Gap or Overlap a survey or title issue?

Jeff Lucas is correct on this.

Acquiescence does not affect title, it is a location doctrine.

It is the purview of the property owners to settle the conflict. The Courts have jurisdiction if, and only if, the property owners submit the issue to them. The Appellate Courts have broadly hinted in numerous Opinions that the property owners can settle their dispute or uncertainty themselves, litigation is not required.

Dave Karoly, post: 353325, member: 94 wrote: The Appellate Courts have broadly hinted in numerous Opinions that the property owners can settle their dispute or uncertainty themselves, litigation is not required.

The problem I always run into to is that by the time someone calls me the neighbors aren't talking to each other anymore, except to hurl invective.

Jim Frame, post: 353337, member: 10 wrote: The problem I always run into to is that by the time someone calls me the neighbors aren't talking to each other anymore, except to hurl invective.

I know, I've had the same problem.

Or they want me to "prove a point" to their neighbor, like their neighbor will just automatically believe me.

'The question of what is a boundary line is a matter of law, but the question of where a boundary line, or a corner, is actually located is a question of fact.'
-Walleigh v. Emery, 163 A.2d 665, 668 (Pa.Super. 1960)

Surveyors locate boundaries. Resolving a boundary by acquiescence does not convey title, as Dave points out. Thus, it is not a title issue. Simply put, the 'What' a boundary is, is coincident with 'Where' the boundary is located. This is not outside the purview of the land surveyor.

Title issues are resolved by the courts because land is being conveyed outside the record. This is when the 'What' a boundary is must be changed to be coincident with 'Where' it is located on the ground. Adverse possession can only be perfected by a court and is thus outside the purview of the land surveyor.

The property owners could agree to fix an apparent adverse possession problem by executing a boundary line adjustment outside of the Court.

We actually have one that it is my opinion that there is a legitimate boundary by adverse possession. We are east, the private is west. The true line goes through the private's house. The house was built in the 1920s or 1930s, the State acquired the Forest in 1949. It's not really a problem for us, we just hold back to the occupation line, don't have to use all of our property but the private side doesn't have clear title up to the occupation line. There is three parcels, one of them agreed to BLA the State offered in the 1970s, the other two didn't which is strange to say the least? I think they didn't like the $350 survey cost the State requested as part of the deal. I think the reality is we don't own past their occupation line but it is still foggy; one concern is we could be liable for what happens in their yard or house.

Dave Karoly, post: 353361, member: 94 wrote: Or they want me to "prove a point" to their neighbor, like their neighbor will just automatically believe me.

I heard of one case where the parties argued over the rear corner but not the front. The surveyor set up on a front monument and turned the angle. He told one of the parties (that he knew was right) to take the rod to where he thought the rear corner was. He had the other party look through the scope to see the rod exactly in the crosshairs. It convinced him.

Big Lance, post: 353324, member: 11008 wrote: Yet, resolving junior/senior rights is likewise a title issue, not a survey issue.

I don't think you can bifurcate title and survey/boundary as easily as some wish too; neither do some Courts

An integral aspect of establishing record title to real property is proving its on-the-ground location. In the early case of Neel v. Hughes, the Court said: ‰ÛÏEvery conveyance must either on its face, or by words of reference, give to the subject intended to be conveyed, such a description as to identify it. If it be
land it must be such as to afford the means of locating it.‰Û Gill & J. 7, 10 (1838).

Because appellant had the burden of proving his title, it was incumbent upon him to prove not only that he had an unbroken chain of title, but also that Wolf Pen was located in the place he claimed. Here, the court found that appellant was unable to show the contours of the parcel he claimed

Porter v. Schaffer 126 Md. App. 237

Bill93, post: 353385, member: 87 wrote: I heard of one case where the parties argued over the rear corner but not the front. The surveyor set up on a front monument and turned the angle. He told one of the parties (that he knew was right) to take the rod to where he thought the rear corner was. He had the other party look through the scope to see the rod exactly in the crosshairs. It convinced him.

Huh?

They were obviously in cahoots, the surveyor and the guy with the rod. 😉

Dave Karoly, post: 353403, member: 94 wrote: They were obviously in cahoots, the surveyor and the guy with the rod. 😉

You'd be surprised how well that works - pulled off with the proper amount of gravitas.

James Fleming, post: 353391, member: 136 wrote: I don't think you can bifurcate title and survey/boundary as easily as some wish too; neither do some Courts

An integral aspect of establishing record title to real property is proving its on-the-ground location. In the early case of Neel v. Hughes, the Court said: ‰ÛÏEvery conveyance must either on its face, or by words of reference, give to the subject intended to be conveyed, such a description as to identify it. If it be
land it must be such as to afford the means of locating it.‰Û Gill & J. 7, 10 (1838).

Because appellant had the burden of proving his title, it was incumbent upon him to prove not only that he had an unbroken chain of title, but also that Wolf Pen was located in the place he claimed. Here, the court found that appellant was unable to show the contours of the parcel he claimed

Porter v. Schaffer 126 Md. App. 237

Often the Lawyers will say, "I don't care what the Survey says, it's..." A.P. or Prescriptive Easement. In one recent unpublished case the Lawyer/Property Owner (she outsmarted herself on this one) said she didn't care where the Surveyed boundary is because she was claiming a Prescriptive Easement. The Judge said an easement is on another property, if you don't know where the record boundary is how do I know whether there is an easement or not? What he says obviously is true.

Lucas is correct. Read his latest column concerning the 2016 ALTA standards and Jr/Sr rights.

As for agreement/acquiescence, how many times does it need to be proven that agreement/acquiescence is NOT a title issue, but merely the legally allowed determination of the location of the described boundary on the ground?

See Morrissey, 124 Idaho at 873, 865 P.2d at 964 (oral agreement fixing boundary line between co-terminous owners where true boundary is unknown, uncertain or in dispute is not regarded as a conveyance but merely the location of the respective existing estates and the common boundary of each of the parties); Edgeller, 74 Idaho at 366, 262 P.2d at 1010 (holding that a finding, supported by substantial competent evidence, of an agreed boundary line has the effect of extending or diminishing the limits of the respective deeds to include and exclude the parcel of land in dispute).

For the vast majority of apparent gap or overlap problems, Jeff Lucas is correct. However, I have seen one gap situation that the title company and the county essentially coerced the landowner into creating (long story related in some long ago thread), and heard of another that I believe Jim Frame is somewhat familiar with (Orangevale - ring a bell, Jim?).

In the fist one, lands were conveyed according to a section breakdown (1st division of section) by surveyor A. About 15 years later, surveyor B comes along and finds that surveyor A's measurements were made pretty carelessly, so surveyor B redivides the section. Two parcels that were created as a result of A's survey have an established common line per A's survey and continue on that way for another 18 years.

Owner of southerly parcel decides to divide his land and has Surveyor C submit a Parcel Map. Surveyor C shows boundaries per A's survey. Title company insists that because A's survey didn't follow the "true" subdivisional lines as is shown by B's survey, that they won't insure unless C moves the boundary to the line determined by B. County said they wouldn't allow map to file if title company won't insure it.

Landowner tells C to divide only up to B's line just so that he can get map filed, sell the parcels and move on. C shows dark line along B's line, identifies A's line as being the one that was marked by a well-established line of occupation and gets map filed. Assessor get's map, doesn't know what to do with the approximate 55' x 1320' gap, so exercises a little drafting magic and makes it disappear from the Assessor's Parcel Map. The landowner of the 4 new parcels sells them all and bids good riddance to the county, and I think the state. At any rate, he's long gone and making no claim to the sizable gap.

16 years after that, I'm hired to sort the mess out. Landowner to North (son of original grantee) continues to occupy to A's line. W'ly parcel to S is developed and occupies to B's line. My client owns E'ly parcel to S and wants to resolve gap before deciding where to build new home. My client and landowner to N were ready to enter into a boundary line agreement, then landowner to N finds out that because the size of the gap is so substantial, that the Assessor would reassess both properties as a result of BLA. He's still paying taxes on a 1963 assessment that has been raised only by the statutory limit since then (not sure exactly how Prop 13 affected, but his property taxes are way low compared to similar properties), so he backs out. The gap, which because of the Parcel Map of 1991, is now (intentionally) established as a title issue and still exists.

The other one involved a rectangular shaped suburban parcel, 140' wide. N'ly 60' gets sold. There was apparently some confusion having to do with a 10' driveway on the S side of the 60'. Grantor later sells of the S 70', apparently not remembering that he did not include the area with the driveway in the previous conveyance and thinking that he was conveying all of his remaining interest because by the time the problem is discovered by a surveyor, the grantor is long gone.

In this instance, the record is clear. The record width was 140'. The grantor sold the N'ly 60' and later the S'ly 70'. There was no intervening record showing a 130' width, and there has been no use or other indication of continued ownership interest in the 10' strip by the grantor. This one is also a title issue.

Those two examples and any rare similar examples others might be able to recall aside, most gaps and overlaps are due to mistakes in measurement or simply differences in measurements made at different times by different people, using different equipment and methods, compounded by careless methods of describing the lands that generally are based on the presumptions 1) that the record dimensions of the parent parcel are true and correct and will be found to be exactly as stated in record by all future surveyors, and 2) that if future surveyors find that the record dimensions are not correct, that they will exercise a modicum of practical sense to determine where the single intended boundary line is on the ground and then report the true dimensions according to their measurements.

When these types of apparent gaps or overlaps are found, it is first a failure on the part of the grantor in making that first assumption and setting up the circumstances where confusion as to the true location of the boundary can occur. If these circumstances result in monuments set and a survey map that shows the existence of a gap or overlap, then that is a failure of the surveyor involved by not living up to the expectations inherent in the 2nd presumption.

eapls2708, post: 353420, member: 589 wrote: another that I believe Jim Frame is somewhat familiar with (Orangevale - ring a bell, Jim?).

It's a painful memory, because I was unable to help the aggrieved owner. She lost the strip in a tax sale years before I got involved, but I was never able to convince her that the deed dimensions comported with the lines on the ground. I spent many hours on the phone, in meetings and in the field, and even though I never billed any of it, to this day I'm pretty sure she feels that I let her down.

Had she understood the import of the tax sale notice, she could have secured good title to the strip for much less time, money and aggravation than she's spent over the years fighting the system, but she simply didn't realize what was at stake.

There's no question she got totally screwed. The strip didn't encompass just a driveway; she has a photo from a 1982 HUD loan application showing a garage (long since removed) on the strip. That garage predated the 1946 division of the 140' parcel.

eapls2708, post: 353420, member: 589 wrote: For the vast majority of apparent gap or overlap problems, Jeff Lucas is correct. However, I have seen one gap situation that the title company and the county essentially coerced the landowner into creating (long story related in some long ago thread), and heard of another that I believe Jim Frame is somewhat familiar with (Orangevale - ring a bell, Jim?).

In the fist one, lands were conveyed according to a section breakdown (1st division of section) by surveyor A. About 15 years later, surveyor B comes along and finds that surveyor A's measurements were made pretty carelessly, so surveyor B redivides the section. Two parcels that were created as a result of A's survey have an established common line per A's survey and continue on that way for another 18 years.

Owner of southerly parcel decides to divide his land and has Surveyor C submit a Parcel Map. Surveyor C shows boundaries per A's survey. Title company insists that because A's survey didn't follow the "true" subdivisional lines as is shown by B's survey, that they won't insure unless C moves the boundary to the line determined by B. County said they wouldn't allow map to file if title company won't insure it.

Landowner tells C to divide only up to B's line just so that he can get map filed, sell the parcels and move on. C shows dark line along B's line, identifies A's line as being the one that was marked by a well-established line of occupation and gets map filed. Assessor get's map, doesn't know what to do with the approximate 55' x 1320' gap, so exercises a little drafting magic and makes it disappear from the Assessor's Parcel Map. The landowner of the 4 new parcels sells them all and bids good riddance to the county, and I think the state. At any rate, he's long gone and making no claim to the sizable gap.

16 years after that, I'm hired to sort the mess out. Landowner to North (son of original grantee) continues to occupy to A's line. W'ly parcel to S is developed and occupies to B's line. My client owns E'ly parcel to S and wants to resolve gap before deciding where to build new home. My client and landowner to N were ready to enter into a boundary line agreement, then landowner to N finds out that because the size of the gap is so substantial, that the Assessor would reassess both properties as a result of BLA. He's still paying taxes on a 1963 assessment that has been raised only by the statutory limit since then (not sure exactly how Prop 13 affected, but his property taxes are way low compared to similar properties), so he backs out. The gap, which because of the Parcel Map of 1991, is now (intentionally) established as a title issue and still exists.

The other one involved a rectangular shaped suburban parcel, 140' wide. N'ly 60' gets sold. There was apparently some confusion having to do with a 10' driveway on the S side of the 60'. Grantor later sells of the S 70', apparently not remembering that he did not include the area with the driveway in the previous conveyance and thinking that he was conveying all of his remaining interest because by the time the problem is discovered by a surveyor, the grantor is long gone.

In this instance, the record is clear. The record width was 140'. The grantor sold the N'ly 60' and later the S'ly 70'. There was no intervening record showing a 130' width, and there has been no use or other indication of continued ownership interest in the 10' strip by the grantor. This one is also a title issue.

Those two examples and any rare similar examples others might be able to recall aside, most gaps and overlaps are due to mistakes in measurement or simply differences in measurements made at different times by different people, using different equipment and methods, compounded by careless methods of describing the lands that generally are based on the presumptions 1) that the record dimensions of the parent parcel are true and correct and will be found to be exactly as stated in record by all future surveyors, and 2) that if future surveyors find that the record dimensions are not correct, that they will exercise a modicum of practical sense to determine where the single intended boundary line is on the ground and then report the true dimensions according to their measurements.

When these types of apparent gaps or overlaps are found, it is first a failure on the part of the grantor in making that first assumption and setting up the circumstances where confusion as to the true location of the boundary can occur. If these circumstances result in monuments set and a survey map that shows the existence of a gap or overlap, then that is a failure of the surveyor involved by not living up to the expectations inherent in the 2nd presumption.

Sounds like the problem started with the title company. The land owners could have resolved this with the land surveyor(s) assistance.

eapls2708, post: 353420, member: 589 wrote: For the vast majority of apparent gap or overlap problems, Jeff Lucas is correct. However, I have seen one gap situation that the title company and the county essentially coerced the landowner into creating (long story related in some long ago thread), and heard of another that I believe Jim Frame is somewhat familiar with (Orangevale - ring a bell, Jim?).

In the fist one, lands were conveyed according to a section breakdown (1st division of section) by surveyor A. About 15 years later, surveyor B comes along and finds that surveyor A's measurements were made pretty carelessly, so surveyor B redivides the section. Two parcels that were created as a result of A's survey have an established common line per A's survey and continue on that way for another 18 years.

Owner of southerly parcel decides to divide his land and has Surveyor C submit a Parcel Map. Surveyor C shows boundaries per A's survey. Title company insists that because A's survey didn't follow the "true" subdivisional lines as is shown by B's survey, that they won't insure unless C moves the boundary to the line determined by B. County said they wouldn't allow map to file if title company won't insure it.

Landowner tells C to divide only up to B's line just so that he can get map filed, sell the parcels and move on. C shows dark line along B's line, identifies A's line as being the one that was marked by a well-established line of occupation and gets map filed. Assessor get's map, doesn't know what to do with the approximate 55' x 1320' gap, so exercises a little drafting magic and makes it disappear from the Assessor's Parcel Map. The landowner of the 4 new parcels sells them all and bids good riddance to the county, and I think the state. At any rate, he's long gone and making no claim to the sizable gap.

16 years after that, I'm hired to sort the mess out. Landowner to North (son of original grantee) continues to occupy to A's line. W'ly parcel to S is developed and occupies to B's line. My client owns E'ly parcel to S and wants to resolve gap before deciding where to build new home. My client and landowner to N were ready to enter into a boundary line agreement, then landowner to N finds out that because the size of the gap is so substantial, that the Assessor would reassess both properties as a result of BLA. He's still paying taxes on a 1963 assessment that has been raised only by the statutory limit since then (not sure exactly how Prop 13 affected, but his property taxes are way low compared to similar properties), so he backs out. The gap, which because of the Parcel Map of 1991, is now (intentionally) established as a title issue and still exists.

The other one involved a rectangular shaped suburban parcel, 140' wide. N'ly 60' gets sold. There was apparently some confusion having to do with a 10' driveway on the S side of the 60'. Grantor later sells of the S 70', apparently not remembering that he did not include the area with the driveway in the previous conveyance and thinking that he was conveying all of his remaining interest because by the time the problem is discovered by a surveyor, the grantor is long gone.

In this instance, the record is clear. The record width was 140'. The grantor sold the N'ly 60' and later the S'ly 70'. There was no intervening record showing a 130' width, and there has been no use or other indication of continued ownership interest in the 10' strip by the grantor. This one is also a title issue.

Those two examples and any rare similar examples others might be able to recall aside, most gaps and overlaps are due to mistakes in measurement or simply differences in measurements made at different times by different people, using different equipment and methods, compounded by careless methods of describing the lands that generally are based on the presumptions 1) that the record dimensions of the parent parcel are true and correct and will be found to be exactly as stated in record by all future surveyors, and 2) that if future surveyors find that the record dimensions are not correct, that they will exercise a modicum of practical sense to determine where the single intended boundary line is on the ground and then report the true dimensions according to their measurements.

When these types of apparent gaps or overlaps are found, it is first a failure on the part of the grantor in making that first assumption and setting up the circumstances where confusion as to the true location of the boundary can occur. If these circumstances result in monuments set and a survey map that shows the existence of a gap or overlap, then that is a failure of the surveyor involved by not living up to the expectations inherent in the 2nd presumption.

In a gap/overlap situation, first task is determine how many parcels? 2 = 1 common boundary. 3 = 2 common boundaries.

In the Parcel Map clumped up fluster you had 2 parcels which through the actions of the Surveyor and Owner was converted to 3. I love when owners like that make their dollars and skip town leaving a mess to be cleaned up years later, nearly impossible sometimes.

In the Frame example, clearly there is 3 parcels although it could be argued that the intent was to sell the remainder parcel, not sure if a Judge would believe it, though.

Generally speaking, in general, the General Rule can be stated in one sentence.

EXCEPT...

[Insert 12 volume Treatise here].

Ric Moore, post: 353449, member: 731 wrote: Sounds like the problem started with the title company. The land owners could have resolved this with the land surveyor(s) assistance.

Once the Assessor "created" the parcel by interpreting the deed dimensions, and the original subdivider failed to pay taxes on it (because he thought he'd sold all his property in the area), the die was cast. That was, as I recall, in the 1960s or 1970s. The 10-foot parcel changed hands a number of times over the decades, each owner buying it at a tax auction, and each eventually concluding that it wasn't worth the taxes and letting it get sold back to the state. The most recent buyer was my erstwhile client's next-door neighbor, and he wanted it to expand his yard. That's when the problem came to the attention of my client. She and her neighbor don't get along, so I concluded that the solution, if any, doesn't have anything to do with surveying.

Pretty similar situation on the job I surveyed. The owners, being the subdivider to the S and the mother of the present owner to the N did not get along at all. According to the son now living on the N'ly parcel, his mom didn't get along with anyone, least of all the neighbor to the S. If it depended on those two cooperating, it wasn't gonna get done.

The frustrations here are that 1) Surveyor B decided he needed to reinvent a better wheel; 2) Title officer had no business determining boundaries; 3) County Surveyor at the time of the subdivision turned out to be Surveyor B; 4) County at the time I was involved decided that they would stick their noses in where they had no right to do so and interpret a BLA as a triggering event for a re-assessment of both properties, thus killing the chances of resolving at least the E'ly portion of this gap; and 5) client's attorney told him there was no need for him to enter into a BLA, so he didn't push back at the County to get them out of a process they had no business being in with the effect of forestalling the solution to a problem they started.