Encroach-Protrude-Intrude

I have used the word before and probably will again. As others have mentioned, it is one thing for others to say they see no problem with the word, it is another thing to be the one signing off on the map of survey, knowing that it may inflame the present or future parties who use your map. I have moved towards showing improvements, as for example "This corner of concrete drive falls 2.3' NE of the property line".

On a survey report that asks about encroachments, I will state "concrete drive as shown".

When it comes to fences, how does one determine the ownership of a fence if all the fences are of the same type and appear to be the same age? And what if one neighbor has given verbal permission for another neighbor to build a fence onto their property?

Sacker touched on my feeling with this issue.
On mt plats I don't use the e-word. I simply state the facts as I found them in situ. "Fence 1.2' onto lot from adjoiner". I also changed my surveyor's report to say "improvements crossing property lines".
Who knows why it's there? Was there an unwritten right granted 20 years ago? I would guess that there are facts surrounding these situations which cannot be discovered, no matter how much research you do.
If the offending element is new construction, that's another issue. You might be able to sort out why it is where it is.
And yet you could be working on a vacant house (any foreclosures in your area?) being "encroached" upon and have the adjoiner state that he had permission to locate an improvement where it now sits. How far are you going to go to chase down an owner who is now 2 years gone?

In my post from the other day I mentioned that I had never , that I can recall, used the word on a plat but I have in reports and in testimony. It's a descriptive term that most people readily understand, including attorneys and judges. None have ever called me to the carpet for using the term and in fact I have used it many times during projects on notification letters to property owners to move a fence so that we can replace a sewer or work on a street.

My poll, while it has no legal standing, was just interesting in the hearing from those that are not in our profession. None said it was stealing or illegal but all knew what the term meant.

As far as fences go, then in town I put very little faith in them. I know how they are built, people know how they are built and the courts know how they are built. Most times without a survey and even with a survey the fence is often constructed for the path of least resistance. My neighbor and I have replaced our common fence several times. He has dogs so we build a new fence away from the old fence then tear down the old fence. This means the fence moves back and forth from time to time. We both know where the pins are but the fence is merely an improvement so that he can enjoy his dogs and so that I DON'T have to enjoy them. Of course, this is a perfect situation. A survey would ask both of us about the fence and we would say it's a permissive use for a limited time but not on the property line. Often, as mentioned you have no such person or persons to even ask.

I'm sure it works different in other areas but if a judge hears someone say. "I built that fence, I defended to that fence and anything within that fence is mine" he will look to the survey and discredit the testimony based on subdivision pins, which you can call original markers, even if set subsequent to the initial survey. If they were set based on it then they are the best evidence of the true line.

To preserve some semblance of order within a town and subdivisions then this is the way it has to be otherwise you have anarchy and the record plats means nothing.

Now, all I've said does not sometimes apply to rural lands, long since fenced and maintained but they are rare in my experience. Even a hundred year old fence is often not enough for a judge to rule that the line is anywhere other than where the GLO placed it back in the day.

And lastly, I have no problem for those that feel the term is inappropriate or feel the need to used other terms. I'm not looking for a battle, just supplying and interesting poll from some of my friends.

It is a great thing to exchange ideas in a civilized manner my friend !!!

This is another one of those odd controversies which we just don't seem to have in California. I don't recall seeing the word "encroach" on a map because generally it's not used. That's not to say there aren't ALTA Surveys with the word encroach on them but generally filed Record of Survey maps just graphically depict the physical circumstances. If a building is over we just depict it with dimensions.

Even if you don't use the word, the act of showing a feature crossing over the heavy boundary line on your map implies encroachment particularly in the case of a building because I doubt most people would give permission for such a thing and you would think the building owner would want an easement at the time of construction if they proposed to cross the line like that.

I think that is my point and those of my friends. You don't have to use the word but it's the one descriptive term that comes to everyones mind when they see a map with something over their line.

It, the word encroachment, does not have to be on the map to imply the same thing. No one in Okie would see a map with a fence over their line and say "Hey, He's protruding on me or he's got an intrusion".

So a judge can decide if it's ripened or not but it's still an encroachment if we have determined the boundary line. I just don't see the big deal.

I agree Deral,

Seems like there is a distinct "feeling" that by not showing the word, encroachment; somehow the surveyor will have less liability?

Also seems like if the surveyor is only going to do half the job, because of liability, then why go on the ground at all?

If there is an encroachment, show it and label it. It is possible that both landowners know it and agree to it.

Just some thoughts.

Keith

encroachment - entry to another's property without right or permission.

I am in construction (don't touch the legal stuff), so I don't know...

But if the above definition is correct, then labeling "encroachment" may be misleading. As others mentioned, who knows what the deal is between neighbors.

:beer:

That is the trick, finding out the reason and intent. If unable to determine that, then an attempt to resolve the problem between the owners needs to be attempted before recording a survey.
jud

I just report the facts, as in: Chain link fence 1.2' north of line. What and where is my obligation.

That is the trick: is that definition correct? I think that largely depends on where you are working. As Deral said, I think that by making a decision where the boundary is, you have made a determination of whether the item is over that line or not. To not call it an encroachment because of a feared liability, to me where something over the property line is considered an encroachment, just seems silly.

As for how to determine who owns a fence, there are several ways: looking at the type of fence, or which way the wire is if it is chain link, Which side are the posts on, is there a difference in the cap types on the chain link, all these and more would tend to tell you who is the possessor of the fence. Sometimes you cannot tell 100%, but I can think of a hand full of times in 20 years that I could not determine ownership. Heck, when all else fails, I ask the owners involved, oddly enough they might actually know whose it is.

> Heck, when all else fails, I ask the owners involved, oddly enough they might actually know whose it is.

That is the definitive way to determine ownership of a fence, anything else is speculation. Some fences are owned and maintained by both parties.

Cheers,
Radar

I'm replying from an Aussie slant, and thats what we would defenitely call an 'encroachment'.
I've never been in a court case for boundary issues but have on several occasions for murders and other serious matters and have been questioned by the man in a wig as an 'expert witness'.
"In your opinion would you consider that as an encroachment" would be a typical question. Then what does one say? He asked for an opinion. It is then for the legal fraternity to make what they may from it.

If we are 'a competent surveyor' (term used here to describe the mental state of us surveyors and fitness to perform our required duties)then we have the skills and knowledge to state where a boundary lies (exists) and the consequences of what lies either side of that boundary is not our concern but merely report the facts as they exist.

Actually we are required by law to show all encroachments across a boundary when undertaking surveys for Title recognition.
Obviously the issue of fences and there position can be open to different interpretation and 'what part of the fence do I own' is a common query from landowners.
Those sort of issues do not become an encroachment one, until there is a clear deviation from the boundary such that no amount of reasonable interpretation could put any part of the fence on the boundary.

Deral,
Well, of course it is just a word. But the point is, what does or should it really mean in a surveying context? Should we label a goat stake a monument when it's 2 feet away from the stone that marks the corner? Why not call everything out there a monument?

I turned my head the other day when I heard someone say "hey dude", turns out they were on a cell phone. But briefly, I guess my impression was the word referred to myself even though it's not my name.

I think the general public has no idea how intertwined our services are with the law. Surveyors are perceived as measurers and nothing more. What you seem to be suggesting is that it's fine to use the term because the client has a certain impression of what it means. Should we also just put our stakes where the client points as their impression of the boundary? Of course you wouldn't do that because you have a better understanding of the elements involved in interpreting the contract (deed) in light of all the evidence you collected.

If the courts are going to use this term as a legal determination, should we really be using it in a differing context on the key documents that the court will rely on to make the legal determination?

As you point out, we can probably get away with it. And our societies and boards can write the word into differing meanings than the court may eventually use. I'm not sure I like this kind of policy.

On the other hand we can pretend to be judge and jury and full dispensers of due process and clearly state a trespass or not. We could use the word encroachment or the word trespass, or knowing the law and having discovered all the necessary evidence, we could say adverse possession that has ripened on such and such a date, or some similar statement. But again, I'm not comfortable with that policy. While I regularly dig up evidence missed by full scale investigations by others, I'm not so bold as to say I can dig up more than the litigation process might uncover. This is so because of the type of evidence involved. There are too many possibilities for documents and testimony that may turn up later, even after a thorough investigation by the surveyor. And what's more, the parties have a right called due process to have an opportunity to dig up more evidence based on legal counsel when their title to real property might be adversely affected.

I'm all for performing a thorough service and helping people avoid litigation. A big part of that is giving clients and neighbors a good understanding of the uncertainties of outcomes in the judicial process when it comes to whether something is actually an "encroachment" or not, and what that means.

Thanks Duane. A very well worded response and worthy of some thought.

> When it comes to fences, how does one determine the ownership of a fence if all the fences are of the same type and appear to be the same age?

You have to ask.

>And what if one neighbor has given verbal permission for another neighbor to build a fence onto their property?

Then it's not an encroachment. Document the evidence of the permission. Avoid a future problem caused by the next surveyor who fails to ask. Make more money for providing a more professional service. Have more satisfied customers.

JBS

More often than not, the fence existed long before the current owners took possession of the property.

I still have not read anything that remotely sways me to put that "word" on my survey, especially after conversing with my insurance provider. 🙂

> There are too many possibilities for documents and testimony that may turn up later, even after a thorough investigation by the surveyor. And what's more, the parties have a right called due process to have an opportunity to dig up more evidence based on legal counsel when their title to real property might be adversely affected.
>
What Duane is saying is true. However, the exact same thing could be said about the boundary shown on your survey. Are we then to never set a monument marking a boundary or to never express our professional opinion regarding the location of the boundary for fear of depriving someone from their due process? How can we be certain that additional evidence might not be discovered which contradicts out boundary determination? Aren't we, when we depict a boundary and an encroaching fence (whether we use the word on the map or not), depriving the owners of their "due process?" After all, additional evidence could be discovered if litigation ensued.

The only time we deprive the parties of their due process is when we fail to perform the necessary research, analyze the evidence in accordance with the rules of law, and determine the boundary in accordance with the appropriate legal principle. In other words, we fail to find determine the boundary properly in accordance with the rules of due process. When the surveyor follows the rules, the parties get their due process. If they disagree with the survey results, they can get a second opinion, or they can purchase more due process from the courts. If they don't like the judge's opinion, they can hire five or seven more and receive even more due process. The overwhelmingly vast majority of them only get the due process the surveyor delivers. They trust the surveyor, accept the results and live out their lives in accordance with the survey.

That's what I see as the real issue here. Surveyors shy away from determining "encroachments" because, in order to do so, they must 1) be certain of their boundary determination, and 2) be certain of the circumstances surrounding the placement of the fence. They don't see number 2 as their responsibility. If the circumstances surrounding the placement of the fence isn't a concern of the surveyor, then why do the courts place so much importance on occupation lines when determining the location of the boundary? Shouldn't surveyors place an equal amount of importance on them? If we don't, have we really done what is necessary to determine the boundary? That's the day the owners fail to get their "day in court."

JBS