> 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.
Yes. A typical scenario I encounter here: A 30 acre parcel is cut from a larger parcel in early 1900's. It may or may not have been surveyed. The landowners build fences where they perceive the boundary to be and live in harmony for years. They have established their boundary.
What right do I have to tell them that their boundary is located anywhere else? That will just lead to a fight between neighbors who got along for years before the surveyor arrived and told them they were wrong about their boundary. We don't determine where the boundary should have been, we determine where the boundary is.
You may or may not need a boundary line agreement, depending on which state you live in. Here in WV, it's not needed, although, sometimes it wouldn't hurt.
Long response (sorry) - gotta break it up
> I have always been taught be previous employers and even boundary law instructors ...
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Did your professors present principles as absolute rules or as principles of general application subject to varying sets of facts? Many professors don't actually practice and may have never surveyed a boundary.
Understand that your classes are designed to give you a basic understanding of general principles and can't possibly provide an in depth understanding of a professional level knowledge of the law governing boundaries. If your professor says otherwise, know that he is over his head in subject matter, being kept afloat only by an overinflated ego. Just regurgitate the crap he feeds you for the homework, exams, and reports, but bear in mind that you will need to re-read your texts in light of presenting general and very flexible principles subject to bending by the facts of any particular survey and the statute and common law of the jurisdiction you work in.
> Most of the surveyors in our area do not survey to lines that have been acquiesced and would find this practice to be overstepping our authority.
You are making the common mistake of confusing boundaries established by effort to use the deed as the guide, or cases where the deed is a poor or mediocre attempt to describe an existing line with lines established without reference to the deed, or moved lines which may ripen into claims based on possession, often referred to as unwritten rights. These are two very different things which may look the same at first, but are often differentiated by investigation.
>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.
By that notion, the final step in most boundary surveys would be a trip to court, adding several thousands $ of expense for the client and each adjoiner. Or surveyors would have to survey with a judge to go along to tell him what to locate and where to set his monuments.
The fact is that the courts, through published decisions have told us over and over again how to recognize and use evidence, and how to recognize boundary doctrines to find existing boundaries.
In most cases, it's not simply a matter of looking at the fence and comparing it to record dimension. It's a matter of looking at the totality of available evidence, including the fence and coming to logical conclusions as to how the fence was established, how/if the boundary had been established, and whether there is a logical nexus between the two. Problems occur when the surveyor stops at noting a difference between a fence location and record deed dimensions, assumes that if the fence is the boundary, then it must be some form of unwritten right and that it's not for surveyors to even peek behind that mystical curtain. That unwillingness to investigate or even to learn about the boundary establishment doctrines and how they differ from evidence of adverse claims costs landowners unnecessary millions each year in litigation.
We are supposed to serve the public with our expertise in these matters. It's downright irresponsible to practice in boundary surveying without developing the expertise needed to sort these matters out. You're on the right path.
Long response (sorry) - gotta break it up - Part 2
> 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.
STOP right there! If the fence or other line of occupation represents a valid establishment of the boundary (Knud says: recognize it as a monument), then there is no ripening. It was the monument of the property line from the time it was established. When you speak of it "ripening", you are still stuck in the mindset that the only way a fence becomes the boundary is if the boundary moves from the "true" location to the fence by an operation of law - that it matures as an element of an adverse claim.
Set that aside and understand that if the fence is the marked boundary, it is because it gives it physical definition, just as would a surveyor's capped iron pipe, the location of an imperfectly described boundary location. To fully accept that, you must understand that any land description which has a dimension in it is imperfect. If you've made it through your freshman year of a survey degree (I'm correct in my understanding that you are currently a student, aren't I?), then you've learned that there are no perfect measurements and that repeated measurements between the same points will always show some level of discrepancy. All deed dimensions are derived from past measurements and/or are intended to guide future measurements, thus any description conataining one or more dimensions is imperfect.
A monument placed on on the ground by the landowners, and then the location described in a land description creates a definite location on the ground superior to the imperfect dimensions attempting to describe the location. A monument placed or caused to be placed by the landowners in the first good faith effort to follow the deed, and then accepted by the landowners, gives perfect definition to the location imperfectly described in the deed description. In the latter case, the acceptance cannot be unilateral.
In the case where a fence location ripens into a basis for a claimed title boundary, the fence would have been placed at some location other than at the boundary to begin with. Example: The realtor tells the new homowner the property line runs from a certain power pole back to a certain tree, the landowner builds a fence on that line. He intended it to mark the boundary line but did not make a reasonable effort to determine the true location of the line before placing the fence and sought no agreement with his neighbor. Fot that fence to become the boundary, all the other elements of AP also need to be fulfilled for the statutory period. To meet the requirements of the Statute of Frauds (requiring all land transfers to be in writing), a court of competent jurisdiction must then recognize the validity of the claim and issue a written ruling in favor of that title. Completely different from a fence marking a valid establishment of the true boundary.
What you are seeking to determine when investigating a fenceline is whether the description was an attempt to conform to the location of the fence (fence pre-dated description), or if the fence was placed with reasonable care in an attempt to mark the true boundary (the definition of reasonable care warrants its own discussion), or if the fence was placed for convenience (i.e. to enclose animals or crops) without regard to the true boundary location, or was placed with the intent of marking the boundary but without due care to follow the deed description. The motive, method, and means of placement is more important than the actual location.
>Can I go ahead and survey it in this fashion?
Not without a full understanding of what it is that you need to recognize about the fence.
>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.
Often a good idea. You would perform your survey, write descriptions for the BLA, and file it concurrent with your map, cross referencing the documents to each other. A BLA with reformed deeds with better dimensions would hopefully keep a measurment slave with a license to survey from creating a future boundary dispute where none need exist.
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> 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.
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No. You never disregard any elements in the description without having good cause to do so. The mere existence of a fence is rarely good cause. Too many surveyors fail to take into account things such as the date the description was created, the record description/dimensions of the parent parcel from which the subject parcel was cut, methods of measurement (if any) used to determine the dimensions of the description, and other factors which would give the current surveyor an indication of the likely accuracy and/or precision of the dimensions. In failing to consider these things, they fail to accept that the dimensions are cannot be perfect, and to what degree the imperfection exists. In many cases, the amount of variance may simply be confirmation rather than discrepancy.
> 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.
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In that case, the court invoked the Agreed Boundary Doctrine, which means that it recognized that the Imus' and the Wymans appropriately established their boundary on the ground to give a line with an uncertain location certainty to the landowners. The court discussed "objective" uncertainty vs. "subjective" uncertainty at some length. A few jurisdictions require "objective" uncertainty (CA has been drifting that way in recent years), but as the UT court observed, that requirement sets such a high bar for invoking the doctrine as to undermine its utility to amicably settle disputes and uncertainties. "Objective" uncertainty is when a surveyor cannot reliably determine the location.
Since the two surveys performed in or about 2003 resulted in slightly different locations of the "true" line, it is apparent that there were no monuments directly marking the line in question. That the two surveyors differed by 0.3' at one end of the line and by 0.9' at the other end raises the question as to whether a surveyor could actually locate the "true" line to the full satisfaction of a landowner determined to fight with their neighbor.
Since the lines were not directly marked in 1983, they did not exist with certainty of location. The Imus' sought and gained agreement and cooperation from their neighbors. The landowners cooperatively located their lines by carefully measuring from nearby monuments - they exercised reasonable care, and built fences on those lines. That cooperation and agreement is key, as is the initial uncertainty. Also key, with respect to binding the Bahrs is that the agreed line was definitely marked and actions consistent with ownership had taken place in reliance on the agreed line.
It's unfortunate that the court talks about the line determined according to measurements made by the skill of a surveyor as being the "true" line. But that is balanced with their explanation of the nature of a line established as an Agreed Boundary: "If the location of the true boundary is not known to the adjoining owners, a parol agreement between them fixing its location is not regarded as transferring an interest in land but merely determining the location of existing estates." (citing Brown v Milliner)
That means they did not create a new line different from the "true" line, but gave definition to the true line itself. There is no transfer of property.
Long explanation. I hope it helps.
