Estoppel
> That would depend on if the neighbor to the north expressed to the south neighbor that the fence represented the property line. If so, and the south neighbor relied upon that information, then the neighbor to the north would (or should) be estopped from claiming the triangle shaped strip.
There is more to expression than North's verbal representation. In the context of estoppel, the expression can be active or passive. North did make an active representation when he constructed the fence that gave the appearance of following the boundary. It extends from a known corner to a presumed corner (the fence has no appearance of a randomly placed fence of convenience. North allowed the neighbor to construct improvements to the fence. North allowed those improvements to remain for xx years. North has made no assertive effort to prevent South from relying upon the representations made.
Of course, the only way for this evidence to be discovered is by the surveyor who discovers the situation. It's up to the surveyor to ask the necessary questions, gather the necessary evidence and to determine the location of the boundary. It's highly likely that the fence follows the boundary.
What really bends the surveyor's (the planner's, the title officer's) brain is that the doctrine of estoppel doesn't convey title, it simply establishes the location of the existing boundary between North and South. That boundary being established is the lot line (presuming we're in a subdivision). Wha...????
JBS
> > :good: that top photo's lot lines are ridiculous, surprised it passed agency review.
>
> I've seen them like this far more often than not. Planners & engineers have been designing lot layouts to meet minimum lot sizes in order to maximize the number of buildable (sellable) lots for several decades now. If you do work in suburbia, this is what you find. Rural, larger lots tend to be designed with more attention to making common corners.
>
>
>
> As for setting PCs and PTs at the RW, as mentioned in a post below, many agencies require them in new subdivisions. [sarcasm]If you think it's an unnecessary PITA, look at the bright side... think of all the fixit work they can generate when some bonehead builds a fence without having a surveyor show him his corner monuments.[/sarcasm]
Worse, if some "surveyor" messes it up and then they build by it. Gives me the chivers!!!
Estoppel
> There is more to expression than North's verbal representation. In the context of estoppel, the expression can be active or passive. North did make an active representation when he constructed the fence that gave the appearance of following the boundary. It extends from a known corner to a presumed corner (the fence has no appearance of a randomly placed fence of convenience. North allowed the neighbor to construct improvements to the fence. North allowed those improvements to remain for xx years. North has made no assertive effort to prevent South from relying upon the representations made.
JB,
Concerning the principle of estoppel and time, as in "allowed those improvements to remain for xx years." Does xx years normally correspond to the number of years required for prescription or adverse possession? Or is it similar to an act of acquiescence? Once the neighbors occupy up to a line, no matter how long it has been, that line is the boundary.
What kind of time period (or is there one) would the north neighbor in this case have to claim the triangle shaped piece?
Estoppel
Nevermind. I found a case concerning a similar situation.
A bank purchased a tract of land. One of the neighbors sat on his front porch everyday and watched the bank build on the land adjoining his, all the while allowing them to build a portion of the building over on his land. Once construction was completed, he filed suit to have them remove the encroaching portion. The court ruled that the neighbor was estopped from claiming that part of his lot.
Apparently, it doesn't take long.
Estoppel
> What really bends the surveyor's (the planner's, the title officer's) brain is that the doctrine of estoppel doesn't convey title, it simply establishes the location of the existing boundary between North and South. That boundary being established is the lot line (presuming we're in a subdivision). Wha...????
>
> JBS
I have been thinking about this and discussing this with a couple of other surveyors here at work. The question seems to be whether to show the original line between those 2 lots.
IMO, by showing the original line and showing the boundary as running from the front corner to the back presumed corner, you (the surveyor) are saying that title to that strip of land has passed. Am I wrong? Would the surveyor's best option be just to show the boundary and state that is the line between the 2 lots, leaving the original line off the plat?
The other question is, would the surveyor be negligent by not showing the original line between the lots?
Do you happen to know how I could find that court case? Thanks, Charlie
Estoppel
I say show the original line...Let the court decide the intent.
Estoppel
By showing the original line and also showing the boundary line, isn't the surveyor saying that title to the strip has passed? Is that not a question of law?
By just showing the boundary line, and saying that it is the boundary between the 2 lots, the surveyor is just locating a boundary line, reporting the facts.
Estoppel
I am not sure about what is being discussed here. I think we are comparing an apple and an orange. Estoppel has a lot to do with intention! The neighbor on the porch purposely acted in a deceiving manner in order to try and gain an advantage over his neighbor. It sounds as though the neighbor to the north acted in good faith, although he was wrong, that the property line was where he said it was. It wasn't, but there must be another principle of law applies, cuz I don't think estoppel is applied in this case. I could be dead wrong too, I am not a lawyer!
Estoppel
I'm confused...Assuming we are talking about the example in the OP..
Isn't the original line and the boundary line the same thing?
I would show the yellow line.
Acquiesence
I would presume that if the north neighbor put that fence in it's place that the south neighbor just might have a case to claim title based on acquiesence. They both 'agreed' that that is where the line is, although not the original intent, it was agreed through action that the fence is the property line. If there was a good bit of time lapsed or if the neighbors agreed that that could be the line, then the south neighbor would own to the fence. If not, then it would fall on the north neighbor to prove his case of 'encroachment?' even though he 'established' the property line. Interesting discussion.
Estoppel
not if the red line had an errected fence and was generally accepted as a boundary line by both parties. By his actions the north neighbor in a way relinquishes ownership to the triangle piece.
Estoppel
The case I mentioned with the guy on the porch was not to compare acts, it was to determine if there was a time component to the principle of estoppel. It clearly shows that the acts of the 2 parties, not any certain period of time, are what matters.
The question is: what does the surveyor do with this information? Let's say that the surveyor asks all the right questions, weighs all the evidence and determines that the boundary line is between the front recovered corner and the rear presumed corner, along the fence. Let's also say that those 2 lots are lot #5 and lot #6 in a subdivision.
Does the surveyor show that boundary as the line between lots 5 and 6? Or does he show the boundary line and also the original line between lots 5 and 6?
Estoppel
I would show both. Absolutely. I would show the fence as the possession line and the original lot line as the intended line maybe, either way I would show both for sure. Neither can be ignored.
Estoppel
But, by showing both, aren't you saying that title to the strip has passed?
Doesn't lot #5 owner still own lot #5? Doesn't lot #6 owner still own lot #6?
The boundary between the lots is what you have determined.
Estoppel
When I took a business law class in college, I remember my professor talking about a similar example of estopple. In his case, the nice old man sits on the porch and waves to the lawn guys as the mow his lawn every week for a month ... then when they ask for payment, he informs them they are at the wrong house.
I don't think it ever went to appeals court. In fact, they might have settled at the last minute, giving back enough land to make the lot legal, and some cash.
Here is a crop of the survey that "settled" the case. The most westerly dotted line is the plat line, and the dash-dot-dot line is the settlement line. You can see the fenceline that runs to the wrong monunment. I tried to find the other surveys that were passed around, but I can't at the moment. If I find them, I'll post them.
Estoppel
> But, by showing both, aren't you saying that title to the strip has passed?
>
> Doesn't lot #5 owner still own lot #5? Doesn't lot #6 owner still own lot #6?
>
> The boundary between the lots is what you have determined.
That's right on, David. Estopple, acquiescence, and agreement area all doctrines which simply establish the location of the existing boundary. They don't create a new one and there is no passage of title between the parties.
There is one boundary between the two owners; i.e. the lot line. The surveyor gathers the evidence and determines the boundary. The (one) boundary should be shown with the record/meas dimensions.
JBS
Setting a monument with a cap big enough to indicate what corner it is reduces confusion dramaticly. A 2" cap on rebar or 2.5"-3.25" cap on a pipe is perfect.
Estoppel
So by reasoning that they both get what the plat says, aren't you holding whats on paper as opposed to what is on the ground? Page 359 of "Evidence and Procedure for boundary location" fifth edition, Robillard states "too many surveyors attempt to solve problems by attempting to give legal advice. The responsibility of the surveyor is to survey the description and then to report the findings as to the POSSESSION that are in conflict with the line described to the client or to the client's attorney, and no to give legal advice." I interpret that as we survey everything and show what we find. If that some denotes title then so be it. The fact of the matter is the fence is a POSSESSION LINE, and as such should be shown on the plat with a note stating age of the fence and agreement between parties, even if agreement is unwritten and implied, of the fence. That is just my take on it. Is title conveyed through a plat where you note the possession line? Maybe, but it was there, held by both parties and assumed correct by both parties. I would show what I found and let them settle the differences through lawyers.