We've heard it said you can't convey land you don't own in writing. I'm not so sure. In 1975 a fence line surveyor did a plat showing a fence several feet N of the section line as the survey boundary for the land south of it. The deed only included land south of the section line. The survey description does not indicate that the fence is in the section to the north but the plat does. In 1992 a retracement survey followed the fence and the 1975 marks but this time the survey description indicated the land between the section line and the fence as being in the section to the north. The 1992 survey notes the difference between a "line" fence and an "existing" fe. A line fence being a property line and an existing fence being an existing fence. The fence in question was noted as an existing fence. So the survey description now has land in two sections. The land owner immediately conveyed the property by warranty deed using the new description. No one stopped it. The owner to the north has a deed to the section line to this day and no one has ever brought the issue into question. It's highly unlikely any court in this state would rule the boundary is anywhere but the fence if it were ever tried. If you were surveying the boundary today, what would you do? Upset the apple cart? Was the 1992 survey right or wrong in including the land in the section to the north in the survey description? Does it even matter anymore??ÿ
This is a legal issue now.?ÿ Surveyors can have opinions but the legal profession has the answers.
It's highly unlikely any court in this state would rule the boundary is anywhere but the fence if it were ever tried.
You are going to get a lot of different answers from various states that don't take into account Iowa has one o the most, if not THE most, generous acquiescence statutes. These surveys seem to document a good case for it here.
I had a similar project where one family owned several sections and built fences (cattle) crossing the quarter section because they followed the meandering tree line.?ÿ When they sold portions of the property, they sold aliquot parts of the section. On my survey, I showed the quarter section line, the fence that was acquiesced to for 27 years before an issue was raised between the adjacent land owners, and provided a detailed surveyor's report.?ÿ
In my surveyor's report, I included aerial imagery as far back as Google Earth's data reached that showed the continuous and exclusive occupation.?ÿ I also included imagery of the cattle fence as it was encapsulated in different trees with a forester's report estimating the age of the fence based on the tree growth and how deep the fence was encapsulated (dendrology).
All we can do in situations like this, is to provide accurate and detailed information that explains the history in it's truest form.?ÿ If the parties involved want to take it further, it is their right.?ÿ You will probably be called as an expert witness if it goes to court.
Good luck.
Every state is different, it's a legal issue, in one state paying taxes on the land is huge in another it's meaningless. Also, I would want to trace it back to patents. At any time did one owner own both sides of the line.
I recently traced back deeds to the patent and then 1903 where the lands were divided, it cleared all of the present day issues.?ÿ
Speaking of tracing back - In the 1880's the quarter quarter section of the land to the south of the fence was split into 2 lots by the county surveyor and recorded. The land south of section line that was surveyed in 1975 was designated as lot 2. The 1975 survey did not refer to lot 2 but the deed did at that time and lot 2 now is not mentioned in any deed. Apparently, no title opinion has ever brought that into question either. The original patents of the section were all quarter sections or quarter quarter sections.?ÿ
In Oregon it would depend on the use that the land between the fence and the section line have been put to. If it is simply a brushy wilderness, the section line is going to remain the boundary. If the livestock has been grazing right up to the fence there is a strong case for AP.?ÿ?ÿ
Usually it's a waste of time, but is there title insurance involved?
One would imagine this would be a time to use the insurance, but it's probably written out of the policy.?ÿ
Often in a small community the title insurance will be the same company for each owner.?ÿ
A BLA would clean up the issue.
You would need each owner to sign up for it.?ÿ
"after acquired title doctrine" must always be considered
look it up. different in every state/nation
I wrapped up an ALTA last week where something almost identical happened.?ÿ The difference on my project is the more recent survey tried to either fix or ignore the mistake by holding the section line.
I showed the boundary as following the fence and not the section line (which I also showed).?ÿ In my explanation I simply said it looked like the first survey followed the fence rather than breaking down the section the way we normally would.
I don't think it's really possible to upset the apple cart at this point even if you wanted to because after almost 50 years of occupation the owner has most likely satisfied the requirements for an adverse claim anyway, no?
I don't think it's really possible to upset the apple cart at this point even if you wanted to because after almost 50 years of occupation the owner has most likely satisfied the requirements for an adverse claim anyway, no?
Please do read the case I posted above. It truly does matter just what has been done within the disputed strip, and that has to be proven by?ÿclear and convincing evidence, not just supposed.?ÿ The mere long term presence of a fence is a long ways from a proved AP or Agreement line. Enclosing land with a fence is not equivilent to possessing it. I can show you a lot more failed claims than successful ones.?ÿ?ÿ
Just because some a-hole surveyor set monuments at the ends of an existing fence and produced a map does not impress me. Prove that the parties actually knew about them.?ÿ Any of them.?ÿ
There are cases where a long standing fence is the best remaining evidence of where the section is. Such does not seem to be the case here.?ÿ An entirely different theory.?ÿ
@holy-cow this is a boundary question. All boundary questions are legal questions. Boundary questions are what we are here to answer.
Good case for discussion, but whatever the answer is, it doesn't refute "you can't convey what you don't own".?ÿ Either the conveyer owned it before he conveyed, the conveyee perfected title by unwritten means after the conveyance, or the conveyee doesn't own it.
The written conveyance may help the conveyee claim title through color of title, but that takes additional elements (one being time).?ÿ
I always said you can't sell property you don't own. Boy, did the District Court Judge in Montana prove me wrong. The original ranch property was willed to the kids in Government Lot descriptions. The property borders the Smith River. Rugged mountainous land. In the 70's one brother decided he didn't like punching cows, so he subdivided his Government Lot 14 into 1 acre river front lots. It would have been too expensive to have a proper section breakdown done at that time to locate his Government Lot 14's boundaries, so he guessed. Not too bad of a guess he was only off 280 feet off. To further save costs he and his brother set the lot pins using whatever was available at the time to mark the corners. No problem until 30 years later lot owners started to build cabins on their lots. No problem he showed them the lot pins for their lots and if he couldn't find them, he replaced them and showed them where they were. Then the sisters saw how lucrative cabin site selling was and subdivided their Government Lots. Then the big problems started. The sisters hired "real" Surveyors to subdivide their property. Then all the sold property you don't own started showing up. That was a problem, but the District Judge ruled the corners set by the brother were the property corners by either prescriptive or acquiescence means, even though the cabins and roads were less than five years old. The Courts sure do fix things. Problem still exists, the brother is too old to set property pins. Where will "real" Surveyors set them?
@aliquot?ÿ
Must disagree.?ÿ This is not a simple boundary issue.?ÿ This is a legal question.?ÿ Some legal process is necessary and then proven in order for there to be a single answer.?ÿ Differing survey opinions do not settle a title/boundary issue, the legal process does.
Not all boundary surveys rise to the level of creating a legal question.
Land surveyors do not award or remove ownership.
Opinions are like hemorrhoids.?ÿ Sooner or later, every a$$hole gets one.
I've been down this road too many times.?ÿ In one case, the owner's deed clearly indicated the property was the southeast quarter of the northeast quarter of the section.?ÿ There was no fence indicating a location for the west line of said tract.?ÿ There were survey stones in place from about 1880 at each end of the west line of that aliquot part, so that is what I marked with quite a few iron bars along that path.?ÿ The adjoiner, who had sold that tract to my client pulled every one of them as soon as he found them.?ÿ This went to court.?ÿ The adjoiner told the judge he didn't know where the line was then or earlier when he sold that described tract to my client.?ÿ He then told the judge that he told the buyer that what he was selling him started "up there, down to this end of the pond dam, then along the back of the pond dam to the other end, then up the hill to over there."?ÿ The client finally admitted to the judge the seller had said something like that but assumed the wording on the deed was the true location.?ÿ The judge declared the oral discussion during the sale process a few years earlier overruled the wording of the deed and my survey showing such a location.?ÿ There was no clear definition of where the final boundary should be located, so the neighbors continue to hate one another.
@holy-cow of course sometimes we need attorneys' help, especially when surveyors disagree or land owners refuse to listen to surveyors, but every boundary opinion is a legal opinion, unless you are deed staker.
I always said you can't sell property you don't own. Boy, did the District Court Judge in Montana prove me wrong. The original ranch property was willed to the kids in Government Lot descriptions. The property borders the Smith River. Rugged mountainous land. In the 70's one brother decided he didn't like punching cows, so he subdivided his Government Lot 14 into 1 acre river front lots. It would have been too expensive to have a proper section breakdown done at that time to locate his Government Lot 14's boundaries, so he guessed. Not too bad of a guess he was only off 280 feet off. To further save costs he and his brother set the lot pins using whatever was available at the time to mark the corners. No problem until 30 years later lot owners started to build cabins on their lots. No problem he showed them the lot pins for their lots and if he couldn't find them, he replaced them and showed them where they were. Then the sisters saw how lucrative cabin site selling was and subdivided their Government Lots. Then the big problems started. The sisters hired "real" Surveyors to subdivide their property. Then all the sold property you don't own started showing up. That was a problem, but the District Judge ruled the corners set by the brother were the property corners by either prescriptive or acquiescence means, even though the cabins and roads were less than five years old. The Courts sure do fix things. Problem still exists, the brother is too old to set property pins. Where will "real" Surveyors set them?
Again, this isn't selling something you don't own. The lot owners didn't own the land on the signing of the deed unless the original owner had already perfected his perspcriptive title. If he didn't the new lot owners had to perfect it on their own.
Not being able to sell what you don't own doesn't mean that you can't profit off a deed to property that you don't own (Brooklyn Bridge anyone?). It just means that a deed can't transfer ownership to property you don't own.?ÿ
Which case is under discussion now? "Can't sell what you don't own" does no apply to Norm's scenario because there is no question about respective title to two adjoining tracts. It's just about where the boundary between them lies.