I’m facing a situation where I may choose not to hold some corners with long-standing occupation. I’ve run my thoughts past a few peers, and now I’m opening it up to the forum.
Here’s the context:
I’m working in a quarter section where all four corners are long-standing, documented, and stable. I’ll be surveying a series of farm field parcels—all aliquot parts of the quarter section. Fences divide the parcels. Many corner posts are present, though the wire fencing is mostly down. The posts generally fall within 1 to 1.5 feet of their calculated positions. Trees and brush have grown up around the fence lines, reinforcing what I interpret as apparent acquiescence and long-standing occupation.
After reviewing the transfer history and various subdivisions of the section, I believe the fences were not the basis for subdivision—they were constructed after the splits. They’re old, yes—likely 50 to 75 years—but not 150.
Normally, I’d hold the corner posts based on acquiescence and occupation. This touches the core of boundary retracement versus original survey logic, especially when paired with modern measurement tools.
But in this case, I’m leaning toward not holding these corner posts. And yes, it sticks in my craw. I’ve riled up a few peers with this stance too.
Here’s my reasoning:
These parcels are being purchased for development. The fences, posts, and overgrown field dividers will be removed. Once that happens, the coming residential subdivisions and their lots will likely be tied to the remaining section quarter corners. Functionally, in this instance, there’s no appreciable difference between a calculated aliquot part line and a line drawn from post to post.
Should a surveyor hold existing, long-standing corners to preserve stable property lines? Absolutely. Anyone want to debate that?
But we’re looking at a future where development will leave the section corners as the only controlling monuments. So—is this a case where it’s better to promote future stability by establishing corners based on section corners, rather than holding existing posts?
Is this one of those rare times when it’s okay not to hold a long-standing corner? Thoughts?
They're aliquot descriptions and you have section corner monuments? Seems pretty easy to me. Like they say sometimes a fence is just a fence.
For the sake of discussion though what are these "calculated positions" and how far away are the fence posts from the section corners?
The aliquot parts in this case are the SW Qtr of the NW Qtr, 5 acres off the south side of the NW Qtr of the NW Qtr, 8 acres off the west side of the SE Qtr of the NW Qtr, and 8 acres off the west side of 5 acres off the south side of the NE Qtr of the NW Qtr.
I agree that sometimes a fence is just a fence, but when it (1) runs the entire property line, (2) has been there for 75 years, (3) has substantial corner posts with bracing that are within 1'-1.5' of their theoretical/calculated positions, and is an (4) obvious field division line (farm fields with significant tree growth on the fence line), then it definitely is not just a fence. In most cases, the corner post should be held.
However, in this case for the stated reasons of future stability (and ease?), is it better to view it as just a fence and hold the calculated positions from the Qtr corners? The 4 Qtr section corners will soon be the controlling corners in this rural farm quarter section when the fences and corner posts are gone.
Like you, I see can see this as just a fence. Random thoughts:
1. Retracement principles dictate to hold the corner posts.
2. Will it not be easier to hold the calculated lines and not the fence corners for future retracement?
3. Should my survey be what modernizes the legal description to hold the corner posts?
4. Maybe I should inform my client, educate him, and let him decide what is best. Sounds professional.
5. In contrast to #4, maybe as a land surveyor I should decide what is best for the overall good. Sounds dangerous, but right to me. I think care should be taken in this kind of attitude.
6. The risk of holding the calculated line is "moving" a property line 1'-1.5' which is inconsequential and imperceivable in this environment.
7. I hate seeing a corner post that everybody seems to be using and then a capped rebar 1' away from it. Some will state something like "fence corner found 1' from true position" but I generally say something more like "fence corner found at property corner 1' away from calculated position". In the art of retracement, acquiescence and long-standing occupation should not easily give way to math.
8. Is this an inconsequential matter? Is one as good as the other? Does my obsession make me an anal retentive, type "A" nerd? Don't answer that.
So this development is gonna be the SW of the NW plus adjoining bits of the other quarter quarters? If so and the entire quarter is a bunch of pasture land, or at least near the fences it's pasture, then yeah I'd probably ignore the fences.
I think fences rule when they're the best available evidence. In this case they don't seem to be the best available evidence since you've got 4 section corner monuments.
Playing devil's advocate here - what is your professional responsibility to observe the long-standing occupation? Have not all parties acquiesced to the fence (and therefore corners)? Aren't you just being a slave to the math? You are nothing more than a button pusher! (Hey, I'm teasing and playing devil's advocate here 🙂 )
Have not all parties acquiesced to the fence (and therefore corners)?
Perhaps, but I think that's an argument those landowners need to make, not you. And even if one of them does raise that argument I think it would be for a court to decide anyway. I just think the section corner monuments are the more defensible position when it comes to the boundary, especially if these apparently rural fences are landing within a foot or so of those lines anyway.
You don't have monuments, you have fence posts at intersections of fence lines? One thing I've found after many years of dealing with fences is that they move. Especially the corners. They get pulled by the fences, they get replaced slightly, obviously these were surveyed at some point in the past. Corner posts don't end up within 1-2' of mathmagic positions without some measurement care. I tend to assume a N-W fence corner started it's life to the SE of the present day fence corner location. Without a stone, pipe, rebar, something to fix the location I can't see how moving 1' from the existing post is actually changing the position. Can we assume that you don't have all 8 original section monuments surrounding these interior 1/4&1/16th positions? That is rare even in the big open country I work in.
But too your questions
1. Probably
2. No
3. No. If the deeds say SW4NW4 (Lot 2 or Lot 5?) then there should be no change after your survey, no need to modernize it.
4. Absolutely No! You need to be authoritative with the survey. Leave the chain intact, don't equivocate once you decide.
5. No
6. Maybe. But if the fence corner holds there will be no reason to move from it.
7. No, no, no. On this one it's up to you to find the corner position. Math means little, 1' is right on for an interior corner and let us review again. Do you really have 8 original section corners to "calculate" from? You don't I'd imagine, so what does a calculated position even mean? Don't show it. Determine the 1/16th corner. If you accept an old fence post as monument (probably what I would do) modernize it with a good monument. Rebar and cap is kinda weak there are better ones for a sectional monument. Do not show a "true position" or a calc, or say the post excepted is "off" from a calc this far. If it's the corner it has zero error. It's not off, it's where it is established. I wouldn't even mention that on my plat. Show ties to the next monument, show why you accepted old evidence and anyone can resurvey it easily.
8. 1-1.5 feet is awful close to perfect, it's a matter of accepting clearly established carefully positioned locations. The one thing is are these disturbed from their original location, almost always they move somewhat.
How did they get so close, my first inclination is to locate then remove and dig, dig, dig. Often there is something there.
I may be misunderstanding, but I think that the question here is "how close does a fence have to be to the line to be considered as on the line?" I'm thinking that a field fence might very well have been purposely built a foot or two inside the known boundary. Such a fence might wander this way and that over its course. I know nothing of Indiana case law, but in Oregon, Washington, or Oklahoma cases where the math puts you within a couple feet of an old derelict field fence surrounding large acreages, where you have no overt acts of occupation within that 2 foot strip, I'd be doing my happy dance and staking the math, while considering the fence's location to be supporting evidence.
If I am understanding the post correctly, you have the four original monuments and are struggling over whether to hold them or the location of fence lines that may or may not have been laid out by a surveyor at the beginning of their history.
If I am correct in the above, my gut tells me to hold the monuments, set the calculated corners, locate the fence lines and tie them down to the set corners. Determining possession lines to be ownership lines is a risky call. Holding the fence lines changes acreages for each parcel and shifts title lines. Show the documented lines and the lines of possession as varying from the documented title lines is something that the courts would need to be involved it if the owners have issues with your findings.
I can't see any surveyor disputing a math monument in this situation, or the reverse. Accepting obviously surveyed evidence will stand up in any court. Happy dance either way, for me accepting is the default, the burden is always on the rejector.
I'm not sure of the deed calls you're using to determine that fence posts are considered corners or sub corners of an aliquot part - I suppose that could have some significance. But (and I'm assuming some more here) wouldn't the original survey be lines made or calculated from original PLSS monuments found? If so, "you can't sell what you don't own" seems would hold and that fenceline is outside of the prior owners property. I know an judge may decide differently but I think I may try to defend creating the plat showing "potential encroachment" outside of calculated nearest section corner monumentation (if determined original).
The biggest arguments will center, pardon my pun, when such occupation impacts the "center section corner". Too many button pushers believe there to be one, and only one, true center section corner and that is at the mathamagical solution based on section corner monuments that did not exist at the time of the first determination of the center section corner by the patent holders. This becomes nastier as aliquot parts have clearly been measured out and fences established in like manner to what you have found.
The biggest arguments will center, pardon my pun, when such occupation impacts the "center section corner". Too many button pushers believe there to be one, and only one, true center section corner and that is at the mathamagical solution based on section corner monuments that did not exist at the time of the first determination of the center section corner by the patent holders. This becomes nastier as aliquot parts have clearly been measured out and fences established in like manner to what you have found.
Great point. Not having had any real world interaction with PLSS I can see how that can get squirrely. So what do you do? Show the calculated position or accept and record the nearby post assumption? Which side? Center of post? Ugh. I'm glad I'm not doing that stuff.
That center post may be far (10's of feet) from a perfect mathamagical spot. Some who work in PLSSia have never learned the difference in how the center was to be determined depending on the special instructions to be used in a speific year. "Closeness" is irrelevant.
The quicker. the better, is another term that is meaningless in determining the quality of the work.
I find amusement with the definition of "old" fences. This is due to my own antiquity. I have a quarter-mile long stretch of barb wire fence along one farm that I helped construct in 1964, 61 years ago. To me, that is a new fence. Across the road from that is an old fence that my Granddad built prior to 1930. The 1964 fence was the first ever built on our property using steel fence posts. All of our fences prior to that time used hedge posts for every post, not just corners and braces. A half mile further west I have a quarter of a mile of old fence that is in desperate need of replacement. My Dad purchased that farm about 1965 and he and I have done nothing but add bits and pieces of repairs in those 60 years. Part of that fence still has the orignal sheep fencing wire mesh that was last used for sheep prior to 1950. One post is actually a very tall post that was originally a telephone post left over from the days when the local neighbors put up telephone wire so they could use telephones via that wire to talk with each other. There was no office connected to the Bell System.
I walked into an Antique Store a couple of weeks ago and they wouldn't let me leave.
1. Retracement principles dictate to hold the corner posts.
I'm curious as to what retracement principle indicates you must hold the corner posts?
From your description, I would be of the opinion that there isn't enough information to make a determination yet. The key missing information in my opinion is what did your client and the neighbor tell you about the fence.
In the early part of my career, I made a 'the corner post of the fence is the corner' call based on older descriptions that did not close well and the fence being 'close enough'. I think the deed even called for a king post (locally used to refer to any corner post, not just those of particular build). I set a reference then prepared all the paperwork. Conversation with my client revealed that it was a replacement fence that had been built near the older fence location. Going back out, older fence post holes were still there about a foot away from the new, but barely discernible. Key take away - talk with people before assuming you know the history of the fence.
Syntax matters:
Corner, Monument, Fence post. Don't mix up the nomenclature of boundary elements.
Frankly, it can solve boundary questions if each is defined correctly.
Plus, it will protect the lasting validity of the survey if those terms are used precisely.
Normally I would have held the fence corner posts following principles of practical location, apparent acquiescence, long-standing occupation and Cooley's admonishment from Diehl v. Zanger: "A long-established fence is better evidence of actual boundaries settled by practical location than any survey made after the monuments of the original survey have disappeared". I would have referenced their deviations from the theoretical/mathematical locations as calculated from the four surveyed quarter corners.
As some have stated, I can't see anyone really arguing a new corner set in the ground based on breaking down the quarter section. This is especially true given the small difference. I did my own happy dance.
I did in fact set new corners knowing that the fences and corner posts will soon be gone. In all likelihood, the new capped rebar corners may be taken out with one of the posts. Not my problem now - I met the standard for the current survey. Corners can be reset after construction.
Boundary assessments are typically based on careful consideration of PAST and CURRENT evidence. No surprise. What I was really hoping someone would bite on is the consideration that a boundary could/should be based on FUTURE surveys, needs, designs, development, and considerations. I cannot think of a single doctrine or reference by an authoritative figure specifically addressing this.
Thanks for everybody's 2 cents.
We had a county surveyor years ago that, when asked, would advise a property owner to offset their fence from the property line six inches if in town or on a small lot or six FEET from a property line in the country. I've surveyed farms that had two fences, 12 feet apart, along the property line. That worked out, but what if only one of the farmers built a fence, or if one didn't offset? As stated by others, sometimes a fence is only a fence... Sometimes it's more. The trick is to know the difference.
Me. "What's the difference?"
T.C. Carroll "It's the difference between right and wrong!"