I came across an interesting situation near a property I was surveying today. This is in town on about 50'x150' lots in a block that was mostly divided by deeds starting in the early 1900's. This particular line had been originally created and established on ground in the 1930's and a fence still stands today in this original position (assume this as fact for discussion). In 1961 a Record of Survey is filed on the parcel to the South of this line that erroneously places the line 7 feet from this established and occupied line. The fence is not moved, but a garage is built based on the 1961 survey that slightly encroaches over the original line. A few years later, in 1968 a Parcel Map (minor land division) is filed on the property to the North of this line to split a 100 wide parcel. This Parcel Map accepts the erroneous position that the 1961 Record of Survey set 7' in error. The new parcel to the North of this line, now holds Title by reference to this map. Again, the fence never changes position. Both owners on either side of the line today do not recognize the fence to be marking the boundary, they believe it to be in error, as it would be by relationship to both the '61 and 68' surveys, but they are fine w/ the situation as a small concrete ditch makes it impractical to relocate the fence.
Has the originally established line moved?
The originally established line is still in evidence and has not moved. Based on map record and long standing use and acquiescence the title line has moved between those two particular parcels but the originally titled line is relevant to other lots.
The Maps did not move the line, they recorded the acquiescence to the new line.
Paul in PA
Paul in PA, post: 431948, member: 236 wrote: The originally established line is still in evidence and has not moved. Based on map record and long standing use and acquiescence the title line has moved between those two particular parcels but the originally titled line is relevant to other lots.
The Maps did not move the line, they recorded the acquiescence to the new line.
Paul in PA
No long standing use to the mapped line, it has been entirely ignored with the exception of it being used to create a setback line for a garage, near the street which created a 1/2' encroachment over the original line. As such, the owners haven't acquiesced to any physical feature on the ground as there is nothing there on the mapped line, but they are both aware of these recorded maps and understand that the fence location is not on the mapped line.
In theory, a Record of Survey can only retrace an existing boundary or establish a boundary which has not been established before. Same with a parcel map with respect to its exterior boundary.
If the property owners did not know where their boundary was located in 1961 and they settled their uncertainty by accepting the record of Survey boundary (which is confirmed by the parcel map and their statements) then the fence is meaningless at this point.
A couple of thoughts. One is that if this is looked at as solely a location issue and feel it is settled by agreement, acquiesence, reliance on a mistake, or otherwise, then perhaps so. Even so, I would suppose that the location is still open to dispute. While there is apparently no dispute between the current owners this morning, that is not necessarily true this afternoon or 30 years from now.
If a current or future owner wanted to claim to the original boundary and should this go to litigation, there are no guarantees. All the owners have today is the opinion that you give them. Say you tell them that reliance on a mistake has "located" the true boundary and the original boundary is "meaningless. Will you file a record of survey being as there is an alternate location as required per the CA LS Act? Will this satisfy title companies? Will it keep the boundary from being disputed by current or future parties? And should it go to litigation, is it an absolute that the reliance on a mistake will prevail? Are there truly any absolutes when it comes to civil litigation?
As a surveyor you have located the original boundary, at least according to the very limited evidence you have offered here. Evidence that had apparently been missed by previous surveys and the owners who subsequently relied on them. You as a surveyor have identified an alternate location, with the potential for dispute as to location. Your surveyor's opinion is simply that.
Dave Karoly, post: 431975, member: 94 wrote: In theory, a Record of Survey can only retrace an existing boundary or establish a boundary which has not been established before. Same with a parcel map with respect to its exterior boundary.
If the property owners did not know where their boundary was located in 1961 and they settled their uncertainty by accepting the record of Survey boundary (which is confirmed by the parcel map and their statements) then the fence is meaningless at this point.
I don't know if they were specifically uncertain and settled it by agreeing to the mapped line, but they have become aware in more modern years that the fence doesn't represent the mapped line. This makes sense for the owner of the lot created by Parcel Map because if his line went to the fence he'd have an 7 extra feet than is shown on his map.
clearcut, post: 431977, member: 297 wrote: A couple of thoughts. One is that if this is looked at as solely a location issue and feel it is settled by agreement, acquiesence, reliance on a mistake, or otherwise, then perhaps so. Even so, I would suppose that the location is still open to dispute. While there is apparently no dispute between the current owners this morning, that is not necessarily true this afternoon or 30 years from now.
If a current or future owner wanted to claim to the original boundary and should this go to litigation, there are no guarantees. All the owners have today is the opinion that you give them. Say you tell them that reliance on a mistake has "located" the true boundary and the original boundary is "meaningless. Will you file a record of survey being as there is an alternate location as required per the CA LS Act? Will this satisfy title companies? Will it keep the boundary from being disputed by current or future parties? And should it go to litigation, is it an absolute that the reliance on a mistake will prevail? Are there truly any absolutes when it comes to civil litigation?
As a surveyor you have located the original boundary, at least according to the very limited evidence you have offered here. Evidence that had apparently been missed by previous surveys and the owners who subsequently relied on them. You as a surveyor have identified an alternate location, with the potential for dispute as to location. Your surveyor's opinion is simply that.
Luckily these aren't my clients. I kept completely silent about my knowledge of the originally established line. I have no reponsibility to them and they are living with the situation in peace with each other. If they were my clients, I don't know what I'd do, I'd definitely be hesitant to give an opinion for all the valid reasons you've brought up.
If the stakes of the 1930 Survey or the fence are called for in the Deed descriptions then the owners most likely can't say they didn't know where the boundary is located therefore the 1961 survey would amount to an unconsummated boundary adjustment. Usually Surveyors have no interest in the property surveyed so their acts alone have no effect on title or location. Even in the case of a subdivision the owners must sign the map to put the survey into effect.
The surveys may constitute very persuasive evidence, however, particularly if they have been unchallenged for decades.
In a case like this it would be best for the owners to agree to a solution then the surveyor would assist in implementing the correct paperwor, whether it can be done with a boundary location agreement or boundary adjustment. Boundary agreements from decades ago that are found to be invalid (for example, if the owners knew where the boundary was located so there agreement amounted to a parol transfer) and they want to keep the new location then a boundary adjustment should be processed.
No stakes or fences called for in any of the early 1900's deeds that cut up the block. What is the significance of a deed calling for stakes for either a retracing surveyor or a land owner when you are decades out from the original conveyance and the lines have all been physically established, considering that by this point, the stakes would all be long gone?
A basic requirement to establish a boundary is the property owners have to lack knowledge of the location of the boundary.
If monuments are called for in the Deeds then they are charged with this knowledge. Where the called for monuments are lost or their approximate former location can't be determined then they may establish a new location.
Dang. Good thing this wasn't in PLSSia land with aliquot descriptions only. We would still be discussing fences versus perfect surveying skills (math and optics) for the next week. Especially when some twit comes along and declares every east to west line must be on a latitudinal curve, no matter how infinitesimal the difference might be.
Holy Cow, post: 432016, member: 50 wrote: Dang. Good thing this wasn't in PLSSia land with aliquot descriptions only. We would still be discussing fences versus perfect surveying skills (math and optics) for the next week. Especially when some twit comes along and declares every east to west line must be on a latitudinal curve, no matter how infinitesimal the difference might be.
Ha! The fences v. technical math solution is actually the underlying issue that is plaguing this whole block. It's a very interesting and long history, and especially given the magnitude of the differences, but have to keep that week long conversation on hold for now as it gets into my own current survey of a disputed line which may go to litigation.
clearcut, post: 431977, member: 297 wrote: A couple of thoughts. One is that if this is looked at as solely a location issue and feel it is settled by agreement, acquiesence, reliance on a mistake, or otherwise, then perhaps so. Even so, I would suppose that the location is still open to dispute. While there is apparently no dispute between the current owners this morning, that is not necessarily true this afternoon or 30 years from now.
If a current or future owner wanted to claim to the original boundary and should this go to litigation, there are no guarantees. All the owners have today is the opinion that you give them. Say you tell them that reliance on a mistake has "located" the true boundary and the original boundary is "meaningless. Will you file a record of survey being as there is an alternate location as required per the CA LS Act? Will this satisfy title companies? Will it keep the boundary from being disputed by current or future parties? And should it go to litigation, is it an absolute that the reliance on a mistake will prevail? Are there truly any absolutes when it comes to civil litigation?
As a surveyor you have located the original boundary, at least according to the very limited evidence you have offered here. Evidence that had apparently been missed by previous surveys and the owners who subsequently relied on them. You as a surveyor have identified an alternate location, with the potential for dispute as to location. Your surveyor's opinion is simply that.
Just re-reading your comments here. Very keen observations about a surveyors authority and best practices when encountering problems in light of the inherent uncertainty involved in any litigation. Thanks for the contribution.