A deed description calls for a the north, east, and south lines of a township great lot and a line parallel with the east line so far west to include 87 acres and no more. The said description excepts the north 37 acres described as north and east by lot lines and west by said 87 acre division line, and south by a line parallel to the north line to include 37 acres and no more. The division lines and lot lines are marked by well established fence lines and stone walls.
The 37 acre parcel was previously surveyed 30 years ago - the south line is shown as a along a stone wall/fence line and a second line (south of the first) is shown as parallel to the north line at a calculated area of 37.000 acres. The lines vary at 30-50 feet and the area between the two lines are dimensioned and labeled as a 1 acre parcel. There is nothing on the map showing any notes of any additional information of the placement of the 2 lines.
It appears that there has always been, and still exists a harmonious boundary along the stone wall and fence. It seems that by placing the two lines on the survey an issue was created that previously never existed. The discrepancy shown on the survey was never addressed and likely forgotten through changes in ownership until landing on my plate 30 years later. As a surveyor is this acceptable practice to not identify an opinion of what better establishes the boundary?
I would only show the line I agree with on the graphic portion of the survey. Include a noted reference to your awareness of the previous survey.
EDIT: I guess if you were to agree with the area line you would end up showing both anyway.
" Open and notorious possession" for 30 years seems to fit the definition of Adverse Possession to me.
As such, that would be up to the closing attorney to deal with. I believe I would show both lines. One labeled as "Property Line" the other as "Possession Lie" and leave it up to the Attorney to settle this overlap. He can do a Quit Claim deed and settle everything.
The final determination is not you call. Show the geometry and leave any opinions as to ownership to the Legal Eagles.
cptdent, post: 358900, member: 527 wrote: " Open and notorious possession" for 30 years seems to fit the definition of Adverse Possession to me.
As such, that would be up to the closing attorney to deal with. I believe I would show both lines. One labeled as "Property Line" the other as "Possession Lie" and leave it up to the Attorney to settle this overlap. He can do a Quit Claim deed and settle everything.
The final determination is not you call. Show the geometry and leave any opinions as to ownership to the Legal Eagles.
That would be the best way to approach it, unless the fence can be shown to have been created very near to the time of the first deed, or somehow related to an original survey.
87 acres is not the same thing as 87.00000000000000 acres. It appears the stone wall was an original boundary substantially implementing the intention to transfer 87 acres.
I would not leave this up to the Attorneys because 1) they don't know what to do and 2) they are not licensed professional land surveyors.
Sir Veyor, post: 358896, member: 11299 wrote: As a surveyor is this acceptable practice to not identify an opinion of what better establishes the boundary?
Isn't expressing a well reasoned opinion on the location of the boundary fall right in our wheel-house? Isn't that what we are licensed to do?
"Lines" shown on previous surveys are only lines on a piece of paper, unless they are an accurate (not to be confused with precision) depiction of the boundary lines as established on the ground.
Dave Karoly, post: 358914, member: 94 wrote: 87 acres is not the same thing as 87.00000000000000 acres. It appears the stone wall was an original boundary suantially implementing the intention to transfer 87 acres.
I would not leave this up to the Attorneys because 1) they don't know what to do and 2) they are not licensed professional land surveyors.
Did I miss something? Why are we concluding it is an original boundary? If it is I agree with you.
A lawer is not a licenced surveyor. A surveyor is not lawer.
And most importantly a surveyor is not a judge.
Who implied we are judges?
However, well over 100 years ago, Justice Cooley tried to outline just what our job is and should be:
"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. "
"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. "
"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."
"I have thus indicated a few of the questions with which surveyors may now and then have the occasion to deal, and to which they should bring good sense and sound judgment. Surveyors are not and cannot be judicial officers, but in a great many cases they act in quasi-judicial capacity with the acquiescence of parties concerned; and it is important for them to know by what rules they are to be guided in the discharge of their judicial functions. What I have said cannot contribute much to their enlightment, but I trust will not be wholly without value."
I know I'm in a minority but to me unless the wall is called for or known to be constructed in accordance to the original survey then I would probably show the deeded line and a line of possession. To me that's exactly what they are. A deed line. And a possession line. The deed and its intention is clearly not ambiguous.
It seems this is exactly what the surveyor 30 years ago did. Did he call the wall a possession line or the property line? If property then maybe he had other reason for doing so which he should have noted. If possession line and he calls the calculated line the boundary, did you find any monumentation at his calculated corners?
Also I wouldn't think this is AP. To me if both parties think and are acting as if the wall/fence is the line this would be acquiescence.
Rich., post: 358926, member: 10450 wrote: I know I'm in a minority but to me unless the wall is called for or known to be constructed in accordance to the original survey then I would probably show the deeded line and a line of possession. To me that's exactly what they are. A deed line. And a possession line. The deed and its intention is clearly not ambiguous.
It seems this is exactly what the surveyor 30 years ago did. Did he call the wall a possession line or the property line? If property then maybe he had other reason for doing so which he should have noted. If possession line and he calls the calculated line the boundary, did you find any monumentation at his calculated corners?
Also I wouldn't think this is AP. To me if both parties think and are acting as if the wall/fence is the line this would be acquiescence.
There is no such entity as the so-called Deed line. A rule of construction is uncalled for monuments do not control. But when the boundary is established, settled, and the owners are living to it peacefully the land surveyor should not disturb that. The rules of construction are intended to implement the intentions of the original parties to the deed. A monument which does not reasonably do so will not control but if the original parties establish a monument in order to further define their boundary in accordance with the deed then the land surveyor should not disturb that.
aliquot, post: 358921, member: 2486 wrote: And most importantly a surveyor is not a judge.
True but the Judge needs your wisdom, experience, and guidance to make the best decision.
If the property owners accept your opinion then there will be no need to go see the Judge.
Sir Veyor, post: 358896, member: 11299 wrote: It appears that there has always been, and still exists a harmonious boundary along the stone wall and fence.
Well, the only way to know for sure is to knock on some doors and get some history on the stone wall. I don't see how you can make a final boundary resolution without this information.
Dave Karoly, post: 358928, member: 94 wrote: There is no such entity as the so-called Deed line. A rule of construction is uncalled for monuments do not control. But when the boundary is established, settled, and the owners are living to it peacefully the land surveyor should not disturb that. The rules of construction are intended to implement the intentions of the original parties to the deed. A monument which does not reasonably do so will not control but if the original parties establish a monument in order to further define their boundary in accordance with the deed then the land surveyor should not disturb that.
I agree about not disturbing peaceful settlements.
If the original owners built the wall to further perpetuate the line, then that to me would constitute 'built in accordance to the original survey' if so then it is obvious to be the line but how do we know this is the case from information given? At this point i feel we are assuming so. But that is why I asked if the other surveyor showed the wall line as the boundary, if so, maybe he knew something more and wasn't just assuming.
Dave Karoly, post: 358929, member: 94 wrote: True but the Judge needs your wisdom, experience, and guidance to make the best decision.
If the property owners accept your opinion then there will be no need to go see the Judge.
Yes, but to ensure that the decision is binding on future land owners the agrement should be in writting.
The surveyor's job is to protect the public. A surveyor may express an opinion, but he may not declare ownership. That is a legal matter. Surveyors do geometry and Lawyers do law and never should one try to do the other's job.
Unless that fence is called out in the deed as the property line, then an encroachment exists and that MUST be shown on the plat. You show what you found and at that point it becomes a legal issue. The Surveyor CANNOT declare adverse possession or other title matters. You cannot file a Quit Claim Deed nor can you argue adverse possession evidence in court.
"There is no such entity as the so-called Deed line." Maybe not in California, but in my area that line is often cited in boundary disputes.
vern, post: 358899, member: 3436 wrote: I would only show the line I agree with on the graphic portion of the survey.
Yes.
Assuming the necessary elements of acquiescence apply, the minute the surveyor shows an imaginary, mathematical deed line in relation to the true line, he/she incites a war. Instead of being a problem solver, the surveyor becomes a problem finder.
Rich., post: 358932, member: 10450 wrote: I agree about not disturbing peaceful settlements.
If the original owners built the wall to further perpetuate the line, then that to me would constitute 'built in accordance to the original survey' if so then it is obvious to be the line but how do we know this is the case from information given? At this point i feel we are assuming so. But that is why I asked if the other surveyor showed the wall line as the boundary, if so, maybe he knew something more and wasn't just assuming.
I wasn't entirely clear.
I agree with you and don't mean to give the impression I'm expressing a final opinion about the wall.
My point is there is one line, the boundary. If there is insufficient evidence to support the wall as the boundary or there is affirmative evidence it is not the boundary then the "deed line" is the boundary. On the other hand, if the wall is the boundary then the mythical deed line does not exist, there is no reason to show it.
Cptdent...Attorneys and Judges are not infallible and the legal system has been misled into this type of thinking in some cases. In our cases they view it as a conflict to be resolved by resort to the facts. Once the issue is resolved there is only one line. It doesn't protect anyone to unnecessarily incite expensive, time wasting litigation. It can't always be avoided but should be if at all possible. Boundary location is a question of fact, that is our job, no one else's.
I see a lot of good points but I also see how holding area calls can be "cherry picked" in this situations. I noticed the west line of the survey was not established as parallel and at no more than 87 acres, even though it called out the south division line of the 37 acre parcel in the same way. This could be because the surveyor chose not to survey an additional 50 acre parcel or because holding a deed line at parallel and based on acreage would have a much bigger and significant affect on the 3900 foot line marked by a fence. If the occupation of the stone wall and fence was not accepted as the line, then in actuality there is an issue on both the south and west lines of the 37 acre parcel and on the west line of remaining 50 acre parcel.
Dave Karoly, post: 358941, member: 94 wrote: I wasn't entirely clear.
I agree with you and don't mean to give the impression I'm expressing a final opinion about the wall.
My point is there is one line, the boundary. If there is insufficient evidence to support the wall as the boundary or there is affirmative evidence it is not the boundary then the "deed line" is the boundary. On the other hand, if the wall is the boundary then the mythical deed line does not exist, there is no reason to show it.
Cptdent...Attorneys and Judges are not infallible and the legal system has been misled into this type of thinking in some cases. In our cases they view it as a conflict to be resolved by resort to the facts. Once the issue is resolved there is only one line. It doesn't protect anyone to unnecessarily incite expensive, time wasting litigation. It can't always be avoided but should be if at all possible. Boundary location is a question of fact, that is our job, no one else's.
Absolutely. Agree 100%
My question for you would then be, if you are unable to find sufficient evidence to support the wall line and you show the "deed boundary" as the boundary, would you also show the wall line depicting the outer area as out of possession?
