@norm absent an amicable property line adjustment, moving deed lines because they don't agree with possession lines is not what we are supposed to be doing.?ÿ The best move we could make as Licensed Surveyors is showing both on our surveys and let the title companies and courts work out the solution, that's their responsibility, not ours.
My study of decisions is the court does not correct or change a deed when it decides a boundary location based on possession. Nor do I.?ÿ
@norm boundary lines and lines of possession are two different things.?ÿ When one deviates from the others it is not within the scope of our authority to make a judicial determination and bring the two lines into harmony.
Those of us out in the big area surveys part of the country encounter deviations somewhat regularly.?ÿ Doing a ,by-the-numbers-only, breakdown of a Government section quite frequently differs from occupation based on tree lines that include trees that were put there as much as 150 years ago.?ÿ The adjoiners planted these tree rows to cut down on wind erosion and livestock control.?ÿ A modern surveyor "awarding" a 70-foot strip of land will not be respected.
@norm boundary lines and lines of possession are two different things.?ÿ When one deviates from the others it is not within the scope of our authority to make a judicial determination and bring the two lines into harmony.
Much too often they are shown as two different things. I agree that a surveyor cannot bring the so called deed line into harmony with the possession line. The surveyor does have the quasi judicial authority and is licensed to find the limits of the deed in harmony with possession based on the same laws and facts the court does. This is the first line of legal defense subject to higher court decisions. Many times it has nothing to do with adverse possession or acquiescence. Many times it is simply the only place the boundary has been observed to be by any witness available thus making it the lawful boundary when the surveyor arrives as best evidence of the first survey. Sometimes best evidence of the first survey marking the four corners of the deed may be the oldest available features. Fences, roads, buildings, sidewalks, survey monuments etc. Paper courses and distances are lower evidence of the four corners of the deed - last resort. The deed line term was invented to justify moving the last resort up the list of evidence. A GIS technician can do that.?ÿ
@norm correct, we never do but the courts occasionally do, very hesitantly, change title lines and property rights under very limited circumstances like adverse possession, prescriptive easements, etc.?ÿ When it comes to things like fences and other improvements causing legal action, a ton of other factors come into play like recognition and acquiescence, the required actions of the disputing parties to contest boundary lines and improvements not in harmony and things of that nature.?ÿ All of the above have stringent legal tests that must be passed for a determination to be judicially made before any adjustment is granted.?ÿ These are all legal determinations based on the burden of proof, all we can do is present the evidence that we have found and detail the deviations.?ÿ The rest is for the legal profession to deal with.
In the situation being discussed, advising the client/builder to acquiesce to the fence line and reduce the proposed footprint is the wrong answer.?ÿ Somebody, I believe the other Norman, suggested that the builder should move the fence line and see what happens.?ÿ The clock starts at the time of discovery and it could well turn into a 20 year useless war but that's not my problem to resolve or render opinions on, other that where the deed lines are on the ground.?ÿ Any further involvement on my end would only come into play if another Licensed Surveyor were to contest my determination.?ÿ At that point, I would defend my findings at no additional cost to my client.
I've learned allot over almost 4 decades of surveying and have become friends with several Attorneys who are well versed in both boundary and land development law.?ÿ I know, both through external observation and experience, where to draw the line as to sharing professional opinions and only documenting found evidence.?ÿ Crossing that line is not so hard to do, I failed my first PLS exam because I studied too much case law and made decisions based on what I thought the courts would rule versus the proper response being to advise my client to consult an Attorney.
The clock starts at the time of discovery
Would the 1990s survey have been the discovery?
@norm I won't even address the GIS Technician thing, they get a piece of paper and plot it, rotate and translate in into their coordinate system and move on with no further liability.?ÿ We live in a far different world of liability and I work in NJ, a state where litigation is the norm, rather than the exception.
You are also correct about the best available evidence.?ÿ And maybe I went to fast as to assume that monumentation was available to determine where the deed line was but regardless of how the deed line was determined, the recommendation to hold a fence line, unless it's ancient, agreed upon and time honored is not the right thing to do.
When I started the Survey department for the company that I now own a part of, my CEO was building a relationship with the largest title company in the state and when I was staffed up enough after two years, we took on at least half of their survey work, on a state wide level.?ÿ He wanted to build the relationship and was taking on residential title surveys two hours away and I was constantly telling him that it made no sense at all to drive two hours to do a survey in an urban area that takes at least two or more hours to complete, then drive two hours back for a total fee of $675.
The urban area I noted, 99% of the time had no monumentation, so, as you pointed out, splitting curb lines and holding party walls, but, even doing that, if fence lines were not in agreement with the party wall, I'm certainly not going to adjust the deed line to include the fence line.
It took a few years but I finally made my point clear about traveling up to the urban areas being wasteful and the liability being much more where land is valued on a per square foot basis.?ÿ We have become the go to firm in our area and are now too busy in the tri county area.
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Eh, depends on the deed lines
Would the 1990s survey have been the discovery?
Wanting to say that pertains to a case of negligence, not AP.?ÿ There's constructive notice but that should have taken place when the fence was erected.
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Edit:?ÿ Probably need to edit my reply, so that it is understandable.?ÿ
The term time of discovery is usually used in conjunction with a case involving negligence, and the time varies by local statute. If I get this right, here in Texas there is a two year window from the time an average person should have become aware of an issue.
When you frame it as an issue of AP, there are a number of acts and conditions that have to be met by the claimant, to perfect their claim.
Constructive Notice becomes the factor that might be being discussed.
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Anywho, I'm not a registered surveyor so, caveat emptor.
Wanting to say that pertains to a case of negligence, not AP.?ÿ There's constructive notice but that should have taken place when the fence was erected.
I agree. In my area there are far too many privacy fences constructed in residential subdivisions without a survey.
@lurker All the time...
A deed is evidence of title, not proof of title.
The Deed line is coincident with the established boundary, there is ample case law to back that up.
Is the fence an established boundary? I don??t know.
If the 1990s survey hasn??t been challenged then use it for the offsets. A compromise would be the fence stays where it is.
They should give the adjoiner permission to keep the fence until (and only until) it is replaced, if they will recognize the surveyed line.?ÿ That kills any acquiescence/AP claim.
