Rich., post: 358949, member: 10450 wrote: 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?
That's a good question.
If the wall is not the boundary then I would say the area past the wall is at least constructively possessed by the owner. An owner doesn't have to build the fence on the boundary, they often fence themselves out. Possession is a legal term of art and is not synonymous with occupation.
The other owner may be adversely possessing the area between the boundary and the wall; whether the possession has ripened into title depends on if all the elements have been satisfied for the entire statutory period. If this is the case I believe there is still a boundary south of the fence and the adversely possssed portion is a third parcel between the boundary and the wall.
"Harmonious" doesn't lend itself to adverse possession.
Given the information provided, I'd hold the occupation, note the discrepancy in area and move on.
Sergeant Schultz, post: 358965, member: 315 wrote: Given the information provided, I'd hold the occupation, note the discrepancy in area and move on.
me too.
Also stealing from Brian Allen's post quoting Cooley:
"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."
B-)
From Enos, The Early Surveyors and Surveying in Illinois. 1891.
"In conclusion, there is a fact connected with our too-little honored profession of which I think we have some cause to be proud -- it is, that two of the most illustrious characters in the history of the nation and of the world, were in early life practical Surveyors. And may we not, with some claim of truth, attribute much of their subsequent success in the battle of life to that training of their great natural abilities which the early practice of surveying gave. Success in surveying, necessitates close observation, intelligent investigation, judicious weighing of evidence, self-reliance, prompt decision and action. The Surveyor in the field has no opportunity to consult authorities, to counsel with others, or hold under advisement for subsequent adjudication. He must think and act for himself, and that quickly and firmly. In the discharge of his duties he combines the three-fold character of attorney, jury and judge. Of attorney, in bringing out and collecting the evidence; of jury, in determining the facts from the evidence; and of judge, in applying the law to the facts so ascertained.Û
I believe Enos (as Cooley was) referring to surveyors acting as equity judge, rather than law judge.
aliquot, post: 358920, member: 2486 wrote: A lawer is not a licenced surveyor. A surveyor is not lawer. And most importantly a surveyor is not a judge.
If you are a boundary surveyor, you need to make it your business to learn as much as you can about the law affecting boundaries. The average surveyor who has some knowledge of boundary law has greater knowledge of this area of law than the average general practice attorney. The difference is that most attorneys think that they are so much smarter than the surveyor that they will happily bill $400/hr to ignorantly screw up the situation that the surveyor could have screwed up to a lesser extent for a fraction of the cost.
There have been enough quotes from cases here wherein the court speaks directly to surveyors, instructing us to find the true boundaries according to the same rules that the courts are required to follow to find those boundaries that there shouldn't really be any argument about what it is we are supposed to be doing.
If the landowners accept the surveyor's conclusions, then there is no dispute for them to hire layers to handle, nor will it ever go to court. If the percentage of your surveys that end up in court is similar to the percentage of my surveys that get disputed in court, then you know it hardly ever happens. In my opinion, that's an even greater reason to know the law and apply it to the facts of the boundary as a judge would be required to. If your survey is to have no review by a court of competent jurisdiction, the surveyor had better get it right. Lacking that review on most surveys, the surveyor is effectively the judge whether or not he applies the law correctly.
If you do find yourself in court, testifying either about your survey or someone else's, the court is going to hear you as an expert on the subject of identifying and locating existing boundaries, not just as an "expert" on measuring and identifying whether or not a particular object may have been set as a "survey" monument. If you don't know the law and its proper application, then your "expert" advice is of little value, and in some instances, may do more harm than good.
When a surveyor makes the statement "a surveyor is not a lawyer" or "a surveyor is not a judge", what it really translates to is "I don't have confidence in my knowledge of this area of practice, so I'm not even going to try to sort out the facts when they don't agree with my measurements." What he is further saying is "I don't want to appear or believe that others may be more qualified to handle this work than I am, so I'll just repeat what I've heard others say and imply that anyone who says that surveyors should take law into consideration are encroaching on other professions."
I'm not trying to personally denigrate you or anyone else who has said these things. It's the view most of us were trained with on our way to becoming licensed. It's what happened to our profession when our predecessors allowed the civil engineers to claim it as some type of technical subset of their role. I used to make these very same statements up until about 14 or 15 years ago. Even then I had to read several court opinions that addressed the role of the surveyor before I fully accepted that they were consistent and that doing what they said isn't really as difficult as I had been previously taught.
Most other areas of survey practice are based on the laws of science and measurement, and are best approached from a mindset similar to that needed in engineering. Boundaries are legal constructs, often created by people with very limited technical or legal knowledge. Finding boundaries previously established by people with either great or with limited technical and legal knowledge requires a different mindset than that required of the engineer. The engineer engages his skills and training to create something physical according to a precise plan. The surveyor takes the plan (description), whether written with precision or in more general terms, and uses it to guide him to where someone else created the physical boundary. Although the surveyor locates that boundary with precision, he should not presume that the person who created it did so with skill and precision.
When creating something on the ground that does not yet exist according to a precise plan, then math, measurement, and the natural laws of science drive the process of determining where that thing is to be. When finding and reporting the location and disposition of a thing previously created by others, then investigation, observation, and the laws created by men drive the process.
That's a difficult mental shift for many to make at first. Sometimes it helps to think of surveying an existing boundary as performing an as-built survey of the boundary previously created by others. You report what was actually placed, not what the plan said was supposed to have been placed.
Great post. (Personally though, I didn't think paragraph 5 was necessary)
B-)
WGD, post: 358963, member: 8001 wrote: "Harmonious" doesn't lend itself to adverse possession.
I got off on a tangent there.
An original or established boundary is more likely.
Dave Karoly, post: 358914, member: 94 wrote: 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.
Especially the first one... B-)
aliquot, post: 358920, member: 2486 wrote: 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 a Surveyor is not a judge.")
I think what gets lost in the translation of whether a Land Surveyor is practicing law or not...is this general thought. What finally hit me, is that the professional Land Surveyor is an expert of where property lines lie. You don't 'stake the property line' per se, you stake your opinion. You, as an expert offer or lend an opinion. They want to know what they own to, and you give them your expert professional opinion. Most all of us make these kind of professional "judgments" all the time which resolves discrepancy. The most obvious might be we go out and find original monuments and we don't stake points adverse to the deed call...we flag up our opinion of the original monument and show our measurement between the monument vs. the original call. That is making a professional judgment vs. the original call.
What I think we lose sight of is that when we have an even higher level of ambiguity within the deed or with the evidence on the ground. We want to wash our hands and say "that is up to a court of law". Well....the property owner didn't hire you to tell him to ask a lawyer, he hired you to show him (your professional opinion of) where his property line is. That is your professional task at hand. He wants to build his fence (or whatever he wanted to do that made him hire you) and he doesn't want to spend tens of thousands of dollars to have a judge adjudicate the answer.
Keep in mind that both the lawyer and the judge, are not boundary experts. They might be forced to make a decision, but they need to call on experts such as yourself to explain to them where the line is and why. Another expert might disagree and this might take some decision on their part, but they can only make that determination based on your expert testimony.
(kind of verbose. Sorry)
Tom Adams, post: 359216, member: 7285 wrote: What I think we lose sight of is that when we have an even higher level of ambiguity within the deed or with the evidence on the ground. We want to wash our hands and say "that is up to a court of law". Well....the property owner didn't hire you to tell him to ask a lawyer, he hired you to show him (your professional opinion of) where his property line is. That is your professional task at hand. He wants to build his fence (or whatever he wanted to do that made him hire you) and he doesn't want to spend tens of thousands of dollars to have a judge adjudicate the answer.
:good::good:
Say, for example, you drop off all your business records at your CPA's office. He calls you in two weeks (on April 14th) and says "Swing by the office, everything is ready to pick up". When you get there he hands you a spread sheet with all your income and expenses meticulously itemized and an invoice. You're like "WTF, dude".
And he replies "Look, I just put the income and expenses in the proper categories; whether the income is taxable or the expense is deductible is an interpretation of the tax code. Interpreting codified tax statutes is the job of a lawyer, I would be practicing law without a license if I were to fill out your return and make those decisions." I think it's doubtful that anyone would be satisfied with this level of performance being classified as a professional service.
James Fleming, post: 359224, member: 136 wrote: :good::good:
Say, for example, you drop off all your business records at your CPA's office. He calls you in two weeks (on April 14th) and says "Swing by the office, everything is ready to pick up". When you get there he hands you a spread sheet with all your income and expenses meticulously itemized and an invoice. You're like "WTF, dude".
And he replies "Look, I just put the income and expenses in the proper categories; whether the income is taxable or the expense is deductible is an interpretation of the tax code. Interpreting codified tax statutes is the job of a lawyer, I would be practicing law without a license if I were to fill out your return and make those decisions." I think it's doubtful that anyone would be satisfied with this level of performance being classified as a professional service.
Agreed....and to further the analogy of the CPA, the IRS could potentially disagree with the CPA's opinion, and it could even wind up in court. The IRS might try to make a case why you still owe money, and the CPA would go in front of the judge to defend his opinion. The judge might rule one way or the other. The CPA might technically be right, but be ruled against. At that point the judges ruling outweighs the CPA's opinion on a legal basis, and it would take an appellate court to overrule that. (sound kind of like a boundary dispute with two different surveyors testifying to different line locations?)
I am not the author of the following, but I believe it to be very useful when in the situation of the original poster.......
What the boundary is, is a matter of Law; Where the boundary is, is a matter of facts
1. "We consistently have held that what boundary a deed refers to is a question of law, while the location of those boundaries on the face of the earth is a question of fact." THERIAULT v. MURRAY, 588 A.2d 720 (1991)
2. "as to what are boundaries, is a question of law for the determination of the court; as to where the boundaries are upon the ground, is a question of fact to be determined from the evidence." TH INVESTMENTS, INC. v. KIRBY INLAND MARINE, 218 S.W.3d 173 (2007)
3. "It is a rule of law that what is the boundary line between two parcels of property is a question of law, and where the boundary line is located is a question of fact." CALDER v. HILLSBORO LAND COMPANY, 122 So.2d 445 (1960)
WHITE v. CLAUS SPRECKELS,, 75 Cal. 610 (1888): "What are boundaries is a matter of law; but where they are is a matter of fact. ( Bolton v. Lann, 16 Tex. 96.)"
4. "The construction of a deed and its legal effect as to boundaries is a question of law ... and the location of the boundary line is a question of fact." PACHECO v. MARTINEZ, 636 P.2d 308 (1981)
5. "We consistently have held that what boundary a deed refers to is a question of law, while the location of those boundaries on the face of the earth is a question of fact. If the facts extrinsic to the deed reveal a latent ambiguity, then we determine the intent from contemporaneous circumstances and from standard rules of construction. A basic rule is that boundaries are controlled, in descending priority, by monuments, courses, distances, and quantity, unless this priority produces absurd results. The physical disappearance of a monument does not end its use in defining a boundary if its former location can be ascertained."
The passage of time changes evidence. When evidence changes, other evidence rises to take its place. When other evidence is relied upon to subsequently establish the boundary, than the boundary is where it is established to be. The law requires no more than a good-faith effort by the survey to follow in the footsteps. No new boundary has been created. There are not multiple lines to choose from. All former positions of the boundary have faded into distant past and are no longer binding. What is binding is that the evidence be made known, recovered and relied upon to establish the position of the (singular) boundary at the time its location is being determined.