LRDay, post: 349437, member: 571 wrote:
This case sticks out because its not even a straight line, it should have been obvious to anyone looking at the subdivision plat (or even GIS) that something wasn't right.
It could be not obvious at all. It looks only to be a 10'+/- encroachment which would not be recognized by a layman with no marker reference.
I was involved in a survey many years ago with the same circumstances. I was surveying a lot in a country club. These rear of the lots lines the fairway.
I was getting ready t set the front right corner where the adjacent lot owner was working on his flower bed that was small and circular in nature near a tree on his property. I wa getting ready to set the iron when he put his head up and said " I hope you are not doing what I think you are doing". I replied "Yes". He vane over and we looked and it appeared that his flower bed with edging, irrigation, plant and much were encroaching about 8 ft. He was annoyed. I don't know with me or himself. I told him not to sweat it. It only a real prck of a neighbor would object to his landcscaoing. Plus, there was a S/D covenant that forbid fences on lots along the golf course. I told him to just make believe that I wasn't there that day and he never saw me.
BTW. this neighbor was a fairly well known TV/radio sports anchor/reporter/ columnist in Louisiana for the CBS affiliate. It was said that he could have been easily been a national sports commentator but decided to stay in the New Orleans area and be a big fish in a little pond instead of going to NYC, LA or CNN as such. Plus he wanted to raise his kid in Louisiana.
He has been the voice of the Saints for decades.
So we chatted local sports for a few minutes and I went on my way....
As for the case here. I don't like the decision. The landscaper erred. It should not have had an effect on the line especially by the use of simple edging material.
ÛÏÛ?you would of at that time monumented the semicircular area? Or would you advise the two parties of what the courts are likely to rule and suggest an equitable resolution?Û
I would had gathered all the evidence ÛÒ plats, deeds, locations of monuments, locations of lines of possession, etc., including (and probably first before searching for monuments) having conversations with the landowners (current and if necessary former) concerning their knowledge of the boundary line and improvements. Then I would have evaluated all the evidence gathered at that point, then, if necessary, (keeping in mind all relevant laws/rules) gather more evidence.
After forming a preliminary opinion on the location of the boundary, I would then have a meeting with the landowners and discuss my findings, opinion, and recommendations. The ball is then in their court (pun not intended) to decide what to do with THEIR boundary line. I certainly would not set any missing corners or file any survey unless and until the landowners have reached an agreement and situation is resolved. If they decide to hire lawyers to resolve the location of the boundary line, I will offer my assistance as necessary.
I certainly would not set corners or line markers, and record a survey, based solely on the math, ignoring the boundary location doctrines.
Is anyone really advocating that a professional land surveyor should not know and be able to apply the law, in this case, as written in state statute?
Duane Frymire, post: 349513, member: 110 wrote: Here is Iowa code 650. Seems like in Iowa retracement surveying has been made irrelevant. A landowner can dispute any boundary however clear and appeal to the court even if 4 surveyors are in agreement on the line. If it makes it to a commission of surveyors, then those surveyors are directed to investigate acquiescence. If this isn't adverse possession masquerading as acquiescence I don't know what is. How does this process "permanently" establish the line? Isn't this more of a forced title registration (Torrens) process? All lines are in dispute until this process takes place according to the statute. Might as well not put any monuments in on a subdivision. Whoever occupies a lot for 10 years first gets to say where its boundaries are.
Duane, after reading Chapter 650 as you provided, I would have to respectfully disagree with parts of your assessment.
That chapter of code is providing a process for the landowners after a dispute has arisen. I believe that retracement in Iowa is fully alive and well, and if properly conducted greatly reduces the need for landowners to use Chapter 650. I haven't yet found in other states, a simple codified section of law that plainly lays out what a land surveyor should be doing and considering when performing boundary retracements.
Not all "lines are in dispute until this process takes place", this process is for resolving disputes. Why would we not monument subdivisions? Certainly the purpose of such is to inform the landowners of where the lot lines are originally placed. It is incumbent upon all landowners to find the boundaries and maintain them where originally placed, but as we all know, this doesn't happen near often enough. What this chapter of law does is merely provide a process to resolve disputes when the landowners mutually fail in their responsibilities.
Bill, I agree with your assessment, except the court did not accept a "new" boundary. They merely applied the law and "blessed" the location of the true line as being where its location on the ground was established by the landowners.
There are several states with Boundary Establishment statutes.
Basically a landowner wants their boundary established. Maybe they can't get the neighbor to go along or whatever (don't really know where the boundary is) so there is a procedure set up to use the court as the final arbitrator. They generally require notification of the process (to all affected landowners), a survey or survey's to propose the establishment location, some commission to recommend to solution, a filing or recording of the approved boundary location and then an appeals process for those that won't accept the proposed location.
These statutes can reduce litigation if no one appeals the solution to the court.
One of the simplest is the Indiana Legal Survey. I've checked with a few folks and these don't seem to be used all that much. I've tried to get something going here in Utah but never could get the UCLS Legislative Committee to act on it.
From my view it would be good to do the whole main part of my county. I think surveyors don't see it as good because these actions have the potential to eliminate a lot of surveying and resurveying and constantly messing with boundaries. Many are so stuck that only the original survey line can be the boundary that it becomes hard to imagine or swallow an alternative. Another concern was that we didn't have the qualified surveyors to do this law sort of stuff and that the process would be abused (someone starts an action, gets a poor boundary survey and the other party doesn't have the resources to appeal to the court).
Brian Allen, post: 349543, member: 1333 wrote: ÛÏÛ?you would of at that time monumented the semicircular area? Or would you advise the two parties of what the courts are likely to rule and suggest an equitable resolution?Û
I would had gathered all the evidence ÛÒ plats, deeds, locations of monuments, locations of lines of possession, etc., including (and probably first before searching for monuments) having conversations with the landowners (current and if necessary former) concerning their knowledge of the boundary line and improvements. Then I would have evaluated all the evidence gathered at that point, then, if necessary, (keeping in mind all relevant laws/rules) gather more evidence.
After forming a preliminary opinion on the location of the boundary, I would then have a meeting with the landowners and discuss my findings, opinion, and recommendations. The ball is then in their court (pun not intended) to decide what to do with THEIR boundary line. I certainly would not set any missing corners or file any survey unless and until the landowners have reached an agreement and situation is resolved. If they decide to hire lawyers to resolve the location of the boundary line, I will offer my assistance as necessary.
I certainly would not set corners or line markers, and record a survey, based solely on the math, ignoring the boundary location doctrines.
Is anyone really advocating that a professional land surveyor should not know and be able to apply the law, in this case, as written in state statute?
Sure changes the answer when the possible client calls and says "I own lot X in a 20 year old subdivision, what would it cost to flag up my north property line?" I guess the correct answer is 580$ minimum plus $145 an hour for any time over the first 4 hours. It is going to take some major changes in the local operating procedures of surveyors in this part of the world. JB Stahl is coming to our conference in January. Maybe he can help change some local surveying procedures in this part of the world. Thanks for the response Brian. Jp
Attached is an article by Knud Hermansen that doesn't agree that it is a surveyorÛªs responsibility to take it upon themselves to apply equitable doctrines and show the occupation lines as the boundary. Confused, Jp
I agree with Brian and there is a remedy.
650.17 Boundaries by agreement.
Any lost [hl]or[/hl] disputed corner or boundary may be determined by written agreement of all
parties thereby affected, signed and acknowledged by each as required for conveyances of
real estate, clearly designating the same, and accompanied by a plat thereof, which shall
be recorded as an instrument affecting real estate, and shall be binding upon their heirs,
successors, and assigns.
The surveyor needs to determine if the boundary is lost OR in dispute. When the boundary is not lost but in dispute that means there is evidence of a legal established boundary and law has a remedy to quiet the dispute as to boundary location - not title. Here there appears to be an attempt to change the legal description for the owner who's deed is All of Lot 3 to All of Lot 3 and parcel A of Lot 4 thus creating a title problem. The surveyor who writes such a survey description is practicing title law in my opinion. The court decided where the limits of Lot 3 are. They did not decide that the Lot 3 owner gained title from Lot 4.
Brian Allen, post: 349546, member: 1333 wrote: Bill, I agree with your assessment, except the court did not accept a "new" boundary. They merely applied the ld" the location of the true line as being where its location on the ground was established by the landowners.
Under Iowa law what you say may be true, but under Alaska law rullings like this auromaticaly create a new parcel. The new legal descriptions would be "Lot x excepting...", and "A portion of Lot X more particualry described as..." Some judges require the winning part to replat their lots, but that requirment is often overlooked.
The Court has zero authority to create a new parcel or establish a boundary. The Court can only receive evidence and determine the facts of what the property owners have done. In Iowa if the acquiescence period has passed the Court really has no choice but to recognize the operation of law in light of the actions or non-actions of the property owners.
Under the establishment doctrines the acquiesced boundary is the lot line so the property transferred subject to the acquiesced boundary.
The notice is actual, that is the neighbor's obvious and visible improvements. Buyers are expected to investigate the boundaries of their proposed acquisition but most don't. This is the reason the doctrines require a visible boundary to put interested parties at least on inquiry notice to check it out.
"Under the foregoing circumstances the line so agreed upon became in legal effect the true line. In Young v.Blakeman, supra, 153 Cal. 477, 482, it was said: "It is stated by the authorities that the line so agreed on becomes in legal effect the true line, that the agreement as to the line may be in parol and that it does not operate to convey title to the land which may lie between the agreed line and the true line, but that it fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy . . . that 'the division line when thus established, attaches itself to the deeds of the respective parties, and simply defines, not adds to, the lands described in each deed,' and that if more is thus given to one than the calls of his deed actually requires, he 'holds the excess by the same tenure that he holds the main body of his lands.'" Each coterminous owner is deemed to have paid the taxes according to his deed. ( Price v. De Reyes, supra, 161 Cal. 484, 489-490; Caballero v.Balamotis, 144 Cal.App.2d 58, 61-62 [300 P.2d 363]; Carr v. Schomberg, 104 Cal.App.2d 850, 860 [232 P.2d 597].) It is therefore not material to the defendant's claim of title by agreed boundary that the plaintiff paid the taxes assessed upon the land according to her deed." -Ernie v. Trinity Lutheran Church, 51 Cal. 2d 702
"but that it fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy; that the agreement as to the line is not in violation of the statute of frauds, because it does not transfer title; that the parties hold up to the agreed line by virtue of their original deeds and not by virtue of the parol agreement; that "the division line when thus established, attaches itself to the deeds of the respective parties, and simply defines, not adds to, the lands described in each deed," and that if more is thus given to one than the calls of his deed actually requires, he "holds the excess by the same tenure that he holds the main body of his lands." -Young v. Blakeman, 153 Cal. 477
Dave Karoly, post: 349586, member: 94 wrote: "Under the foregoing circumstances the line so agreed upon became in legal effect the true line. In Young v.Blakeman, supra, 153 Cal. 477, 482, it was said: "It is stated by the authorities that the line so agreed on becomes in legal effect the true line, that the agreement as to the line may be in parol and that it does not operate to convey title to the land which may lie between the agreed line and the true line, but that it fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy . . . that 'the division line when thus established, attaches itself to the deeds of the respective parties, and simply defines, not adds to, the lands described in each deed,' and that if more is thus given to one than the calls of his deed actually requires, he 'holds the excess by the same tenure that he holds the main body of his lands.'" Each coterminous owner is deemed to have paid the taxes according to his deed. ( Price v. De Reyes, supra, 161 Cal. 484, 489-490; Caballero v.Balamotis, 144 Cal.App.2d 58, 61-62 [300 P.2d 363]; Carr v. Schomberg, 104 Cal.App.2d 850, 860 [232 P.2d 597].) It is therefore not material to the defendant's claim of title by agreed boundary that the plaintiff paid the taxes assessed upon the land according to her deed." -Ernie v. Trinity Lutheran Church, 51 Cal. 2d 702
"but that it fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy; that the agreement as to the line is not in violation of the statute of frauds, because it does not transfer title; that the parties hold up to the agreed line by virtue of their original deeds and not by virtue of the parol agreement; that "the division line when thus established, attaches itself to the deeds of the respective parties, and simply defines, not adds to, the lands described in each deed," and that if more is thus given to one than the calls of his deed actually requires, he "holds the excess by the same tenure that he holds the main body of his lands." -Young v. Blakeman, 153 Cal. 477
I would assume that the Alaska courts would come to the same conclusion. The differnce under Alaska law between the situation in Young v Blakeman and the Iowa case is the line in question in the Iowa case was a platted line. Under Alaska law a platted boundary has more dignaty then a line created by deed. I know in some states there is almost no distinction. I have no idea what the reality is in Iowa.
That's a great and detailed text on the subject, one of the best I've ever read.
So the real throttle on boundary establishment doctrines in California (and many other states) is the requirement for objective uncertainty. It requires proof that there is uncertainty or a dispute. Treating a line like a boundary for a long period of time (20 years) is not enough to prove there is uncertainty or a dispute. The law loses it's purpose and it becomes very hard serve its purpose. Utah tried that, realized it gutted the law and reversed, removed objective uncertainty as a requirement.
A review of the Tiffany sections on the establishment doctrines reveals one footnoted Alaska case...fn 15: Seltenreich v. Town of Fairbanks, 103 F Supp 319, affd 211 F2d 83 (Alaska law).
"
Boundaries established by government survey control. 14 Quite frequently the quantity or estimated quantity of the land is named in the conveyance, but this is considered inferior as an indication of the location of the boundaries to the elements above named, and, if inconsistent, must yield to calls for
courses and distances, 15 as well as to calls for monuments. 16
See:
Lee v. Konrad, 337 P. 3d 510 - Alaska: Supreme Court 2014
"There is little functional difference between the various formulations of the standard for establishing a boundary line by acquiescence. We agree with the New Hampshire Supreme Court that "boundary by acquiescence is grounded `upon principles of public policy that preclude a party from setting up or insisting upon a boundary line in opposition to one which has been steadily adhered to.'"'][33] Given that rationale for the doctrine, it makes little sense to rigidly limit the way in which agreement to a boundaryline can manifest. To that end, we do not attempt to define the minimum extent to which a line must be established by physical markers. But we observe that it is difficult to conceive how parties could prove agreement to a boundary line without some physical markers indicating the line's location. Accordingly, we hold that a boundary line is established by acquiescence where adjoining landowners (1) whose property is separated by some reasonably marked boundary line (2) mutually recognize and accept that boundary line (3) for seven years or more.'][34]"
And
"As we have discussed, the boundary line claimed by Lee was first established in 1992 when Ken Lang surveyed Lot 14. In 1999 Lee set fence posts according to Lang's survey markers, though he explained that he "held them back on [his] side of the property line" so as to avoid "issues with the neighbor." Jerrie Southern and Lee both stated that the fence posts were placed consistent with the parties' mutual understanding of the boundary line ÛÓ indeed, Jack Southern offered to assist Lee in placing the fence posts. Lee and the Southerns never disputed the location of the boundary between their properties. Wilson testified that, although she did not know the exact location of the property line because "t didn't really matter" to her, she never had any dispute with Lee about its location. She further stated that "[a]t all relevant times I believed that the property line extended along my side of Cody and Stacey's fenceline out to near the streetlight."
The basic requirements for boundary by acquiescence are established by undisputed evidence in this case: the boundary line between Lots 13 and 14 was definitely marked by rebar survey markers placed by Ken Lang, fence posts,'][35] and later a fence, and the owners of the adjacent lots mutually recognized and accepted that boundary line for more than seven years. To the extent that the fence posts were the visible marker of the boundary line, that line clearly extended to the front of the property. There is no dispute that the boundary line between the properties is a straight line. Indeed, the 1972 subdivision plat clearly shows that the line is straight. And given the relatively short distance from the back to the front of the lots, there could be no confusion about continuation of the straight line established by the fence posts to the front of the property.
We conclude that the boundary line between Lots 13 and 14 was conclusively established by Lee's and Konrad's predecessors' undisputed acquiescence to the 1992 Ken Lang survey line during the period between 1992 and 2008. Thus, the superior court's decision accepting the Schuller survey as the applicable boundary was erroneous and we reverse."
California switched to objective uncertainty in a 2012 Appellate level opinion that doesn't seemed to be founded in prior California common law.
The 1994 Bryant decision requires direct evidence of an agreement unless there is evidence of an old survey.
There is nothing like relevant and recent case law, right on point, to clarify where the courts stand.
Thanks for posting this Alaska case. Very interesting to read a court at this time making the states law concerning boundary by acquiescence. They cite a bunch of other states law and even go all the way to Cooley.
It sort of shows how a survey once accepted by the adjoining landowners actually establishes a boundary. Its not the survey per say that establishes the boundary but the landowners acceptance and reliance on the survey and then the statutory time required. So even a bad or improper survey can be used by landowners to establish a boundary.
Brian Allen, post: 349545, member: 1333 wrote: Duane, after reading Chapter 650 as you provided, I would have to respectfully disagree with parts of your assessment.
That chapter of code is providing a process for the landowners after a dispute has arisen. I believe that retracement in Iowa is fully alive and well, and if properly conducted greatly reduces the need for landowners to use Chapter 650. I haven't yet found in other states, a simple codified section of law that plainly lays out what a land surveyor should be doing and considering when performing boundary retracements.
Not all "lines are in dispute until this process takes place", this process is for resolving disputes. Why would we not monument subdivisions? Certainly the purpose of such is to inform the landowners of where the lot lines are originally placed. It is incumbent upon all landowners to find the boundaries and maintain them where originally placed, but as we all know, this doesn't happen near often enough. What this chapter of law does is merely provide a process to resolve disputes when the landowners mutually fail in their responsibilities.
Brian, I would like it if it was worded in such a way as to do what you say. I think it goes too far, and I think the case posted illustrates that. There shouldn't be a need to have boundary lines loudly and obnoxiously marked along their entire length at all times in order to rely on the lines that were originally surveyed. I don't think a court action should be allowed unless there is a real dispute, by which I mean the evidence is so ambiguous that two or more licensed surveyors cannot agree on the location. And I don't think all small acquiesced areas should ripen into a new boundary location. I like the application of what courts call "neighborly accommodation" in a situation like the case posted. Of course maybe this particular landscaping cost tens of thousands of dollars, in which case I might be convinced, but somehow I doubt that's the case because it wasn't discussed. And even then I would call it adverse possession, because the true line was so easy to find. The statute appears to allow/create disputes in order to have something to solve. This diminishes the role of surveyors in society and is something one national writer of columns has predicted and mentioned has already happened. This is the first instance I've seen what he is talking about.
