> 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? 😉
Thanks, Wendell.... I appreciate the hesitation 🙂 Most wouldn't have hesitated at all. I've grown to expect it. 😉
Yes, Frank. The AP arguments have been misused in most jurisdictions. Sometimes, the attorneys get lucky and can convince a judge that all elements were met. Most times, however, the arguments fail and the court rules against the adverse possessor (usually for the right reasons).
I see from a brief search of LA cases and statutes that LA has an interesting meld between some of the AP elements and the acquiescence doctrine referred to as "acquisitive prescription" which may occur under 10-year and 30-year periods. see, Marks v. Zimmerman Farms, LLC, No. 44,279-CA (La.App. Cir.2 05/20/2009) And, Cockerham v. Cockerham, No. 44, 16 So.3d 1264 (La.App. Cir.2 08/19/2009)
JBS
NO.
Not on the facts presented.
But I bet there's more to it than that.
Acquisitive occurs after 10 years with both parties present or 20 years with one party present on the land. Adverse possession is completely different.
I don't see this as overly complex for attorneys. You obvioulsy in a few minutes looked up a few cases on Lexis Nexis or Westlaw, and any attorney in our area will do the same thing.
The issue I was trying to bring out is whether the fence having been built long before the partition had any effect upon negating the next 30+ years of occupation as a fence not far from the line. While I appreciate your review on this I believe that one of the most important things we can do as surveyors with attorneys is not to claim they are guessing, but get them all the facts. One thing for sure though, is that fence will show up on my survey, and I will attach a report to the attorney and client, and i will also speak in depth about it with the attorney.
Are the current land owners in agreement as to location of the boundary line? If so, corrective deeds that explain the intent of the two current land owners should be drawn up and recorded along with a survey shown the location of the dividing line. If not, more information is required about where each current owner believes the dividing line to be and where the fence line is and whether this fence is a line of possession. Was the original dividing line ever monumented?
they are not going to agree. no monuments were ever set.
The fence is a good thing to have depending on which side of it you are on.
But since you are the first person in there surveying, it would be very difficult to justify the fence under its own merit.
but I'm not there you are.
That would be a tough call no matter which call you made.
I'd look real hard at the fence but I can't say if I would use it or not.
I'd almost bet though after all the lawyer money is handed out, the fence will be the line. Remember I said almost bet.
Have you looked at the past timbering that was done on the wooded area? It may shed some light on where everybody believed the line to be. If the timber was cut at two different times and the fence was never crossed or if it was only cut too this might help the case of the fence. Just a thought.
Too bad you can't find somebody that owned the property close to the time it was split. Thats pretty dfficult to do many times though.
that's too bad.
they'll spend way more than the triangular piece of ground is worth most likely.
it seems like it is always a triangle in dispute.
And if your client wins then the other side will venomously hate you for the rest of your life because you "stole" their land.
Always look on the bright side of life:
[flash width=480 height=385] http://www.youtube.com/v/owrbz2pIyiI?fs=1&hl=en_US [/flash]
Ladies and gentlemen, we have a winner.
At no point does anyone in the entire saga claim the fence is the boundary. Sometimes an 80 year old fence is just that, and has the legal weight of a goat stake.
ABSOLUTELY locate it and show it on the plat. While it may be no big deal today, in 40 years when someone's realtor tells them it is the boundary and they buy based on that, that location will be crucial for the next guy trying to figure it out.
> Acquisitive occurs after 10 years with both parties present or 20 years with one party present on the land. Adverse possession is completely different.
You might want to read that second case a bit closer, Frank. Seems that LA law is 10 years and 30 years and the difference between the two isn't hinged solely on occupied/non-occupied. The commonality acquisitive prescription has with AP very well described in the case.
>
> I don't see this as overly complex for attorneys. You obvioulsy in a few minutes looked up a few cases on Lexis Nexis or Westlaw, and any attorney in our area will do the same thing.
I agree. And every surveyor should know how to do the same thing. In order to answer any boundary location question, the surveyor must know and understand the law better than any attorney. There's a huge difference between "looking up the law" and knowing how to "apply the law." As surveyors, we do that on every boundary determination made.
> The issue I was trying to bring out is whether the fence having been built long before the partition had any effect upon negating the next 30+ years of occupation as a fence not far from the line.
That's why, in my opinion, the 30-year acquisitive possession law might be more in line with your question.
> While I appreciate your review on this I believe that one of the most important things we can do as surveyors with attorneys is not to claim they are guessing, but get them all the facts.
That is precisely why I posted. It appears to me that the facts necessary to keep everyone from "guessing" haven't been gathered. According to the Cockerham case, "The requisites for the acquisitive prescription of 10 years are possession of 10 years, good faith, just title, and a thing susceptible of acquisition by prescription." It is also stated that "Ownership and other real rights in immovables may be acquired by the prescription of 30 years without the need of just title or possession in good faith. [cite] The possession must be continuous, uninterrupted, peaceable, public, and unequivocal." Pretty much sounds like an amalgamation of Acquiescence and AP as you'd find it in other states.
In order to know "all the facts" it will take more than showing a line where the dimensions place it and a fence line. It takes someone to interview the landowners to determine the "facts" necessary to make the boundary determination. That person is a surveyor. What evidence shows "good faith?" What evidence shows "occupation?" Was the occupation "peaceable, public, and uninterrupted?" It's not up to attorneys to determine boundaries. Surveyors are licensed to do that. Surveyors must gather the evidence, determine the facts, apply the appropriate legal principles and determine the boundary location.
> One thing for sure though, is that fence will show up on my survey, and I will attach a report to the attorney and client, and i will also speak in depth about it with the attorney.
I'd suggest that the conversation with the client and the attorney take place long before you complete the survey.
JBS
Yes, one now claims it is the boundary. Guess which one it is....
Wasn't Wattles a Californian?!
"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."
:good:
You are a nut.;-)
If this were in Texas (which it isn't)
Frank,
Did he ever get the "behind the barn" discussion that he so richly deserved?
SJ
Richard, you are guilty of assuming a fact that is not in evidence. The question is whether the fence, by its very existence, without further circumstances, constitutes a boundary. Frank has not stated whether either of the adjoiners think that the fence is the boundary, let alone whether the two of them agree that it is. Perhaps they don't want it to be the boundary. What then?
Mark, I agree with what you say about not knowing if both would agree on the fence.
The landowner that stands to pick up the extra land wants to use the fence. If both had no problem with the fence, I would simply survey the fence and have both of them sign a boundary agreement.
Frank
If an impasse between the two owners is on the horizon, offer up this suggestion...split the difference and file the appropriate documents.
Frank
A case I was involved in up here that's what eventually happened.
The other Surveyor tried to fit all the Deeds together to justify the fence, a very Surveyor thing to do. Sometimes bogus 19th century Deed shenanigans in messed up timber county are just bogus but Surveyors seem to have an urge to try to make sense of the un-make-sensible.
His R/S had a line on it down the middle which was eventually agreed to in the out-of-court settlement.
I think the other Surveyor actually had it right for the wrong reasons.
> The landowner that stands to pick up the extra land wants to use the fence. If both had no problem with the fence, I would simply survey the fence and have both of them sign a boundary agreement.
This is precisely the reason that Skelton suggested that the surveyor stop the survey, describe the problem to the landowners, and attempt to mediate a solution BEFORE the parties become entrenched in their claims. If the landowners were interviewed regarding their thoughts on the fence line BEFORE they were told that it wasn't where the surveyor expected it, the evidence of the true recognition and acquiescence may have been preserved. Once the cat's out of the bag, the landowners become self-serving and their stories change.
It's important that the surveyor capture the evidence BEFORE the dispute arises. Once the dispute is underway, it's very difficult to get the real story.
JBS
