Landowner Finds Wrong Corner

Estoppel

I have always gone by the assumption here that by "Unknown", they meant that there are problems with the descriptions that do not allow for their clear determining. I will have to take a look at the legislative record here and see what was discussed.

Estoppel

From the Bahr vs Imus Utah 2011

An oral agreement "between adjoining owners as to the location of a boundary line" does not violate the statute of frauds, "provided the agreement is followed by actual . . . possession by each of the owners up to the line so agreed upon, and provided further, that the proper location of the line is uncertain or in dispute." Id. (internal quotation marks omitted). "If the location of the true boundary is not known to the adjoining owners, a parol agreement between them fixing its location is not regarded as transferring an interest in land but merely determining the location of existing estates."[9] Brown, 232 P.2d at 207. This exception to the statute of frauds has "long been recognized" by the courts of this state, Hummel, 265 P.2d at 411, and we reaffirm it here.

Notice the words if the location of the true boundary is not known to the adjoining owners. I've had plenty of experience finding monumented parcels per the record where the location of the true boundary is not known to the adjoining owners. It only goes downhill from there with the many parcels where even an honest surveyor can't retrace the boundary (true boundary not known to anyone).

So these boundaries can be established and under the right conditions there is no transfer of title.

Yeah, and Utah has the same problems with many regulators and others that believe every boundary agreement must be a boundary adjustment and require a big process and cross quit claim deeds to avoid the feared unwritten transfer of title that must happen in their minds. That's what gets me on the soap box. Our records are so full up gaps and overlaps its a miracle you can even drive between towns with out getting swallowed up!

Estoppel

To summarize, to successfully invoke the doctrine of boundary by estoppel, a party must demonstrate: (1) that the record title owner or her predecessor in interest made an affirmative misstatement that a given line was the true boundary between the neighbors' properties, (2) that the innocent party took affirmative action in reasonable reliance on this misstatement, and (3) because of this affirmative action the innocent party would suffer sufficiently substantial injury that it would now be unfair or unreasonable to enforce the record title boundary.

Not much to argue with there and I assume most states don't vary much from that. After sleeping on it which often helps I wish I hadn't mentioned this as a title problem. Mr. South has title to an entire lot and Mr, North has title to an entire lot. So where is the lot? It's either where it was originally laid out or it isn't. As surveyor's we were taught the we can stand on an original undisturbed monument and our survey can never be called into question. If unwritten right doctrines can be proven that simply is not the case. Food for thought.

Have a good day out there.

PS
when you frame this discussion with the apportionment thread its evident why there are pin farms. We need to ask ourselves a serious question as a profession. Are we retracing the footsteps of the original plan or the footsteps of the existing legal boundary?

PSPS
So you've identified conditions of estoppel, now what? Leave the situation open for future confusion or document the agreement? Is this the place for a boundary adjustment or an agreement? Either/or?

Estoppel

> I think a lot of us use the term Boundary as synonymous with the title line.
That's because, by definition, the "Boundary" is the "title line." Determining the location of the Boundary is the role of the surveyor. Yet, many surveyors are confused because they fail to understand the simple definitions of Boundary and Title. It isn't necessary for surveyors to define the words; we must learn the definitions that have been defined by the courts.
>“Boundary – Every separation, natural or artificial, which marks the confines or line of division of two contiguous estates. (Bouvier & Rawle, 1914, p. 384)

>“Boundary – A line or object indicating the limit or furthest extent of a tract of land or territory. A separating or dividing line between countries, states, districts of territory, or tracts of land; consisting sometimes wholly of one or more natural objects, as a river, a chain of lakes, etc.; sometimes artificial erections, as a stone wall, fence, and the like; sometimes of imaginary line drawn from one principal terminus to another, and indicated along its course by prominent natural or artificial objects standing or erected upon it at intervals; and sometimes of all these in combination.” (Burrill, 1870, p. 221)

>Bouvier explained that “complete title” is comprised of three parts: 1) mere possession or actual occupation of the estate, without any apparent right, 2) the right of possession, which may reside in one man, while the actual possession is not in himself; he may have an apparent right of possession which may be defeated, or an actual right of possession which will stand any test, and 3) the right of property without either possession or the right of possession. Bouvier described the unity of the three parts as “perfect title” (2 Bouv. 567, 1843).
The evidence the surveyor must gather and consider in order to determine the boundary location includes evidence of "actual possession," the occupant's "right of possession," and the "right of property."

When we speak of the "title line" (which really doesn't exist) we're really referring to the written evidence contained in the deed (and the chain of title). That's not a "title line;" it's written evidence of the "right of property." The written evidence isn't proof; it's evidence. We resolve conflicts in the written evidence by applying the rules of construction which are legal principles laid down by the courts for resolving ambiguities.

When we speak of the "possession line" (which really doesn't exist either), we're really referring to the physical evidence of occupation which may or may not provide the best available evidence of the boundary. What we're really gathering is evidence of "actual possession" which is another element of proving the extent of the title. When we gather evidence of occupation, we are gathering the evidence of boundary location.

When we discover issues of "overlapping title lines" or conflicts between "title lines" and "possession lines," we are looking for resolution of the "apparent right" with the "actual right" of possession.

>Maybe it would be better to refer to it as a possessory or possession line. Otherwise the term Boundary Line Adjustment (BLA), which is defined and used in all manner of statutes, seems to become obscured. That is, if the purpose of the BLA is to adjust the line from it's title/deed position to the existing and excepted fence line, but we say the fence is the boundary, then we are not really adjusting the boundary, just the deed line. But then again, maybe it is all really bass-ackwards to begin with!;-)

There is clearly a distinction made by the courts (and some statutes) between the processes which establish a boundary location and the processes to create a boundary. Boundary creation requires a written transaction between the adjoining owners to convey title (statute of frauds). Every boundary must be created by written instrument. Boundary Adjustments create new boundaries through the conveyance of title from one party to their neighbor, thereby making the former boundary obsolete.

Boundary Agreements (written, oral, implied, estoppel) do not convey title. They are based upon the principles of establishment. Without this separate body of laws it would be impossible to know where the position of a created boundary was established on the ground. Every boundary we survey, in fact the very role of the surveyor, has been established under one of these rules of law which resolves the question of "where" the boundary is established.

If the boundary is found to have been established on the ground in accordance with the possession, then it's the boundary. If the boundary is established in accordance with found original, undisturbed monuments which are imbued with the landowners' intent to define the boundary, then it's the boundary. If the boundary is established through the actions of the landowners giving rise to an implication of an agreement over 20 years of repose, then it's a boundary. If the boundary is established though evidence of representation, reliance, and substantial costs incurred, fulfilling the requirements of estoppel, then it's the boundary. If the boundary is established through mutual agreement between the adjoining landowners because of an uncertainty or dispute, then it's the boundary.

The surveyor's duty is to determine the location of boundaries. That means finding out where the boundary has been established using the best available evidence coupled with the appropriate rule of law under which it was established. When the written, occupation, or prior survey evidence is found in conflict with the established location, then the evidence should be clarified by documenting the resolution found by the owners. Sometimes the appropriate documentation will include a written Boundary Agreement. Most often, the appropriate document is a survey which portrays the evidence recovered, the conflicts resolved and the location of the boundary as determined by the surveyor. Depicting the location by record and measured dimensions and by indicating bold lines on the drawing will express the surveyor's opinion.

Don't, however, show lines which don't exist under the law.

JBS

Estoppel

Yeah it doesn't end with the surveyor correctly locating the established boundaries and the landowners being peaceful neighbors. That's when the ignorant outside forces come into play such as:

The property is sold and the title company decides it won't insure because the GIS map which might actually depict the plan lines quite accurately shows the occupation and the boundary in different places. Lender goes south in the deal.

A permit won't be issued to build because the setback from the plan line is further from the established line (which the official won't recognize at all) isn't right.

A subdivision plan won't be approved because the same GIS map shows there is boundary problems and we want it cleaned up by boundary adjustments (to convey what is already owned).

I'm sure we can all think of many other things whereby the difference from the plan and the established boundary will cause reg flags to others that need to approve some permit and such and don't understand or accept the law.

Trying to work out and address these issues is on my list for some planned legislation I have a goal to get introduced in the next several years. My contribution to the world before I go.

How's the little deed anyway? He learning how to read his readers? Get him a book about ridge lines to study there in the corn patch. We been at this long time haven't we?

Estoppel

> We have several boundary location doctrines that don't change title. These seem to have a common thread of uncertainty that has been settled by actions of owners.
The only doctrine which has the thread of "uncertainty" or "dispute" is the doctrine of oral agreement. It requires that the owners must be uncertain or in dispute regarding the boundary location because, if they know where the boundary is truly located, they must convey title by writing in order to adjust the boundary to a different location.

>We are also told adverse possession is a title problem, not a location problem.
Yes. AP was designed to resolve ownership (title) problems which arise from breaks in the chain of title, missing heirs, lost deeds, etc. AP is an element (actual possession) which can provide evidence which will resolve a question of ownership when the possession has fulfilled the statutory requirements.

>Why has the location of the original undisturbed marked boundary become such an uncertainty?
Because the landowner, in this case, was uncertain, thought they knew where the line was, but was mistaken.
>What made it uncertain?
They could have done a number of things (preferred being hiring a surveyor) to have properly determined their boundary location; but, they didn't.
>A mistake?
Yep.
>Why would the issue not be that Mr. South is adversely in possession of a part of Mr. North's lot making it a title problem?
Because there is no problem with the "title." Both owners have a complete chain of title proving their ownership. There is no question that they are adjoining neighbors and that there is a boundary between them. The only question is where the boundary is located. As surveyors, we could easily determine where the dimensions on the plat would locate it. That's not such an easy proposition for the owners.
>At what point are the owners not obligated to acquiesce in location of the original marked boundary?
Nothing in the law prevents the owners from making a mistake or "obligating" them to live in accordance with others' expectations. They are responsible for their own property and, when they fail to take that responsibility seriously, they end up establishing their boundary improperly. The law doesn't prevent that from happening. Good stewardship does. The law prevents them from saying, "Oops, I screwed up. Would you please move your patio so I can fix my mistake?" That's the doctrine of estoppel.
>Does an inch of dirt over the mark nullify the obligation?
There is no "obligation." And, an inch of dirt is irrelevant when it comes to the laws designed to recognize the establishment of a boundary.

JBS

JBS

Thanks for taking the time to explain things the way you see them. After 100 times it may start to sink in. In this particular situation would you complete the survey without a written agreement? Or would you say the implication covers it?

RL

He's reading second grade books in K. Deeds aren't his favorite yet. It certainly has been a learning experience over the years. I was trained from the beginning to recognize evidence in the field and I feel I'm decent at evaluating it and identifying the legal line. It's funny, when I became licensed at had this profession by the balls. Now it has me. I still struggle with the thought that owners are protected for not knowing or maybe caring where their monuments are and doing something else and then we come along and help them perpetuate it.

RL

Quite the journey indeed! Still hope we meet someday!

Thanks...I'd love to see them if you find them.

JBS

>In this particular situation would you complete the survey without a written agreement? Or would you say the implication covers it?

The solution could be handled in a couple of different ways, depending upon the relationship between the neighbors and the depth of their pocketbook.

I'll begin by presuming that the surveyor has contacted the neighbor and gathered the evidence that the fence line was constructed by them, when, and in reliance upon what. Also, that they were aware of the other neighbor's improvements construction, and when. Also, whether or not they've spoken and the context of their conversation. And, whether or not they're aware of any surveys being performed.

One thing I won't ask them is where they think the boundary is. That's my job to determine. They're not surveyors and they have no license to make that determination. Based upon the presumption that the evidence was gathered and that, in my professional opinion, the boundary is located along the fence line because the evidence gathered supports the application of the principle of estoppel:

It could be as simple as documenting the boundaries on the survey, depicting the location and extent of all the improvements, showing the heavy line along the fence (but indicating no "other" line such as the "plat line" or "lot line") and reciting the measured and record values of the boundaries (and record/measured areas) of both lots. In the survey narrative, I should recite a summary of the conversations undertaken (who, what, where and when), the physical evidence of occupation, the sequence of events, and possibly the cost of the improvements. This could all be documented on the survey by the surveyor as evidence considered in the boundary determination.

I might be more comfortable, given the parties and the situation, having the owners sign the map recognizing they've both seen the map and confirm the statements. I might be even more comfortable if the owners would file either joint or separate Owner's Affidavits, making their own statements of the events leading to the establishment of the boundary. Then I could reference the owners' affidavits in my narrative.

If either one of the owners expresses any hesitation or begins to posture themselves in an adversarial position (hiring lawyers and such), that's when I STOP the survey. I'm not about to inject my opinion of the boundary and attempt to impose my opinion. I don't have that authority as a surveyor. I will not complete the survey until the matter is resolved to the satisfaction of both landowners and, more importantly, to my satisfaction. I'm not going to finish the survey until the owners have made the documentation sufficient for my comfort.

If they proceed to resolution, then I'll take off my surveyor hat and make myself available for consultation. I will assist the owners or the attorneys to further understand the evidence, the principles of law, and the situation at hand. I will help to inform them of the facts so they can make intelligent decisions based upon good information. I will assist them to gather additional evidence if necessary.

If they desire, I can take off my consultant hat and put on my mediator's hat. By mutual consent, I will assist them is arriving at a negotiated solution to their common problem. I don't care what their solution is or how they achieve resolution, or whether I agree with their solution, as a mediator I only care that they arrive at a solution. As a mediator with an expertise in surveying, I can assist them by providing information as to the final documentation of their solution which will provide a good-better-best scenario.

If they cannot achieve a mutual agreement and insist on litigating the issue, then I'll put on my expert witness hat, raise my hourly fee, and provide them with expert testimony which will assist the trier of fact (the jury or judge) to understand the evidence and to understand how a surveyor properly applies the rules of law to make determinations of boundary locations. I'll testify specifically how the evidence leads me to formulate my opinion as to the boundary location.

Once the gavel has been struck or the agreement has been documented or the affidavits prepared, or the narrative written and reviewed, I'll RESUME the survey, finalize the document, and file it in the public repository so the location of the boundary will be perpetuated and so the next surveyor can be comfortable in retracing my footsteps and can replace the boundary in the same position it was formerly established.

Different jurisdictions have different (or non-existent) survey filing requirements which would lead me to different methods for documenting the boundary location. So, your results may vary.

JBS

Similar Case...

A similar case... I run into these frequently. This one was first caused by the original surveyor staking the preliminary plat instead of the final plat corners. Landowners relied on the corners to build their houses and discover by a later survey that the original corners were "wrong" and proceeded to "correct" them. The result of the "correction" being forced on the owners was a lawsuit which, after nearly three years of attorney fees, went to mediation.

Following a 9-hour mediation, the settlement agreement included an exchange of quitclaim deeds with equal area exchange so as to not change the overall area of the lots, which the original surveyor agreed to prepare (along with an agreement to pay all attorney fees incurred by both parties).

Two years later, I get a call from a person who proceeds to tell me that they have a boundary problem but can't tell me about it because of an agreement that prevented her from disclosing the settlement. It didn't take too many questions to determine that it was the neighbor calling because they hired a surveyor to re-stake the line and discovered the quitclaim deed descriptions were screwed up and didn't reflect the terms of their settlement agreement.

We could have rescinded the settlement agreement and re-opened the case against the original surveyor (a road both of them chose to never follow again), or we could just fix it by filing corrected quitclaim deeds to fix the issue. They chose the later solution because they could split the cost and get it resolved for under $500 apiece. I almost wish they'd have chosen to re-open the case and sue the crap out of the surveyor who had screwed them not once, but twice.

But then, the "easiest" solution is not always the "best" solution.

JBS

Aliquot

You are right on.
All our caps are identified with the lot#s (2" minuminum size). Or as a point of curve.

But landowners see a corner and grab it anyway.
Also, it's a real PITA to build brace panels for fence corners 2' apart.

JBS

> One thing I won't ask them is where they think the boundary is. That's my job to determine. They're not surveyors and they have no license to make that determination.

But wasn't it you saying or concurring in an earlier post, that if the two neighbors agree to the location of a fence than you are golden to stake that revise occupation as the new boundary? I am getting confused with the opinions relative to, what appears to me, staking unwritten transfers of ownership.

>Based upon the presumption that the evidence was gathered and that, in my professional opinion, the boundary is located along the fence line because the evidence gathered supports the application of the principle of estoppel:

Who is to say that the principles of estoppel are in favor of the owner to the south? It could very well be that the owner to the south watched and witnessed Mr. North build his fence to the wrong property corner knowing full well of his neighbor's folly. Then after a few months (just to give Mr. North time to get comfortable with his new line) Mr. South hires a concrete guy to hurry up and make improvements in his own yard. Mr. South now becomes the old man sitting on his porch watching the bank build a home in the wrong place. Are you certain Mr South and Mr. North spoke honestly in his testimony? Did you question both owners under oath? If so, does that oath carry the weight of perjury? While it is true that a surveyor must act as judge, jury and executioner, we are not given final authority of those offices.

> It could be as simple as documenting the boundaries on the survey, depicting the location and extent of all the improvements, showing the heavy line along the fence (but indicating no "other" line such as the "plat line" or "lot line") and reciting the measured and record values of the boundaries (and record/measured areas) of both lots...

From Brown's Boundary control and legal principles (6th ed; ch. 14.3): "Boundary surveyors must be very careful to understand that their responsibility is in addressing opinions of fact, whereas the courts address the application of the law. These questions of fact require two groups: witnesses to deliver the facts to the jury, and a jury to weigh these facts, as presented, and then evaluate and pass judgment" .
He then follows with (in a small box for emphasis): "Surveyor's create evidence, recover evidence, and interpret evidence of boundaries. Attorneys argue evidence of boundaries."
With this statement in mind, a record of survey is a collection of evidence of a boundary with an opinion of where the true boundary may lie. If you present to the court a survey which ONLY shows the fence as the accepted boundary and which does NOT illustrate the location of the platted boundary then you are failing to deliver all the facts. You have failed the owners, title companies, county inspectors, future buyers, and especially the jury by excluding a very important peice of evidence--the platted boundary which is likely the original intent.
There are far too many questions which should be asked before laying your whohaw out there for all the world (ie attorneys) to step on. Though I concur the fence has some weight, I absolutely disagree that it should become the boundary in light of the fact that you have original monuments which perpetuate original intent. If both neighbors chose to accept the fence as the new boundary than by all means, get the written record updated and set markers at the fence line and reference the new title documents but you cannot simply set a point at the end of a fence, record a survey, and expect the whole world to cuddle comfortably under the shelter of your decision.

JBS

> > One thing I won't ask them is where they think the boundary is. That's my job to determine. They're not surveyors and they have no license to make that determination.
>
> But wasn't it you saying or concurring in an earlier post, that if the two neighbors agree to the location of a fence than you are golden to stake that revise occupation as the new boundary? I am getting confused with the opinions relative to, what appears to me, staking unwritten transfers of ownership.
>
No inconsistency. It's up to the surveyor to gather the evidence and to determine the boundary location. Also, there's no such thing as an "unwritten transfer of ownership." That's a misnomer perpetuated around our profession that appears nowhere in the law. When there is conflicting evidence, the surveyor should do what they can to assist the landowners to clarify the conflict. We shouldn't just cut and run.

> >Based upon the presumption that the evidence was gathered and that, in my professional opinion, the boundary is located along the fence line because the evidence gathered supports the application of the principle of estoppel:
>
> Who is to say that the principles of estoppel are in favor of the owner to the south? It could very well be that the owner to the south watched and witnessed Mr. North build his fence to the wrong property corner knowing full well of his neighbor's folly. Then after a few months (just to give Mr. North time to get comfortable with his new line) Mr. South hires a concrete guy to hurry up and make improvements in his own yard. Mr. South now becomes the old man sitting on his porch watching the bank build a home in the wrong place. Are you certain Mr South and Mr. North spoke honestly in his testimony? Did you question both owners under oath? If so, does that oath carry the weight of perjury? While it is true that a surveyor must act as judge, jury and executioner, we are not given final authority of those offices.
>
Who is to say? The surveyor. It's a boundary and boundary locations are determined from the evidence and from application of the law. That's what surveyors do. We're the only profession who can. We must gather the evidence. If the evidence favors the South owner, then favor him; if the North, then favor the North. The evidence and the rule of law will govern as it always does.

Under oath? Sometimes, not always. It's not a requirement of the law but sometimes is a good idea. Can you? Yes. Should you always? No.

Final authority? Agreed. We don't have final authority on any boundary. Why would we expect it on this boundary? Every boundary you determine as a surveyor, you've acted as judge, jury and executioner. The overwhelmingly vast majority of your opinions expressed are never challenged in court. That's why we must give the people a fair trial on every boundary we survey. Your decision is likely going to be the only day in court they receive.

> > It could be as simple as documenting the boundaries on the survey, depicting the location and extent of all the improvements, showing the heavy line along the fence (but indicating no "other" line such as the "plat line" or "lot line") and reciting the measured and record values of the boundaries (and record/measured areas) of both lots...
>
>
> From Brown's Boundary control and legal principles (6th ed; ch. 14.3): "Boundary surveyors must be very careful to understand that their responsibility is in addressing opinions of fact, whereas the courts address the application of the law. These questions of fact require two groups: witnesses to deliver the facts to the jury, and a jury to weigh these facts, as presented, and then evaluate and pass judgment" .

I only partly agree with the author's opinion. Yes, surveyors must be careful to understand. Yes, the courts create the law, explain the law, define the law, and give us clear instructions on how to apply the law. They follow their own instructions when your boundary determination is challenged and will apply the law in the same fashion that the surveyor does (or should have done) when determining the boundary.

> He then follows with (in a small box for emphasis): "Surveyor's create evidence, recover evidence, and interpret evidence of boundaries. Attorneys argue evidence of boundaries."

That statement has always seemed odd to me. Attorney's argue the meaning and weight of evidence to influence the outcome of the factual determinations which may favor their client. Surveyors, using the same rules of evidence, determine the meaning and weight of the evidence in a manner that remains neutral to the parties favoring neither the client or the neighbor. That's the way it's supposed to be. Surveyor's are not advocates; attorneys are.

> With this statement in mind, a record of survey is a collection of evidence of a boundary with an opinion of where the true boundary may lie. If you present to the court a survey which ONLY shows the fence as the accepted boundary and which does NOT illustrate the location of the platted boundary then you are failing to deliver all the facts. You have failed the owners, title companies, county inspectors, future buyers, and especially the jury by excluding a very important peice of evidence--the platted boundary which is likely the original intent.

By stating the record and measured values of the lot, I am stating all of the facts. The fact is that the lot boundary has been established contrary to the dimensions on the plat in a position that is indicated on my survey. There is no evidence which indicates that a second line has been created contrary to the law. The "plat line" isn't located where many would place a "dashed" line. The fact is, the "plat line" was established in the location depicted on my survey. The fact is that there is no conveyance document which transfers title and creates a second boundary. There is only one line; that's a fact. How many court rulings must there be before we believe what the law says?

> There are far too many questions which should be asked before laying your whohaw out there for all the world (ie attorneys) to step on. Though I concur the fence has some weight, I absolutely disagree that it should become the boundary in light of the fact that you have original monuments which perpetuate original intent. If both neighbors chose to accept the fence as the new boundary than by all means, get the written record updated and set markers at the fence line and reference the new title documents but you cannot simply set a point at the end of a fence, record a survey, and expect the whole world to cuddle comfortably under the shelter of your decision.

If the parties have entered into an agreement, it's not "my decision." It's theirs. And, yes. The landowners have the right to live in peace and harmony if it is achievable. What gives a surveyor the right to stake the "plat line" when the law says that it's not the boundary? If it is, then fine; stake it. If it's not, then stake the boundary that the law will support.

Yes. There are many questions that must be asked and answered before the surveyor can derive a professional opinion. Do we just quit, send them to an attorney, and walk away? Or, do we stay in the game and start asking questions until we are satisfied that we know what has transpired? Original intent doesn't always control the boundary location. That's clear from the law. Surveyors shouldn't stop when they've discovered where the boundary isn't.

If our survey is contrary to the law, are we not attempting to usurp the court's authority in an attempt to create law?

JBS

JBS

>By stating the record and measured values of the lot, I am stating all of the facts.

This might suffice but since the record map is an illustrative representation, why not add the platted line? Your map is intended to, not only reflect your opinion but your findings of facts as well. They should be laid out very clearly without the need for supporting evidence. If I were a layman sitting on this jury and reviewing your work (considering few folks have even a basic understanding of surveying) I might be inclined to see your exhibit as deceptive and lacking key references.
I am fine with a professional who wishes to make such a determination which might lead to accepting that fence but it would seem very appropriate to make it very clear that you are straying from the original intent. Perhaps all this boils down to the laws and practices in Utah are vastly different than here in Washington.
Additionally, the actions you describe may very well be the process for an expert witness who is given an extraordinary amount of money and time for discovery of all this extrinsic evidence. In that case, I would surely be at liberty to engage each and every party involved including neighbors to the east, original platters and surveyors, the concrete contractor, the fence contractor etc etc. That is the only method by which I would (professionally) put forth an opinion such as you have stated. This is a very very expensive process and one which few of us are expected to engage in. Now before anyone scolds me for considering $$ before ethics, let me remind you that most states and their courts have a very important doctrines regarding standards of practice which state (I am paraphrasing) that the work should be executed in accordance with standards of practice and in a manner of care consistent with the area. In other words, we are not expected to go to extremes or employ extraordinary measures in our day to day activities. (let the scolding begin).

Now, in saying that, I again reiterate that the standard of care and review may very well be considered extraordinary and far removed from standards of practice (weeks of gathering of evidence and testimony) in order to prove and accept that fence.
What if all these improvements were made within the last year? Would you still hold the fence? if so, I am at a total loss. Why then, do we bother to bring all our high-tech instruments or, for that matter, even a rag-tape, metal detector, or even a copy of the plat if you are simply going to accept a fence? All you need then, to perform such a survey, is a cool hat like Barnaby Jones and a long coat like Colombo.

I do agree with your further assessment on an earlier post regarding the steps you would take subsequent to one party engaging an attorney after your initial findings of facts. In that case we are all ending up in the same place. The difference is that I would be hard pressed to stray from the record plat and existing original monuments. The simple fact of owner ignorance is not compelling evidence to throw these higher order evidences out the window.

>There is no evidence which indicates that a second line has been created contrary to the law.
I would argue that you have created a second line through your actions which is contrary to law (you are not the executioner) and one with no defensible title.
I would wonder how anyone in the world would be expected to rely on your decision which only appears on a record of survey? This becomes amplified in states with no recording act. Where is the constructive notice to the subsequent purchasers who are not privy to the survey? The title company will not likely insure it (in this state, most have schedule 'B' exceptions which commonly include matters of survey). What about a mortgage interest in the North lot when it ends up in foreclosure? You have truly opened a pandora's box UNLESS you have perfected title via a written agreement between the parties. Actually it is the owners who have opened the box but I can assure you that in this state, accepting a fence in this manner may either set you up for a lawsuit of your own, or cause your actions to be reviewed by the board or registration. At a minimum, I would likely bet that most of your piers would be suspect of your work.

JBS

John,
Please don't take any of my comments as being inflammatory or derogatory, esp the comments about attitudes of other surveyors or the board here in WA. These were statements of fact, or rather my opinions of the fallout based on my and many of my piers' opinions on the matter. I will add that I have read some of your dissertations on executions of boundary resolution and have found them well written and enlightening. I concur with much of what you write there, and here, yet it remains unclear where the line is drawn in regard to when we are to stray from the written record.

Regards, always.

JBS - Part I

> >By stating the record and measured values of the lot, I am stating all of the facts.
>
> This might suffice but since the record map is an illustrative representation, why not add the platted line?
Because, by law, the heavy boundary shown established by estoppel IS the platted line. There is no conveyance which has created a second line; therefore, there is only one line to show. Showing a second line that does not exist is CONTRARY to the law.
>Your map is intended to, not only reflect your opinion but your findings of facts as well. They should be laid out very clearly without the need for supporting evidence. If I were a layman sitting on this jury and reviewing your work (considering few folks have even a basic understanding of surveying) I might be inclined to see your exhibit as deceptive and lacking key references.
The layman on the jury doesn't know anything about boundary law. The FACT is that there is only ONE boundary. That's what I show. To show two lines would be not only confusing, but deceptive.
> I am fine with a professional who wishes to make such a determination which might lead to accepting that fence but it would seem very appropriate to make it very clear that you are straying from the original intent.
When the width of the lot changes by 10 feet as indicated by the record/measured distances shown, that's pretty obvious evidence that it doesn't match the platted dimension.
>Perhaps all this boils down to the laws and practices in Utah are vastly different than here in Washington.
The laws in Washington are the same:
It stands simply as the rule of law which forecloses one from denying his own expressed or implied admission, which has in good faith, and in pursuance of its purpose, been accepted and acted upon by another. To constitute estoppel in pais, three things must occur: (l) an admission, statement, or act inconsistent with the claim afterwards asserted; (2) action by the other party on the faith of such admission, statement, or act; and (3) injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement, or act. Kromm v. Literal, 110 Wash.App. 1001 (Wash.App.Div.3 01/17/2002)
> Additionally, the actions you describe may very well be the process for an expert witness who is given an extraordinary amount of money and time for discovery of all this extrinsic evidence.
Yes. These issues do take an extraordinary amount of time and effort and, therefore, cost. Who can do it other than a surveyor? That's what I do. I survey boundaries. I perform the investigation, research, and whatever is necessary to derive a properly founded professional opinion. I don't do surveys like that for $750. The only thing stopping others from performing the work is their lack of knowledge or understanding. That's why I've been going around the country spreading the word. This is surveying! This is why we are licensed. While others are struggling with competition and cutting their fees, I'm experiencing the opposite. I can't keep up with the amount of work I have. Why? Because I've gained a reputation for providing a professional service that too few are willing to learn.
> In that case, I would surely be at liberty to engage each and every party involved including neighbors to the east, original platters and surveyors, the concrete contractor, the fence contractor etc etc. That is the only method by which I would (professionally) put forth an opinion such as you have stated. This is a very very expensive process and one which few of us are expected to engage in.
Your observations are right on the money. It's a very expensive process at times. Other times, it's not very expensive at all. It depends. No matter how expensive it becomes, I can save the landowners 10's of thousands of dollars over the option of litigation. Try 2 years of discovery followed by a three-day trial for less than $75k. If they need an expert at the trial, I'm there. Once the trial is over, I'm there to assist with the final documentation as well.
> Now before anyone scolds me for considering $$ before ethics, let me remind you that most states and their courts have a very important doctrines regarding standards of practice which state (I am paraphrasing) that the work should be executed in accordance with standards of practice and in a manner of care consistent with the area. In other words, we are not expected to go to extremes or employ extraordinary measures in our day to day activities. (let the scolding begin).
You're right on, Tangent. No scolding here. It may not be expected, but there's a market for the service when you do. There is no law that prevents a surveyor from performing a service which goes beyond the normal standard of care. Realize, however, that the standard of care varies with the difficulty of the problem. The more difficult, the higher the standard of care. I'd be more worried about falling below the standard than operating consistently far above the standard.