linebender, post: 349708, member: 449 wrote: Court rejects fence
All acquiesced areas don't ripen into a new boundary location. It depends on facts and testimony. Until all the facts and testimony is heard it is not possible to determine a boundary. The survey must include discovery of facts.
Good point, and the reason why surveyors show "possible unwritten rights" rather than "line by acquiescence", if they're smart. There are considerably more resources expended on a court case than a survey. Surveyors can search out testimony but not to the extent that will happen preparing for and participating in litigation. One side or the other may use a private investigator to find someone clear across the country with differing testimony and the court may find that person more credible than the testimony the surveyor is relying on. And the courts change their minds as seen by the example of Utah in this thread; heck, maybe the next time one of these goes to Utah supreme court the justices will have changed and they will change back to objective uncertainty.
As a surveyor I can be very confident in a retracement opinion based on the law and evidence. Anything else, nobody that really knows this stuff can claim to know how it will come out in court. Too many possible unknowns in the most thorough survey investigation, and too many variables in who will testify, how the court or jury will treat any particular testimony, what spin the current judge or justices will put on the law, etc., etc.. I've seen the court throw out all of the doctrines along with the retracement and simply put the line where they think its equitable (they have that power and we don't).
The historical development of acquiescence clearly stems from surveyors not recognizing evidence of the original lines, and hence changing a line well recognized by the landowners. I agree with using it for that purpose until such time surveyors can do a better job of finding and using evidence appropriately. Extension of the doctrine beyond that only causes trouble. There's always adverse possession and estoppel for those instances where equity favors a line that is not the original line.
"The historical development of acquiescence clearly stems from surveyors not recognizing evidence of the original lines, and hence changing a line well recognized by the landowners."
Surveyors may not recognize what has happened but It's not really surveyors that caused the problem, its landowners. The original lines may not have been the result of a surveyor but rather landowner "surveyors."
King v. Fronk, 14 Utah 2d 135, 378 P.2d 893, 896 (Utah 1963).
It is significant that in most cases, a physical, visible
means of marking the boundary was effected at a
time when it was cheaper to risk the mistake of a
few feet rather than to argue about it, go to court,
or indulge the luxury of a survey, pursuance of any
of which motives may have proved more costly than
the possible but most expedient sacrifice of a small
land area. The rub comes when, after many years,
land value appreciation tempts a test of the
vulnerability of a claimed ancient boundary. The
struggle usually involves economics. Nothing is
wrong in the urge to acquire or retain. But neither
is there anything wrong in the lawÛªs espousal of a
doctrine that says that with the passage of a long
time, accompanied by an ancient visible line
marked by monuments with other pertinent and
particular facts, and with a do-nothing history on
the part of the parties concerned, can result in
putting to rest titles to property and prevent
protracted and often belligerent litigation usually
attended by dusty memory, departure of witnesses,
unavailability of trustworthy testimony, irritation
with neighbors and the like. This idea is based on
the concept that we must live together in a spirit
justifying repose or fixation of titles where there
has been a disposition on the part of neighbors to
leave an ancient boundary as is without taking
some affirmative action to assert rights inconsistent
with evidence of a visible, long-standing boundary.
In the vernacular, the doctrine might be
paraphrased to enunciate that boundaries might be
established by an ÛÏI donÛªt give a hootÛ attitude on
the part of neighbors.
Duane Frymire, post: 349773, member: 110 wrote: The historical development of acquiescence clearly stems from surveyors not recognizing evidence of the original lines
I thought it originated in British common law and had more to do with the idea that actions speak more loudly than words.
I'm one that tends to see many ancient fence lines as likely the result of some sort of survey, maybe a landowner do-it-yourselves. A problem comes when you need some sort of proof (like a survey plat ÛÒ testimony). It's not available, at least in Utah and especially rural Utah. If you require objective certainty you will have a hard time providing it, yet the sense of experience and knowledge of likely how thew old timers done it is clear in the back of the mind. Put on top of that that most of the deeds were hacked in a 1320 club sense and not based upon any real measurement data (provided by a utopian view of the PLSS) and just about any attempt at laying out the deed is certainly going to cause chaos. Acquiescence from this view is the cure all, I can't prove all that other stuff but I can show this fence has been here well past 20 years and treated as a boundary. In Utah I think a surveyors chances are better with going with the acquiescence law instead of the stake out the deed (title lines?) approach. I want to make my opinion where I believe the law will take it. On top of that if there is peace in the neighbor hood for 50 plus years and I accept the established lines where is the dispute going to come from?
If I'm uncomfortable about the call and my opinion then I resort to getting the documentation to resolve the boundary from the landowners. So every survey is different but I have just issued a pure acquiescence opinion a few times. I could post one but past experience leads me not to commit suicide on one of these boards.
> they are just gardening so I tell them it looks nice and keep up the good work.
Permission to landscape or garden on your land would demonstrate lack of acquiescence to a new boundary. In writing would be even better.
An early case is Boyd's Lessee v. Graves, 17 U.S. 513 (1819) decided by the U.S. Supreme Court:
"An agreement, by parol, between two proprietors of adjoining lands, to employ a surveyor to run the dividing line between them, and that it should be thus ascertained and settled, which was executed, and the line accordingly run, and marked on a plat by the surveyor, in their presence, as the boundary, held to be conclusive, in an action of ejectment, after a correspondent possession of twenty years by the parties, and those claiming under them respectively.
Such an agreement is not within the statute of frauds, as being a contract for the sale of lands, or any interest in or concerning them."
This is not an acquiescence case because there was an agreement but I believe all of the establishment doctrines are based in agreement, in the case of acquiescence the agreement is implied. This is why some States, such as California, do not have a separate acquiescence doctrine which is an agreed boundary doctrine without the agreement element. Originally the agreement could be implied, the doctrine had sort of a dual function. It could enforce an actual agreement or the agreement could be implied effectively operating like an acquiescence doctrine.
The problem is the Courts do not understand the historical operation of the doctrine and they have tightened up the evidence required to prove the agreement which was often seen as fictional in the early cases, what is termed the prescriptive line of cases.
Sneed v. Osborn, 25 Cal. 619 (1869), is California's case of first impression and no direct agreement was required. The Alaska acquiescence case I found reads like a case of first impression, it was decided in 2014 with similar facts as Boyd's Lessee so we are still ignoring old surveys.
Jackson ex dem. Van Cortlandt v. Van Corlaer, 11 Johns. 123 (1814), New York, uses the word "acquiescence" when upholding an old Survey:
"Opinion
*127 Per Curiam.
Whether Bleecker's line is correct or not, cannot now be made a question between these parties; for they undertook to run and establish a line for themselves, which is the line run by Shephard in his survey about 19 years ago. According to that survey, the defendant is in possession of no land belonging to the lessors of the plaintiff, except a small piece lying east of the road, and north of Shephard's line.
After such a lapse of time, and the repeated acquiescence, on the part of the lessors, it would be unjust and inexpedient to disturb that line, admitting that it had been incorrectly settled at first. The parties themselves ought to be the best judges of the boundaries of their own lands; and after they have deliberately settled a boundary line between them, it would give too much encouragement to the spirit of litigation, to look beyond such settlement, and break up the lines so established between them. Though the small piece of land mentioned was not, probably, the object of the action, and is almost too trifling in value to be noticed, yet, as the plaintiff is clearly entitled to recover it, he must have judgment for that and no more.
Judgment for the plaintiff, pro tanto."
I think Jackson ex dem. Goodrich v. Ogden, 7 Johns. 238 (1810), New York, is an acquiescence case:
"Here was uncertainty arising from the variance between the map and the actual survey, and the proprietors locate according to the latter, and hold out that to their neighbors, the possessors and claimants of the premises, as the true location. They go further: they purchase under the defendants' title. If these acts do not amount to a full recognition of that title, and conclude them from now correcting that location, I think they are enough to justify this court in not actively interfering to help them, by disturbing the verdict of the jury. They ought, at least, to be left to commence their action de novo."
Kliban v Dixon (unpublished 2011) is a subjective uncertainty case with direct evidence of an agreement:
https://scholar.google.com/scholar_case?case=5940361141294737840&q=kliban+v+dixon&hl=en&as_sdt=2006
Martin v. Van Bergen, 209 Cal.App.4th 84 (2012), effectively changed California to an objective certainty State:
https://scholar.google.com/scholar_case?case=15479565839485778920&q=Martin+v+Van+bergen&hl=en&as_sdt=2006
"Second, if Kirkegaard's conclusion that mutual mistake is sufficient to show ÛÏuncertaintyÛ was ever good law, it is no longer. Bryant requires ÛÏdeference to the sanctity of true and accurate legal descriptions....Û (Bryant v. Blevins, supra, 9 Cal.4th at p. 55, 36 Cal.Rptr.2d 86, 884 P.2d 1034.) Thus, a boundary is not uncertain if it can be ascertained by an accurate survey."
I think they misunderstand the 1994 Bryant decision which did not disallow an agreement in the case of objective certainty, in fact, it was well settled in California law that the line agreed upon could be founded on a mistake.
Utah and California are worlds apart when it comes to boundary by acquiescence. Utah requires no dispute or uncertainty.
å¦ 35 The doctrine of boundary by acquiescence is rooted in policy considerations of "avoiding litigation and promoting stability in landownership." Staker v. Ainsworth, 785 P.2d 417, 423 (Utah 1990). It "derives from [the] realization, ancient in our law, that peace and good order of society [are] best served by leaving at rest possible disputes over long established boundaries." Id. (internal quotation marks omitted). A successful invocation of boundary by acquiescence requires a showing of the following four elements: "(1) occupation up to a visible line marked by monuments, fences, or buildings, (2) mutual acquiescence in the line as a boundary, (3) for a long period of time, (4) by adjoining landowners."[7] Id. at 420 (internal quotation marks omitted).
The second element is probably the most difficult and nowhere close to the California law:
å¦ 37 The second element is satisfied where neighboring owners "recognize 66*66 and treat an observable line, such as a fence, as the boundary dividing the owner's property from the adjacent landowner's property." Ault v. Holden, 2002 UT 33, å¦ 19, 44 P.3d 781. This element is met where neighbors do not "behave[] in a fashion inconsistent with the belief" that a given line is the boundary between their properties. Staker, 785 P.2d at 420. Failure by the record title owner to "suggest or imply" that the dividing line between the properties is "not in the proper location" suggests acquiescence. Judd Family Ltd. P'ship v. Hutchings, 797 P.2d 1088, 1090 (Utah 1990). Nonacquiescence in a boundary would be signaled where, for example, a landowner notifies the adjoining landowner of her disagreement over the boundary, or takes action inconsistent with recognition of a given line as the boundary, such as tearing "down significant portions of [a] fence and, without objection by [the adjoining landowner], proceed[ing] to plant trees and shrubs, store firewood, and construct a chain link fence in a different location." See Staker, 785 P.2d at 421.
[sarcasm]If I worked in California I'd probably stake the deed![/sarcasm]
Really, if my home county was annexed into California, we'd need to relocate most of the fences in the valley, relocate and rebuild may roads, the state (or US) would own substantial space between many parcels and you couldn't drive very far without falling into a no mans land gap.
BUT, everybody needs to work according the their states boundary law. I'm perfectly happy (and poor) where I'm at.
LRDay, post: 349816, member: 571 wrote: [sarcasm]If I worked in California I'd probably stake the deed![/sarcasm]
Not so fast, it isn't that simple. The California Courts have viewed reliance on old surveys with approval. Also agreed boundaries isn't the only way to skin the boundary cat.
I notice the Alaska acquiescence case I posted yesterday doesn't mention uncertainty in the requirements.
"The California Courts have viewed reliance on old surveys with approval."
That wouldn't work for me either, there is practically no survey records between the original GLO and 1989 when they where required to be filed. Few calls for any monuments in the deeds records either. You have a funky metes only deed or the ancient established fences. No fitting or squaring up between the two. Our courts have given us (Utah) what we need for sure. Still its not being applied as it should be in my opinion. Its sort of an insane asylum unless you leave it as it is.
Dave, I really admire you're knowledge and research into this subject. You are in a 100 times more difficult environment when it comes to the boundary agreement doctrines. I don't really need to skin any cats, just gather the facts needed.
Imagine the north-south centerline of the southeast quarter of Section 3. There is the 1925 1/16th line when the southwest quarter of the southeast quarter was subdivided and houses built in the 1920s and 30s, it is unknown where this line was. There is the 1945 1/16th line retraced in 1973. Then of course there is the 1973 1/16th line slightly west (about 10') of the 1945 line per the 1973 survey. Then there is an old fence about 30' east of the 1945 line. Three homeowners were offered the fence in a boundary line agreement (the houses straddle both 1/16th lines probably from circa 1930), one accepted. Two houses stand, one has been demolished sometime in the last 40 years. The other owners of larger lots were only offered the 1945 line, one accepted and one filed a lawsuit contending for the fence which was never resolved as far as I can tell. I advised the Forest manager to hold back to the offered line when they harvest burned trees and masticate. We don't have to log it even if we own it. One house on the large lot that accepted the BLA burned, it was on the wrong side of the dozer/backfire line. The other houses survived.
Fun stuff. Then we have the center west northwest 1/64th corner of section 35. I put that on the 1/64th line run in 1950 which I found still monumented.
LRDay, post: 349820, member: 571 wrote: "The California Courts have viewed reliance on old surveys with approval."
That wouldn't work for me either, there is practically no survey records between the original GLO and 1989 when they where required to be filed. Few calls for any monuments in the deeds records either. You have a funky metes only deed or the ancient established fences. No fitting or squaring up between the two. Our courts have given us (Utah) what we need for sure. Still its not being applied as it should be in my opinion. Its sort of an insane asylum unless you leave it as it is.
Dave, I really admire you're knowledge and research into this subject. You are in a 100 times more difficult environment when it comes to the boundary agreement doctrines. I don't really need to skin any cats, just gather the facts needed.
Leon, this is exactly the problem as I see it. It seems obvious from your post that in many cases in Utah fences are in fact the best evidence of the original surveyed line (who surveyed it originally is irrelevant most of the time). Because modern surveyors out there will not recognize that, the courts had to step in. It may solve a short term problem, but it results in merely documenting landowner actions as time goes by instead of producing and managing well thought out cadastre system that would protect lines from moving and give some confidence in a trail of record title.
This gets to be more of a problem the more parcels that get involved, which is why CA has gone the way they have I believe. In todays world more and more the ones with occupancy rights hold smaller and smaller portions of title. Those with the equitable title want to know what they have and don't want it to change while they're not looking.
Bill93, post: 349795, member: 87 wrote: > they are just gardening so I tell them it looks nice and keep up the good work.
Permission to landscape or garden on your land would demonstrate lack of acquiescence to a new boundary. In writing would be even better.
Yes, the old permission defense is always attempted; sometimes it works.
Duane Frymire, post: 349838, member: 110 wrote: Leon, this is exactly the problem as I see it. It seems obvious from your post that in many cases in Utah fences are in fact the best evidence of the original surveyed line (who surveyed it originally is irrelevant most of the time). Because modern surveyors out there will not recognize that, the courts had to step in. It may solve a short term problem, but it results in merely documenting landowner actions as time goes by instead of producing and managing well thought out cadastre system that would protect lines from moving and give some confidence in a trail of record title.
This gets to be more of a problem the more parcels that get involved, which is why CA has gone the way they have I believe. In todays world more and more the ones with occupancy rights hold smaller and smaller portions of title. Those with the equitable title want to know what they have and don't want it to change while they're not looking.
Title was modernized in the 1677 Statute of Frauds but location is still under the Medieval parol system. Location needs to be modernized so that the public has constructive notice of location and agreements are required to be written down. The system we are using works, sort of, in rural areas where the land is still in the hands of the same families after 150 years but in urban areas it can be a litigious mess. The land surveying profession, the most tradition bound and stubbornly rigid of the professions, would have to lead the way but as a profession we mostly argue and waste time over small details that are largely meaningless. So I don't hold out much hope of change coming. The way things are going maybe it won't matter in fifty years.
The Lawyers at least have tried to keep up with the times in modernizing laws, etc. Did you ever see an ugly court house (other than the mid 1960s monstrosities) and the Courtrooms are usually at least semi grand. Judges have a lot more respect for us than we have for ourselves. I guess they don't want to have to go out in the heat or foul weather to survey it in their robes. I served on a criminal jury, the Judge was very polite and respectful to us, nothing like TV.
I just can't imagine that in this modern society more than half the states are still not filing surveys and the Surveyors are the leading resistance to an obviously needed improvement to the information stream. California led the way in 1892. We found a line this week because of Surveys filed in 1945, 1950, 1964, 1965, & 1973.
Dave Karoly, post: 349848, member: 94 wrote: I just can't imagine that in this modern society more than half the states are still not filing surveys
Amen. Filing surveys and capping/tagging monuments should be no-brainers.
Bill93, post: 349850, member: 87 wrote: Amen. Filing surveys and capping/tagging monuments should be no-brainers.
We like to ridicule lay people who rely on GIS systems but can you blame them? Part of that is we are pricing ourselves out of the market. It's kind of a vicious cycle, surveys are expensive so they aren't ordered which makes surveys more expensive over time. Some States allow lower cost products which just seems to lead to more chaos, multiple corners, etc. we have the technology to create a better system, we just need the will.
Duane Frymire, post: 349838, member: 110 wrote: Leon, this is exactly the problem as I see it. It seems obvious from your post that in many cases in Utah fences are in fact the best evidence of the original surveyed line (who surveyed it originally is irrelevant most of the time).
From the Statker v Ainsworth case I linked before.
As Justice Howe pointed out in his dissent in Halladay,
In the first place, a survey may have actually been made and the boundary marked on that line. Because of the lapse of many years, no one who was then present may be alive or available. Just because a recent survey shows the marked boundary to be incorrectly placed does not prove that its then owners, many years ago, did not have a survey made on which they relied in establishing the marked boundary. As finer and more precise instruments of survey are developed, property lines established in accordance with earlier surveys may after be shown to be out of place by later surveys... . The majority assures us that a new survey would not necessarily be allowed to upset a boundary set on an earlier survey. But after the lapse of many years, no one may know that an earlier survey was made. Thus, the later survey will be followed and the boundary, long recognized, will be moved.
685 P.2d at 509 (Howe, J., dissenting). Justice Howe's second point also bears repeating:
[T]he boundary dispute is here and now. It does little good to reflect as to what the then owners 30, 40 or 50 years ago might have done and disregard entirely the conduct of the owners and their successors since that time in acquiescing in the markers on the ground. In most cases, the acquiescence is an unconscious act with no thought being given during the period of acquiescence to the boundary, let alone with surveying it.
Id. Finally, Justice Howe concludes, "t is not unjust in certain cases to require disputing owners to live with what they and their predecessors have acquiesced in for a long period of time." Id. at 510.
LRDay, post: 349894, member: 571 wrote: From the Statker v Ainsworth case I linked before.
As Justice Howe pointed out in his dissent in Halladay,
In the first place, a survey may have actually been made and the boundary marked on that line. Because of the lapse of many years, no one who was then present may be alive or available. Just because a recent survey shows the marked boundary to be incorrectly placed does not prove that its then owners, many years ago, did not have a survey made on which they relied in establishing the marked boundary. As finer and more precise instruments of survey are developed, property lines established in accordance with earlier surveys may after be shown to be out of place by later surveys... . The majority assures us that a new survey would not necessarily be allowed to upset a boundary set on an earlier survey. But after the lapse of many years, no one may know that an earlier survey was made. Thus, the later survey will be followed and the boundary, long recognized, will be moved.
685 P.2d at 509 (Howe, J., dissenting). Justice Howe's second point also bears repeating:[T]he boundary dispute is here and now. It does little good to reflect as to what the then owners 30, 40 or 50 years ago might have done and disregard entirely the conduct of the owners and their successors since that time in acquiescing in the markers on the ground. In most cases, the acquiescence is an unconscious act with no thought being given during the period of acquiescence to the boundary, let alone with surveying it.
Id. Finally, Justice Howe concludes, "t is not unjust in certain cases to require disputing owners to live with what they and their predecessors have acquiesced in for a long period of time." Id. at 510.
"It may be remarked that there is no evidence that any subsequent survey has been made by which the true line is located at the exact point claimed by the plaintiff. There is a reference to a recent survey in the testimony of the plaintiff, but he does not give the results disclosed thereby. From the agreement between the heirs of Miller and Blakeman, to be hereinafter noticed, it may be inferred, by the aid of other evidence, that the true east line of the Blakeman lot is about seven inches east of the east line of his building. But this would not prove that the west line of his lot was an average distance of about eleven inches east of the west line of the building as claimed by plaintiff. The building is exactly twenty feet in width. There is a finding to the effect that a line 195 feet easterly from Grant Avenue would fall east of the agreed line the exact distance of the strip in dispute, according to the location of Grant Avenue as "established at the time when this action was commenced." No evidence appears corresponding to this finding. But conceding its truth, it does not follow that the line of Grant Avenue was at the same place as that occupied by Dupont Street in 1863 when the defendant's lot was first measured and located therefrom, or when the agreed line was established, or in 1884, when Apel received possession from Miller." -Young v. Blakeman, 153 Cal. 477 (1908), italics in original, bold by me.
