If you are prone to read and enjoy court cases, here is a civil suit that centered around a long-standing fence that wasn't on the boundary.?ÿ And of course it wouldn't be a real Oklahoma law suit unless it involved blocking a drive or shooting a dog.?ÿ This case has both:
In a nutshell there was a mostly N-S fence of unknown origin between two properties and an access drive to the properties ran adjacent to the fence.?ÿ The east owners (McGlothlin) sued the west owners (Livingston) for a portion of Livingston's land that fell on their side of the fence.?ÿ Livingston was in possession of a 20 year old survey that indicated the location of the boundary and the fence.
East Landowners were granted summary judgment determining the fence to be the boundary, by acquiescence of the parties, and prescriptive title was given to East Landowners to those portions of West Landowners' property lying beyond the surveyed boundary. West Landowners appealed.
The appellate court reversed the decision to give the plaintiff everything "on his side of the fence" by acquiescence and adverse possession.?ÿ Some of the reasoning in this reversal was what I thought was sound legal principles, to-wit:
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"??a property owner is not required to place a fence on the property line and does not give up any rights by placing a fence off the property line and along some line within the property. In my opinion, East Landowners have the additional burden of showing who built the fence for purposes of boundary by acquiescence and adverse possession." The fence in this case was apparently built in the 1940's for livestock purposes.
"A careful reading of the cases set out above reveals the doctrine of boundary by acquiescence applies only where there is uncertainty or doubt as to the true boundary line, or where no surveyed or recognized boundary line existed when the fence was erected......?ÿwhich held boundary by acquiescence did not apply because the deed clearly described the true boundary and there was no evidence "that the location of the true boundary was unknown."
"East and West Landowners took title to their respective properties by written deed with full knowledge of the legally-described boundaries of their property. Later surveys confirmed the boundary lines. Thus, there is no dispute, no mistake, and no ignorance regarding the true boundary line dividing East and West Landowners' properties. Because of this certainty of the true boundary line, East Landowners are not attempting to enforce an agreement by which the fence establishes a boundary with their neighbor because of uncertainty regarding the true boundary; rather, they are claiming land belonging to another. As discussed below, this may only be accomplished by deed or by adverse possession. It cannot be accomplished by the doctrine of boundary by acquiescence or the doctrine of boundary by agreement.?ÿ To apply the doctrine of boundary by acquiescence in this manner violates the Statute of Frauds.
It appears as though both parties knew where their "legal" boundary was located.?ÿ The plaintiff wanted a portion of his neighbor's land simply because it was on his side of a fence.?ÿ
I think the appeals court got it right.
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"East Landowners' son shot West Landowners' dog."
Now, that's entertainment. McGlothlin is a really good case to read. I was able to figure out just where the property is. I can post that later.?ÿ
Somewhere in Delaware County I believe.?ÿ At least that's as far as I looked.?ÿ It would be interesting to see the land "from above".
Well stated by the court
Colcord, OK, in Delaware County. They probably buy their groceries in Siloam Springs, AR.
Sounds right.
Wonder if anyone tried to persuade the plaintiffs to not sue.?ÿ It also seems like the plaintiffs might have had better luck if they only claimed adverse possession.
...It also seems like the plaintiffs might have had better luck if they only claimed adverse possession.
I had the same thought.?ÿ But in OK adverse possession is a higher hurdle than boundary by acquiescence.?ÿ And possibly with Livingston having a survey of the boundary and fence AP may have been a steep climb.?ÿ The ruling did state that both parties had deeds which were congruent with each other.?ÿ
In McDonald v Martin 2011 the appellate court stated:?ÿ?ÿ
"..To establish a boundary line by acquiescence, it is not necessary to show that a claim was made to land beyond that fixed in the party's deed. Legal acquiescence for the required period is all that is essential...(and further explained) that boundary by acquiescence differs from adverse possession and is closer to equitable estoppel."
AP in Oklahoma seems to be somewhat of a rarity.?ÿ The few attempts at adverse possession I've seen have never succeeded.?ÿ
My brother is a retired attorney.?ÿ He occasionally has lunch with a frat brother that is a District judge.?ÿ I had the opportunity to join them at lunch once.?ÿ The judge and I had a good conversation about crazy land cases.?ÿ When it came to AP he plainly stated, "There's never been a successful adverse possession case in my court...nor will there ever be."
With judges having sentiments like that it's not hard to believe it doesn't happen too often around here.
Colcord is located in southeastern Delaware County at?ÿ36?ø15?ý55??N?ÿ94?ø41?ý32??W?ÿ(36.265179, -94.692240).[14]?ÿIt is 9 miles (14?ÿkm) northeast of?ÿKansas, 18 miles (29?ÿkm) southeast of?ÿJay, the Delaware?ÿcounty seat, and 6 miles (10?ÿkm) west of the Oklahoma-Arkansas?ÿstate line.[15]?ÿit is on?ÿOklahoma State Highway 116?ÿeast of?ÿUS-59.[16]
Yes, Virginia, there really is a city named Kansas in Oklahoma.?ÿ Kansas was the birthplace of Darrell Williams, better known as The Marlboro Man.
The principal of our high school is a native of the area around Colcord.
Great read!!! Thanks for sharing!
