agreement attached to the handout material that resulted from a mediated settlement agreement. All BLA's will take a different form depending upon the nature of the agreement.
> Please follow up with the answers as you see them.
> thanks
>
> I know people must be downloading your material because when I got to it yesterday your bandwidth was used up.
I'm not sure what the bandwidth limitations are on the KeepAndShare website are. It's just a quick, free site that I've used to host the files. I see that it's still allowing people to view and download the files as the counter is up to 140 with the last view 30 minutes ago. It possibly resets itself hourly? If someone would care to host the files and provide me with a link, I'd update the access point.

JBS

For JB

The only other question is with respect to the BLA. As stated the boundary was established in 1983. So even though the establishment had occured 19 or 20 years earlier than the surveyor discovered the fact is it neccesary or just a good idea to file a BLA? Is the recording an insurance policy so to speak for both the surveyor and the owners that the 1983 agreement is still recognized?

Two comments:
1) I thought the question about would you survey the lot line was a little misleading. I would have answered yes. The lot line and the fence line have been one line since 1983. If the lot line is not the fence it (the fence) wouldn't be the boundary would it?

2)I think STOPPING is the hardest part for a surveyor. We have been trained to think we have to deliver a plat and set marks after we start measuring.

For JB

> I know people must be downloading your material because when I got to it yesterday your bandwidth was used up.

The counter is now reading 147 file views, so it is increasing but very slowly. If anyone is having trouble downloading the files, drop me an email to my account email address and I'll make sure to get a copy to you.

If anyone has a file hosting site available, I will make arrangements to have them re-posted and will provide another link.

JBS