Below is an article written by a Certified Real Property Law Specialist and examiner of titles in the fall edition of the Minnesota Surveyor.
If you will notice the last paragraph states that the role of the surveyor is to determine the deed boundary and that acquiescence, location by agreement and estoppel are to be handled by the courts. "It seldom benefits anyone for the Surveyor to venture their own opinion as to who may or may not end up owning the property. That is for the courts"
I have a tendency to disagree with this and have noticed recently attorneys baulking at the idea of surveyors doing anything, but staking the deed. After that they seem to think the ball is in their court.
The teachings of Lucas, Stahl and others have stirred the pot somewhat amongst the locals, causing enough concern to publish this article it seems.
I would like to hear what your opinions are on this matter.
The Doctrine of Boundary by Practical Location is a way
for the Courts to settle a boundary dispute by taking into
consideration the equities and doing what the Court thinks
is fair. The Law of Adverse Possession is a legal remedy, which
requires the record owner to recover their land within 15 years
of the commencement of the possession by the non-owner.
Under the Doctrine of Boundary by Practical Location there
is no time limit for recovery. Instead, the Court looks at all
factors and decides on the fairest and best solution.
Minnesota Statutes Section 559.23 gives the District
Court the authority to determine boundaries. It provides jurisdiction
for one property owner to bring an action against
their neighbor to determine their common boundary. The
Court is instructed to determine all adverse claims, make an
order to determine the boundary, and award costs and disbursements
as it deems just.
The Party claiming the boundary must establish their
rights by "clear, positive and unequivocal proof". This is an
extraordinarily high burden, but necessary to avoid someone
from arbitrarily taking land from another. This means that
there must be overwhelming evidence in favor of the party
claiming the boundary.
Boundary by Practical Location does not apply to a large
tract of land. In Skelton vs. Doble, 347 N.W2d 81 (Minn.
App. 1984) the Court held that a neighbor's claim to 3.47
acres ofland adjoining their property was more than a boundary.
The Court refused to extend the Doctrine of Practical
Location beyond a simple boundary claim.
The Doctrine of Boundary by Practical Location is further
broken down into three separate categories, any one of
which could lead to the determination of a boundary.
The first is Location by Acquiescence. An example is if
a fence is claimed to be a boundary. Under this theory, both
parties must have intended to place the fence as close as possible
to the real boundary. There must be proof of affirmative
conduct from the record owner so that acquiescence may be
found. An example might be two owners who construct a
common fence on what they believe to be the boundary line,
and then living with that fence for many years.
The second is Location by Agreement. Under this theory,
neighbors expressly agree, either in writing or orally, to establish
a boundary. The record owner then honors that boundary
for a substantial period of time, but not necessarily 15 years.
Finally, the Doctrine of Location by Estoppel may apply
where the record owner knows the boundary line. That
owner sees the neighbor incur substantial expense in reliance
on what the neighbor believes to be the boundary, with the
record owner remaining silent. This is a question of fairness.
If a neighbor allows an encroachment of a building or other
permanent improvement across the boundary line, it would
be unfair to allow that owner, who was silent, to claim the
record boundary.
As with adverse possession, the Doctrine of Boundary by
Practical Location is only a ticket to the District Court. It
is not an automatic change of title. The party claiming the
boundary must go to Court and prove their case.
It is proper for a Surveyor to determine that the boundary
described in the Deed is in a different location from the
fence or other long time boundary recognized by the parties.
It seldom benefits anyone for the Surveyor to venture their
own opinion as to who may or may not end up owning the
property. That is for the Courts.
The article reads as if one condition is always persistent - a dispute.
It has long been established that it is in the public's best interest to diligently attempt to resolve disputes outside of court, with litigation being the last and final action.
A Land Surveyor facilitates avoidance and resolution of disputes outside the court setting.
I think the boundary line agreement procedure is a good example.
"the boundary line agreement procedure is a good example" of minimizing an Attorney's bill ... obviously a poor practice for an Attorney.
I'd like to see a copy of the publication. Hope the journalists give a proper chance for rebuttal.
No court has the authority to determine a boundary location until the parties 1) fail to reach a resolution among themselves, AND 2) choose to litigate the issue, thereby giving their authority to settle the controversy to the judge to "make the decision for them." Until then, the only profession with the authority to determine boundary locations is the surveyor who is required to follow the same rules and the same laws that govern the courts.
JBS
hillsidesurveyor, post: 343118, member: 7292 wrote: "It seldom benefits anyone for the Surveyor to venture their own opinion as to who may or may not end up owning the property. That is for the courts"
I have a tendency to disagree with this and have noticed recently attorneys baulking at the idea of surveyors doing anything, but staking the deed. After that they seem to think the ball is in their court.
I too generally disagree, but I know exactly where he is coming from..Too often I have had phone conversations with either past or present clients, or prospective clients who are under some sort of misconception related to them by another surveyor. Who really knows if the surveyor told them something erroneous, or they just heard it wrong? Not all surveyors are the sharpest knife in the drawer, if you know what I mean.
Surveyors in Roman times enjoyed a lofty position. Among other duties, they WERE usually the judge and jury in boundary disputes. And down through history in many civilizations there has always been some sort of officiating surveyor that had the authority to adjudicate minor differences. Even in the first 150 years of our United States, the courts (and the public) relied heavily on the office of the County Surveyor as an authority on boundary disputes.
It seems only in the last 50 years or so our brothers licensed to stand at the bar have seemed to scoff at and undermine the authority of our opinions.
At any case, I have gotten a lot quieter as I age when consulting with my clients concerning a plan of action. But as for the actual location of a boundary...it's still up to us. Our locations can always be challenged, an I for one welcome the challenge. But until my State Statutes remove my ability to determine boundary locations from "records, deeds, measurements, physical evidence and the spoken word" I will remain the primary authority of physical location and fact in a process that may or may not wind up in litigation. I do not approach professing I know, or even understand, boundary law in the United States. But I know boundaries. And if you read much case law you will find that all boundary disputes either center around, or were settled by a survey.
Like I told one attorney, "I'm the one screwin' this chicken..right now you're just holding his tail for me. You'll get your turn when I'm through..." B-)
I haven't had time to thoroughly read the article above but, at first glance it seems that the author isn't distinguishing the difference between the act of conveying title and the act of establishing the true boundary lines. For example, Adverse possession requires a court decision to actually convey the title, a surveyor cannot do that, he can merely locate the possession lines. However, a boundary line by agreement in the absence of any other more compelling evidence about the location of the true property line isn't conveying the property but is establishing where the property line truly is. If the true boundary location is known a surveyor can't simply change the property line with a boundary line agreement, there has to be a conveyance of title.
I agree with the author in the sense that the surveyors job is to only locate the property boundary, he just doesn't seem to understand (like many) that locating the property boundary is more than just putting the math on the ground.
JBStahl, post: 343159, member: 427 wrote: I'd like to see a copy of the publication. Hope the journalists give a proper chance for rebuttal.
No court has the authority to determine a boundary location until the parties 1) fail to reach a resolution among themselves, AND 2) choose to litigate the issue, thereby giving their authority to settle the controversy to the judge to "make the decision for them." Until then, the only profession with the authority to determine boundary locations is the surveyor who is required to follow the same rules and the same laws that govern the courts.
JBS
A copy of the publication can be found on the Minnesota Society of Professional Surveyors website under the resources tab under archives.
Another one worth a good read is the winter 2012 issue regarding subdivision of sections (pgs. 15-20).
Is that an original saying?
Haven't heard that one before, but I bet it sounds good during a heated debate.
What exactly is an "examiner of titles?"
Yup, looks like they got it all wrapped up so tight that the establishment law does very little good to anyone other than a litigator.
Utah's Supreme Court looked at all this the last decade or so and sort of tossed it all to the curb because it wasn't solving problems just making them bigger. They dropped the requirement for objective uncertainty. That's where it all gets junked up - there must be a dispute, both parties must be uncertain to the line, Blah, blah, blah. The Utah court recognized the law wasn't doing what it needed to do and pretty much fixed it. Hey landowners, you have a responsibility for your boundaries, you treat it like a boundary for twenty years and guess what it's a boundary (if it walks like a duck and quacks like a duck IT'S A DUCK).
Somebody's got to stand up and be a solution for all the issues with boundaries. I hope a special group of land surveyors is the solution. Any landowner in the US shouldn't need a court and litigation to establish THEIR boundaries. If they want to really pay, well the courts and all the expense waiting there is available to every landowner.
Anybody that wants to see a sensible and common sense way to approach this can read:
https://scholar.google.com/scholar_case?case=405535334183772859&q=Bahr+vs+Imus&hl=en&as_sdt=4,45&apos ;">Bahr v, Imus
This case is not any differnt then any other state's law. A boundry by agrement still requires uncertantity. A boundry by aquiescense still requires a judge to find that there was aquiesence for twenty years.
LRDay, post: 343238, member: 571 wrote: Yup, looks like they got it all wrapped up so tight that the establishment law does very little good to anyone other than a litigator.
Utah's Supreme Court looked at all this the last decade or so and sort of tossed it all to the curb because it wasn't solving problems just making them bigger. They dropped the requirement for objective uncertainty. That's where it all gets junked up - there must be a dispute, both parties must be uncertain to the line, Blah, blah, blah. The Utah court recognized the law wasn't doing what it needed to do and pretty much fixed it. Hey landowners, you have a responsibility for your boundaries, you treat it like a boundary for twenty years and guess what it's a boundary (if it walks like a duck and quacks like a duck IT'S A DUCK).
Somebody's got to stand up and be a solution for all the issues with boundaries. I hope a special group of land surveyors is the solution. Any landowner in the US shouldn't need a court and litigation to establish THEIR boundaries. If they want to really pay, well the courts and all the expense waiting there is available to every landowner.
Anybody that wants to see a sensible and common sense way to approach this can read:
https://scholar.google.com/scholar_case?case=405535334183772859&q=Bahr+vs+Imus&hl=en&as_sdt=4,45&apos ;">Bahr v, Imus
MD Surveyor, post: 343166, member: 10081 wrote: If the true boundary location is known a surveyor can't simply change the property line with a boundary line agreement, there has to be a conveyance of title.
This.
Agreement requires uncertainly or a line that is unable to be reestablished. Otherwise you are basically just selling a piece from one to the other without conveyance.
In my area this would just be skirting the subdivision or apportionment laws so boundary line agreements are rare.
aliquot, post: 343253, member: 2486 wrote: A boundry by aquiescense still requires a judge to find that there was aquiesence for twenty years.
This is certainly not the case in either state I'm licensed in - do you have any case law stating that the time requirement for acquiescence must be certified by a judge?
Rich., post: 343274, member: 10450 wrote: Otherwise you are basically just selling a piece from one to the other without conveyance.
In my area this would just be skirting the subdivision or apportionment laws so boundary line agreements are rare.
I'm not understanding how two landowners resolving the location of an uncertain boundary is somehow in violation of subdivision laws?
aliquot, post: 343253, member: 2486 wrote: A boundry by aquiescense still requires a judge to find that there was aquiesence for twenty years.
That's only if there is a dispute over the boundary location. Disputes usually arise because a surveyor won't accept the long accepted boundary location (treated as the boundary for twenty or more years). To settle the dispute the final solution is the courts. They can settle it without going to court. Its really up to the landowners, even in court its the landowners with the court able to settle or resolve the landowners dispute.
There has been a recent case in Utah where they discussed when the line tripped in such as at the twenty year mark or say when the judge ruled. That opinion was that the line was fixed when all the requirements where met and as such there was no requirement for a judge or the court. It was just a Appeals Court and not the Utah Supreme Court. To me it makes sense that once all the requirements have been met the line is fixed. You can still have a dispute over whether the requirements have been met. It doesn't require a judge to rule as some final requirement to fix the boundary location unless there is a dispute. From my viewpoint the surveyor should do his best to locate the boundary where the law places it from all the information/evidence available. To think that every established line with some math problems needs to be litigated and get a judge to rule is not a good position for the surveying profession to take. You become a useless troublemaker to the system at that point. Surveyors need to solve problems not find them and then dump them into the legal system.
LRDay, post: 343302, member: 571 wrote: From my viewpoint the surveyor should do his best to locate the boundary where the law places it from all the information/evidence available. To think that every established line with some math problems needs to be litigated and get a judge to rule is not a good position for the surveying profession to take. You become a useless troublemaker to the system at that point. Surveyors need to solve problems not find them and then dump them into the legal system.
Leon, you are correct. This ties back into the discussion of removing licensing from surveying. If all we are supposed to do is slap the math on the ground and merely report the spacial relationship between the "math/deed" line and improvements/lines of occupation, etc., and tell the landowners to "let the judge sort it out", why do we need a license, as such functions are merely technician level work? Professional level work goes far beyond the technical stuff - we are supposed to gather the evidence, properly apply the laws, help the landowners properly resolve any ambiguities, issue a professional opinion on the location of boundaries, and preserve the evidence of location.
Those control freaks at the planning and zoning office have no standing to tell two adjoining property owners how to fix the boundary between them. None.
Hey with the wonderful new machine grading control technology I should be able to buy a grading machine and do grading without a general engineering contractor's license, right?
Agreement requires uncertainly or a line that is unable to be reestablished. Otherwise you are basically just selling a piece from one to the other without conveyance.
You left out the first part of the posters quote that basically agrees with you. You took the second part completely out of context.
I had a survey once where I was able to uncover the original monuments and establish the original property line. Both landowners that shared the property line thought the line was in a different location. They asked me to just show the line at the agreed upon location. I explained to them that I couldn't do that because there was no uncertainty in the lines true location, I had uncovered the original monuments. I did complete a lot line adjustment plat for them after the survey which one owner used to convey the strip in question to the other owner.
MD Surveyor, post: 343332, member: 10081 wrote: You left out the first part of the posters quote that basically agrees with you. You took the second part completely out of context.
I had a survey once where I was able to uncover the original monuments and establish the original property line. Both landowners that shared the property line thought the line was in a different location. They asked me to just show the line at the agreed upon location. I explained to them that I couldn't do that because there was no uncertainty in the lines true location, I had uncovered the original monuments. I did complete a lot line adjustment plat for them after the survey which one owner used to convey the strip in question to the other owner.
MD - you are correct, I missed "otherwise" - my bad, thanks.
Referring to the situation you described - this is where we need to look carefully at the laws in each state. In some states, objective uncertainty is required, some it is not required. In Idaho, a boundary by agreement/acquiescence is valid even if a surveyor can easily find the "true line". All that is required is that the landowners are in dispute over the line or are uncertain of its location and agree/acquiesce in the boundary. In fact, I am currently working on a survey where the landowners found the east monument, but didn't find the west monument and built a fence that ended up being 18' south of the west corner, which I easily found by kicking some leaves off the aluminum cap.