Boundary Question

Wasn't Wattles a Californian?!

> AS such, the comment that the surveyor had no problem delineating is an assumption.

Then target Frank with your petty insults.. Im done with this conversation.

As far as the adverse possession claim. (I meant to end up talking about twice now)

A fence can be a good claim for adverse possession, however you can't go to court with only a fence. You must have other evidence and all elements must be satisfied.

Adverse possession is not easy to prove and is that way rightfully so. Could you imagine the chaos it could cause the courts if the claim was upheld on the existence of a fence alone?

The fence itself can't even be used to prove the property line all by itself. You must compile evidence to support it.

> A half description presumes half of the area. The boundary does not have to be straight or a single segment but the areas have to be equal. This is why half descriptions are patently ambiguous.

Dave, it sounds to me as if you may be projecting a California case into the situation elsewhere where it wouldn't apply. Surely you aren't claiming that a conveyance of land as the West Half of a definite tract can't be located upon the ground. That wouldn't be true in Texas since the courts here have held otherwise.

Really, the key question for the argument that I think you want to make is whether the construction of a fence by unknown parties constitutes a division of land such that a conveyance of the land as parts described as "halves" would be held to necessarily make the fence the division line.

The fence ran through the middle of two trees I cored. I know it is at least that old.

The boundary was remarkably rectangular, and there is essentially no dispute on the east and west half geometrically.

It was not siblings. I don't think adverse possession can occur here between siblings anyway. I am checking on that now for my own info, but I recall hearing it from a good land title attorney once.

If this were in Texas (which it isn't)

I am simply going to survey the precise location of the fence, and give the whole thing to the client and his attorney. After the law is researched by the land title attorney, and I have a direction as to how it would work in Louisiana, I will no doubt be enlightened.

In 1980 when I was taking the oral part of my LS exam, one of the state board members asked me to answer this:

You are surveing a tract of land and you come upon a fence that is about 50 feet from the boundary as defined in the legal description. You know that the fence is 31 years old. What is the boundary in that area. I tried to explain, but he jumped me, and he said, "FENCE!!!!" I tried to explain, but he glared at me, so I just shut up. Since that time I have though a heck of a lot about what he said. His word is not the gospel, but it demonstrates the confusion.

I have been in two cases in my career where a downed fence was recovered during a survey. On one case the fence was at least 50 years old. The downed fence was ruled the boundary in both cases, and in one particular case had probably been downed for at least 30 years and was never used as a boundary during that 30-year period. It was about 80 feet from the deed line.

I guess he extreme of this would be what I call the Chicken Yard Phenomenon. Assume person has 50 acres with a fenced chicken yard about 100-ft. square right in the middle, and also assume that the outer boundary of the 50 acres is not fenced or even marked. If this chicken yard fence stays in position for 30+ years would it become the boundary and give the perimeter owners ownership? No. Adverse possession in this case would consist of actual use of the land by perimeter owners for 30 years in order for the fence to be the boundary.

I like to try to resolve confusing things by applying the continuum rule where the shift from a a semi-normal condition to a ridiculous condition does not show discontinuity or a break in the logic. Good conclusions can be gained from that type of assessment. In other words, when does the transition from the fence I first mentioned to the chicken yard break logical continuity. Does it? That goes a long way toward resolving the issue.

Wasn't Wattles a Californian?!

Paul, I am not sure what a court might rule in the area you are getting slammed on, but I can say that based upon the evidence presented that I completely agree with what you are saying. It would be founded upon intent, and the intent would have come from exactly what you say. The only other option would be if there was some other method found to do it. While there may be a multitude of ways that one might try to divide the west half from the east half, the fact is that these types of descriptions are very common, and someone has to make sense of them. And I totally agree with you that the best way to do it would be to try to determine the way it was most likely intended, while at the same time recognizing that a following surveyor could support your logic or try to stir up a mess. I think most of us know that any surveyor could stir up a mess on whole lot of the boundaries that are out there.

The slamming and insulting on the other board are a major component of its reduced use, and I hate to see it pop up here on a land surveying question.

The boundary calls were never known, only approximate. It was a proportionate division. West line and east line were within about 12 minutes of each other. The fence was remarkably straight. What I think happened is much like Paul Plutae said. The measured the frontage and divided by 2 and must have set a post or something at that point. Later somebody came out with a compass (not wanting to chain), and ran a compass line from the front to the back, and he probably had his declinatin set wrong or did not even know what declination was. If the original fence for dividing line was set this way and held for 30 years it would put more weight on the fence. I am still researching that.

Alright, this is my first "real" post here on a "real" surveying topic. You all know that I'm pretty long-winded. What do I find out? Wendell has placed a 5000 character limitation on the posts! I'm sorry, Wendell, that will never do for a wind-bag like me! 😉 So, I'll split the post up into two separate posts...

> Question: Will this fence hold as an adverse possession fence? Why or why not?

Any time I see a post where a surveyor is wondering about an adverse possession application to a boundary problem, I have to wonder two things: 1) Could this possibly be one of those extremely rare instances where the party truly has no valid deed to the property? Or, 2) Is the wrong question being asked due to a fundamental misunderstanding of adverse possession laws.

In this case, party A has a valid deed to parcel A (the west half), and party B has a valid deed to parcel B (the east half). Consideration #1 is off the table, therefore adverse possession is the wrong argument to find a solution to the problem. They don't have a title problem; they have a location problem. Adverse possession statutes were specifically designed to resolve title problems. The only ap resolution concerned with fence locations is one particular prong of the ap statutes which repair tile without a valid deed (without color of title). In only those cases will a fence location matter as the only proof of their title is found in the limits of their occupation (the fence). This is an extremely rare circumstance which isn't even allowed in some states.

The first place to start with any survey is by applying the rules of construction to the deed. An east half/west half split, under common law would presume an equal area split. However, presumptions of law can be overcome by other evidence. The split could also be a proportionate split of the frontage (half distance), or could be a proportionate split of the land value (one part may have swamp land which may affect the net acreage split, for instance). Is there a reasonable explanation of why the contradictory evidence is where it is?

If we are dealing with a boundary "location" problem and not a "title" problem, then the equitable doctrines of written, oral or implied agreement, or the doctrines of equitable estoppel or practical location may apply. We've been given no evidence of any written or oral agreement so those are off the table. We've been given no evidence of a mutual recognition and acquiescence by both parties that the fence marks the boundary, so that's off the table. We've been given no evidence of any representations made by one party and reliance by another with substantial costs incurred, so equitable estoppel is off the table. (I'm not saying that these aren't valid arguments, or that the evidence isn't there. We just haven't been given any, so we must presume that there isn't any. It's our job to gather that evidence. It doesn't seem to have been done yet.)

(to be continued...)

JBS

(continued from above...)

That leaves practical location as a consideration. Practical location is a doctrine that allows the parties to the original transaction that created the line to establish its location in accordance with their actual agreement despite any failure of the written language attempting to describe what the terms of their actual agreement were. It is their original agreement which holds; sometimes the deed fails to properly describe that agreement. The actions of the parties at or near the time of the agreement are considered better evidence of their agreement because that's what they physically did to consummate their agreement. The fact that the fence has stood for a number of years is testimony to the satisfaction of the parties with what they actually did. The real test in applying practical location is determining the "intent" of the parties. The resolution of this type of problem is accomplished by preparing a "correction" deed which recognizes and corrects the improper language in the deed to reflect the original agreement.

In this case, however, the fence precedes the agreement by nearly 20 years and has stood for 40 years after the boundary was created (if I'm understanding the facts correctly). It's pretty obvious that whoever constructed the fence could not have intended to mark the boundary as it didn't exist until 20 years later. There was no boundary to mark. There is, however, possible evidence in the fact that the title was held in common with a 50-50 interest of the two parties. Is there evidence that the two parties may have divided their interest (physically) with each solely occupying a separate half of the whole, then documenting the split 20 years later? We're not given any such evidence (again, not to say it's not there; it just hasn't been gathered). Another piece of missing evidence here is whether both parties have maintained this fence. A 60-year old fence is pretty ratty looking without maintenance (again, we're missing the evidence).

If the fence was erected prior to the boundary with no intent to mark the future boundary, then it simply won't mark the boundary, no matter how long the fence remains. Without the evidence being gathered to answer the remaining issues, we'll have to believe that the evidence isn't there, so the fence isn't marking the boundary. (I'm just not satisfied that the evidence isn't there. It's more likely that it just hasn't been gathered yet. Any boundary determination that's based on less than the required evidence will likely result in the wrong decision).

JBS

Building a fence through rough, brushy and forested terrain is a difficult task.

It is conceivable that the parties to the split, knowing of the existing fence, used it as their common boundary.

> Wendell has placed a 5000 character limitation on the posts! I'm sorry, Wendell, that will never do for a wind-bag like me! 😉 So, I'll split the post up into two separate posts...

Oddly, I didn't even realize there was a limit! I've upped it to 10,000. Thank you for bringing that to my attention.

Will 10,000 be enough for a windba... er, uh, I mean, guy like you? 😉

Good work.:good:

In this case, party A has a valid deed to parcel A (the west half), and party B has a valid deed to parcel B (the east half). Consideration #1 is off the table, therefore adverse possession is the wrong argument to find a solution to the problem. They don't have a title problem; they have a location problem. Adverse possession statutes were specifically designed to resolve title problems. The only ap resolution concerned with fence locations is one particular prong of the ap statutes which repair tile without a valid deed (without color of title). In only those cases will a fence location matter as the only proof of their title is found in the limits of their occupation (the fence). This is an extremely rare circumstance which isn't even allowed in some states.

JB, this situation is extremely common in Louisiana. Adverse possession is exactly the right argument here. Adverse possession is absolutely not restricted to resolving title problems here in Louisiana, and it is not restricted to proving title is found within limits of occupation.

and the old country judge may decide he's going to rule for his old buddy and the poor folks on the other side may not have the money or the will to carry on with the good fight.

You are flat wrong, Mayer!

We are the ones who must meet standards in our monumentation and description obligations, owners do not have to meet such stringent requirements.

Get a subscription to "A Pratical Guide to Disputes Between Adjoining Landowners - Easements" by Backman & Thomas, published by Matthew Bender Div. of LexisNexis and quit believing the garbage you get from title ins. attorneys.

Surveyors do not own the land and we have no regulatory authority that allows us to control land owners!

What does the phrase: "Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law." in Black's definition of Alienation mean?

Alienation
In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.

Restraint on Alienation
A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.

Get a copy of Cooley's "Judicial Functions of Surveyors" and study it!!!

Richard Schaut

Yep.

maybe so, I can't solve all of the problems of the world.

Judges are political creatures no matter how much we want to believe they, like anyone else, are impartial.

Boundary Question - PRESUMPTIONS

Surveyors fail to understand a basic concept of judicial procedure which is known as a presumption.

For a surveyor, the primary presumptions regarding the record description are that it contains errors, may have not been written by a surveyor, and it can only define the area of search for the surveyor.

Again, FOR THE SURVEYOR, physical evidence marks the location of the boundary, not a 'reasonable' interpretation of the record defective description!

Any physical evidence in place marking the limits of occupation and control between adjoiners must be accepted unless it can be PROVEN to not mark the limits of occupation and control, therefore, no fence can be presumptively a convenience fence for a surveyor!

Remember, the record controls the lawyer and the court because neither of them are qualified to enter onto the land to recover and evaluate physical evidence.

If not the surveyor, who? Certainly not the lawyer nor the judge!!

Richard Schaut