Not cool using another (long time) poster's Avatar.
You should use a different avatar.
A word to the wise is sufficient.
Now you went and woke up the avatar police 😉
With all due respect, seems to me that Brad has not revealed enough facts regarding this particular boundary resolution to justify questioning his judgment in the manner that you have.
imaudigger, post: 345652, member: 7286 wrote: Now you went and woke up the avatar police 😉
Oh no!! Not the Avatar Police (It carried over from my FB page) I swear I didnt steal it...Oh Brother ...Is this thread heading south in a hurry LOL +o(
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 wouldn't get tied up in knots about the fence locations unless you have some reason to believe they are better evidence of the boundary location. For example, say the old Deed from 1890 says 500' and there is an old arrow straight fence at 490'. I would at least consider that the fence may represent the original location of the boundary, or maybe not. I would at least investigate.
On the other hand, maybe you have a newer fence that the neighbor guessed in. In that case it's probably not relevant.
I had a gung ho client ask me about the fences. One was a nice looking, new board fence about 1' onto his property per my survey. Personally I wouldn't bother but he was all gung ho and asked if he could immediately move the fence. The only thing I said was I would suggest at least talking to your neighbor first. It kind of annoys people when one day they look out their kitchen window and the neighbor is out there knocking down the fence with no notice. At least talk first; sharing a bottle of fine wine helps lubricate good relations too. But I wouldn't put a note on the survey; just verbally suggest they talk to their neighbors, you know foster good relations if they can. Sometimes the neighbor is a jerk, nothing you can do about that but at least try.
I'm just generally stating my view. If a surveyor on a boundary survey states the location of the boundary and there are fences, buildings roads, whatever inside the boundary why wouldn't a landowner think they could remove them or do whatever. Sure its good advice to a client to not stir the pot and cause some lawsuit, but some landowners are gunning for that.
I'm more for sorting it all out just not sending clients to the justice system. I'm not afraid to tell a client I can't really make a determination on a boundary. Sometimes there is just not enough evidence to say the boundary is established at an occupation line. Sometimes the deed line has no physical evidence of having been established on the ground. Many fences are haywire and some have been treated as the boundary for multiple decades. Some boundaries are easy to locate and some can't be located by any physical evidence of establishment.
I don't know where Brad's survey evidence leads to the location of the boundary. Sounds like he has made a boundary determination but is still worrying about the occupation fences. I been there many times and worried a great deal about that very thing. I think you have to eliminate the occupation evidence as establishing the boundary before you can reject it. That means gathering the evidence about the occupation and applying your states law. That's what a court is supposed to do after the surveyor has done it. If the fence isn't the boundary all you need to do is state the facts that would lead one to the conclusion. Most states have laws on whether occupation has lead to establishment of the boundary. So get the list, gather the evidence and see where the law takes it. The fence might be easy to reject and it might be hard to reject. There is more to it than its just there and appears it may be an occupation line. In some states it may be easier to blow off the fence than others.
If certain circumstances are met, fences can become boundary lines between adjoining landowners and as such can become property monuments. Removal of which may be a criminal offence
Michael,
I meant no disrespect to you or your qualifications. I was only responding to your post as written. As noted here many times, tone and true meaning can get lost in written posts. If I mis-interpreted your points ÛÒ I apologize.
No, we are not judges or attorneys. However, we do hold a position of trust via our quasi-judicial functions that Cooley so eloquently explained over 100 years ago. As he stated, and IÛªm sure you agree, we are required to gather and analyze evidence like the courts do, we are also expected to interpret the evidence and the laws, like judges do. This allows us to develop our professional opinions on the location of boundaries. We are not merely the reporter of facts ÛÒ that is technician level work ÛÒ professional level work takes things much farther.
True, there werenÛªt many details presented in the original post, so as usual, many things get assumed. I will agree that providing advice on whether or not to destroy or damage another manÛªs property is very unwise, and not in our ÛÏwheelhouseÛ. But expressing a professional, well-reasoned opinion, based on evidence and the law, concerning the location of boundary lines is exactly what we are supposed to be doing.
In most cases, if we do our job properly, and present ourselves and our findings properly to all concerned parties, we will have little need of CYA statements on our surveys.
Sorry for any misunderstandings.
Have a great Thanksgiving!
"I know I need to warn him about some potential unwritten rights that may have ripened along those lines, etc."
Based on the above from the OP, I'm guessing that maybe some second guessing on the location of the boundaries may be happening. That is why I asked earlier for the specific "unwritten rights" that may be in play.
As an attorney and a surveyor just simply put a survey note which states "The fences shown on the survey strictly depict their physical location on the property. The surveyor renders no legal opinion as to the fences depicted hereon."
That sounds like a good note.
As a land owner, I would be thanking you.
Dave Karoly, post: 345650, member: 94 wrote: Not cool using another (long time) poster's Avatar.
You should use a different avatar.
A word to the wise is sufficient.
Yeah maybe but his was hanging on the wall in his office LONG before I ever started to use it. Thanks Dave.
Brad Ott, post: 345676, member: 197 wrote: Yeah maybe but his was hanging on the wall in his office LONG before I ever started to use it. Thanks Dave.
Brad,
Just 'mirror' the image... So your avitar is looking 'right'.
DDSM:beer:
Dan B. Robison, post: 345684, member: 34 wrote: Brad,
Just 'mirror' the image... So your avitar is looking 'right'.
DDSM:beer:
Gonna give this one a go...
"quasi-legal experience" is what any person gains over time. The primary thing it teaches is that someone needs to consult with a knowledgeable attorney before doing much of anything. It normally does not extend to years of reading statute books updates and thousands of court summaries.
The Dude abides!
I just finished a project where a portion of the privacy fence would appear to make no sense whatsoever. My plat clearly states where fences are located and where they are not. It does include mention that in order to gain access from the house to a large portion of the tract one must first go back to the alley, wander a bit to the east, turn south into a two-car garage, pass through the garage to a side door and then exit into the aforementioned area. Meanwhile, the adjoiner on that side has nothing to block their access to said area.
One must know the history to understand what happened. Grandpa lived in the house on the tract surveyed. Grandson lived in the house to the east of that. Grandpa made use of a part of Grandson's backyard along the alley while Grandson was allowed to let his dogs run on the fenced off portion of Grandpa's land in an informal exchange of use.
Grandpa foolishly signed up for one of those idiotic reverse mortgage deals and ended up losing his property for a small fraction of what he thought he might get in return.
Due to the discussion above regarding "what our job is", and seeing that Brad is a resident of Indiana, I wondered what Indiana law said. I was surprised to see that 865-IAC 1-12-11 says an Indiana PLS shall apply the "theory of location":
(m) "Theory of location" means applying:
(1) federal laws, including 43 U.S.C. 751 through 43 U.S.C. 775;
(2) state and local laws; and
(3) court precedent;
to establish the position of real property corners.
As for occupation lines it says in 865 IAC 1-12-10: (5) Locate physical evidence of possession between adjoiners and identify age of possession, for example, by parol evidence, if possible.
From 865 IAC 1-12-12 there is the requirement for a surveyors report:
Sec. 12. (a) When conducting a retracement survey or an original survey, a registered professional surveyor shall do the following:
(1) Furnish the client with a written surveyor's report that, in addition to other pertinent data, identifies the type of survey,
explains the theory of location applied in establishing or retracing the lines and corners of the surveyed parcel, and gives the
registered professional surveyor's professional opinion of the cause and the amount of uncertainty in those lines and corners because of the following:
(A) Availability and condition of reference monuments.
(B) Occupation or possession lines.
(C) Clarity or ambiguity of the record description used and of adjoiners' descriptions and the relationship of the lines
of the subject tract with adjoiners' lines.
(D) The relative positional accuracy of the measurements.
This is not to say any of this applies to the subject survey (Brad is licensed in 5 states), but it appears to show that in some states "our job" is defined in great detail within state codes. See http://www.in.gov/pla/files/SBRLS_2014_Compilation.pdf
Wow - that is a detailed list of criteria for retracement surveys. Although the marking of set monuments is well characterized, I didn't find a corresponding requirement for describing found monuments. :snarky:
Shade the area between the fences and the property line. The correct note is:
"Area in use by others."
They may have an established right to continue to use it, but that is for the courts to decide.
Were your client to remove the fences , your client may be liable for replacement, additional damages and possibly even trespass.
Paul in PA