Seems to me what you are saying is a continuous, physical, visible, boundary monument (such as a fence) can't be respected and used as boundary monument because it's perfect mathematical nature is just too hard to describe and maintain. The use of a fence as the boundary between two adjoining landowners should just scare the hell out of them, because a surveyor such as yourself is going to show up someday, prove how crappy their boundary is because when the fence was rebuilt it is not perfectly in alignment with how it was, which you can't prove, but it must have moved because replacement couldn't have resulted in the exact reproduction of some non visible perfect mathematical line, which according to you is the only manifestation of a boundary.
What was it Justice Cooley said about those trained in Science and Math and their inability to see what their task is when it comes to boundaries. Seems some can't locate a boundary even when it's in plain sight.
> Seems to me what you are saying is a continuous, physical, visible, boundary monument (such as a fence) can't be respected and used as boundary monument because it's perfect mathematical nature is just too hard to describe and maintain.
No, what I know from experience is how difficult boundaries that began life following every meander of some wire fence can be to describe and to maintain over time. The concept really shouldn't be difficult to grasp. When the fence gets rebuilt, there is often no trace left of the original monument. I've seen fences so thorougly erased that the only means of demonstrating where the boundary originally was is by the courses and distances of some early survey.
On a related point, one of the goofier things I've ever seen was the case where a very irregular old wire fence was described as marking a boundary and surveyed from angle point to angle point, the average spaceing between which was probably under 100 ft. for perhaps a quarter mile or so. Land was subdivided to irregular fence boundary and platted into lots. New owner wanted to build a solid new fence and had the old fence line cleaned out, blading out the trees and brush that had grown up along it. The boundary shown on the plat was reestablished and the new fence was built to the line. When you looked along the newly cleared swath, the fence was crooked as a snake, bouncing three or four feet back and forth from one line, end to end.
The kicker was that the original line could still be located with certainty and was straight for over a mile. The guy who'd had the crooked fence built would have much preferred to have had the fence rebuilt straight instead of the Special Olympics version he ended up with. But, hey, that's what you get when you make fences boundaries. Stuff happens that in retrospect looks dumb.
> I can't believe the amount of discussion here promoting the idea that centuries of boundary law be turned on its head in favor of a fictional invisible line between x's on an survey monument held stationary by a coordinate value.
>
> Yes, it's important for a surveyor to be able to retrace a boundary which has been obliterated and coordinates can assist in the process, but boundaries are revealed by the physical evidence established and perpetuated by landowners.
>
> Remember the rules of construction: Natural monuments control over artificial monuments which control over course and distance which control over area and coordinates. This follows the centuries-old maxim "that which is most certain controls over that which is least certain." There are reasons for the rules. Why are we looking for ways to overturn these rules in favor of our more precise coordinates or the x's on our markers?
>
> Remember, also, that the purpose of the description is to reflect the intentions of landowner. If they intend to create a boundary along the fence, then our responsibility is to describe the boundary as intended. The physical evidence of the fence is a by far better monument than one set by a surveyor with an x on top. And, give me a well-determined position of the fence location so it the remnants can be recovered and retraced.
>
> JBS
:good: There is no mandate a boundary consist of a series of invisible straight lines and tangent simple circular curves. I once wrote a description for an equestrian trail easement through a series of open space parcels simply as a 20' wide strip, the centerline of which shall be the centerline of the equestrian trail to be constructed, the sidelines of which shall be extended or shortened to terminate in the west line of Parcel X, etc.
My goodness, the hue and cry of the button pushers was mighty! But I finally convinced them it was a perfect reflection of the grantor's intent, and, since the location would be determined by a wrangler's horse picking the easiest route using his "horse sense", followed by some minor earthwork, they had no "alignment" to hang their hats on.
Just go ahead and inform these parties they need to remove the damn fence as it is going to screw up their boundary in the future. They can issue Google Glass to the livestock so they can see the boundary, people should probably have them also. A fence is just to visible and obstructs the true boundary.
Whatever!
Have a fenceless new year!!
Kent is correct on this one...we aren't living in the 18th century anymore.
Apparently the buyer and the seller have agreed to use the fences. If the surveyor is going to do something below ground to interrupt these intentions then it should be done above board and made clear to the buyer and seller that is what is going on. Maybe they will like maybe not. If the line is going to be straightened out (assuming meandering fences) then that should be made clear and they should be notified that they may need to move the fences to the line or at least not treat the fences as a boundary. I'm sure this varies by state. In Utah ignoring the fence in the description may not solve the location of the line issue for all time. If the buyer and seller think the fences are the boundary and then they treat the fences as the boundary (why wouldn't they – they agreed at sale) then after twenty years one owner might decide to rebuild the fence to Kent's current survey of the description and straighten the “meanders.” The other owner might notice the fence being relocated (moved from original location) and some litigation could result. Likely the following law from the Utah Supreme Court would get drawn into the litigation (Kent doesn't need to consider this concept in Texas, probably wouldn't get to first base in California either):
From Bahr vs. Imus, Utah 2011
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 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.
7 We once required a fifth element—“objective uncertainty” regarding the true boundary line. We rejected this element in Staker v. Ainsworth, however, noting that the element had made “boundary by acquiescence less practical” and in fact seemed to “increaselitigation over boundaries rather than decrease it.” See id. At 423.
The OP states that these are new division lines so Mutual Recognition and Acquiesence doesn't apply. Acquiesence applies where you have a long-standing boundary that meets the requirements. I wrote a report on a boundary which is a ridge top, the 1906 Deed calls for courses and distances that approximately follow a ridge line. Our Adjoiner agrees that the intent was the ridge because lumber companies at that time yarded downhill with steam donkeys. Also the ridge top trees are not valuable. A ridge line is much less definite than a fence. I have recommended that we do a boundary line agreement with the adjoiner by setting monuments and fixing the boundary but management wants to do a swap fixing the boundary at a nearby road which makes more sense today.
In this case I would recommend that monuments be set which make the fence close enough for the client's purposes, especially if the fence is a wandering convenience fence. If this is large acreage usually a foot or two is not a practical hinderence to use of the land. I could see using the fence if it's a substantial and straight structure, especially in an urban setting. I like Duane's advice of not mentioning the fence. I would show the relationship of the fence to the new boundary on the Record of Survey.
> The OP states that these are new division lines so Mutual Recognition and Acquiesence doesn't apply.
Please re-read Leon's post, you have entirely missed his point.
Dave,
I might make the recommendation that they straighten out the boundary lines and not use the fences also. But the recommendation needs to be made to the parties involved in the land transaction so that their intent is properly shown in the deeds. The parties need to know the reasons for some surveyors preference for not using the fences as boundary monuments. I think the surveyors job here to to put the parties intent in the documents. If you can convince them to modify their intent, that's fine, but it shouldn't be inserted through the back door just because the surveyor thinks his opinion is better and more proper (we are smarter than they are). The parties need to know at the time of sale that the lines are being modified from their fence location and future rebuilding of the fence probably should be done with a marking of the line by a surveyor so the new fence is put, shall we say near the line, as it seems most surveyors don't believe a fence can ever be put on the line unless it has no physical width and can be built perfectly straight.
Also any sale as big as I think this one probably is has sales contracts done by attorney's. These documents would also need to be modified to show the real intent, whether is is to make the fences the boundary or whether to make a monumented series of survey lines the boundary and specifically state that the fence is not the boundary. The parties may or may not like the idea that the fences are NOT on the line and may need to be moved later on. Some might be very comfortable using the fence, which they can plainly see as the boundary and not having to move it later. They may need to put some sort of agreement in place to recognize that the fences are not on the boundary and just as cattle barriers and agree to not fuss about a space near the fence they own on the opposite side of the fence.
Anyway, in Utah acquiescence can happen twenty years from now to a fence not on the line today if the owners for the next twenty years treat the fence as a boundary. If in twenty years litigation came forth and the contract sale agreements state the fence is agreed as the boundary it would just be another nail in the coffin and the surveyor who inserted his own new and improved intent other than the landowners intent would look bad from my view. So my view is to either put the parties intent into the description or convince them to change their intent and then place their surveyor improved intent into the description.
Can't agree with Kent, no matter what he says, can you?
I have seen where "The fence was the line", and one party moved the fence little by little, every time he repaired it. Time is was done, it had moved some 10' in places. At that point, we were BACK to the survey. And, the actual original location of the fences was forever lost.
It just created an ambiguity.
N
> Can't agree with Kent, no matter what he says, can you?
I think it's more a matter of Idaho and Utah law specifying that all fences automatically become boundaries regardless of what the adjoining landowners's written titles say. 🙂
> I think it's more a matter of Idaho and Utah law specifying that all fences automatically become boundaries regardless of what the adjoining landowners's written titles say.
Another straw man or just an apparent lack of knowledge? (Leon's quote above is from an actual court decision.)
No. The difference is that some surveyors actually believe our supreme court's decisions are authoritative, verses apparently just making it up as you go.
>(Leon's quote above is from an actual court decision.)
>
I'm sure it is, but it really has no relevance to the OP's situation, though, which was how to describe a line that followed the average alignment of a pasture fence without entangling the actual fence in the description as a boundary monument.
What you guys appear to want to believe is that regardless of whether a boundary is definite and readily locatable as described in the adjoining landowners titles, any fence that wiggles around near enough to the boundary to be mistaken for it by a layperson practically automatically becomes the new boundary.
If in fact you don't believe that, a simple disclaimer will set the record straight.
> I'm sure it is, but it really has no relevance to the OP's situation, though, which was how to describe a line that followed the average alignment of a pasture fence without entangling the actual fence in the description as a boundary monument.
>
Which OP are you talking about? Obviously not from this thread.
> What you guys appear to want to believe is that regardless of whether a boundary is definite and readily locatable as described in the adjoining landowners titles, any fence that wiggles around near enough to the boundary to be mistaken for it by a layperson practically automatically becomes the new boundary.
>
Really? Once again you seem to think you know more about what other people believe than what you are actually saying. SSDD.
No, what we obviously believe is that the actual expressed intent of the grantor and grantee is paramount to whatever fairy tale you may want to create out of thin air. Carry on.
> Which OP are you talking about? Obviously not from this thread.
The OP is the one at the top of this thread that gives these details:
>I'm writing some descriptions splitting lands along existing fences. Because of the state it's in, I'm calling to monuments at angle points and corners, then along the fences in the description. Fence laws here are pretty clear and for these parcels it is better to use along and not with.
"Along" per Black's: "Lengthwise of, implying motion or at or near, distinguished from across. By, on, up to , or over, according to the subject-matter and context. The term does not necessarily mean touching at all points; nor does it necessarily imply contact"
i realize this is a very old thread, but i found this interesting and have an analogy if that's okay....
my wife baked me a cake the other day and i watched.?ÿ she used a recipe and a measuring cup...?ÿ asked for exactly a quarter cup of something to get it exactly right.?ÿ i don't think her measurements were perfect, but the cake was pretty good.?ÿ i expect in the future she will continue to use that recipe.