That's not adverse possession. What you are suggesting is Practical Location. If the owners, at any time and in ignorance of the true location of the line, had a disagreement about where to boundary line was, and resolved that agreement by agreeing that the fence was the boundary, then the fence is the boundary from that point forward, regardless of how much time has passed. But you, as surveyor, cannot just assume these things happened. There has to be clear and positive proof.
If the two adjoiners believe that these things happened then they should be willing to sign and record the quitclaim adjustment deeds that you prepare. If either of them don't then this thing will have to go to court to be decided.
If the Surveyors don't ask questions now then the Attorneys will later.
> If the Surveyors don't ask questions now then the Attorneys will later.
and the attorneys will get paid for it
I would be looking very closely at the fence.
I don't know the terrain or how long this fence is or how straight this fence is, but it appears to me that since it pre-dates the deed and both parties lived on the property with undivided 50% interest that they built that fence as the dividing line between their property prior to making the deeds.
One owner decided to sell and they agreed to get seperate deeds, which is why there was such a quick sale after the deed was made.
I would try to get some written statements from the original owners on this one. It may not be easy but would clear things up pretty quickly.
The last thing a surveyor wants to do is go into a neighborhood and cause problems when there never has been one. Sometimes there is not choice but I, from what you wrote, don't see where this has to be one of those times.
Distances and bearings are just numbers.
60 feet around these parts in many cases is a pretty good fit. It would seem, and you would need evidence to support it, that they had already split the property between them well before any deed was written.
I repeat from my earlier post:
Cooley's instructions refer to the understanding of the affected owners with regard to the physical evidence and the intent is to be found in the acts of the original owners.
Existing physical evidence could be binding on any subsequent purchaser who bought without a survey.
There is a presumption that a buyer inspected the premises and had knowledge of the fence or the buyer and the original owner of the other half may have agreed to the position of the fence for their own reasons.
A careful interview of the affected owners is necessary.
Why is a claim based on occupation and control not an adverse possession claim?
Richard Schaut
The fence could have been built by one owner to retain livestock or something without an intention for it to be a boundary fence. Any occupation that followed by that owner would not be "hostile". Occupation to it by the other owner, or any subsequent owner may (or may not) be. The issue of hostility has to be proven by the claimant, or the claim fails, regardless of everything else.
If this is a fence back in the woods, as Frank says it is, it may not be visible from other parts of the property. Frank says he "found" it during his survey. It is conceivable that one owner never went back there to see it. That could mean that the occupation was not even open and notorious. The issue of open-ness and notorious-ness has to be proven by the claimant, or the claim fails, regardless of everything else.
The occupation we speak of here is not the occupation of the whole property but the occupation of the strip of land between the fence and the deed line. It doesn't sound like anybody has been occupying that one way or the other. So the occupation may not be actual. The issue of actual possession has to be proven by the claimant, or the claim fails, regardless of everything else.
Ditto for exclusivity and continuity.
No, unless there is more, much more, to this story I'm going to say that any claim of AP is going to fail.
Moving on to the subject of an unwritten transfer.....
If the two owners built the fence together, sharing the work or the cost or something, that would be more compelling -for a practical location - but still not proof.
I say finding evidence does not a boundary make. Only a Judge can make a boundary.
That's my 2¢ worth.
More like a buck fifty.
As I've posted below, we are not talking about the occupation of the whole property, we are talking about the occupation of a strip of land between the fence and the deed line. This is a strip of land in the forest where Frank "found" a fence. It doesn't sound to me like anyone is in actual possession of this strip. So an AP claim would fail.
If the owners intended the fence to be the boundary, they should have called it out in the deed. Failure to do so suggests to me that the halving was what was intended rather than the fence. It may have been built by one owner or the other, perhaps to turn livestock rather than to mark a boundary. An intention for this fence to be a boundary has to be proven for AP. It cannot be assumed. Frank has offered no such proof.
There may be other facts that Frank has yet to learn. But the case as presented, to date, is going to fail.
Proving an unwritten agreement line has a better chance, but mere existence of a fence isn't enough. Certainly the owners have the power to resolve a boundary uncertainty with an agreement. They have to get together and resolve their dispute with a positive agreement that the fence will be the line. Then they have to do something with regard to that agreement. Like maintain the fence, or mow up to it, or graze livestock up to it, etc. Or at least talk about it, for crying out loud. Or ideally, but not necessarily, by exchanging written documents and recording them. We have no evidence of any of that. As the surveyor on the job we must have proof that these things happened. They cannot be assumed on the basis of the mere existence of a fence.
> Given:...
> 100-acre tract of land shaped like rectangle, owned by two people each with undivided interest, 50% each.
>
> They divide the land in half--east half and west half, without a survey, giving each 50 acres, more or less....
>
> Surveyor surveys the land and has no problem delineating the east half and the west half of the original tract, and he sets corners on the divding line.
>
> However, he finds a fence that has existed for at least 60 years that does not run down the dividing line. It starts on the south end of the dividing line almost in perfect position, but by the time it reaches its northern terminus the fence is more than 60 feet too far east.
>
> Question: Will this fence hold as an adverse possession fence? Why or why not?
>
> (Fence was in position at time of the division of the 100-acres.)
> 30-year adverse possession applies in Louisiana where this occurred.
My question is, based on how you worded the above, whether the surveyor did, in fact, have a problem delineating the east and west half. Those are vague terms. Especially with the acreage being listed as +/-. Was it half by acreage or half by distance of front and rear lines? If the back line was off, and you used the half distance rather than acreage, would it put the fence closer to line? If so, is it possible that the deed was intended to represent a line which could be found on the ground by the location of the fence. Those are questions that would demand testimony from the owners involved. Considering it was 40 yrs ago, I hope they are alive to answer the question. Otherwise there is no telling what the judge will do, but that fence would then have a lot of weight, I would suspect. How many acres off would it make the smaller parcel from 50 Acres using the fence? at only 60 feet off, I am guessing maybe a couple of acres, maybe less. That would definitely fit the +/- acreage.
How do you know the fence is circa 1950 and not 1970?
I would think that rural fences did not change that much in that era.
What parole testimony or forensic evidence do you have that the fence was there before the partition?
The TNC of Louisiana really got thumped on a parcel of land that they acquired in North Louisiana. The adjoiner came forward with the evidence of an old fence after the transaction. They now get surveys for land that they acquire now in Louisiana.
> I say finding evidence does not a boundary make. Only a Judge can make a boundary.
> That's my 2¢ worth.
You, sir, are right on the money with that statement.
Property owners make boundaries.
Judges evaluate evidence and determine where the boundary is that the property owners made.
This is what Land Surveyors should do which is sometimes not an easy task.
I'm in agreement with Just Mapit. If the fence preceded the boundary and there is no evidence that the owners intended it to mark the boundary when it was created its not the boundary now. If the fence gets built after the deed as a partition whole different ball game.
> I'm in agreement with Just Mapit. If the fence preceded the boundary and there is no evidence that the owners intended it to mark the boundary when it was created its not the boundary now. If the fence gets built after the deed as a partition whole different ball game.
If the fence preceded the conveyance, and there is no evidence that the owners DID NOT intend it to mark the boundary...it is still the boundary now...
If the fence was built before the conveyance, it could very well be the boundary.
You would think that owners of 40 years would have at least 'maintained' or 'defended' their property at least once or twice in 40 years.
DDSM
(use it or lose it)
A boundary in dispute can be fixed one of two ways, judicially by the court or extrajudicialy by the parties involved.
> .... If the fence preceded the boundary and there is no evidence that the owners intended it to mark the boundary when it was created its not the boundary now....
I fully agree. If the fence was intended to be the division line, then the deed would support it.
I also agree with Cliff.
Yep, and a judge can ignore our evidence and do whatever he/she wants. I've seen it happen more than once.
Maybe the Judge evaluates the evidence differently than the Surveyor did.
If you have two pieces of conflicting evidence before you (for example the stone and pipe dilemma) then you have to reject one and select the other or the third possibility is to reject both. The Judge may disagree with my opinion.
Then the Appellate Court may disagree with the trial Judge. Ke sera sera whatever will be will be.
Not necessarily. The story sounds like siblings. They put up the fence and co-owned for years. They measured the property years before and put the fence up mid-distance at the front and back (or so they thought). Fast forward 20 yrs and one decides to sell. They need a deed fast and do not want to pay for a survey. So they tell the lawyer that they have split the land in half and that is what he puts in the deed. They did not think to mention to him that they fenced the line they had been using as the line, that is why he did not mention it in the deed. But the fact that you can find a fence that is 60 yrs old tells me that someone has been keeping that fence up. Until you find out why they have been keeping that fence up on timberland, you ain't done your job. Using the scenario above, it is reasonable to find the fence up front on correct distance, the road makes it easy to pull the distance relatively close. But at the back, in timberland, you would expect them to get off. The short side is the one they measured from. 60 feet in 200 feet is bad. 60 feet in 1400 feet is not so bad. There are too many things that the surveyor has not found out. That is why I said they may have a problem with where they delineated. They need to talk to people who were alive before the deed. They need to find out the reason for the fence AND they need to find out what was the intention of the half. Was it acreage or was it distance.
