Hello everyone,
I have a survey with a deed from 1912. While collecting data a fence was found to be 79' north of the deeded line and at an angle running southeast. The west end of this fence has a large (2'x2'x5' high) brick column. A matching column is located south on the section line near the southwest corner of the cemetery. The fence deflects when it meets the quarter section line and then appears to follow the quarter section line to the west.
The 1912 deed calls for a 1 acre parcel in the southwest corner of the SW NW of section 19. This area has a larger number of trees. When I staked out the location of the NW corner of said parcel I was about 79 feet south of a fence. The fence run diagonal and does not match the deed.?ÿ
I am leaning towards using the fence as a line of occupation since the area has been used as such for over a century. The area belonging to the cemetery will be about 0.91 acres as a triangle instead of the 1 acre called out in the deed.?ÿ
I am looking for literature that will guide me more for this situation. I have attached an image of the area for your reference. The cemetery is south of the fence and pasture is north of the fence. The red outline is the deeded area from 1912. The deeded area is 27 rods x 6 rods.
?ÿ
Thanks,
Dan
A few thoughts...
You cannot 'lean to using the fence as occupation'. Occupation is a question of fact. You develop the evidence and it it what it is.
If your characterization of the deed is a quote, it cannot be reasonably interpreted without the use of evidence outside the deed. It sounds like you have found that.
Every state has nuances in the laws related to establishing boundaries. This looks like a slam dunk, but knowledge of statutes and case law in your jurisdiction are essential to make the call.
"I have a survey"?ÿ is ambiguous.?ÿ?ÿ I take it you have a survey job, not a prior survey.?ÿ
Looks like a mess.?ÿ
Maybe you will need the Township Trustees and the adjoiner(s) to agree to the acquiesced boundaries and do QCD based on your survey? Maybe give the cemetery the full acre in the process? That might be cheaper than getting a court order of acquiescence, which also could happen.
This must be in Iowa.?ÿ The laws there will overrule any comments relevant to other States.
I would start by researching the history of all tracts in the northwest quarter (and the southwest quarter) and which tracts were created prior to other tracts.?ÿ Do all abutting tracts use the same description today as they did when they were created.?ÿ If not, what happened??ÿ Can this have any impact on your situation??ÿ Saying a one-acre tract in the southwest corner suggests to me that it would be a rectangular tract roughly 208.7 feet on all sides, not the shape you mention.?ÿ Where did this wording change occur.?ÿ Taking land from a cemetery could be very bad, no matter how it is fenced or looks today depending on the origin of the cemetery.?ÿ I worked with a cemetery that was encroaching on four other owners in fact.?ÿ Unmarked graves are very common.
The answers exist somewhere.?ÿ Finding that "somewhere" is the challenge that separates the buttonpushers from the land surveyors.?ÿ Not everything is rectangular, or even close to rectangular, in PLSSia despite that assumption in the original survey procedures.?ÿ Has the center of section, northwest corner, southwest corner and west quarter corner been located and verified to be reasonably in agreement with fact or did some less than brilliant survey tech slap something in the dirt where it was convenient and labeled it "THE CORNER" on some plat stamped by a desk jockey license holder?
There are no bearings on the 'property lines" and no bearing for the direction of that fence and I don't know the bearing of the road. It looks like you need to rotate that rectangle to match the fence line and start looking for more evidence. How far from the road is the turn in the fence? Is that close to the distance in the deed? Why is the driveway on such an angle and why does it match the fence but not the figure you've drawn in?
?ÿ
So many questions...
So the cemetery must include another parcel in NW corner of SW 1/4? It looks like that's where most of the headstones are.?ÿ Does it have a deed that might offer clues to the intention?
The fence deflects when it meets the quarter section line and then appears to follow the quarter section line to the west.
Do you mean follows the quarter section line to the EAST ??ÿ That's what I thought the picture showed.
What is under those trees??ÿ A creek, or an abandoned RR??ÿ Or just the fence?
No brick columns on the east side?
There are no bearings on the 'property lines" and no bearing for the direction of that fence and I don't know the bearing of the road. It looks like you need to rotate that rectangle to match the fence line and start looking for more evidence. How far from the road is the turn in the fence? Is that close to the distance in the deed? Why is the driveway on such an angle and why does it match the fence but not the figure you've drawn in?
Since this is PLSS and in an area that mostly has rural roads on section or quarter-section lines, and along with his other descriptions I think we can assume the picture is oriented North up and the lower-left corner of his red rectangle is an estimate of the west quarter-corner of Section 19.?ÿ
That would mean that the cemetery as occupied lies in two sections and four quarter-quarter-sections, of which he has given us the description for only one of the four.?ÿ There may be no deed for the part north and west of that quarter corner since it is small - probably the usage has been up to the road ROW just because of the way things lie.
Holy Cow is correct.
You need a complete Title History of this 1 acre parcel and the cemetery. Where did the 1 acre come from? What is the cemetery's description?
And you need a Survey History too.
Just going on a hunch is inadequate and not doing your client any favors.
It may be necessary to have the owners clean this up with boundary agreement or exchange of deeds.
Where did the 1 acre come from?
I've seen other rural cemeteries that have been there since settlement later made official by granting a deed for 1 acre, which for the small ones was more than had been occupied or fenced, and probably not surveyed with respect to section lines.?ÿ If such a cemetery had grown toward a natural barrier such as a creek, I could see that a blanket 1 acre might not align with anything.?ÿ
In his case, dimensions in rods do indicate an attempt to map it, though, so it is confusing.
You didn't mention the headstones. The fences don't mean much if they don't enclose the headstones. If they do, getting the adjoiners and the cemetery association to agree to a boundary line adjustment shouldn't be much problem.?ÿ The case law favoring acceptance of lines occupation over deed calls is commonplace. But I do not think that you should be thinking of this as a case of determine boundary, monument boundary, wash hands and cash check. Lets get a proper exchange of deeds happening and get the boundary lines of all the adjoiners affected properly described in the record.?ÿ ?ÿ?ÿ
Thank you for all the replies. I apologize that I left out the deed information, I am trying to determine if I use the fence or the deed lines. Yes this survey is in Iowa. I am still trying to locate some guidance in the statues.?ÿ
The deed reads northerly on west section line 6 rods, thence easterly 27 rods parallel to the south line of the northwest quarter, thence south 6 rods parallel to the west section line, thence westerly 27 rods to the point of beginning.
I am clear on where the deed says this 1-acre parcel should be. The rest of the cemetery is deeded in the northwest quarter of the southwest quarter and some of the cemetery is located in the adjacent county. The other brick column is located south and west near the cemetery entrance. This column is not on the section line and in the adjacent county.
There is no brick column to the east. The area east of the cemetery is heavily wooded.
I am creating a parcel in SW of the NW, except the parcel described as above (27 rods by 6 rods.) I think I should follow the fence when creating the new parcel. If I use the deed the northwest corner from the old deed might upsetting the apple cart.
Can anyone recommend a book that will give me more insight on this information? Would ??Evidence and Procedures for Boundary Location?? be a good place to start or do you have any other suggestions.
The term you are looking for is "practical location". You have a deed description that is quite clear and unambiguous. But when it got located on the ground they didn't bother with those details. The principle is discussed in the Unwritten Agreements chapter of Evidence and Procedures.
Here's a wider view:
