Like I have said before, I would welcome the chance to come into the court with my 80 year old landowner that has knowledge of the fence and put that testimony up against your finest measuring device.
citation
This is a link to the citation for the March 8, 05:03 post.
I'm sorry but I can only approximate a date of 1973.
citation
Link to ISU Library
Library
Just as an interesting side light I am attended the surveyors conference today and the speaker stated he disagrees with Lucas on surveyors noting fence as boundary when the deed line are out away from it. He said he tells his client to go see a lawyer when that happens. He's speaking on easements but this came up. At the same time he states that surveyors know more about property law than lawyers or judges. Go figure. He says Jeff is softening his view on this. Wishful thinking.
So someone asked him where the center of section is. He stated its only at interesecting line as a last resort. He would look for other evidence of corner establishment. He said he would take an old fence corner rather than intersectiong lines. Kind of confusing if you ask me.
From the same citation as above
Fence History
doubt and uncertainty
Agreement
My current project is among 25 well defined original block of 100 acre squares.
The division of those blocks are far from what many of descriptions would place the monuments.
Bearings along the fences vary 2°± from deed to deed.
The old fences do surround the proper amount of acreage.
Who am I to make create problem.
0.02
John,
I struggle with a lot of things you say, but this one is in conformance with my thoughts:
> Yes. In fact, there is a "score card" that the courts rely upon every time. And, there are only a few questions which must be answered if every case. There are five distinct "underlying principles" the courts have laid down for us to follow when we determine the location of every boundary we ever survey. Yet, we've been taught or have simply supposed that we can't apply the law when deriving our opinions; or, we've determined that some boundary laws we can apply while others we cannot. That is our demise. We are expected to know the law and to properly apply the law every time we make a boundary determination.
A lot of guys say that we can't apply laws as we are not legal experts. Yet we do it all the time. Some of the basic principles we apply are the legal-based rules of priority of calls (ie: natural monuments, artificial monuments, etc. etc.)
I pointed out in another thread that the courts will go to an expert in psychology for an opinion as to whether a defendant is "legally" insane. Yes the expert only gives his opinion, but that is what the courts use and weigh to come to a conclusion. Same with surveying. you need to come to an opinion that you can testify to in court as to your boundary determination, and that opinion is based on your expertise and the law.
I'll try not to jump in between experts such as you and Kent who have two differing viewpoints....I'll lose either of those arguments. But I enjoy reading and learning from the points of views here.
CA Bryant v Blevins: "The common theme of these decisions is a deference to the sanctity of true and accurate legal descriptions..."
CA Hudson v West: "[it] is fundamental that a party who would quiet his title must prevail, if at all, on the strength of his own title and not on the weakness of the claims of an adversary."
CA Mesnick v Caton: "Relying upon a legal description to settle disputes of the kind present here seems far more sound. The law should prefer boundaries the legal description sets, or else it is hard to see why such records exist."
Stahl: "I, too was taught this very principle. I've come to find that it is a myth"
(The above statement is Mr. Stahl's response to the following statement by an uncited source: "... I was mentored that the deed is PARAMOUNT. WHAT THE DEED SAYS (LITERALLY, IS WHAT THEY OWN.").
> CA Bryant v Blevins: "The common theme of these decisions is a deference to the sanctity of true and accurate legal descriptions..."
>
> CA Hudson v West: "[it] is fundamental that a party who would quiet his title must prevail, if at all, on the strength of his own title and not on the weakness of the claims of an adversary."
>
> CA Mesnick v Caton: "Relying upon a legal description to settle disputes of the kind present here seems far more sound. The law should prefer boundaries the legal description sets, or else it is hard to see why such records exist."
>
>
> Stahl: "I, too was taught this very principle. I've come to find that it is a myth"
>
> (The above statement is Mr. Stahl's response to the following statement by an uncited source: "... I was mentored that the deed is PARAMOUNT. WHAT THE DEED SAYS (LITERALLY, IS WHAT THEY OWN.").
Clearcut, Every Myth has its basis in truth.
All three CA cases which you have cited are cases which, under CA law, failed to establish the boundary using the establishment principles. Any time the boundary has not been established, the deed will serve as the primary evidence to determine the boundary. Of course, any ambiguities in the written language would be resolved by applying the rules of construction, which under CA law are statutory provisions.
The same is true in any jurisdiction. If the boundary has not been legally established, then the deed will serve as the primary evidence to determine the boundary. A surveyor (hopefully) will be called upon to apply the deed to the ground by running the lines in accordance with the written intent construed from the deed. In this sense, the deed is PARAMOUNT.
When the boundary has been legally established by fulfilling the requisite requirements of one of the four doctrines (actually three in CA as they've mistakenly combined acquiescence and oral agreement into a single doctrine called "boundary by agreement"), then the evidence which fulfills the respective requirement will overcome the expressed words of the conveyance. What the parties have done will supersede what they said they would do. The deed is relied upon to corroborate the actions which have resulted in the establishment.
JBS
> .... Any time the boundary has not been established, the deed will serve as the primary evidence to determine the boundary....
>
> JBS
Thank you, we do have a common thread.
Unless there was an intentional intent to steal anthers land, the discrepancy between the described line and the occupation line is usually unknown by either party. After knowledge and time, a claim may be made to memorialize a new boundary. Usually when a surveyor discovers a conflict, there is no justification to claim anther's land unless there was knowledge, if no knowledge and a surveyor on his own, acts as if rights have passed, is usurping the owners rights to chose their own resolution. I will continue to get the owners involved and let them make a choice with full knowledge of their rights and options. After a legal choice is made and both are in agreement I will stake that line agreed to be it the described line, the occupation line or something between, but before I do stake that line, I want it in the record and Deeds exchanged or a replat done. I can get into trouble by making a decision that only the owners should make. If no hostility exist when I arrive, I won't create any by leaving the owners out of the loop because of my superior knowledge of law, can't get into much trouble by keeping the owners involved. If hostility exists when I arrive, I will be very careful not to amplify that hostility and nothing will cause problems quicker than telling one of the owners, to bad, you lost your property, he may have, but like training a mule, he needs to think it is his idea, need to be smarter than the mule to do that. I am talking about a substantial difference between the described or platted line and occupation, that measure will be in constant flux depending on the conditions found and the history of the area. Much difference in maintaining harmony and a courts obligation to choose one owners rights over another. I wonder if taking a courts methods and historical actions to every job is serving the public, especially when that position almost always results in hostility where none existed?
jud
twirling a technical point...
In Mello v. Weaver, 36 Cal. 2d 456 (1950) the California Supreme Court said:
"The [Agreed Boundary] doctrine grew out of the need for stability and repose in the matter of titles to real property." citing Cavanaugh v. Jackson, 91 Cal. 580 [27 P. 931].
But in Ernie v. Trinity Lutheran Church, 51 Cal. 2d 702 (1959) they said:
"Under the foregoing circumstances the line so agreed upon became in legal effect the true line. In Young v. Blakeman, supra, 153 Cal. 477, 482, it was said: "It is stated by the authorities that the line so agreed on becomes in legal effect the true line, that the agreement as to the line may be in parol and that it does not operate to convey title to the land which may lie between the agreed line and the true line, but that it fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy..."
These are just two of numerous cases which seem to conflate Title with Boundary yet say no Title Transfer has occured. In fact we have numerous cases where the requirements were not met because there was sufficient evidence that the property owners were not uncertain and were simply transferring land through parol means.
clearcut
What else would there be, when no existing evidence on the ground?
JBS,
I'm with you all the way. I've been trying to get this established not established concept into the mix for several years now. It's all clearly in the common law but for some reason many surveyors just can't understand it. Too many surveyors want to treat every boundary survey from the not established side and proceed to stakeout the record title and then show that everything is just a mess.
From my view we'd be much better off to recognize the established boundaries and then help the landowners establish the boundaries that need it.
This problem goes well beyond land surveying. In my state established boundaries that don't fit the record title get hammered from all sides such as title companies and county recorders (even some county surveyors). If the record mapping can't be shown correct on a calculator then what it needs is a boundary line agreement, which in Utah Statute has been defined as a form of a quit claim deed. So even though the common law is quite clear in Utah with regards to boundary establishment, other than the Utah Supreme Court, just about everyone else in the state refuses to acknowledge it and even tries to eliminate it by statute. So essentially the record title and the keepers of record title in Utah REFUSE to accept the common law and the principles of boundary establishment. So landowners are denied their rights to establish boundaries which have been usurped by the title industry and county associations. Yeah, you can establish your boundaries until you need a loan, make a subdivision, or need a land use permit. Then you are right back to the mess created where record title must match the survey on the ground and it's time to pass out the quit claim deeds (along with all the related hassle and expense).
I don't think I'll live long enough to see the common sense via the common law concerning establishment to be properly applied by the title industry in Utah. It's just to simple to understand (establishment of a boundary location IS NOT A CONVEYANCE OF TITLE)!
You don't need to go any further than this thread to see this in action.
twirling a technical point...
YOU GET IT DAVE. Just about everyone else does not!
clearcut
> What else would there be, when no existing evidence on the ground?
Existing evidence of what? Thats the million dollar question. Some may only see evidence of occupation. Or a poorly executed prior survey which failed to locate the true boundary. Whereas others will interpret the same evidence to denote boundary establishment.
clearcut
". . . Some may only see evidence of occupation. Or a poorly executed prior survey which failed to locate the true boundary. . . "
No comment!
clearcut
My reading of Bryant is a good faith reliance on a Survey (poorly done or not) for a period of time greater than the Statute of Limitations (5 years) or under circumstances which would cause substantial loss would qualify under the doctrine of agreed boundaries.
In that situation jumping over the fence to advocate for your client's claim could expose you to slander of title liability. One case I am aware of the only reason the LS squeaked out of the liability is he did the survey after the lawsuit was filed so it was privileged.
We seem to have a mania for fixing old problems which should be left alone because of repose.
Dave
That "true boundary" is the key phrase and simply relates to expert measuring!
Keith
> Like I have said before, I would welcome the chance to come into the court with my 80 year old landowner that has knowledge of the fence and put that testimony up against your finest measuring device.
Keith,
I didn't say that there's never a case where you won't find someone with DIRECT knowledge of the fence. What I said was that surveyors are reluctant to hang their hat on any foggy memory, guesstimation or third hand information that a landowner has over the the written intention of the parties that he (the surveyor) feels puts him on the boundary he is seeking.
Surely you're not advocating the Richard Schaut school of fence-line surveying are you, where the mere mention of a fence by anyone within a 50 mile radius of the boundary is taken as the gospel?
Some fences are boundary line fences and some fences keep the cows in!
Well said Jud.
Especially the points about communication with the client.
The surveyor should absolutely use any available evidence and knowledge to form an opinion of the line. And yes, that does include knowledge of the law.
However, the opinion so formed is not the boundary location because the law says it is - until such time as the law actually is involved. It is merely the interpretation of someone who does not have the authority to declare judgment. If uncontested by the parties affected, all is fine. But if contested, then the line is the line by law only after the legal system has run it's course.
I would hope, though I expect it happens, that no surveyor goes out and shows an occupation line to their client and says "Even though there are monuments over there, The Law says your line is here." As 'simple' as the law may seem, it is not decided by the surveyor.
As a young surveyor I find the notion of surveying and holding to undocumented fences etc. very perplexing. I have always been taught be previous employers and even boundary law instructors to survey in the fashion that Knud Hermansen describes in his piece "A Surveyor's Responsibility and Possession Boundaries".
Now after reading "The Pincushion Effect" by Jeffery Lucas and attending his seminars, and reading many of threads on this board my thinking has been beginning to shift. Recently I have been reading cases regarding this subject and trying to piece this altogether. I would say most if not all of the surveyors that work in our area do not survey to lines that have been acquiesced and would find this practice to be overstepping our authority. I would often think that on certain jobs that if the two parties were to go to court the fence would definitely hold over the survey line, but was always under the notion that this was for the courts to decide.
So here are some questions for you guys/gals.
If I would determine through interviews and evidence that a fence line or occupation line has met the criteria to have ripened into the property line. Can I go ahead and survey it in this fashion? I would think that even though I may determine that the fence is the line one would still have to get a boundary agreement in writing and recorded before surveying to the fence line.
I know that there are a lot of variables to consider, but if I would determine that the fence line would hold up in the courts can this line then be surveyed as the line, disregarding all deed measurements.
For example in Bahr vs. Imus it is hard to wrap my head around the fact that one should survey the fence line if the actual lot lines can readily be determined.
Thanks,
