In light of the recent post concerning adverse possession I began wondering a thing or two. First and foremost: Exactly how much factual data can a surveyor glean from a broken and spotty old fence line?
I'm guessing we can factually locate the remains. We could possibly factually describe its material construction. Can anyone factually date a fence by mere observation?
My point is here in cattle country the reuse of fence wire and even old posts is common. I've seen a fence that was actually constructed only a year earlier that had the appearance of a 20+ year old established fence line.
In cattle country we also have a plethora of field fence that divides grazing pastures from fallow pastures, bulls from heifers, etc. Unless the fence is in the vicinity of, or mimics a deed call, its location rarely raises an eyebrow.
I was looking for a lost section corner once in an area of several sections that had no road access. The aerials were not much help. I was nearing what I thought could be a section corner and discovered evidence of an old e-w fence. We carefully scraped the prairie grass away and after a while I had about a 100' stretch of what I was convinced was an old fence along the section line and providing me with more clues as to the location of the lost corner.
That afternoon the owner was out feeding his cattle and we chatted. He had owned the property for over 40 years and could not remember that line ever being fence. When I showed him the fence evidence he laughed. I had uncovered the remains of a 30 year old cutting pen. The section line was some 80 or 90 feet further south. We actually found a tractor axle amid a broken stone at the lost section corner..200 feet away.
Be careful reading too much into an old fence. As much as we'd like to think we can perform a Vulcan Mind-Meld with an old post, we can't. We can locate and describe it. If that description entails an apparent occupation boundary, we can note it as such with corroborating physical features. Other than that...it's just an old fence.
Well said.
There have been relatively few cases of AP in Oklahoma. Most unwritten boundary cases in OK are argued and decided on the basis of Recognition & Acquiescence. Just the opposite of Oregon and Washington.
Most of the cases I have read, people were questioned or had information about the fence. It wasn't just a fence that magically popped up out of the ground and, voila, here we have the boundary! The average stock turning field fence would not qualify for boundary duty.
Then the Court had to determine if the evidence supported the fence as a boundary and under which Doctrine it did so.
There is an Oklahoma case wherein the Grantor sold the Grantee 5 acres by aliquot description. Then the parties went out there and measured off the 330'x660' parcel because "we don't need to get the Surveyor out here." They had some discussion about whether to measure from the existing fences on the other two sides or maybe the true lines were past the fences. Anyway they eventually agreed to measure off the existing fences and they fenced the new parcel.
Obviously later someone found out the fences were some significant distance beyond the true aliquot lines and the battle was on, fence or true aliquot line. There was testimony about the actions of the various people involved. I have the cite but it is at home.
So, yes, you are right, a fence is just a fence until proven otherwise.
We have a California case, French v. Brinkman where French owned two subdivision lots in lovely Ridgecrest (a Navy town in the middle of the Mojave Desert in little Oklahoma, Kern County). He built his house on one of the lots and a block wall on what he thought was the lot line. Later he sold the vacant lot to Brinkman. Of course Brinkman had it surveyed in order to build on the lot and found out French's wall is not on the Lot line. French testified that he was selling the Lot up to the wall, that is what he was selling and Brinkman lived across the street and knew of the wall's existence. It didn't help that Brinkman had demolished the wall which is self-help which Judges tend to take a dim view of that. The Supreme Court called it practical location and declared the wall the boundary.
Mr Cash
I think that was worth 4+ hrs of continuing ed, to read what you wrote.
Do you think you could STRETCH out that story with details, and added drama, for the benefit of the young uns comin along, and present it at a State Society Continuing ed seminar?
(And send me a copy too!)
That was good. I wished I'd have written that.
Nate
EVERYTHING YOU EVER WANTED TO KNOW...
EVERYTHING YOU EVER WANTED TO KNOW ABOUT FENCES BUT WERE AFRAID TO ASK.
Attendance at this seminar will be kept confidential to prevent being shamed and reviled by your community of professional colleagues.
Mr Cash
> Do you think you could STRETCH out that story with details, and added drama, for the benefit of the young uns comin along, and present it at a State Society Continuing ed seminar?
Michael did just that at this spring's OSLS convention. I know it was an uncomfortable first time for him, but it was actually one of the best things that happened there.
Talking to the owners and former owners is great evidence of what fences are or were. One tool probably not used enough by surveyors is their mouths, speech and ears. There is a social aspect to surveying that needs to be improved to get at the proper evidence. Talk to people, let em tell you what they know, listen, ask questions. Then sort it out, act like a jury and decide what is right or not about what they say.
I went to high school in the Panama Canal Zone. The Panamanians in the countryside would cut branches off trees to use as fence posts. Invariably, most of the fence posts would sprout roots and become trees joined by barbed wire. It sure made for a different-looking rural environment. Oh, and the "farm houses" had thatched roofs and mostly dirt floors.
> One tool probably not used enough by surveyors is their mouths, speech and ears. Absolutely correct! The post and remnants are merely evidence. That's the first step in determining any boundary -- gather the evidence. We too often focus on gathering the physical evidence, but fail to gather the oral testimony and documentary evidence needed to explain the physical evidence.
Surveyors should be the experts. Experts and gathering evidence used to determine boundary locations and experts at applying the the principles of law to the evidence to derive the facts. We also must be experts at applying the principles of law to the facts in order to determine the location of the boundary.
Fences are evidence that won't speak for themselves. We have the duty to gather sufficient evidence to establish the facts.
JBS
> The Panamanians ...would cut branches off trees to use as fence posts. ..the fence posts would sprout roots and become trees...
In Robinson Crusoe our hero does just that to protect his crops and his living quarters.
In eastern Nebraska there are a lot of hedge rows placed on section lines that were live fences by planting osage orange or locust trees. Often barbed wire was woven in and out among the trunks when the trees were smaller. Then in later years as the trees got large, it was impossible to retain a good fence in there, so landowners desiring a sturdy fence built it at the edge of the branch line. Years later the trees were removed, but the fence remained. Where is the bouyndary line in the eyes of many who did not know the sequence of events?
Excellent post! I've always considered fences to be "fences of convenience" until an adjoining landowner who is older than me tells me the story about Grandpa putting it up. Unfortunately, landowner's older than me seem to be getting rarer and rarer...
> ....As much as we'd like to think we can perform a Vulcan Mind-Meld with an old post, we can't.
Au Contraire. As a matter of fact, I did just that: had a Vulcan mind-meld with an old post. Since then my wife has always said that I am 'as dumb as a fence post'. It must have worked. If you ever need anyone to tell you the history of a fence, just give me a call. 😉
AP in Oklahoma
I had the opportunity a few years back to have lunch with my brother, an attorney, and an old frat brother of his that just happened to be a District Judge in the southern realms of Oklahoma. After we relived his and my brother's "Animal House" stories the conversation drifted on to property and litigation.
"There's no such thing as Adverse Possession in my courtroom", the Judge blurted in a matter-of-fact fashion. I asked him why. Apparently in his eyes all AP cases involve someone attempting land larceny under the guise of an honest suit.
I was a little taken by his narrow and iron-clad attitude. I really didn't want to say anything and spoil a good lunch. Besides, I bet in his courtroom, he's right.
Besides, he paid for lunch. He said he couldn't accept a lunch from anybody. I didn't argue that with him either. B-)
Fence experts-Tx Hill Country
Here in the Texas Hill Country most of the surveyors call fence corners the survey corner. They never look for the stones or marked trees/stumpholes. As one prominent Surveyor told me "don't go stirring up $h@t, you cant make any money spending time looking for stones and trees when there is a good fence corner right there"
I tend to disagree.
I started to help build fences 50 years ago as a youngster. I've spent many years around fences both newer and older than that. There are many clues as to the time of erection. Hard to put that knowledge into words that would mean anything to anyone else. Move me 50 or 100 miles away and my knowledge is probably much less valuable.
Jerry Penry is quite accurate in relating the history of planting tree rows intentionally along what were thought to be property lines. Some of that was to create living fences. Some was to reduce the effects of wind erosion which is a very serious issue in the Great Plains area. Some turned out to be a source for future fence post material. The tree rows were more precise than the fences strung along them as they were planted with nothing to block the view other than hills. There were no trees to block the view.
Sorta kinda related but maybe not.
I recently retraced several sections which were originally surveyed by the GLO in 1870. There were several calls in the GLO notes to existing fences. Some calls were to rock fences, some to brush fences and some just to fences. As such, it is interesting that the land patents all came after construction of many of the fences in the area. And not one of the section or aliquot lines thereof, as surveyed by the GLO, happened to fall on and along any of those ancient fences. Occupation and usage was prior to acquisition of title. And title acquired was not coincident with the prior occupation and useage.
That's what happened around the original settlements in my little valley. After the GLO survey and the patents there was a flurry of deeds made out to convey the land to the owners and their fences. So the fences were the established boundaries after that. Fast forward 100 years and all the GLO corners can't be found (post and mound) and many have been punched in so to speak. Now all the fences are off according to modern surveyors coming back off the new and improved section corners. Go figure!
> I went to high school in the Panama Canal Zone. The Panamanians in the countryside would cut branches off trees to use as fence posts. Invariably, most of the fence posts would sprout roots and become trees joined by barbed wire. It sure made for a different-looking rural environment. Oh, and the "farm houses" had thatched roofs and mostly dirt floors.
I think willow and cotton wood will grow that way, are there other trees that sprout roots from branch cuts
