I am finishing a boundary survey for a potentially aggressive client who might want to just run out there and remove any fence lines that happen to fall within the boundaries of his survey limits. I am trying to craft a note that tells him to stop and think before he does that. I am struggling, please help. I know I need to warn him about some potential unwritten rights that may have ripened along those lines, etc. Here is what I have so far:
"There are places where fence occupation lines are located within the limits of the boundaries drawn for this survey. It is important to note, however, that this in NO WAY is an indication of any particular right on anyoneÛªs part to remove that fence..."
I would insist on hand delivering the product during which meeting I would impart all the quasi-legal experience available on the subject of rights.
The fences as shown on the survey are as existed on __________________, the date of the survey.
What anybody does with or to them after that date is not my problem. I would refrain from giving what may be construed as legal advice unless you happen to be a lawyer.
vern, post: 345591, member: 3436 wrote: The fences as shown on the survey are as existed on __________________, the date of the survey.
What anybody does with or to them after that date is not my problem. I would refrain from giving what may be construed as legal advice unless you happen to be a lawyer.
Yes but I am basically looking for a CYA (my ass) note to keep him from claiming that my survey somehow gave him permission to remove fences.
I also plan to follow his most holiness' advice above as well.
I have noticed over the years that the more I try to CMA, the more exposed it becomes.
Especially in arguments with the wife.
My prior employer had us add this to the plats any time there was a neighboring fence possibly encroaching:
"Potential rights of other should be considered before any changes in occupancy (direction) of the existing fence that runs along the XXX line of the lands partitioned/subdivided/depicted hereon."
Ownership is ultimately defined by possession.
Allowing someone to continue to possess your land once a survey has revealed encroachments, equates to consent.
If your client wants to pursue removal of the fences, they are doing this at their own risk (not yours). You have done your duty by showing the fences on your survey. You certainly can have a conversation explaining potential rights someone MAY have obtained to these portions of their land. However I think your proposed note is over the top.
Personally if I was in their position and it was a significant issue, I would send all of the affected parties a certified letter describing my intent to remove encroaching fences, as well as a description of what kind of fence I would be replacing it with and where that fence would be placed in relation to the surveyed property line. I would set a date that the fence removal would commence (preferably I would give plenty of advance notice). A copy of the survey would be included.
If nobody objected within the time frame, then I would feel pretty confident moving forward even if someone tried to litigate at a later date. If someone did object, I would have to determine if this strip of land was worth the effort and expense to defend in court.
Brad Ott, post: 345579, member: 197 wrote: I am finishing a boundary survey for a potentially aggressive client who might want to just run out there and remove any fence lines that happen to fall within the boundaries of his survey limits. I am trying to craft a note that tells him to stop and think before he does that. I am struggling, please help. I know I need to warn him about some potential unwritten rights that may have ripened along those lines, etc. Here is what I have so far:
"There are places where fence occupation lines are located within the limits of the boundaries drawn for this survey. It is important to note, however, that this in NO WAY is an indication of any particular right on anyoneÛªs part to remove that fence..."
I kinda sounds like the location of the boundary lines may still be uncertain in your mind.
Just what "potential unwritten rights" are you referring to? What evidence concerning the fence lines have you collected? What evidence of the location of the boundary lines is still out there?
What do you mean by "survey limits"?
Brian Allen, post: 345605, member: 1333 wrote: I kinda sounds like the location of the boundary lines may still be uncertain in your mind.
Just what "potential unwritten rights" are you referring to? What evidence concerning the fence lines have you collected? What evidence of the location of the boundary lines is still out there?
What do you mean by "survey limits"?
Are you saying that I should have just held all the fence lines?
EDIT:
Brian, I must admit that your response has given me pause. I do appreciate that. Thanks, truly.
"... just hold the fences"?
Absolutely not.
My knowledge of the boundary location doctrines in Indiana is lacking, but I do know that if I have any questions about occupation, boundary lines, potential encroachments, etc., I try and resolve these issues with all the affected landowners BEFORE setting any monuments and making any final determination of the location of the boundary lines.
Be sure you have all the available evidence (including parol), properly apply the appropriate boundary laws, and confer with the landowners before finishing the survey. If you have done all this properly, and fully explained your opinion of the location of the boundary lines on you survey, you shouldn't need any fancy-languaged, lawyer-ish sounding CYA statement.
Brian Allen, post: 345614, member: 1333 wrote: "... just hold the fences"?
Absolutely not.
My knowledge of the boundary location doctrines in Indiana is lacking, but I do know that if I have any questions about occupation, boundary lines, potential encroachments, etc., I try and resolve these issues with all the affected landowners BEFORE setting any monuments and making any final determination of the location of the boundary lines.
Be sure you have all the available evidence (including parol), properly apply the appropriate boundary laws, and confer with the landowners before finishing the survey. If you have done all this properly, and fully explained your opinion of the location of the boundary lines on you survey, you shouldn't need any fancy-languaged, lawyer-ish sounding CYA statement.
I have to admit, that I took your questions personally (thin skinned). I apologize for my initial flippant response. Please see my edited note above. Yours and everyone's comments on this thread are proving to be very helpful in my overall decision making process for this challenging survey. Many thanks you Brian,, and to everyone.
It is often very good to sleep many nights and cuss and discuss these boundary resolution issues "out loud" for dumb dirt surveyors like me.
Thanks to all.
Brad Ott, post: 345579, member: 197 wrote: I am finishing a boundary survey for a potentially aggressive client who might want to just run out there and remove any fence lines that happen to fall within the boundaries of his survey limits. I am trying to craft a note that tells him to stop and think before he does that. I am struggling, please help. I know I need to warn him about some potential unwritten rights that may have ripened along those lines, etc. Here is what I have so far:
"There are places where fence occupation lines are located within the limits of the boundaries drawn for this survey. It is important to note, however, that this in NO WAY is an indication of any particular right on anyoneÛªs part to remove that fence..."
The location of the surveyed boundary is based on my professional opinion and is not binding on the owner or the adjoiner
vern, post: 345591, member: 3436 wrote: The fences as shown on the survey are as existed on __________________, the date of the survey.
What anybody does with or to them after that date is not my problem. I would refrain from giving what may be construed as legal advice unless you happen to be a lawyer.
I agree 100% with Vern's survey note and assessment. We are surveyors not judges or attorneys.Our job is to disclose the facts,not interpret property laws.By noting the existence of the fences,you have done your job!
Our job is to make a legal boundary determination based on facts.
Justice Cooley disagrees with your assessment of our duties:
"Of course, nothing in what has been said can require a surveyor to conceal his own judgment, or to report the facts one way when he believes them to be another. He has no right to mislead, and he may rightfully express his opinion that an original monument was at one place, when at the same time he is satisfied that acquiescence has fixed the rights of parties as if it were at another. But he would do mischief if he were to attempt to establish monuments which he knew would tend to disturb settled rights; the farthest he has a right to go, as an officer of the law, is to express his opinion where the monument should be, at the same time that he imparts the information to those who employ him, and who might otherwise be misled, that the same authority that makes him an officer and entrusts him to make surveys, also allows parties to settle their own boundary lines, and considers acquiescence in a particular line or monument, for any considerable period, as strong if not conclusive evidence of such settlement. The peace of the community absolutely requires this rule".
"THE DUTY OF THE SURVEYOR
From the foregoing it will appear that the duty of the surveyor where boundaries are in dispute must be varied by the circumstances.
1. He is to search for original monuments, or for the places where they were originally located, and allow these to control if he finds them, unless he has reason to believe that agreements of the parties, express or implied, have rendered them unimportant.
2. If the original monuments are no longer discoverable, the question of location becomes one of evidence merely. It is merely idle for any State statute to direct a surveyor to locate or establish a corner, as the place of the original monument, according to some inflexible rule. The surveyor, on the other hand, must inquire into all the facts; giving due prominence to the acts of parties concerned, and always keeping in mind, first, that neither his opinion nor his survey can be conclusive upon parties concerned; and, second, that courts and juries may be required to follow after the surveyor over the same ground, and that it is exceedingly desirable that he govern his action by the same lights and the same rules that will govern theirs".
The judicial system is the mechanism that is in place to determine and protect individual landowner's rights. In this case, it has not been shown that the boundary is in dispute, nor that the corners were lost.
I am under the impression that this is simply a situation where the fences do not match the property boundary.
Brian Allen, post: 345637, member: 1333 wrote: Justice Cooley disagrees with your assessment of our duties:
"Of course, nothing in what has been said can require a surveyor to conceal his own judgment, or to report the facts one way when he believes them to be another. He has no right to mislead, and he may rightfully express his opinion that an original monument was at one place, when at the same time he is satisfied that acquiescence has fixed the rights of parties as if it were at another. But he would do mischief if he were to attempt to establish monuments which he knew would tend to disturb settled rights; the farthest he has a right to go, as an officer of the law, is to express his opinion where the monument should be, at the same time that he imparts the information to those who employ him, and who might otherwise be misled, that the same authority that makes him an officer and entrusts him to make surveys, also allows parties to settle their own boundary lines, and considers acquiescence in a particular line or monument, for any considerable period, as strong if not conclusive evidence of such settlement. The peace of the community absolutely requires this rule".
"THE DUTY OF THE SURVEYOR
From the foregoing it will appear that the duty of the surveyor where boundaries are in dispute must be varied by the circumstances.1. He is to search for original monuments, or for the places where they were originally located, and allow these to control if he finds them, unless he has reason to believe that agreements of the parties, express or implied, have rendered them unimportant.
2. If the original monuments are no longer discoverable, the question of location becomes one of evidence merely. It is merely idle for any State statute to direct a surveyor to locate or establish a corner, as the place of the original monument, according to some inflexible rule. The surveyor, on the other hand, must inquire into all the facts; giving due prominence to the acts of parties concerned, and always keeping in mind, first, that neither his opinion nor his survey can be conclusive upon parties concerned; and, second, that courts and juries may be required to follow after the surveyor over the same ground, and that it is exceedingly desirable that he govern his action by the same lights and the same rules that will govern theirs".
Brian I dont know about Justice Cooley But I have been licensed for 30 years,have served as expert witness on numerous boundary dispute cases,and have been an owner of a large surveying/engineering firm throughout this time.I have signed and sealed hundreds of surveys (many involving contradictory evidence,encroachments,prescriptive easements,open and notorious occupation through longtime fixed improvements,ect.)Ive prepared numerous Right of Way Maps and legal documents(including court testimony) for the State of Florida for condemnation through eminent domain proceedings. I am well versed in knowing my duties and responsibilities as a Professional Land Surveyor I am also pretty good at keeping my liability and legal exposure to a minimum.I have never been called down by the Board or successfully challenged on any survey that Ive prepared over the years.Maybe youve misinterpreted my post thinking that I implied that we are simply data collectors Obviously,we DO make boundary determinations based on multiple sources including monumentation (artificial or natural) deed,plat,occupation,parole evidence,etc. I simply meant that Im in agreement to unnecessarily offering opinion to the client as to the legal consequences of removing a fence.Graphically showing the fence with ties to the property line(as determined by your survey) and a startement in your survey notes as to its existence and of course the date of survey is more than sufficient(in my opinion).Im sure you have similar qualifications as myself and hopefully have a better understanding of my point Maybe Im unclear? Isnt this simply a case where a fence isnt in agreement with the determined property line??
Fences are fences and there are certain conditions to be met for them to become boundaries. That is not a simple thing to do and is not certain of a desirable outcome.
Once a person had purchased property and had ownership of all that falls on that property, they can and have the right to do what they want by moving fences structures or whatever is on that property.
Neighbors may object and can get a lawyer and attempt to keep you from doing any of that.
What s important is what you were shown and being a part of what you were purchasing and what you have title to.
Their claims must be supported by more than their mere thought that it was theirs.
Brad Ott, post: 345579, member: 197 wrote: I am finishing a boundary survey for a potentially aggressive client who might want to just run out there and remove any fence lines that happen to fall within the boundaries of his survey limits. I am trying to craft a note that tells him to stop and think before he does that. I am struggling, please help. I know I need to warn him about some potential unwritten rights that may have ripened along those lines, etc. Here is what I have so far:
"There are places where fence occupation lines are located within the limits of the boundaries drawn for this survey. It is important to note, however, that this in NO WAY is an indication of any particular right on anyoneÛªs part to remove that fence..."
Seems to me you haven't collected all the evidence (facts) nor applied the law of your state. I suppose you have occupation lines and your survey line (deed?). What the landowners need is the boundary line. Without more looking into the facts of the occupation line and the law sounds like you aren't prepared to opine on where the boundary line is. How sure are you on your survey line (math, original monuments of record..?????). Any client can take it to the courts if they want to. Hopefully you have got all the facts and applied the same law as the courts will and the landowners will be satisfied with your opinion and go forth accordingly. If you give them multiple choices seems like you are just a trouble maker to me. You hear all the time that surveyors never agree on the line. Then there are the surveys that show multiple lines (boundaries) from a single surveyor. No wonder the public thinks surveyors are weird or don't have a handle on what they expect they will do.
Hey, if you can't locate the boundary, tell them so and suggest some other action to help the landowners establish the boundary. Provide a service that has long lasting value. There is plenty of crap on the pile already, we don't need any more.
