OK, so I have seen all the comments here about the importance of monuments relied upon by property owners. What happens when a group of property owners relies upon the wrong monument?
I have an old forgotten about road with a very visible monument on the north side. Everyone seems to think this monument in some way marks the corner for the lots on the south side of the old road. The deeds read by the road or by the old road. Occupation from the southeast (a fence) goes to the monument over the old road.
I have told the gentleman with the fence that he has a very good AP claim but his original corner is eight feet away. The lot I am surveying completely fronts on the old road and starts eight feet from the monument.
The monument is an old concrete bound with a very nice G on top that just about lines up with a property once owned by a Mr. Gorham on the north side of the old road but this fact was forgotten about when the new road went in and severed a small piece of worthless land between the old and the new roads.
So hold what I believe to be the original corner or hold what everyone believes to be the actual corner? (I obviously have my own conclusion)
You can't pass judgment on A.P.; either the adjoiner can sign a Quitclaim Deed or a Judge has to decree it. The property owner has clear title to the original line but not to the fence if it is A.P. Nothing prevents you from expressing an opinion that the elements are likely meant but you can't declare the Title in your client.
Establishment is another possibility which does not require a Judgment but that depends on your State Common Law Establishment Doctrines and how your Courts have applied them.
from footnote 80, å¤ 653.Express agreement as to boundary, 2 Tiffany Real Prop. å¤ 653 (3d ed.):
"In Massachusetts, it is held that while the respective owners in title can no doubt agree orally that the boundary line as indicated by deed shall be shifted so that each owner agrees to a parol gift to the other of such portion of his own land as lies beyond the new boundary line, no title will pass by force of their agreement unless it is followed by occupation according to the line adopted which is adverse and under a claim of right for twenty years or more. Crawford v. Roloson, 256 Mass. 331, 152 N.E. 319."
from footnote 98, å¤ 654.Implied agreement or acquiescence, 2 Tiffany Real Prop. å¤ 654 (3d ed.):
"(but showing of possession and dominion up to fence is sufficient to support finding of acquiescence in fence as boundary); Ryan v. Stavros, 203 NE2d 85, 348 Mass 251; Foos v. Reuter, 142 NW2d 552, 180 Neb 301."
1st question: Is it possible that the road has been moved since the time the parcels were created?
Assuming that the road has not moved and the description in the latest deed hasn't dropped any language from the original (such as "thence along the northerly line of XXXXXXXX Road..."), so that you are still working from the original description, then the landowners have apparently mistakenly identified the corner position. But if "Everyone seems to think this monument in some way marks the corner for the lots on the south side of the old road", then why not offer to help them to get the written title to reflect their beliefs by facilitating a Lot Line Adjustment rather than suggesting an expensive and contentious litigation?
If you've already done the survey, then your effort to facilitate an LLA would cost a few hundred, County fees would be a few hundred to a couple thousand, and the process would be an amicable one. Litigation will cost each affected party a minimum of $50,000 and all the neighbors will despise each other long before the matter is decided.
There are many cases where everyone relied upon the wrong monument to divide the entire neighborhood and everything on the ground is wrong on paper.
It does however fit on the ground and it can be said that everything is where intent placed it thru agreement of sale.
The only remaining problem is between the original monument over to where the wrong monument lies.
The title of the area that lies between those two monuments is still in question because that is where original title was not necessarily in the same owners holdings.
This is something that gets varied results from court to court and state to state.
The only thing that I have always followed was that Headright Boundaries and Section Lines remain as the deciding line between title holders.
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