Imperial Entanglements
"The fence is there to keep in livestock .."
How could such heresy be spoken in the surveying community?
Imperial Entanglements
I reviewed and I think that statement was assumed by me; so it may or may not be true.
In California if the owners wanted to make the fence the boundary then we would most likely do a boundary line adjustment but it is possible the fence is the boundary already.
Double Section Corners 1-2/11-12
There is also a closing corner for the NW Cor of Section 12. Both markers there in open field (deer/elk pasture). Doing static sessions on both corners right now. A two-fur, I get the bounty for two corners with one site visit. Made a profit for the day.
Seems the GLO guys are human. Both corners are in R3E. One of the caps is stamped R4E. I suppose we all get lost once in a while.
Double Section Corners 1-2/11-12
A very important difference maker for me when it comes to accepting the fence as the best evidence of the original line is when the original monument no longer exists. So here I would have to say the monument is the best evidence of the original line. (sharp as a tack ain't I?) I don't beleive a surveyor is allowed to make an alternate boundary determination here. A further exchange of deeds can make the fence the boundary.
Double Section Corners 1-2/11-12
That's pretty much where I'm at. No doubt where the original government line is located. If the landowners want to do something different they can, but I'm not going to unilaterally move the line to the fence. At the same time if the landowners won't accept the original line (go back) and won't agree then the survey goes into the to be finished later file. When they work it out I finish it. I'm not a bulldozer, like to believe I'm more of a solution catalyst. I really don't think there is a major problem here, just an old mistake that needs to be resolved now that it has been revealed. I'm betting on the accept the original line and continue to use the fences as is. If they ever want to rebuild the fence they can move it to the line but it's not my decision.
If I was the landowner I'd say OK, I'll give up any claim to the land on my side of the fence if you will pay for and build the new fence. There is no improvements here that will be disturbed, it's just a dry sheep pasture on both sides of the fence. We don't have a new owner from New York that just plunked down a bunch of money and wants every square inch they can make claim to. Just sheep ranchers that been neighbors all their lives, but you never know all the history.
Update about a year later.
Going to finish this survey now.
Both landowners along the line that goes to the incorrect quarter corner say the fence is and always has been the line. Neither one wants anything but the fence as the line.
So what should a surveyor do?
UPDATE - Double quarter Corners
Update about a year later.
Going to finish this survey now.
Both landowners along the line that goes to the incorrect quarter corner say the fence is and always has been the line. Neither one wants anything but the fence as the line.
So what should a surveyor do?
> So what should a surveyor do?
What JB Stahl said
> All said, however, it's still going to be up to the two landowners to decide what they want to do to fix the issue. Do they want to move their boundary (adjustment), or do they want to move their fence, or do they want to continue living with the knowledge that their fence isn't on the boundary. In either case, the surveyor can provide the necessary documentation.
JBS
Or maybe what Richard Schaut Said
> Using the tract segregation and document reformation process refered to in Chap 6 of the '73 manual as a guide, but following your state laws; keep the legal boundaries as fixed by the occupation lines, and correct the inaccurate description.
Richard Schaut
😉
Dugger
I have a hard time with: It's the aliquot line because that's what the owners want it to be, pattern of thought. If you, as a surveyor, know that it is not, then it isn't. The owners can own whatever thay want, but they shouldn't be able to call it the aliquot line if it isn't.
linebender
I agree with the fact that a fence line should not be accepted for the boundary of an aliquot part, if in fact the corner monument is in existence that controls that boundary.
It is not my experience to deal with exchanging deeds to make the fence line the boundary, but would seem to be the solution here.
It does seem like the GLO could have done the completion survey better and could have avoided the double set of corners that they created at the 1/4 between secs. 1 and 12.
They held to a straight (yes straight north-south line) line beginning at the common corner of secs. 13, 14, 23 and 24; going NORTH to an intersection (cc) with a new sec. line between secs. 1 and 12. This left the double set of 1/4 core., which normally is avoided if possible. They created many lots and could have had more lots with common corners.
The double set of corners is what is causing the problem now, as the land owners did not know the difference and went with the monument that was easily seen. As I understand this, the landowners went with the wrong corner monument, built a fence and now want to keep the fence as their boundary.
Therefore, it would seem like the fence can be their boundary, but their land descriptions (aliquot parts) will necessarily have to be changed to metes and bounds descriptions.
It is an entirely different matter then accepting the fence as the boundary between aliquot part descriptions when the corner monuments are missing.
And this is not the INDEPENDENT RESURVEY procedure of changing the aliquot part descriptions to tracts, as a former poster would have said.
That's how I see it anyway.
Keith
linebender
:good:
Let's look at Utah Law
Here is a 2011 opinion by the Utah Supreme Court
So let's look at acquiesence. Does my case meet all 4 requirements?
B. Boundary by Acquiescence
¶ 35 The doctrine of boundary by acquiescence is rooted in policy considerations of "avoiding litigation and promoting stability in landownership." Staker v. Ainsworth, 785 P.2d 417, 423 (Utah 1990). It "derives from [the] realization, ancient in our law, that peace and good order of society [are] best served by leaving at rest possible disputes over long established boundaries." Id. (internal quotation marks omitted). A successful invocation of boundary by acquiescence requires a showing of the following four elements: "(1) occupation up to a visible line marked by monuments, fences, or buildings, (2) mutual acquiescence in the line as a boundary, (3) for a long period of time, (4) by adjoining landowners."[7] Id. at 420 (internal quotation marks omitted).
¶ 36 The first element may be satisfied where land up to the visible, purported boundary line is farmed, occupied by homes or other structures, improved, irrigated, used to raise livestock, or put to similar use. See id. In evaluating whether this element is satisfied, courts should consider whether a particular "occupation up to a visible line" would place a reasonable party on notice that the given line was being treated as the boundary between the properties.
¶ 37 The second element is satisfied where neighboring owners "recognize 66*66 and treat an observable line, such as a fence, as the boundary dividing the owner's property from the adjacent landowner's property." Ault v. Holden, 2002 UT 33, ¶ 19, 44 P.3d 781. This element is met where neighbors do not "behave[] in a fashion inconsistent with the belief" that a given line is the boundary between their properties. Staker, 785 P.2d at 420. Failure by the record title owner to "suggest or imply" that the dividing line between the properties is "not in the proper location" suggests acquiescence. Judd Family Ltd. P'ship v. Hutchings, 797 P.2d 1088, 1090 (Utah 1990). Nonacquiescence in a boundary would be signaled where, for example, a landowner notifies the adjoining landowner of her disagreement over the boundary, or takes action inconsistent with recognition of a given line as the boundary, such as tearing "down significant portions of [a] fence and, without objection by [the adjoining landowner], proceed[ing] to plant trees and shrubs, store firewood, and construct a chain link fence in a different location." See Staker, 785 P.2d at 421.
¶ 38 To satisfy the third element, an unbroken period of no less than twenty years must pass during which each of the other elements is continuously met.[8] See id. at 420; see also Parsons v. Anderson, 690 P.2d 535, 539 (Utah 1984) (explaining that fifteen years of mutual acquiescence was insufficient). To satisfy the fourth element, "the parcels involved" must be "contiguous." Staker, 785 P.2d at 420.
Let's look at MORE Utah Law
I've been concerned about this issue. Looks like I found the answer.
2009 Utah Opinion - The boundary doesn't need to be unknown for acquiescence
¶ 3 Under Utah's boundary by acquiescence doctrine, a party is no longer required to establish that the true boundary is "unknown," as Florence v. Hiline Equipment Co., 581 P.2d 998, 1000 (Utah 1978), required, see Ault v. Holden, 2002 UT 33, ¶ 19, 44 P.3d 781, or that there is "objective uncertainty" regarding the true boundary, Staker v. Ainsworth, 785 P.2d 417, 424 (Utah 1990) ("overrul[ing] the fifth [boundary by acquiescence] requirement of objective uncertainty contained in Halladay v. Cluff"). See Halladay v. Cluff, 685 P.2d 500, 503-05 (Utah 1984). Instead, to establish boundary by acquiescence, a party must establish only four elements: "(i) occupation up to a visible line marked by monuments, fences, or buildings, (ii) mutual acquiescence in the line as a boundary, (iii) for a long period of time, (iv) by adjoining landowners." RHN Corp., 2004 UT 60, ¶ 23, 96 P.3d 935 (citation and internal quotation marks omitted). See id. 30 (stating the "long period of time" element mean(s) at least twenty years).
And this tidbit:
Ault v. Holden, 2002 UT 33, ¶ 20, 44 P.3d 781 (stating that record property owners "must . . . take some action manifesting that they do not acquiesce"); id. ¶ 19 (indicating acquiescence may be shown "regardless of whether the landowner knows where the actual boundary lies or whether the boundary is uncertain"); Lane, 505 P.2d at 1200 (indicating a landowner may "'consent by silence,'" or inaction when "a fence. . . appears to be a boundary").