"We are running out the deed."
So is that a retracement survey (boundary established indicated by what physical evidence being retraced)?
Or is that the original survey (line never established and no physical evidence)?
Are you authorized to do anything else except original surveys and retracement surveys (such as run out deeds - put paper on the ground)?
If you are doing the original survey have you been authorized by all the landowners (to run out the deed and establish their boundary between them)?
Running a chain of title back to a common deed is not terribly difficult.
Also you would be surprised how often grandpa is recently deceased or in the nursing home and granddaughter is the current owner or an adjoiner.
I wouldn't expect some "Taken" inspired interrogation in some slimy basement. Just a few casual intelligent questions typically bear much fruit.
> Running a chain of title back to a common deed is not terribly difficult.
A chain of title is entirely different from determining who built a fence more than 54 years ago and what was on their mind at the time.
> I wouldn't expect some "Taken" inspired interrogation in some slimy basement. Just a few casual intelligent questions typically bear much fruit.
It's very, very rare to find such testimony. If you can get it, great.
I will concede the nuanced arguments you are making. I would simply leave it at this...
If you don't ask the question... you won't find the answer.
Basically it's just a waste of time to look into the chain of title or interview the landowners, you got a deed without calls, their is no way the boundary is established. You are not authorized to establish (adjudicate) the boundary, but to get paid you try to do it anyway. You have lots of company in the survey world. And what's more some other surveyors in the future get to do it again, and again, and again until there is no possible way to upgrade the precision of the measurements.
Sounds like the distances in the deed confirm the fence location. You can hold the first direction and distance and be 1.5' off the fence corner, then hold the second direction and have to use a distance that is 19' different from the deed.
Or you can use the first distance and let the direction veer off about 3' and hit the fence corner, and then use the deed distance along the fence at nominal right angle and hit the RR RW within half a foot.
That second scenario is within what I'd expect to find on a rural survey from 1959, and golden if the fence was based on a survey in 1907.
You have the unfiled map matching the fence. You have landowners recognizing the fence. You have Civil Code §2077 that says hold distances over direction lacking evidence that the contrary should be true, and also stating that established boundaries hold over both. Courts have recognized the value of unfiled maps and have used the surveys they depict to control boundaries.
All the evidence and law points to holding the fence in this instance.
Buuuttt... there is currently a bias at BPELSG that is such that they believe unfiled survey records are of no value and you could be found negligent and/or incompetent for re-establishing boundaries based on the info in them. Or, you could show a 1.5' and a 19' discrepancy, create unnecessary conflict between landowners and be just fine with BPELSG, but risk being found negligent in civil court for ignoring pertinent direct evidence of the established boundary.
You get all the fun jobs!
I would presume the fence was built from an existing marked corner to an existing marked corner (wood stakes were not uncommon in 1907) and is therefore an accessory to the original corners. But that's only if it was common practice in that area to fence along the lines rather than off of them for some reason, or with no regard to them for some reason (as in Texas). Then I would look for evidence to rebut or corroborate the presumption. Sounds like all you have found (so far) is corroborating evidence in the form of the 1959 survey. If the fence turns out to be an accessory per the preponderance of the evidence, then the corners are at the ends, but the fence may wander over the line along its length.
This is a simplified version of a real case. I did the survey in 2007 of the boundary to the north of the one I describe in the post. That was part of a lawsuit in which I provided an expert report and my client and his Attorney obtained summary judgment. The whole thing started because my client asked the neighbor to drive slowly down the shared gravel drive to keep the noise down. My client's bedroom window is on the side where the drive is. The neighbor was running a non-conforming equipment business of some type and had a lot of customer traffic.
The neighbor's response was to claim a bunch of my client's land and sue him, lovely people. Angry older woman perpetuating the stereotype.
Client prevailed so they stirred up trouble with the people to the south of my client, mostly the idiot grandson of the nice old lady who owns the triangular parcel. I wrote an expert report under penalty of perjury (Declaration) explaining the boundary and she accepted it so the second lawsuit was dropped. It's not really anything worth fighting over, just weeds in a low area that is soggy in the winter. Neither party has enough property to be splittable under the zoning so there isn't any money to be made.
People sometimes get very irrational about their property. My client's water meter is on the property to the north. He asked me about suing for an easement, I said view it as a business decision, what is cheaper, suing for an easement or move your water meter?
> Basically it's just a waste of time to look into the chain of title ...
This thread is about whether the fence is a monument that controls the deed. Chain of title is a worthwhile effort, but it won't likely reveal who built a fence, and why. But my main issue here is to challenge this "original surveyor" principle which, I think, is a creation of contributors to internet message boards and not a creation of either legislatures or courts.
>...or interview the landowners, ....
If landowners are available to you, and have memories of events surrounding the fence, and agree that the fence is intended to be the boundary -as opposed to just always assuming it was without discussion- then you have a game changer. Dave didn't mention any such testimony and that is not surprising. Any such testimony is rare.
>....you got a deed without calls,...
We have an unambiguous deed with line and distance calls.
>...their is no way the boundary is established...
All the usual ways to establish boundaries are available to these landowners. IMO, these owners have not yet availed themselves of them as ofthe time of Dave's survey
>...You are not authorized to establish (adjudicate) the boundary, but to get paid you try to do it anyway. You have lots of company in the survey world...
If the deed was ambiguous the fence might then be controlling on the basis the "ancient fence" doctrine, the fence in that case being the best measure of the original intent.
>....And what's more some other surveyors in the future get to do it again, and again, and again until there is no possible way to upgrade the precision of the measurements...
When I find actual survey monuments placed within reasonable limits of error I'm very pleased to hold them and do the happy dance. All the more so if it's a recording state, as California is, and I can view a map of the previous surveyor's work.
I'm not sure what you are referring to in this "original survey" argument.
Do you believe that there has never been nor can there ever be an original survey unless its documented from the beginning at parcel creation. If an original documented survey with calls to monuments is always required to establish boundaries then there are millions of parcels without established boundaries. In that case the parcels are in continuous boundary limbo. Even the math staked from the deed you seem to advocate in this case couldn't establish the boundary, it would just be another attempt to be rejected by the next surveyors measurements. This is surveyor's made up rules for convenience not the law.
Regardless of what you think, surveyors never establish boundaries, never. Landowners do that and hopefully based upon the work and help of a surveyor.
The original survey so to speak is the landowners action on the ground. Maybe they had a surveyor that came and marked off what the landowners wanted to convey. Maybe the landowners did the measurements themselves. Maybe all that was done was a few measurements and set some wooden stakes and then a description was written, maybe just bearings and distances without any calls to any markers (the most common description in my area - metes without bounds and I hate them). This was an original survey whether it was recorded or not if the landowners used it and relied upon it and fenced it and occupied it for the next 50 to 100 years. How can you just blow all this off based upon the paper document that doesn't precisely fit what was found on the ground, thus trampling these landowners property rights?
How can you possibly be retracing the original boundary if you are placing markers in the ground at locations with no physical evidence pointing you there. That's not retracing anything, that's trying to do the original survey after the fact, making it up as you go.
If you can't accept the fence here as evidence of some original survey (no record) and the established boundary then I think you would need to go back to the landowners for some agreement to establish the boundary because you have declared the boundary as never established and thus in need of establishment (the landscape from your prospective is a blank slate). Staking the paper deed isn't the proper thing to do unless you do it by agreement of the landowners on both sides of the line as their action to establish this boundary. We are not cutting a new parcel out of one landowner's parcel here creating a completely new line that has never existed. You are working on a line already created in the record. The fundamental question at this stage should be established or not established. If established, which requires a physical manifestation, that's the boundary. If not then there is more than one landowner that needs to be involved in the establishment of the boundary.
I know licensing laws state that surveyors establish boundaries and it is always listed as one of the things that surveyors do. That's a bunch of BS. Yes, surveyors do that work for landowners and from that the landowners establish boundaries. The surveyor is just a landowners tool.
> We have an unambiguous deed with line and distance calls.
Unambiguous?? Really?? It certainly may not be a patent ambiguity, but it sure seems to walk like, quack like, smell like, and look like a latent ambiguity.
> I'm not sure what you are referring to in this "original survey" argument.
I refer to the theory that the first survey performed after a new parcel is created by a deed is an "original survey" whose monuments are to be held as the true corners everafter. Even if the "original surveyor" is the land owner and the monuments are fence posts. You have only to search the term here to find several references within the last week.
> Do you believe that there has never been nor can there ever be an original survey unless its documented from the beginning at parcel creation. If an original documented survey with calls to monuments is always required to establish boundaries then there are millions of parcels without established boundaries. In that case the parcels are in continuous boundary limbo. Even the math staked from the deed you seem to advocate in this case couldn't establish the boundary, it would just be another attempt to be rejected by the next surveyors measurements. This is surveyor's made up rules for convenience not the law.
Monuments that are not called for in the deed do not become controlling simply because they are the first ones set. There are various ways to establish boundaries, but that isn't one of them. In this case we have a fence that is near, but not exactly at, the deed dimensions. We don't even have survey monuments. You seem to be advocating holding any fence you find within spitting distance of deed dimensions as the true and "established" boundary line. This is the discredited Richard Schaut argument, is it not?
> Regardless of what you think, surveyors never establish boundaries, never. Landowners do that and hopefully based upon the work and help of a surveyor.
I agree with you here. They can, for example, get together and agree that the fence is the true boundary line and, presuming they didn't previously know that the deed line was elsewhere, presto, it's a binding boundary line. But a surveyor can't just unilaterally assume that such an agreement has been made because he has found a convenient fence.
> The original survey so to speak is the landowners action on the ground. Maybe they had a surveyor that came and marked off what the landowners wanted to convey. Maybe the landowners did the measurements themselves. Maybe all that was done was a few measurements and set some wooden stakes and then a description was written, maybe just bearings and distances without any calls to any markers (the most common description in my area - metes without bounds and I hate them).
Maybe, maybe, maybe, maybe. Prove that those things happened, then you have a binding boundary line. Until then, you have deed dimensions.
>This was an original survey whether it was recorded or not if the landowners used it and relied upon it and fenced it and occupied it for the next 50 to 100 years. How can you just blow all this off based upon the paper document that doesn't precisely fit what was found on the ground, thus trampling these landowners property rights?
You began your comment by denying knowledge of the "original survey" principle and now you claim it to try to prove your point. People build fences for all sorts of reasons. They aren't always intended to be boundary lines. A surveyor had better have evidence that will stand up in court before he gives or takes land away. The mere presence of a fence in the general vicinity of a fence does not rise to that level. I further point out that to adversely possess this 1.5 foot wide strip the possessor is going to have to perform acts of ownership within the 1.5 feet, not just in the field adjacent to it.
> How can you possibly be retracing the original boundary if you are placing markers in the ground at locations with no physical evidence pointing you there. That's not retracing anything, that's trying to do the original survey after the fact, making it up as you go.
I agree that there are certain disadvantages to the creation of unmonumented parcels, uncertainty of the lines being prime among them. People create parcels in this way to avoid the cost of a survey. When land values rise to the point where they are ready to spend the money a survey can be done and deeds with monument calls exchanged.
> If you can't accept the fence here as evidence of some original survey (no record) and the established boundary then I think you would need to go back to the landowners for some agreement to establish the boundary because you have declared the boundary as never established and thus in need of establishment (the landscape from your prospective is a blank slate).
I can't force people to do the right thing. I'm not here to solve the world's problems.
>Staking the paper deed isn't the proper thing to do unless you do it by agreement of the landowners on both sides of the line as their action to establish this boundary.
What is right for me may not be right for them. I reiterate that just because there is a fence doesn't mean it was ever intended to be the boundary. I admit that it is possible that it is so, but with out proof, I'm not giving away
>We are not cutting a new parcel out of one landowner's parcel here creating a completely new line that has never existed. You are working on a line already created in the record. The fundamental question at this stage should be established or not established. If established, which requires a physical manifestation, that's the boundary. If not then there is more than one landowner that needs to be involved in the establishment of the boundary.
We agree here.
> I know licensing laws state that surveyors establish boundaries and it is always listed as one of the things that surveyors do. That's a bunch of BS. Yes, surveyors do that work for landowners and from that the landowners establish boundaries. The surveyor is just a landowners tool.
Landowners establish boundaries, sometimes by and through the work of surveyors, but not everything they do establishes boundaries.
Let me close by saying that were there is a fence near a boundary and alternate interpretations of the deed dimensions are possible I'm always going to look for a solution that agrees with the fence, if one is there to be had. But I'm not just going to call the fence a boundary.
> Unambiguous?? Really?? It certainly may not be a patent ambiguity, but it sure seems to walk like, quack like, smell like, and look like a latent ambiguity.
Certainly not a patent ambiguity. An argument could be made about latent ambiguity. But IMO a fence that differs from deed dimensions by an amount that may, or may not, be significant does not render the deed ambiguous. So I stand by my statement.
What to do?
> The original deed had a latent discrepancy that is reconciled well enough by letting the call for "at right angles" be "approximately at right angles", which I, while unfamiliar with California practice, would think to be consistent with a deed written in poles and half-poles ...
That is an excellent solution on the basis that it gives weight to all of the distance calls while throwing the "error" into the bearings, which may have been only guessed at by the writers of the deed. The fact that it would follow the fence more closely is gravy.
I don't advocate that every fence is a boundary line, not at all.
But look at Dave's statement in the opening post:
"The neighbors have occupied up to this fence since at least 1959 and probably before. 1959 is significant because there is an unrecorded Survey Plat which shows a heavy line in the position of the fence. The Surveyor did a lot of surveys in the area and the County Surveyor recently obtained his files (he is deceased)."
That meets the Doctrine of Repose. It meets several periods of acquiescence. There is a survey in hand that shows the fence location of the boundary from 1959. From my view the boundary has been established. Is a variance with the math in the description going to wipe this history off the books? I would need to overcome and disprove these facts before I'd kick this boundary to the curb. It might could be done and maybe in California it would. I don't think it would make it past summary judgment in Utah, but if they got a dumb enough attorney to push a bad survey through an incompetent judge and naive jury it might.
Most of the unambiguous metes without bounds paper I deal with shows latent ambiguity as soon as you try to fit it onto the landscape. The paper fiction just doesn't fit, it never has.
Just today I sort of got into it with a landowner when I told him there is only 366 feet along his frontage. He got quite belligerent, says there is 386 feet in the description. I asked him which house he was going to take it back from the west side or the east side, wrong question! Says he has title insurance (big surprise coming forth here). His deed has more or less in the distance calls of almost every side (including the frontage 386 feet)! My client the buyer wants the cut out surveyed and the seller sees no need, just cook up the description from the record, the title company will do it for free as part of the title insurance premium. Of course I'm fighting the no respect factor around here, surveyors are hated, mostly from decades of paper deed staking, missing just about every established boundary in the valley.
In this case we have a fence that is near, but not exactly at, the deed dimensions.
But the corner is exactly at the deed dimension. If you are going to follow in the footsteps of the original surveyor, you need to not only follow in his footsteps, but understand his methods and practices of 1907 and the requirements of 1907. If today we send out a first year surveying class from the nearest university and give them the task of measuring from the point of beginning along the section line to the ancient fence corner and reporting the distance to us in poles and half poles what will they report?
That's right- the exact distance called for in the deed. It will be a good first lesson for them about the pitfalls of becoming a deed staker. A court is unlikely to be interested in the number of feet, tenths of feet, and hundredths of feet to the fence corner. The word "foot" is not in the original description and therefore it is not called for. It is not acceptable practice to infer an uncalled-for unit of measurement and precision into a deed description and then reject anything that does not fit.
Was the original survey in feet, tenths, and hundredths and then converted into poles for the description?
Of course it was not and I am not really happy to have to point that out.
But the fence corner exists today at exactly the called for deed distance. That fact has to be accepted before going west, with or without the fence.
Latent Ambiguities
What is a latent ambiguity?
"[A]n uncertainty which does not appear on the face of the instrument, but which is shown to exist for the first time by matter outside the writing when an attempt is made to apply the language to the ground" is known as a "latent ambiguity." 23 AM.JUR.2D Deeds § 262 (2007). As a rule, parol evidence is admissible in such a case."
"Moreover, evidence is admissible only to explain a latent ambiguity in a deed. A latent ambiguity is one which does not appear upon the face of the words used, and it is not known to exist until the words are considered in light of the collateral facts. Thornhill Baptist Church v. Smither, 273 S.W.2d 560, 562 (Ky. 1954) (citing Carroll v. Cave Hill Cemetery Co., 172 Ky. 204, 189 S.W. 186, 190 (1916))."
"A latent ambiguity occurs when the deed or other instrument appears sufficiently certain, free from ambiguity, but the ambiguity is produced by something extrinsic, or some collateral matter out of the instrument. Where a description is apparently clear and complete, yet when it is applied to the land it appears that the words are applicable to different things, and there is nothing in the deed to show which is meant, * * *." 6 Thompson on Real Property 460, § 3283.
A latent ambiguity is "an uncertainty which does not appear on the face of the instrument, but which is shown to exist for the first time by matter outside the writing when an attempt is made to apply the language to the ground." 23 AM.JUR.2D § 314 Deeds (1983). Extrinsic evidence may be admitted to reveal a latent ambiguity in an otherwise clear and unambiguous deed.[2] Taylor, 541 A.2d at 157.
"The court's specific reliance on Knowles v. Toothaker, 58 Me. 172 (1870), is appropriate. The Knowles Court declared the rule of law to be: when, in a deed or grant, a line is described as running from a given point, and this line is afterwards run out and located, and marked on the face of the earth by the parties in interest, and is afterwards recognized and acted on as the true line, the line thus actually marked out and acted on is conclusive, and must be adhered to, though it may be subsequently ascertained that it varies from the course given in the deed or grant." Slipp v Stover, 651 A.2d 824 (1994)
I especially like the last quote as it directly applies to the right of way monument discussions of late.