Related to the post below, here's a senario:
We are asked to find the common line between farmers Smith and Jones. Jones' deed calls for the north 600 feet of a parent parcel. Smith's deed calls for the south 800 feet of a parent parcel. Assume the boundary around the parent parcel is found and there are no boundary/occupation issues. However, at 605 feet south of Jones' NW cor, an apparently old fence runs east. At the east side of the parent tract, the fence is 597 feet south of Jones' NE corner. We have a latent ambiguity. Now what?
Well, assuming all our document research turns up nothing, now we must start asking questions. Please provide a list of appropriate questions to ask of the landowners and/or previous owners to gather evidence of (or to prove there never was) a boundary established by agreement/acquiesence along the fence.
#1 "Mr. Smith/Mr. Jones, would you please tell me what you know about the fence that runs along your property?"
#2 "How long has it been there?"
#3 "Where have you always considered your boundary to be?"
On some occasions it would depend upon the condition of the fence and what it is attached to.
Is it straight or meandering.
I know folks that when their fence is old, falling down and grown over, they come out with a bulldozer and then call me to run a straight line.
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Why would you say there is latent ambiguity? It is just a fence with no monumentation attached to either end of of the fence, correct? Are you being paid to be an attorney at this point? Show the survey of the parcel(s) as described and by the monumentation that is found and show the fence with the note ownership unknown to the undersigned.
What good does that do anyone? You have not completed the job you were hired to do at that point.
I'm wondering
How close to the deed measurements does a fence have to be before one considers the fence as in situ monumentation: 10', 20', 50'?
If the fence was 300' north of the deeded distance call, would the owner be chitoutaluck?
All depends on what you were hired to do. Why do we as surveyors GIVE away so much of our time and labor? All we can do by law is give an opinion of what we find out there. Are you allowed by law to make a boundary line decision for someone elses property?
Simultaneous conveyances or are there senior rights to consider?
Doctor J
I think you are an expert, and can give expert testimony in the land boundary profession. Your opinion is of value and it is probably why you were hired: to show where someone's property line is. You need to be able to argue why you decided it was there. A court will look at you for guidance as to boundary locations. They generally do not have your level of knowledge and understanding on these matters.
The client says: Hey surveyor show me where my property line is so I can know where I can build up to (or something).
The surveyors says: It is right here in my professional opinion, and I put stakes by monument corners or set monuments where I didn't find any.
It later goes to court, and you need to show the court where the boundary is and be able to point to why and how you came to that conclusion.
I mean that's why you're considered Doctor Jeckyl isn't it? They aren't just asking a technician where the mathematics place the corners.
I'm wondering
Ah the ever elusive "how close is close enough" question. I don't think we ever have, will or should receive an answer to that question.
I'm wondering
300 feet is a long way. What if your client had given you the pre-survey tour and told you the fence was the boundary, maybe even the neighbor had shown up and indicated the same thing, the fence has always been considered the boundary. No this doesn't make you use the fence but wouldn't you think hard about it before you clicked in the new markers that put a bunch of improvements on the other side of the line. I think you need the get the "story" about the fence BEFORE you accept or reject the fence.
In the current thread question the fence is about where you'd expect it from the deed. That fence has a story and I'd want to hear it before I staked the deed line or accepted the fence as the established boundary. You don't want to hear the story later from the neighbors attorney. Maybe one side put up the fence to keep his livestock in. Maybe the adjoiners at one time measured it themselves and each paid half to build the fence as the boundary line. Maybe the fence was in place when the original parcel was divided and some one scaled the approximate distance from a farm photo. Usually its not that hard and doesn't take all that much time to get most of the story about the fence. You might have two adjoiners that don't care about the fence as a boundary and both want the new survey line, I've even had clients that wanted the fence moved that were losing occupied territory. Then again there are some that dislike their neighbor and every inch matters (don't move that fence an inch).
On top of all that you have a funky description to begin with. The north 600 feet could mean different things. What if the north boundary isn't east/west? Maybe the fence is east/west and averaged out. All kinds of things could have been done. They might of even had it surveyed. Yeah, that fence has a story to tell!
Well client, the fence appears to be the boundary (or not). Is that what you thought too?
Client: Well, you're the surveyor, what does my deed say?
Well client, like I said the fence appears to be the boundary (or not). Do you know anything more about it?
Client: If the boundary is the fence, am I losing or gaining property?
Well client, you don't lose or gain either way. It is where it always was.
Etc., etc., etc.
I'm not sure there are any correct questions, but you need to frame them in a way that is nuetral. Credibility of testimony is always a concern.
What I'm trying to get at is what are the appropriate questions? Do you first tell the landowners what the measurements are, or do you first try and find the relevent evidence? What questions, and how would you phrase them to get the proper evidence?
Should we be asking leading questions, or direct (yes or no) questions? How about some examples?
I think this could be very educational for all of us.
A few for example:
Who built the fence?
Who besides you would know anything about the fence?
What discussions have you had with your neighbor about the fence?
Tell me about the maintenance of the fence?
How do we get the unbiased history and story so that we can make determinations in accordance with the laws?
I wouldn't tell them the mathematical details about the fence. They are probably going to ask though so you need to be prepared.
If I get the chance I always ask about fences before I even take measurements. Are there any issues with the neighbors about the location of the fences? Do you know who built the fence? What is the purpose of the fence? How long has the fence been there? Is the fence on the line or offset from the line for some reason. Are there any markers along or at the ends of the fence. Do you know of any other surveys. Did they have a surveyor locate the fence. Who paid for the fencing materials. Who maintains the fence.
Get your states case law to understand the things necessary for the law. Ask the questions to get those answers.
> #1 "Mr. Smith/Mr. Jones, would you please tell me what you know about the fence that runs along your property?"
>
> #2 "How long has it been there?">
> #3 "Where have you always considered your boundary to be?"
I would never ask #3. I really don't care where they consider the boundary to be. That's my job as the surveyor. I'm gathering evidence.
I would ask, instead:
#3 "Do you know who constructed the fence"
#4 "Do you know why it is located where it is?"
$5 "Have you ever had a survey performed?"
#6 "Have you ever seen any survey markers?"
#7 etc.
You should ask enough pertinent questions that, when you walk away, you've got a pretty good idea where they "consider" their boundary to be. But you'll know what evidence they are basing their consideration upon. That's what you're there to do; gather the evidence, not conclusions.
Also, make certain that you ask the questions in such a manner that you gather evidence, not disclose evidence. You don't want to give them evidence that makes them question what they know. That's why the courts have the exclusionary rule for witnesses. As soon as they are confronted with evidence that is contrary to their remembrance, it begins to alter their testimony.
Your goal is to gather clean untainted evidence from each landowner.
JBS
> All depends on what you were hired to do. Why do we as surveyors GIVE away so much of our time and labor? All we can do by law is give an opinion of what we find out there. Are you allowed by law to make a boundary line decision for someone elses property?
We're not "allowed" by law to make boundary determinations. We are "REQUIRED" by law to make them. What is it that makes land surveyors valuable? It's our unique charge to determine boundary location. That requires application of legal requirements of law. We're the only profession who can do it. Even the attorney's can't.
JBS
> Well client, the fence appears to be the boundary (or not). Is that what you thought too?
>
You've already blown any chance of gathering untainted evidence. Besides, how are you able to tell the client in one breath that the boundary appears to be..., when in the second breath, still attempting to gather evidence necessary to make the determination. That's completely backwards. Sounds like the surveyor has jumped to a conclusion before gathering the necessary evidence to make a boundary determination.
> Client: Well, you're the surveyor, what does my deed say?
>
> Well client, like I said the fence appears to be the boundary (or not). Do you know anything more about it?
>
Again, too late. You've already made up your mind and given your answer. It's too late to find out whether the client agrees or not. You're just sounding like you don't know how to do the job you were hired to do. Why are you asking him where the boundary is? You're the professional. It's your job to tell the client, not ask.
> Client: If the boundary is the fence, am I losing or gaining property?
>
> Well client, you don't lose or gain either way. It is where it always was.
>
> Etc., etc., etc.
>
> I'm not sure there are any correct questions, but you need to frame them in a way that is nuetral. Credibility of testimony is always a concern.
Yes. Credibility is the chief concern.
There are proper ways to formulate questions. The rules of evidence and the rules of civil procedure provide us with the law which must be followed. You can't ask leading questions during a direct examination. You can't ask a layman for an opinion on the ultimate issue that requires an expert witness to answer. You can only gather evidence from your questions; you can't provide answers while asking.
That is... unless you're dealing with a hostile witness. Then the rules change.
JBS
> I wouldn't tell them the mathematical details about the fence. They are probably going to ask though so you need to be prepared.
>
If you're still in the evidence gathering stage (which would be true if you're still interviewing witnesses), then I'd simply tell them that I haven't completed my analysis yet, so don't know where the boundary is or whether the fence has any connection with the boundary.
> If I get the chance I always ask about fences before I even take measurements. Are there any issues with the neighbors about the location of the fences? Do you know who built the fence? What is the purpose of the fence? How long has the fence been there? Is the fence on the line or offset from the line for some reason. Are there any markers along or at the ends of the fence. Do you know of any other surveys. Did they have a surveyor locate the fence. Who paid for the fencing materials. Who maintains the fence.
>
Great point, Leon. The best time to ask the questions is when you are performing your initial reconnaissance of the property. It gives you a natural segue into the discussion. You need to introduce yourself just to let them know you'll have a crew in the area, ask for entry permission, and find out how many pit bulls they have. As long as you're there, ask the questions. It makes it sound like you really care about what they might know about their property and it makes them think you might respect their property rights. What a novel approach for a land surveyor...
> Get your states case law to understand the things necessary for the law. Ask the questions to get those answers.
:good: :good: :good:
JBS
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First question, Brian
"Do you have a previous survey of record?"
If there was no evidence of a previous survey, either of record or "in the ground",
I believe that the fence would be secondary to a proper surveyed monument.
What I'm saying is that I would be strongly in favor of "honoring the plat", or deed as it may be. If there is no evidence of a previous survey AND if no deficiencies existed in the parent parcel's size; or any other junior-senior issues or agreements; the mere existance of a fence at 597' would not be enough for me to alter the dimensions of the written conveyance.
