A deed is evidence of title, not proof of title.
Very true, but we don't deal with title law as land surveyors, since whether or not someone owns or has title to a parcel is not for us to decide. I would say that for our purposes deeds are (one of many pieces of) evidence of boundary lines. For title attorneys and the courts, they may be evidence of title as well, but title law and boundary law are totally separate areas.
Not only is the term deed line a curiosity so is the term possession line. It seems to me like designating either / or is offering a legal opinion. If the title is what a person possesses and the boundary of the title is where the extents of the possession are it seems to me designating more than one line is a fools game. If the surveyor feels compelled to designate more than one line they should cease the survey until they don't.?ÿ
?ÿ
If there is no opposition you are golden.?ÿ
And if there is opposition?
And if there is opposition?
THen the attorneys get to work. Or the architect will have to redesign.
@bill93?ÿ
It's tricky, Edmond A. Cook Vs Ivan Eddy discusses permission and cites cases that seem to go both ways. If Half Bubble's argument is AP,,,,,,that's a big hill to climb.
I would be very careful as the surveyor to step there, it's one of those legal rakes that can smack you upside the head. The surveyor can't make the AP claim anyway, that's the landowner's claim to make.
Washington probably has a number of cases dealing with it. But, putting the fence and showing the occupation on the drawing is one thing, using the occupation to place the deed line is another, making the AP claim as a surveyor is a bridge too far for me.?ÿ
AP is not an issue for Land Surveyors in California. The tax payment requirement is interpreted by our Courts as being per the Deed legal description. So the question gets back to where are the limits of the legal description.
Curt Brown said we survey the Record Title Boundary. That is good, the record title boundary still may not be precisely where the legal description seems to put it. Words are merely symbols and the interpretation can vary so we look to what the original parties actually did to correctly interpret the terms of the legal description and place it on the ground,
The Courts have explicitly said measurements tend to vary and the goal is stability so some variability in location is expected and acceptable in order to stabilize titles. How much? They never say.
Everything is opinion, the lawyers and Judges understand that. An expert evaluates the evidence and forms an opinion. The Medical Examiner looks at the body and opines on what killed it. Sometimes another Medical Examiner disagrees and says it??s something else.
If a Land Surveyor takes a strict approach and lays out the Deed geometry or shows a conflict between lines of possession and the so-called Deed line then that is an opinion. If a more liberal approach is taken and uncalled for monuments are held then that is also an opinion. I don??t think there is any way to survey a boundary without forming an opinion and presenting it at some point.
If there is no opposition you are golden.?ÿ
And if there is opposition?
Who has more money? The builder or the adjoiner? In rich neighborhoods, this could have legs, which means the developer caves. In middle class neighborhoods, when the adjoiner calls their lawyer and is asked for that retainer, they usually cave.
Certainly, tear down all the fence, pull out the footings, smooth it out...no evidence...then when the inspector arrives the only indication of the boundary is the corners.
I was under the impression, that once a fence is shown on a survey, made known as to the relationship with the deeded boundary, that the clock on the adverse claim stops. Your client has a deed, and the adjoiner has a deed; they both say that they own up to the deed line, not to the fence. The 1990 survey shows that.
Until the court says: "The fence is the boundary", the contractor has every right to use the boundary line as shown in the 1990 survey.?ÿ
I do not advise clients on this. They NEED legal counsel.
That said, your impression is the exact opposite of my understanding. I am curious which one of us is correct. I seem to remember a case where there were surveys over the years of a line and the adjoiner's refusal to accept the survey served as evidence that their occupation was hostile.
It could also be seen as permissive, I suppose, if a land owner knows the fence is not on the line, and does nothing.
Neither party agrees to the 1990 survey, so there is no way to know from our current facts what their response to the survey was.
?ÿ
I am interested in learning anything you have on this.?ÿ
@dmyhill?ÿ
There are not enough facts known about the situation in 1990 to have an opinion about this particular example. I will comment on the clock starting or stopping. A 1990 survey does not necessarily start or stop a clock with respect to where the property line was at that time.?ÿ A case that is regularly cited by our courts says when each of the adjoining landowners or their grantors have knowledge of and consented to the asserted property line as the boundary line for the statutory time the line becomes the true boundary even though a survey may show otherwise and even though neither party intended to claim more than called for by his deed.?ÿ
So did the 1990 survey apply the facts regarding the fence location to the correct law to mark the property line? Maybe yes, maybe no. The facts regarding the fence before 1990 would still be considered evidence in making a 2022 property line survey along with the facts regarding the 1990 survey.?ÿ We know the fence has met the time test. We don't know if both owners have consented to the location of the fence by their actions or inactions before or after 1990. 1990 would be irrelevant provided the fence location is the best evidence of the intent of the deed or deeds whereby the property line was born. As we all know landmarks control over measurements. Right??ÿ
Some additional data:
The 1990s survey was requested by the homeowners' association, to determine how far the adjoiner's wood fence was encroaching into the "open space tract" behind the house. They set the front corners, but did not set the back corners (one of which I just set), presumably because the deed corners were behind the fence that the HOA was asking to have moved. It looks like they taped the fence but did not go in the backyard. It was about 20 feet into the open space tract, along with a large deck. The fence was moved, the deck was trimmed.
That survey shows the first 20 feet of chainlink fence as being in the same position as now, but not the entire length of the fence. The HOA apparently made them move the wood fence on the open space tract to the back line but did not enforce anything regarding the chain link fence between the two private lots.
The adjoiner only purchased two years ago, the client purchased last year. In Washington State we have "reach back" where the purchaser can reach back to occupation and possession by previous owners. In other words, buying or selling does not reset the clock.
We stake the deed here. Washington, being a more lately formed state than most, had the benefit of seeing how the age old conflict of common law vs. commercial law had played out in other states with regard to surveyors and unwritten rights, and so encoded the idea that surveyors only stake the deed. At the same time they elevated "intent" to the top of the hierarchy of calls, so while we are not supposed to have an opinion about the title, we had better have a good sense of the intent of the grantor.
?ÿ
When you stake the deed, how do you know what to hold to get started?
I'm sure there are cases like two "60 ft" lots measure a total of 119.5 ft. Does the first lot resurveyed get the full deed distance?
@bill93 In a simultaneously conveyed plat, no. The idea is to "stake the deed" but there is technical interpretation including proportioning.?ÿ
My point is you are always issuing an opinion.
proportioning is applying case law.
The only cases I have found in California that mention proportioning mention it as an aside, the cases were resolved other ways. The judge is saying proportioning is a thing but we have a superior method here.
