James Fleming, post: 440968, member: 136 wrote: To me, this is all over the place
1.Okay...in that case then the fence memorializes and perpetuates the location of the original survey - no adverse possession, no agreed boundary
2.
Okay...but if #1 or #3 is true, then this can't be the case because the fence is either on the line as originally staked, or on the line as agreed to. Nothing adverse about that
3.
Okay...but if this is true, then #2 doesn't matter because if they agree to the line, then there is no open occupation or hostility.
Also...the courts in some states have ruled that both parties believing the fence is on the line nullifies any concept of agreement or acquiescence. IF the parties are in mistaken believe that the fence is on the original boundary as surveyed, then they aren't, in fact, agreeing to anything. These states will differentiate between "we don't know where the boundary markers truly are per the plat/deed, so we'll both just use the fence" and "we don't know where the boundary markers truly are per the plat/deed, but we believe the fence marks them."
+100
MightyMoe, post: 441010, member: 700 wrote: +100
But, in Georgia there is case law where a fence of 20 years is the property line bends and all. So there is case law to rely on for guidance. I keep going round and round on this. And I keep coming back to the fence. I hear all the arguments both for and against the fence. But at the end of the day, I keep coming to the fence. No way to ask last surveyor, he is dead. Nearest irons are 3 proerties away. Anyone following would just be happy to have my irons. Everything works with math EXCEPT this iron/ fence.
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James Fleming, post: 441000, member: 136 wrote: You don't speak southern, do you? 😉
Well, yes I do. Perhaps it is a different flavor
Jawja, post: 441012, member: 12766 wrote: But, in Georgia there is case law where a fence of 20 years is the property line bends and all. So there is case law to rely on for guidance. I keep going round and round on this. And I keep coming back to the fence. I hear all the arguments both for and against the fence. But at the end of the day, I keep coming to the fence. No way to ask last surveyor, he is dead. Nearest irons are 3 proerties away. Anyone following would just be happy to have my irons. Everything works with math EXCEPT this iron/ fence.
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How many feet away is the nearest iron you found, is this in a neighborhood subdivision or acreage? DId find irons in both directions?
Yes as Surveyors we use case laws to help us decide the Boundary, should we just move property lines because we feel a fence is over 7 years old?
I am not going to let a fence control my boundary decision, when I have found property corners.
Does the pervious legal description call for any of the irons you found?
I haven't seen anyone mention this, but it's VERY IMPORTANT...
FINISH YOUR INVESTIGATION BEFORE DRAWING CONCLUSIONS.
Did you talk to either your client or the neighbor to find out what they know of the history of the fence or the boundary location there? Who built the fence? What was their basis for placing it there? Does that basis support a reasonable belief in that location as the boundary line/corner, was it the result of an informal agreement between affected landowners, or was it a unilateral WAG (wild a-- guess)?
Does your state's case law support the inference of a valid informal boundary line agreement due to a long standing fence location? California's case law used to but has gotten more complicated since the early 90s. Some states may have good case law that clearly supports that inference.
Is there any evidence other than the dimensions recited in the deed descriptions that indicates that a boundary had ever been established in the vicinity of the fence at any location other than that of the fence? Does any other evidence exist that supports the fence location as the originally established and actually intended boundary? Is the boundary the result of conveyances from a common grantor?
If the evidence exists that a reasonable conclusion that the fence location best represents the originally intended location of the boundary (and if it's been there beyond the memory of any current resident, it is probably better evidence than a recited measurement in any jurisdiction), that would be a much stronger and arguably more valid conclusion for a surveyor to make and defend than one that asserts a prescriptive title transfer.
Beyond that, the investigation as to whether all of the elements of AP have been met would be a much more involved investigation than one to determine the facts of whether the fence represents an original boundary establishment. That's because to investigate the AP claim, you would first need to eliminate the possibility that the fence location represents the originally intended and established boundary location (dimensions in the description alone fall way short of sufficient to do that), and then the AP investigation will go into areas that are not typically considered by surveyors - that of the history of the acts of the present and very likely, past owners of the affected lands. When was the fence placed? Was it placed by one or both affected landowners at the time? If placed by one, did the other ever object to the location or otherwise assert that it was not on the boundary? How has the fence and the lands on either side been treated by each landowner since? Has the unchallenged use of the lands and maintenance of the fence indicated both exclusive and continual use and control of the lands on either side by the respective landowners for at least the minimum statutory period?
Are the payment of taxes an element of AP in your jurisdiction? If so, does the claimant need to show a complete pattern of timely payment of property taxes, or only that they had paid them for the statutory period? How were the affected properties assessed? Was it by land description and a listing of improvements? Was it by an actual property inspection and if so, is that inspection report available? Is the fence mentioned in the assessment or assessment report? Do the descriptions of each affected parcel even mathematically and by careful measurement arrive at the same location on the ground or would there be a discrepancy between described locations?
You've done the basic initial research, made the measurements, and from those, identified an existing latent ambiguity. Now the part of the work that demonstrates why surveyors must be licensed begins. The discovery of a latent ambiguity is more often the beginning of more investigation (research and field work) to discover the facts necessary to resolve it than it is simply a need to look a little more closely at what you already have. Too often, surveyors try to answer these questions without having obtained sufficient relevant facts to reasonably support a conclusion one way or the other. In effect, they flip a coin and often ask several other surveyors to flip a coin on the same incomplete set of facts, and if a sizeable majority of the coins land the same, the surveyor moves forward on that guess with a slightly better level of comfort.
But that nagging feeling that remains, otherwise recognized as the voice of doubt isn't really saying what most of us might think it is, that we made a required but impossible decision that the murky and unknowable mind of a judge might second guess. What we need to interpret that feeling as telling us is that we haven't done enough work to discover the facts we need to make the conclusions we're paid and expected to make in a professional capacity. Coin flipping is never a legitimate part of forming a professional opinion. If you don't have enough facts to form an opinion of the boundary location and your client or anyone else ("anyone else" is way too often the surveyor himself) attempts to pressure you into stating a definitive conclusion on insufficient facts, the legitimate professional opinion is "Based on the facts known to me at this time, I cannot identify the boundary location from Point A to Point B with an appropriate degree of confidence."
Some will argue that's a cop out, that the surveyor is hired and expected to be a boundary expert and should offer an opinion on the best evidence they have. I would argue back that the best evidence we have may not be the best available evidence because prior to discovering the latent ambiguity, we may not have had a full view of what we needed to look for. Before making a determination from the best evidence we have, we need to ensure that, based upon what we now know, is the evidence we have all that is reasonably available to answer the question.
We need to provide responsible professional opinions based upon the best of the reasonably available evidence. In most instances, that will allow us to make a reasonable boundary location finding. In relatively few cases, the responsible opinion might be in the form of advice that the amount of conflicting evidence lends a level of uncertainty that the landowners themselves need to make an informed decision. If the surveyor states a boundary location conclusion without adequate facts to support it, that surveyor is actually perpetrating a fraud, or at the least, if they don't fully understand that the facts are inadequate, they are still misrepresenting the strength of their opinion.
If you have already asked these questions and done this investigation, then we have something to work with. If you haven't, then you need to realize that you're only about halfway through this survey and it's going to take a lot more effort than you initially anticipated. Hopefully, your contract has a provision for such contingencies. If not, your next decision might be whether to eat the difference between your cost and your agreed fee, or to drop the project, return any fee you've already collected on it, and referring your client to a surveyor better able to conduct the full investigation and wade through the more involved analysis, or at least one who is more comfortable flipping the coin.
Thumbs up on that, eapls.
Jawja, post: 441012, member: 12766 wrote: But, in Georgia there is case law where a fence of 20 years is the property line bends and all. So there is case law to rely on for guidance. I keep going round and round on this. And I keep coming back to the fence. I hear all the arguments both for and against the fence. But at the end of the day, I keep coming to the fence. No way to ask last surveyor, he is dead. Nearest irons are 3 proerties away. Anyone following would just be happy to have my irons. Everything works with math EXCEPT this iron/ fence.
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So why not go with the case law? Put your line where the boundary IS. If it has been established by law how can you put it somewhere else. Your survey doesn't fix the boundary in any case if it's a retracement. The survey is an opinion, one which usually holds and goes unchallenged. If your opinion is well founded then you should be good. Landowners can always sue each other and if they do then if properly litigated the law will prevail. So be on the proper side of the law. States law varies, I know my states laws but don't know yours.
Jawja, post: 440862, member: 12766 wrote: Yes, I am going to honor the fence. The people to the west have occupied in such a way that it looks like they thought they owned to the fence. In Georgia, after 7 yrs in that situation adverse possession would apply. It was open, exclusive use of the property. Theirs was the senior property. I just am having a heck of a time not honoring the fence. The corner at the southwest fell slap under the fence. I think both our owner and they believed the fence to be on the line.
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I believe for AP it is 7 years with color of title and 20 without. I didn't see where you mentioned color of title.
