First question, Brian
What if there was a previous survey of record that accepted the fence based upon evidence of an agreement?
There are two possibilities when you search for boundaries. The boundary is either established or it is not. If the boundary is established then you retrace it (determine) where it is established. In my state boundaries can be established without surveys (by several different means). If the boundary has not been established (seems to be your take based upon no previous record of survey) then you would be tasked with marking the boundary from the written evidence and placing it on the ground for the landowners to accept therefore establishing the boundary. A non established boundary is sort of like a lost corner from my viewpoint. They are out there but you need to determine they are lost before you apply the lost corner methods.
Different law applies in different states. I've never nor do I ever intend to survey in Oklahoma or south of there. In fact I never intend to survey anywhere but Utah.
First question, Brian
> "Do you have a previous survey of record?"
>
Great question. Another would be do you know if your boundary, or that of your neighbor's has ever been surveyed?
> 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.
>
Yes, could be. But how will you know without gathering other evidence?
> 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.
How would you know if you don't gather the appropriate evidence?
After just a few minutes looking at Oklahoma case law I found this
and this recent case McDonald v Martin
> Simultaneous conveyances or are there senior rights to consider?
These have little to do with gathering evidence of an old fence line. That is part of your documentary evidence gathering process. A properly established boundary by agreement/acquiescence, in most jurisdictions, trumps a simultaneous conveyance and senior rights.
> gather the evidence, not conclusions.
>
> Also, make certain that you ask the questions in such a manner that you gather evidence, not disclose evidence.
> Your goal is to gather clean untainted evidence from each landowner.
:good:
I like these. It kind of condenses the whole purpose and method of obtaining landowner testimony. any questions formed on this basis are going to be useful.
by hostile witness you mean a adjoiner with a Red Sox cap on? When I'm wearing my Yankee cap. 😉
Questions to have asked at some point in the not-to-distant past, to be used in case a boundary line agreement is the appropriate resolution:
Mr. tax assessor, are any special acreage requirements for farmers to qualify for special tax rates?
Mr. zoning official, are there any special acreage requirements to operate a farm with respect to noise, pesticide spraying, manure disposal, etc.?
After all, if the owners need to come to an agreement, it would be a shame for one owner to fail to qualify for a benefit because his/her farm is 0.01 acre too small.
> Questions to have asked at some point in the not-to-distant past, to be used in case a boundary line agreement is the appropriate resolution:
>
> Mr. tax assessor, are any special acreage requirements for farmers to qualify for special tax rates?
>
> Mr. zoning official, are there any special acreage requirements to operate a farm with respect to noise, pesticide spraying, manure disposal, etc.?
>
> After all, if the owners need to come to an agreement, it would be a shame for one owner to fail to qualify for a benefit because his/her farm is 0.01 acre too small.
Questions regarding the land area are questions which need to be asked when the boundary is created. The parent parcel is divided with the intent of meeting those requirements. A lot intended to be 10,000 square feet, shown to be 10,000 square feet and approved to be 10,000 square feet. A parcel created to meet the 5 acre agricultural exemption is 5 acres by intent to comply with the law.
With all that intent in mind, show me one surveyor who can set lot corners to the perfection we seem to expect from one another but ourselves can never achieve. Then show me one landowner who can maintain that perfection throughout the history of their occupation. We are expecting an impossibility that the law does not require.
When making an original survey, those questions are valid. During a retracement survey, your measurement of the property will not change the property status from compliant to non-compliant.
JBS
CT law states that the zoning regulations that were in place at the time the parcel was subdivided, are the regulations that apply to said subdivision. Not the current regulations. Just an FYI.
CT section 8-26(a)
:good:
> ... your measurement of the property will not change the property status from compliant to non-compliant.
>
JB, I agree with almost everything you said. Must only slightly modify one word.
Modify from will not to should not. My unfortunate experience has seen bureaucrats jumping all over things that should not be an issue.
Are their determinations subject to being over ruled if or when taken to court? Of course. Do they care? Not in the least.
The local idiots I deal with know that it takes lots and lots of your money and time to fight the government. They also know that if you have the money and the time you will be paying for both sides to fight. They have no skin in the game so they couldn't care less about doing what is right.
I once had a client who was told they had done an illegal subdivision. We had a copy of the minutes from the meeting where it was approved. We had a canceled check where they had paid all the appropriate fees. They had complied in every possible way. The reason the subdivision was now suddenly illegal is the planner who had held the office when the work was originally approved had not filled out a certain internal form for the file. The client was told they must begin the process again from scratch and that the new project must be made to meet the current standards.
If that isn't crazy enough, a special meeting of the planning board was called and the planner told our board that they needed to have a $1 million dollar bond from my clients so the project could be made to meet "future standards".
Of course, there is nothing in the ordinance that requires a bond under any circumstance and for $1 million you might well have been able to buy the entire property. This was not a big project by anyones standards.
So, I agree with you that retracement surveys should not change compliant properties into non-compliant. But I have learned to never ever underestimate the levels of idiocy to which bureaucrats can sink.
Larry P
You are, unfortunately, exactly right.
How so? It is just a fence, unless elevated to monument status by either a deed call or shown on a previous survey as being the boundary.
Chip shot here in Alabama, locate it, describe it and if the client or adjoiner has any questions that is another trip and another billing.
A deed call or previous survey are not the only routes to monument status for a fence. If that was so, we would be removing the power and ability of landowners to establish their boundaries. Rather, a fence can be elevated to monument status by landowners agreeing (either express or implied) that the fence represents the boundary described in their respective deeds.
> Modify from will not to should not. My unfortunate experience has seen bureaucrats jumping all over things that should not be an issue.
> ...
> So, I agree with you that retracement surveys should not change compliant properties into non-compliant. But I have learned to never ever underestimate the levels of idiocy to which bureaucrats can sink.
>
Larry, I said "retracement surveys will not." I agree there are bureaucrats who have no knowledge of land boundary law and little knowledge or respect of property rights. That doesn't change the fact that retracement surveys merely locate the existing boundaries, they don't create a parcel. The creation of the parcel (an original survey) will be subject to local authority review and must comply with current regulations.
When the bureaucrats overstep their own regulations, that's a very real public issue that should be brought to light in public to be dealt with by the public.
The comment above pointed out a common misconception among surveyors. That's a surveyor issue that should be brought to light amongst surveyors. How we represent the sizes and dimensions of a parcel on our survey is an important matter that can set the stage for misconceptions made by ill-informed bureaucrats. That is something we can help to avoid.
JBS
As it should be, Joe. That's the common law of the land. Sounds like CT has codified it.
JBS
I wouldn't quite agree that retracing a boundary can't determine what regulations apply to a property. A specific example would be my state, Vermont, where up to 3 acres can be considered to be associated with a homestead and receive special favorable property tax treatment, but acreage over 3 acres is taxed at the full rate. From what I understand, the 3 acres is intended to apply to the part of the property that is not part of a road easement (or whatever the technical term that allows the public to have a road over the property without the town having fee ownership). That is, a parcel with 2.9 acres unencumbered and 0.5 acres under road would all be considered eligible for special tax treatment. But many older surveys may have problems depicting roads. One property along a Revolutionary-era road may be drawn to the centerline on a plat, the next property down the street may be drawn to the edge of the road. The area statement may not distinguish between unencumbered area vs. area under the road. So a new survey that makes a clear (and hopefully correct) statement of each area may change the tax treatment of the property, once it is presented to the tax assessors.
The fact whether the roadbed should be included or excluded from the regulation is a matter addressed by the statute/ordinance. Either it is or isn't. The status of the regulation at the time the parcel is created will govern how the parcel is created. It will either comply or it won't. That's governed by the intent at the time it was created, not by some future modification or rendition of the regulation. When the regulation changes, the parcel will be grandfathered. It will remain as a conforming parcel until another regulation kicks in which brings it under another requirement.
A good example of that around here is zoning changes, say from agricultural to residential zoning. As long as animals are kept on property over one acre in size, they can remain. As soon as no animals are kept for a period of one year, they loose their exemption. Or, if they subdivide (create two new parcels), less than the one-acre requirement, they loose their exemption. A retracement survey, after the fact, that says the survey measured 0.9999 acres won't make the parcel non-conforming.
The location of the boundary between the parcels is a matter addressed by the surveyor. The presumptions are that the boundary is in the center of the road if it's an easement, or along the sideline if the roadbed is held in fee by the public or by another party. Research will provide the direct evidence to the contrary. That's a survey matter that needs to be researched by the surveyor. That's where the failure usually occurs. The surveyor fails to budget enough to determine the boundary location.
JBS
But most regulations are newer than most surveys. And the regulation may depend on information that is not on the survey. So the survey is typically implemented by the government picking some number off a plat or deed that does not even purport to be the number the government is interested in. Later the owner might present better evidence to the government, causing them to reclassify the property.
Yes JB...
Most most town planning agencies won't tell you that. They'd rather see you apply for a variance.
I tell all my clients this, if it applies to them. As a professional, I think we need to be on the forefront of land issues.
JB, if I have to resort to questioning witnesses, then they are hostile. Surveying is not a court of law as you seem to believe. It is an investigation. The rules are different. I want to see what the people will say when prompted, because they certainly will be before they ever testify in court. Court testimony is prepared in order to comply with the court rules of leading questions and such. Witnesses will tell you different things before and after they have consulted an attorney.