I am working on a survey in the NW quarter of section 35. I shot in a fence running north and south between the west and west halves of said quarter. I have all 4 corners of the quarter (NW, N1/4, C, W1/4) shot as well.
I was not trained as a fence line surveyor. The calculated midpoint of the south line of the NW quarter is over 13?? east of the fence. The calculated midpoint on the north line of said quarter is over 6?? east the fence. My gut tells me to set the points at midpoint. There are no records of the corners ever being set.
Are there any court cases that will help me explain this to my client who will lose 13?? of ground, or should I use the fence as evidence?
If the fence was built, based on an old County Surveyor's work, in 1960, then hold the fence, and document it.
If the fence was built in 1960, but was built where the farmer and adjoiner agreed, it might be significant.
If it was built in 1960, where old uncle Larry, (who was a pilot), and knew all about compass, and declination said it should go, then maybe not.
If it was built by a guy who had to get a fence up real fast, 'cause he just bought some heifers, then maybe not...
The history can be impotent!
🙂
Nate
Before I built a wall I??d ask to know What I was walling in or walling out, And to whom I was like to give offense.
-Frost, The Mending Wall
If the fence was constructed in reliance on the oruginal survey you're done measuring. If not you need to determine if the owners believed it to be the line and for hiw long. At that point its a function of State law and applicable court cases.
Most important is gather the facts before explaining the problem. It may solve itsrlf.
Are there any court cases that will help me explain this to my client who will lose 13?? of ground, or should I use the fence as evidence?
Why do you think your client will lose 13' of ground??ÿ If you do think so, then maybe?ÿhis property line, and the property line of the adjoiner are where you think it is and not where math says it is.
I am stuck because the deed read the "east half of the NW quarter', but I don't think the fence was set from any survey monument. At least I can't find any information as to how that fence was set.?ÿ
As a surveyor I should follow the deed, right?
The deed is part of the evidence. The actions of the owners (fence being one of them) should be interpreted in light of what they can tell you...
People know what they own. . . .
People?ÿ(think they) know what they own. . . .
I am a firm believer; that the original subdivider, is the first subdivider, and everyone else is a retracer.
Find out where this property was first created; and how that happened. Depending on what you find; will guide you to your next step in determining the boundary.
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A fence is just a fence, unless you can determine it's a boundary. Everything else is just there for convenience.?ÿ
As Radar said, sometimes a fence is a boundary fence and sometimes it's just something that got thrown up to keep the stock from wandering off.?ÿ But just because you can't find a record doesn't mean it was never surveyed. Back in the day people did there own surveying and that work was just as valid, even if less accurate,?ÿ as any done by some modern smart aleck with a licence and a GPS.
Nevertheless this screams of a case of boundary by unwritten agreement, or possibly AP.?ÿ ?ÿ?ÿ
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As Mark said, there is no requirement (read the BLM Manual) that the original subdivision of a section must be done by a "surveyor", nor is there a requirement that each corner must be marked with a surveyor's monument.?ÿ?ÿ
You need to gather all the evidence, that means knocking on doors, knowing the history of the area, what was commonly done many years ago, looking at old aerial photos, etc.?ÿ?ÿ?ÿRead the Oregon case of Dykes v. Arnold and the cases referenced therein.?ÿ Also, read all the pertinent portions of the BLM Manual, especially those sections talking about good faith, repose, reliance, points of local control, etc.
You've done the measuring, now go find the rest of the evidence.?ÿ Good luck.
Bet that fence is far from being anywhere near being a straight line. ?ÿWhat would you do differently if your job was to find the northeast quarter of that quarter?
Did you consider that the fence could possibility be built as a lane fence, offset from the property line?
I broke down a section and had to set the center, and was confused as all heck about the meandering fences in the section, so much so that I located almost all of them in the entire square mile.?ÿ Turns out most were lane fences offset 1 rod from true property line.?ÿ There were a couple at 2 rods, and one mostly on-line, but there was no rhyme or reason they way there were done.?ÿ Once I solved the puzzle, everything fell together.
I'm seeing a change even in the BLM. I posted a new plat earlier where they accepted a 1/16th corner, on a standard line of all things and prorated from it. It would be considered "out of position" from the math, it wasn't part of the original survey, yet it was accepted. If I remember correctly it's 1930's era control.?ÿ And even more interesting for you was a point they accepted on the north line of Section 31 of the same township survey.
The W1/16th common to 30 & 31 and the W1/16th on the south line of 31 both create kinks and neither are longitudinally in position but they are accepted as the 1/16th corners. The BLM isn't saying that these are property corners and the 1/16th corners are elsewhere, they are saying they are the 1/16th corners. These are private patented lands with BLM minerals (coal only, the oil and gas is private fee).
19.83 chains record closing on the north line and 20 chains closing along the south line which is a standard line, so you can see those corners are out of position.
The first thing I do is to look at how the land was patented, if it was E1/2, and W1/2 NW4 then you understand the land may have been this way from the beginning. Then go through the chain and see the history, look at old photos, all that can give you a good idea what is happening, chat with the landowners and you will learn even more.
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The message sent by the California Courts in the past 20 years can be summarized thus:
1. If you have Survey monuments then those will likely hold as good evidence of location.
2. If you have just a fence:
?ÿ ?ÿ ?ÿ ?ÿa. If nothing is known about why, who, or why the fence was put there then it likely isn't evidence of the boundary.?ÿ Sometimes there is evidence that affirmatively rejects the fence, most commonly it is in a convenient location.
?ÿ ?ÿ ?ÿ ?ÿb. If there is evidence that the neighbors were mutually uncertain and mutually agreed the fence is the boundary then it is the boundary.
?ÿ ?ÿ ?ÿ ?ÿc. There is no presumption a fence is the boundary just because it exists; direct evidence supporting b. above is required.
3. Boundary location is a question of fact; all of the evidence (both record and physical) will be considered.
The message sent by the California Courts in the past 20 years can be summarized thus.......
That's a pretty good summary and probably applies well to Oregon and Washington.?ÿ
In Gibbons there was a fence everybody agreed had been in its place for as long as anybody could remember. Which was a long time.?ÿ But nobody knew the circumstances under which it was built in the first place, there was no survey record, and there had been no real permanent acts of occupation up to the fence line. The disputed strip was a blackberry patch. So the deed description and survey held.
This is an appellate court decision which the state Supreme Court affirmed without comment, then refused to reconsider.?ÿ ?ÿThe several cases linked in the decision are also good ones.
The Oregon case of Dykes v. Arnold has been mentioned.?ÿ It's certainly worth reading. But that was a case where a monument had been set using *ahem* unconventional methods *ahem*, and conflicted with a monument set by more conventional means. So I don't think it necessarily applies to this circumstance. Not as well as Gibbons does, anyway.?ÿ ?ÿ
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The first?ÿquestion to answer is, has the boundary been established??ÿ If so, where is it, and under what establishment doctrine(s) has it been established??ÿ Good faith location of the 16th line is one "doctrine", boundary by agreement or acquiescence, practical location, etc., are others.?ÿ
It pays to be very familiar with the laws in the state in which you are practicing.?ÿ California laws are?ÿdifferent than Idaho's, which are different than Utah's, etc.
In all cases, one must gather all the relevant evidence, yes, even beyond the measurements.
@bigd1320 This isn't the first time this has been discussed here; do ?ÿa search and pay particular attention to posts by Kent McMillan...
The bottom line will be; finding evidence to support the fence being built on "the line" or hold the math. At least out here on the West Coast; as Mark showed us, in Gibbons v. Lettow (Oregon).
Things are a little different in Iowa, though. I surveyed in Eastern Nebraska from 1975 to 1990 and did several surveys in Western Iowa. Original evidence was difficult to find, at best and sometimes, the fences were the only evidence. I worked for 2 different surveyors: Bill was a very diligent surveyor and Roger, not so diligent. Bill would spend days/weeks, researching records and digging for evidence. Roger would accept the fence the first day, complete the survey and send the invoice.
I liked working for Bill, I was there over 10 years. I didn't work for Roger more than 1.
Seek and you shall find; if you don't, you need to be confident that it's not there.
Dougie
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This was the case in Oklahoma as well. Sometimes the fence, together with gravel section line roads, was pretty much all there was. That is the reverse situation from what we have here.
In Bryant v. Blevins, 9 Cal.4th 47,?ÿ884 P.2d 1034, 36 Cal.Rptr.2d 86 (1994), the California Supreme Court (in its latest pronouncement in a boundary case) established a bifurcated standard of proof in boundary cases.?ÿ In subjective cases (usually a fence about which nothing is known except where it is located) the Court said direct evidence of mutual uncertainty and mutual agreement is required to rule the fence is a boundary.?ÿ In objective cases the Court may infer there is an agreement.?ÿ The main example the Court cites is?ÿErnie v. Trinity Lutheran Church, 51 Cal.2d 702, 336 P.2d 525 (1959) where the court ruled in favor of the fence because of additional evidence that it and other improvements were built based on a Survey two decades before. Their reasoning seems to be that a Court should not require a land owner to accept a fence when there is no evidence they or their predecessors agreed to it but if there is direct evidence then the Court won't get in the way of valid agreements.?ÿ It is not illegal to enter into ill advised agreements but we will require some evidence there was such an agreement before we enforce it is sort of what the thinking seems to be.
The Bryant Court declined to enforce the fence as a boundary against Bryant.?ÿ As far as is known the case was never resolved because the Supreme Court remanded it to the Appellate Court to decide the Adverse Possession question. Bryant is not a useful case for Surveyors because the Survey was stipulated to and there isn't any discussion about Surveying boundaries other than the subjective question of a fence.?ÿ?ÿBloxham v. Saldinger, 228 Cal.App.4th 729, 175 Cal.Rptr.3d 650 (2014) is a much more useful case to Surveyors as far as a discussion of the reasoning and evidentiary analysis to be applied in Boundary cases.
