Establishment and AP are not the same thing. Unfortunately most Land Surveyors are woefully undereducated in this area of law. AP creates a new boundary, establishment physically establishes the described boundary. The Courts have long recognized that boundaries almost always get established inaccurately. The day a court is required to make my decisions for me is the day I hand in my license. I have yet to see a Judge out there surveying the boundaries, they expect me to do that.
The texts are great at describing how to mathematically lay out a deed description but nothing about when to do it or not do it that way.
Sounds like you have a boundary issue, since its either the center line of wall, or the outside edge it cant be both.
The case I learned the most from was driven off the rails by our ??expert? and the other side??s ??expert? wasn??t any better. When I started to figure it out I got told to shut up basically. Our Lawyer was a dumb bulldog who called our ??expert? the greatest land surveyor in California, he is smart and articulate but certainly not the greatest land surveyor in California. Group think is very hard to overcome. I figured out the other ??expert? was right but his reasons were wrong, it??s a long story.
AP is based in hostility, establishment is based in agreement so they are opposites.
I agree with Scott?ÿ If the deeds don't mention it or call for it on the survey, it might be nothing but an act of possession or adverse possession.
I am not amazed that the thread veered off to the idea of a boundary issue. I think several of the posters who are referencing that idea are wondering about the survey that drilled a hole in the existing wall and then set a rebar at the back centered with the wall. Questions I immediately thought of were - Is that drill hole based solely on a measurement value or was it based on parol evidence of the wall having been built centered on a corner marker. What was the original evidence that led the surveyor drilling the hole to drill in that location? Did that surveyor know the origins of the wall, why it was built where it was built? I expect that you know all of these details. But we, the readers, do not. So we will have nagging concerns in the back of our mind about if we would have found the center or face to be the boundary.
As you quoted Mr. Lucas, you have probably attended his seminars or read his papers. I recall a seminar of his I attended a while back. I'm thinking the discussion point revolved around a fence and what it meant to the location of the boundary line although not being called out in the deed. The solution in that case came from parol evidence about the meaning of the fence. That idea is driving some of the concern about it still being a boundary issue. We, the readers of your post, do not know the history and meaning of the wall. Just that someone, at a latter date from the wall construction, monumented it with a drill hole and rebar which have been perpetuated through several surveys. Did that initial surveyor find out which of the customary methods you mentioned in your original post were used in this instance of wall building or did he/she just know about the custom of centering the wall?
I could find some case law that discusses that the improvements built in reliance on the monuments that were in place are evidence of the location, but I couldn't find anything that addressed the idea of center or face of a stone wall. Might try a Google Scholar search of case law using - "stone wall" +boundary - as the search terms.
The original subdivision of this area goes back into the late 1920s. Imagine a long rectangle broken into about 16 lots, eight lots per side. The rectangle was monumented with granite bounds, which, given they were set almost 100 years ago, were accurately surveyed. Running control off those bounds, the DH and rebar I've described (that go back about a decade) were also accurately set. That's why I've noted four different survey firms have affirmed the same line and corners, and that is no boundary dispute.
Although the stone wall is ancient (moss, lichens, staining, etc), I expect the surveyor who triggered all of this paid little attention to it. Since then affidavits indicate the wall goes back to about 1932. And the wall only became important when the abutters presented plans to the city planning board indicating they intended to take down the wall and replace it with a concrete retaining wall. At that point, the owner of the adjacent lot, who has maintained the wall since the early 1970s, said, in effect, "Hey, that's my wall and you can't do that. I've lovingly cared for it for almost 45 years."
If the adjoiner only owns half the wall how do they propose to take it down without trespassing?
Both owners are blessed with the fact that this issue concerns the mere width of a stone wall where I've witnessed encroachments of hundreds of feet in rural situations and tens of feet with improvements in urban situations.?ÿ They?ÿ should drop their knives and come to an amicable solution.
Exactly right.
they don't need treatises and lawyers, just negotiate an agreement with respect to the wall. Not sure why the lower owner wants to replace it but for the cost of lawyers, experts, and court trials they could have a first class wall which should please everyone.
but people are nuts.