Considering the following from a Colorado case, cited from California, Idaho and law encyclopedia's, if a surveyor stakes the deed where acquiescence has occurred where should he stake the lines?
From: Salazar v. Terry, 911 P. 2d 1086 - Colo: Supreme Court 1996
Justice KOURLIS dissenting:
An acquiesced boundary often will not lie on the surveyor's true location. When this occurs, the legal effect of the doctrine of acquiescence is to rewrite the deed or document of title by operation of law to reflect the acquiesced change so that the agreed upon boundary becomes the true dividing line. Duncan v. Peterson, 3 Cal.App.3d 607, 83 Cal.Rptr. 744, 746 (1970); Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006, 1010 (1953). An acquiesced line "becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location." Young v. Blakeman, 153 Cal. 477, 95 P. 888, 890 (1908). "Thus, if the distance call in the deed is '500 feet,' it may henceforth be treated as if it read '517 feet' or '483 feet,' and every future deed of the land which copies or incorporates the original description will also be so read." Roger A. Cunningham et al., The Law of Property å¤ 11.8, at 765 (1984). See also Olin L. Browder, The Practical Location of Boundaries, 56 Mich.L.Rev. 487, 530 (1958).
The policy underlying this construction of the language in the deed is the doctrine of repose, or "the notion that the law ought not to tinker with the well-settled and long-held understanding of the people involved, even if it does not comport with their documents." Cunningham et al., supra, at 766. See also 12 Am.Jur.2d Boundaries å¤ 85 (1964). As the California Supreme Court has reasoned, measurements made at different times, by different persons, and with different instruments will usually vary, and that:
If the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable.
Young, 95 P. at 889. Hence, boundary lines which have been recognized for the statutory period are regarded in law as being the true and permanent boundaries described by the language in the deed.
Once the original language in the deed has been effectively changed in accordance with the acquiesced boundaries, a conveyance by that original description should be presumed to have been intended to refer to the boundaries as fixed by such acquiescence unless there is specific language to the contrary. Young, 95 P. at 891.
LRDay, post: 413659, member: 571 wrote: Considering the following from a Colorado case, cited from California, Idaho and law encyclopedia's, if a surveyor stakes the deed where acquiescence has occurred where should he stake the lines?
From: Salazar v. Terry, 911 P. 2d 1086 - Colo: Supreme Court 1996
Justice KOURLIS dissenting:
An acquiesced boundary often will not lie on the surveyor's true location. When this occurs, the legal effect of the doctrine of acquiescence is to rewrite the deed or document of title by operation of law to reflect the acquiesced change so that the agreed upon boundary becomes the true dividing line. Duncan v. Peterson, 3 Cal.App.3d 607, 83 Cal.Rptr. 744, 746 (1970); Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006, 1010 (1953). An acquiesced line "becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location." Young v. Blakeman, 153 Cal. 477, 95 P. 888, 890 (1908). "Thus, if the distance call in the deed is '500 feet,' it may henceforth be treated as if it read '517 feet' or '483 feet,' and every future deed of the land which copies or incorporates the original description will also be so read." Roger A. Cunningham et al., The Law of Property å¤ 11.8, at 765 (1984). See also Olin L. Browder, The Practical Location of Boundaries, 56 Mich.L.Rev. 487, 530 (1958).
The policy underlying this construction of the language in the deed is the doctrine of repose, or "the notion that the law ought not to tinker with the well-settled and long-held understanding of the people involved, even if it does not comport with their documents." Cunningham et al., supra, at 766. See also 12 Am.Jur.2d Boundaries å¤ 85 (1964). As the California Supreme Court has reasoned, measurements made at different times, by different persons, and with different instruments will usually vary, and that:
If the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable.
Young, 95 P. at 889. Hence, boundary lines which have been recognized for the statutory period are regarded in law as being the true and permanent boundaries described by the language in the deed.Once the original language in the deed has been effectively changed in accordance with the acquiesced boundaries, a conveyance by that original description should be presumed to have been intended to refer to the boundaries as fixed by such acquiescence unless there is specific language to the contrary. Young, 95 P. at 891.
Well, 3 dissenters is a lot but doesn't make the majority opinion, to wit:
"For the foregoing reasons, we affirm the court of appeals and hold that the common ownership of two tracts of land extinguishes any acquiescence in boundary lines attributable to the prior landowners of the tracts unless the deed adopts the boundary lines as previously acquiesced upon."
I suggest (again) that a line of acquiescence shouldn't be staked by the surveyor, unless a new description is entered into the record.
I wouldn't really dispute the conclusion of this case and the merger of title issue. The dissent does cite a lot of other cases speaking to how a deed should be applied once the boundaries become fixed by acquiescence. The last cite from the OP:
Once the original language in the deed has been effectively changed in accordance with the acquiesced boundaries, a conveyance by that original description should be presumed to have been intended to refer to the boundaries as fixed by such acquiescence unless there is specific language to the contrary. Young, 95 P. at 891.
LRDay, post: 413659, member: 571 wrote: Considering the following from a Colorado case, cited from California, Idaho and law encyclopedia's, if a surveyor stakes the deed where acquiescence has occurred where should he stake the lines?
From: Salazar v. Terry, 911 P. 2d 1086 - Colo: Supreme Court 1996
Justice KOURLIS dissenting:
An acquiesced boundary often will not lie on the surveyor's true location. When this occurs, the legal effect of the doctrine of acquiescence is to rewrite the deed or document of title by operation of law to reflect the acquiesced change so that the agreed upon boundary becomes the true dividing line. Duncan v. Peterson, 3 Cal.App.3d 607, 83 Cal.Rptr. 744, 746 (1970); Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006, 1010 (1953). An acquiesced line "becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location." Young v. Blakeman, 153 Cal. 477, 95 P. 888, 890 (1908). "Thus, if the distance call in the deed is '500 feet,' it may henceforth be treated as if it read '517 feet' or '483 feet,' and every future deed of the land which copies or incorporates the original description will also be so read." Roger A. Cunningham et al., The Law of Property å¤ 11.8, at 765 (1984). See also Olin L. Browder, The Practical Location of Boundaries, 56 Mich.L.Rev. 487, 530 (1958).
The policy underlying this construction of the language in the deed is the doctrine of repose, or "the notion that the law ought not to tinker with the well-settled and long-held understanding of the people involved, even if it does not comport with their documents." Cunningham et al., supra, at 766. See also 12 Am.Jur.2d Boundaries å¤ 85 (1964). As the California Supreme Court has reasoned, measurements made at different times, by different persons, and with different instruments will usually vary, and that:
If the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable.
Young, 95 P. at 889. Hence, boundary lines which have been recognized for the statutory period are regarded in law as being the true and permanent boundaries described by the language in the deed.Once the original language in the deed has been effectively changed in accordance with the acquiesced boundaries, a conveyance by that original description should be presumed to have been intended to refer to the boundaries as fixed by such acquiescence unless there is specific language to the contrary. Young, 95 P. at 891.
Young is a landmark case written by Justice Shaw.
It's important to note that states take different views to the principles of acquiescence and adverse possession. In the rocky mountain region, I believe it's fair to say that Colorado and Utah are more apt to apply acquiescence where Montana and Wyoming are not. Adverse possession is all over the map also.
MightyMoe, post: 413674, member: 700 wrote: It's important to note that states take different views to the principles of acquiescence and adverse possession. In the rocky mountain region, I believe it's fair to say that Colorado and Utah are more apt to apply acquiescence where Montana and Wyoming are not. Adverse possession is all over the map also.
I'd agree with you. If you survey land in Utah better bone up on Utah boundary law. Same in any other state. Utah is probably at the far one side on the issue.
LRDay, post: 413676, member: 571 wrote: I'd agree with you. If you survey land in Utah better bone up on Utah boundary law. Same in any other state. Utah is probably at the far one side on the issue.
It can be an eye opener to see how each state treats these issues, just the limitation times vary greatly, in Montana it's 5 years but few AP cases are won. Colorado you need 18 years.
We don't do proper justice to acquiescence when it is relegated to being a fence doctrine. The cases I read in Wyoming all appear to be lawyers using it as a Hail Mary last ditch effort to try to prove a raggedy convenience fence is the boundary so naturally it never succeeds. Even Colin Kapernick connects on a pass once in a while but not the Wyoming lawyers. Other States seem to go overboard, even if you think about a fence being there it's acquiescence (I exaggerate).
I think Justice Shaw articulates it very well in Young and Price v. DeReyes which involve a lot more than just a couple of strands of barbed wire lying on the ground.
MightyMoe, post: 413674, member: 700 wrote: It's important to note that states take different views to the principles of acquiescence and adverse possession.
Oklahoma favors acquiescence. There are relatively few cases tried on AP there. Oregon/Washington is just the reverse.
Mark Mayer, post: 413696, member: 424 wrote: Oklahoma favors acquiescence. There are relatively few cases tried on AP there. Oregon/Washington is just the reverse.
My favorite OK case is where one can of them said we don't need to get the surveyor out here.
Here in Florida, a boundary survey has to be in "complete accord with the real property description shown on or attached to the survey map or report". The rules are currently changing to use the term "record title" that our surveys are to conform. The ALTA/NSPS standards also indicate that the survey is to be based on record information. An acquiescence that has not been adjudicated is not part of the record. So if you are surveying per record title, the potential acquiescence would not control.
Dave Karoly, post: 413699, member: 94 wrote: My favorite OK case is ....
the one which begins "East landowners son shot west landowners dog..."
Bow Tie Surveyor, post: 413700, member: 6939 wrote: Here in Florida, a boundary survey has to be in "complete accord with the real property description shown on or attached to the survey map or report". The rules are currently changing to use the term "record title" that our surveys are to conform. The ALTA/NSPS standards also indicate that the survey is to be based on record information. An acquiescence that has not been adjudicated is not part of the record. So if you are surveying per record title, the potential acquiescence would not control.
That raises the question of what exactly is record title. It helps to understand that traditionally title and location are not tightly connected. Title (a question of law) does not concern itself with precisely where (a question of fact).
Dave Karoly, post: 413704, member: 94 wrote: Title (a question of law) does not concern itself with precisely where (a question of fact).
Is the surveyor's "where" really a fact? I thought it was just a professional opinion.
This Colorado revised statute is somewhat a game changer for the future. Will have to see how it plays out.
MightyMoe, post: 413674, member: 700 wrote: It's important to note that states take different views to the principles of acquiescence and adverse possession. In the rocky mountain region, I believe it's fair to say that Colorado and Utah are more apt to apply acquiescence where Montana and Wyoming are not. Adverse possession is all over the map also.
Mark Mayer, post: 413703, member: 424 wrote: the one which begins "East landowners son shot west landowners dog..."
That doesn't ring a bell. I have the cite at home. The case I'm thinking of involves a 5 acre aliquot which they laid off the r/w fences themselves the section line being the center of the road.
Lake v. Crosser 202 Okla. 582, 583 (1950).
Dave Karoly, post: 413704, member: 94 wrote: That raises the question of what exactly is record title. It helps to understand that traditionally title and location are not tightly connected. Title (a question of law) does not concern itself with precisely where (a question of fact).
Title is what; boundary is where
If the surveyor sees evidence of an acquiesced-to boundary, is it up to him to make the legal determination as to whether all of the elements of acquiescence has ripened, or is it only after a court has ruled to the case that he is now to use the new dimensions/accepted line? I'm not sure if the ruling is addressing that.
Before a ruling it is ambiguous as to where the property line is. One possibility is the evidence and deed as to where it was established originally, and the other is as to whether acquiescence has taken place to a different line location.
James Fleming, post: 413711, member: 136 wrote: Title is what; boundary is where
Yes, but isn't it the expectation of the law that the opinion of "where" be based on the "what"?
Bow Tie Surveyor, post: 413715, member: 6939 wrote: Yes, but isn't it the expectation of the law that the opinion of "where" be based on the "what"?
Yes, I think the efforts to seperatly title and location are ill concieved. They can be inextricably intwined. A surveyor who refuses to wade even ankle deep into questions of title will often find the question of correct location unaswerable.
