Most jurisdictions recognize that when all evidence of original monuments are gone, the improvements built at or nearer the time of creation/first sale of the lot are best evidence of original lot lines.?ÿ The wall you describe is an improvement, and presumption would be it was built entirely on the lot which house it's connected to. Common walls are mostly in urban areas and support two buildings, one on either side.
So, your texts should have examples of common walls that are evidence that yours is not one.?ÿ And they should have reference to improvements indicating location of lot lines when no better evidence is available.
Field stone walls were not improvements but rather discard of waste that got in the way of farming.?ÿ Common practice to stack them roughly on the line between the corner markers, hence they become accessories to the original monuments when original deeds call for straight line.?ÿ
Thanks for all the comments. We're a little off-track. I've probably been less than precise. My original post was seeking texts, books, treatises--anything a court would consider admissible as a "learned treatise." All case study research has already been run, both by me and attorneys on both sides: somewhat stunningly, there's nothing out there on the topic. Contacting local historians would not yield admissible testimony.
In this area we all know by experience and as a standard of practice that, unless a deed says otherwise, property lines run down the centerline of old stonewalls and that that's not the case with a modern retaining wall (no one today would knowingly build half their wall on an abutter's property). Yet the opposing side has taken that position. So I was hoping someone might be aware of a long-forgotten article in POB or Amer Surveyor?ÿthat discussed these issues. Or even better, that someone knew a reference in Robillard et al that I'd missed.?ÿ
This is a classic adverse possession case, without case law or supporting scholarly references that definitively help either side. It would be great to have a KO punch for this one, but like so many of our boundary arguments, this one goes around and around.
But thanks for all the thoughtful comments.
Duane, this isn't a case of loss of original monuments. The line has now been surveyed by four surveyors: all agree without exception to the line, which runs between a drill hole in the front and rebar in the back. The issue is the wall and whether iy constitutes an encroachment, i.e., its outside face (into the abutter's property) is roughly 1.5 feet into the abutting lot. (The wall is about 3' wide.) The party that built the wall claims possession of its entirety, while the abutter, who had nothing to do with the wall's construction, claims he owns the half that runs inside his P/L. The wall is now over 70 years old.
If line is drill hole to rebar, how is it relevant whether stone wall or something else? Only relevance I can see is how AP statute reads in your state. In NY this would fall under neighborly accommodation, no AP but no removal necessary. When removed, must re-build on own side of line. Not likely to find anything helpful other than your states statute and case law on minor encroachments.
Read this and give it to the opposition: https://onlinelibrary.wiley.com/doi/pdf/10.1002/9780470950050.app3
(acquiescence pg. 629)
????
What does the adjoining deed say, is it down a centerline of a rockwall, or the outside of the rockwall?
There's an argument, attorney to attorney, regarding the wall's ownership. As I've noted, the abutter claims the wall, given it's a stonewall, is jointly owned. The actual owner of the wall claims ownership of the entirety of the wall, hence AP. I too think this is rather black & white--the wall has been sitting into the abutter's property for 70+ years--but the attorney for the side claiming AP is seeking affirming literature.
Yes.
Neither deed references the stonewall
Was the tract last Surveyed before the wall was built? Not calling out to a stonewall seems like a big miss, then again if the stonewall isnt on the tract no need to call out to it. What does your deed say about the stonewall, to the edge or middle?
As I noted, neither deed references the stonewall. Both deeds are just metes and bounds--distances and bearings to a "point; thence proceeding" etc. That's very common here in fancy Massachusetts. If a deed was written in 1931, no attorney will modify the deed in subsequent conveyances. What was recited then is recited identically today. Breathtaking, but safe.
It sounds like Duane has the situation figured out. Research his approach.
If I understand the situation, that may not help your client's case. But remember that surveyors are not advocates for their clients, but are supposed to impartially find the correct solution.
I would counter that it's not an agricultural stone wall that each side contributed materials and time into building. And it's not naturally formed such as a tree. So not joint ownership. They are trying to argue custom as relates to land boundary, but the argument's out of place because there's no question of where the land boundary is; it doesn't depend on the nature of the wall and customary treatment of such in the locality at the time it was constructed.
The adverse possession question relies on how your State treats minor encroachments. If they haven't addressed those, then you have an argument. NY re-wrote AP law (2008 I think) and this was a major point of contention. NY BAR wanted AP in these situations, others not. NY legislature in new law said not. Lots of legal treatises put forth for both sides of argument. I would think these are what you need if your State hasn't addressed it. Sorry can't point to anything particular but try google scholar, adverse possession neighborly accommodation. Search for articles rather than cases at first. I'm sure there's a stone wall in those discussions somewhere. But it's a fine point of title contention so not going to find anything in survey texts probably.
The text Forensic Procedures for Boundary and Title Investigation by Donald Wilson, Chapter 19 is about fences. There is a ton of case law in that section and reference to stone fences. You may want to give that a review.?ÿ
N10,000, E7,000, Z100.00
PLS - IL, MO, AR, KS, MN, KY
Thanks. And yes, Don comes as close as anyone to addressing the issue. There are about 11 pages in "Forensic Procedures" that I've already forwarded to the attorney. Mulford also defines a "bank wall," i.e., our retaining wall, as being owned to the outside face, not the centerline.
Would other local deeds that have a wall help you? Maybe provide a local practice? Just a thought. I sure miss the crazy surveys of New England! Good luck!
It appears that the property line is well defined and accepted by both parties and four surveyors to run between the rebar and the drill hole. If so, than adverse possession is going to be a tough argument, especially if the rebar and drill hole have been there for any length of time.
What's the purpose of the wall? If it is a retaining wall, then it sounds like it is an encroachment, and your client is probably entitled to an easement, where they maintain ownership of the wall, and all the expenses and liabilities that go with it. If it is a free standing wall built close to the date the lots were created, than it would probably be considered a boundary wall, proved by the accepted markers at both ends. If it is a boundary wall than both parties own half the wall, and share the expenses and liabilities. The best advice you can give you client is to find an attorney who is well versed in boundary law. It doesn't sound like they have one, if the attorney is having you do the research for their argument.
One of the basics is that when a person knows where his monuments are, they can not claim possession beyond those locations.
From the earliest surveys in Texas, it was a tradition that when the property was acquired, that the landowner and adjoining landowners met and physically walked or rode out the boundaries and came to accord as to the location as marked by surveyors.
Nowadays, many people do not have any knowledge of who their neighbors are and are not aware of and do not want to know the location of their boundaries, much less than bear an expense of having it located when there is a cheaper alternative means of closing the deal.
When deed calls can correctly place the location of where the properties meet, that usually is sufficient.
Then some want to get lawyers involved and who knows what direction things will go there, usually South into court action.
Locally and perhaps nationwide, when there is a shared driveway that has been in place like forever, it is impossible to sell your property unless there is some form of driveway agreement in writing and recorded in public clerk records.
This wall situation is very similar and would probably need to be settled in the same way if the deeds cannot be used to locate and restore the monument.
Mike, it is in fact a retaining wall. The abutter's property is about four feet lower vertically. I think I mentioned somewhere in this thread that it's also a mortared wall, and the "trespasser" has maintained the wall since the early 1970s. He was told by the former house owner that the wall was built in conjunction with the house, about 1932. Looks believable from the age (moss, lichens, staining).
Another comment... the drill hole in the front goes back a decade only, and the rebar in the back about 8 yrs. Since that 2009 survey, three other surveyors, including myself, have confirmed the line. No one disagrees. Who knows what was there in 1930--probably wood stakes. The entire block (some 200'x800') once had all four major block corners set w/ granite bounds (8x8).