A recent case where a boundary dispute was brought before the Ohio courts should show anyone who still asks that question that it should not even be a consideration. Reading through this case, the issue of differences in bearings or distances doesn't even get a mention. The disputed area is a portion of a tract of land that looks to measure approximately 300' x 1100'.
"We note the trial court observed...that the survey conducted by Mr. Slay was accurate. We do not agree with this conclusion."
I'm not sure I am reading your conclusion as you intend, but what you say is taking parts of paragraph 30 out of context. Paragraph 30 has nothing to do with the accuracy of the survey or the amount of error, only that the Supreme Court disagreed with the way the trial court connected the dots.
Q: How far is too far?
A: 6.7 feet 😉
Having noted that the 1809 deed called for a line running 72 perches (which equates to 1,188 feet) from stone to stone but being unable to locate the second stone, he determined that the easterly portion of the Jay/Griffith tract was the center of Silver Lane, using the lane as a monument. The distance was thereby extended an additional 6.7 feet to 1,194.78 feet....
In ruling that the 1809 deed had priority over all subsequent deeds, including the Jay & Silver railroad deeds of 1883 that had recognized the boundary line to be the center of the lane, the trial judge found:
The 1809 deed clearly calls for a 72 perch line. Since the second stone cannot be found, the next strongest measurement for a surveyor to use is the distance line. As a result, it is almost irrelevant whether or not the second stone can be found or for that matter, when the road first appeared, because 72 perches equals 1,188 feet. Therefore, the Plaintiff's easterly boundary line ends on the west side of the farm lane.
http://www.courts.state.md.us/opinions/cosa/1995/1458s94.pdf
That is the point exactly. It has nothing to do with the accuracy (in terms of measurement) of the survey. It is the fact that the surveyor ignored the rule of law that told him that the fence represented the established boundary and proceeded to stake the deed distances and send these landowners into a costly legal battle.
I think you are still misreading what the court said. All they are saying is that the logic of the trial court in concluding that since adverse possession was argued by appellants they admit appellees hold title was a flawed conclusion.
It has nothing to do with the surveyor or his conclusions.
:good:
Not really. The court granted summary judgement denying the acquiesence claim. They sent it back to the trial court only for further proceedings on adverse possession claim.
The issue was whether by claiming adverse possession, the party claiming it agrees the surveyed line is the true line. The court says no.
Both of these theories are typically claimed in a court battle and what this shows is that one needs to respond to both. There was no offer of evidence from the opposing party on the acquiesence claim, therefore there is nothing to argue about on that count and summary judgement is appropriate.
The survey has not been brought into question by any alternate opinion by another surveyor. This is a fatal mistake that many attorneys fall into because they think they can determine the line by means other than a survey. If they had retained a second opinion and if that showed a different result, then it would be possible to make a better argument.
As a result, it is almost irrelevant whether or not the second stone can be found or for that matter, when the road first appeared, because 72 perches equals 1,188 feet. Therefore, the Plaintiff's easterly boundary line ends on the west side of the farm lane.
So does it mean to say that if one end of the line could not be found then the surveyor should set the corner based on the 1,188' distance? Even if this falls outside of accepted boundary limits?
You've got that right. One case I'm looking at (no appeal) the plaintiff did a lot criticizing but didn't get their own opinion so what's a Judge to do?
Find the survey is accurate, of course, and the plaintiff can't understand why they lost, must be a big conspiracy by the world against them.
Yes. Unless a chain of evidence could be established that links the accepted physical boundary to the original monument, thereby making it an accessory to the original; or one could prove the physical boundary was the true boundary by acquiesence. The road was not a monument in this case because it was not called for. There does seem to be a hint that the legislation mentioned might eliminate the need for the road to be a monument or called for in more recent descriptions in order to interpret intent to the centerline.
In this case the preponderance of evidence was against the centerline of the road having been laid out on the line. One RR document showed it centerline but others did not, and neither of the adjoining parties documents indicated the centerline of the lane was the line.
Acquiesence was not argued, but probably would have failed if it were.
Best evidence is then the distance call, which was supported by the adjoiner documents and some of the RR documents.
My point with bringing this up wasn't to argue either adverse possession or acquiescence. It was just to show the point that differences in measurements were not a consideration in determining what the boundary is. What the boundary is, is determined by applying the appropriate rule of law.
I agree with you David. Written or unwritten we need to look at everything. Thats why we make the big bucks. Any body who can drag a tape and turn angles can lay deed dimensions out.
[sarcasm]Causes a gap or gore, well you better call a lawyer because theres no way I can figure it out.[/sarcasm]
> Acquiesence was not argued, but probably would have failed if it were.
My experience and that of our local dean of real estate attorneys (who's also a land surveyor/survey law instructor/and author of books on Maryland boundary case law) is that there is NO reported court of appeals decision in the history of the state where acquiescence on its own was successfully argued in a boundary case.
Excellent explanation.
:good:
That is interesting. I'm not too surprised, but am a little if it's true. Seems there would be some case very early on at least.
What I've noticed is that, very generally speaking, acquiesence is more favored in wide open and less populated areas that are largely agricultural in nature. These areas have large holdings to make them of any value for their purpose, and the physical structures are very visible. Would not make a lot of sense to encourage people to sue over minor differences. Maryland was populated relatively densely and early, it's not a very large state so minor differences could have been valuable early on, so I would expect less favor to acquiesed lines.
I agree with your point. I'm just can't find it in the case you posted. It may well be that the one survey provided is held as an accurate depiction of the line in this case. The court sent it back to trial for fact issues only on adverse possession. So, if AP fails, then the survey is it. The court does not tell us what the survey was based on though. Maybe it was a deed plot, staked without reference to much available evidence, or maybe not. Or maybe I read it wrong.