> So then, it's really not a problem if some property owner builds a fence or >driveway onto the neighbor. Are you saying then, let's just all agree then the >property owners can move the location of the physical deed line?
As long as the owners agree to the fence location and there is no 'public nuisance' complaint by either of them for the time limit specified in your state statutes, NO THERE IS NO PROBLEM!
Go to www.wsls.org, the WI surveyors web site and read about how inaccurate descriptions in a platted area can be corrected by an Assessor's Plat described in 70.27 of WI statutes. Individual record descriptions can be corrected without judicial review if either, both agree or, the statutory time limit has passed.
No attorney can provide this service because; 1, the attorney cannot recover and interpret physical evidence and 2, the attorney cannot accurately describe the boundaries of a parcel of land.
The definition of Alienation I quoted above begins with "IN REAL PROPERTY LAW", do you really have a problem understanding those three words?
Richard Schaut
Property Lines & Encroachments butch
THE DEED DESCRIPTION IS NOT A CONTROLLING ELEMENT IN A RESURVEY!
The most a deed can do is to define the area of search for the land surveyor, physical evidence marks the location of the boundaries of a parcel of land.
Study the definition of Alienation I posted above.
Richard Schaut
> If it was so easy to just go out and survey the fences and roads and/or
> just go out and survey the deed metes and bounds; it would only take
> survey technicians to do it.
>
> Keith
Williams, your career restrictions set forth in 5-13 & 6-11 of the manual gave you only the experience of a party chief as far a private land surveyor responsibility is concerned. Remember you were forbidden to consider legal requirements, the private surveyor does not have that luxury which is the point that Curtis Brown made in his 1979 talk about surveyors liability to unwritten rights.
From the ’73 Manual:
“…
5-13. One additional caution, addressed especially to the surveyor employed by the Bureau of Land Management, is to bear in mind that his professional work is technical in character, not legal or judicial. The surveyor is not a referee as to the justice or injustice of a situation, nor is he qualified to act judicially upon the equities or inequities that may appear to be involved.…”
And
“…
LIMIT OF AUTHORITY OF SURVEYOR
6-11. There are certain questions of a purely judicial nature involved in resurveys of every description where the decision is to be reserved to the Director of the Bureau of Land Manage¬ment, particularly those relating to compliance with the general laws in respect to the entry of the public lands. Thus it comes within the realm of the surveying process to identify and mark out on the ground the various legal subdivisions of the public domain, but it is a judicial question beyond the function of the surveyor to determine whether or not specified lands have been duly earned under a certain entry. In the resurvey process the surveyor will determine whether or not lands embraced within a claim as occupied have been correctly related in position to the original survey. Where the demonstration of this question may be one involving more or less uncertainty, as is often the case, the surveyor will examine and weigh the evidence relating strictly to the surveying problem involved. He will interpret the evidence with respect to its effect upon the manner in which the resurvey shall be executed to protect valid rights acquired under the original survey. The surveyor has no authority to enter into an agreement concerning the exchange of one subdivision for another or to bind the Bureau of Land Management in this particular.
,...”
I have quoted the manual and told you this before but I understand that memory lapses occur in the elderly so I post it again.
Richard Schaut
Property Lines & Encroachments butch
The Deed description may or may not control; this depends on whether there is physical evidence of the location of the Deed line present.
Generally though, Richard is right, a purpose of a Boundary Survey is to find the existing location of the Boundary line unless it is a new Boundary then it is to mark the new location.
Thanks Richard for quoting the Manual!
I take it from your inferences that your authority exceeds that of the BLM land surveyor authority and of course mine, when I was in the field. For instance; take sec. 5-13....is your professional work not technical and is legal and/or judicial? Are you the referee as to the justice or injustice of a situation, are you qualified to act judicially upon the equities or inequities that are involved?
Seems to me and it must seem to other readers, that your survey license authorizes you to be the final judge and jury? How can that be?
As far as 6-11 is concerned, it is applicable to the BLM land surveyor where ". . .questions of a purely judicial nature involved in resurveys of every description where the decision is to be reserved to the Director of the Bureau of Land Management, particularly those relating to compliance with the general laws in respect to the entry of the public lands." is exactly how it should be.
Your surveys/resurveys will never enter the realm of deciding if the land that you are resurveying by locating the fences, is of a purely judicial nature and was it in compliance with the general laws of entry of the public lands.
The public land surveyor's survey and the private land surveyor's survey are all subject to higher authority by a Court Judge.
Maybe yours are not?
Keith
Property Lines & Encroachments butch
Dave,
Generally, Richard is not right....his fence line surveys do not always override the boundaries as marked on the ground with survey monuments.
If I own land on the other side of Richard's client and Richard has simply did a technician measurement of the fence lines and I have monuments that do not agree with that fence line, we be in court in a hurry.
Keith
Property Lines & Encroachments butch
Once again and generally speaking -
>
> Generally, Richard is not right....his fence line surveys do not always override the boundaries as marked on the ground with survey monuments.
>
According to R.S. if parcels are created as Lots 1 and 2, Richard's Subdivision and property owners construct a fence that is not located on the deeded lot line between Lot 1 & Lot 2, then all of a sudden the Lot line move and has been changed. Irregardless of the intention of the original configuration of the Lots as show in public records and that the original monuments found on the site that mark the original location of Lots 1 and 2 no longer mark the correct location of the common lot line between Lots 1 & 2
Wow - I guess I've been surveying in an alternative universe, and that the hundreds of surveys and thousands of monuments that I have placed in the ground are wrong. I better call my e&o carrier tomorrow.
6th
I think you have it right.........wherever the fence is, the hell with the monuments.
Keith
Generally I don't bother to read all of Richard's posts.
What I mean by physical evidence is, is there a physical object there already? Is the physical object a monument to the Deed line? If so, does it control?
Fences are problematic as we all know. Occasionally they do rise to the level of being the boundary but for the most part no one ever intended them to be the boundary, just a way to keep their pet alligator in the yard or maybe Bessie the cow in her pen.
My experience with landowner thinking is "I need to build a fence." Either they have no thought about the fact that there is a boundary out there (they are uneducated on the topic) or they think they have an idea so they build it there thinking they are building it on the boundary or they hire a Surveyor to stake it for them (rare). When they find out the fence is not really on the boundary they don't think, oh well I meant to transfer that to my neighbor (if it is on their side). They have some vague idea of A.P. (they think it's squatter's rights) but have no idea how difficult that is to perfect, they don't just get it because their rickety fence was there for years.
6th
My understanding of Richard's message is...
Deed says 100'. Physical evidence (whatever it is, fences or monuments) measures 101'. 101' doesn't match 100' therefore you need to correct the description.
This is a novel concept I have never heard from anyone else.
Most realize the physical evidence will never measure exactly what the record says, heck I could measure it today and then tomorrow and then get a slightly different answer. I could change my assumptions in Star*Net a little and change the answer. We would clog up the public records with correction documents if we file one every single time things vary.
I will say if the discrepancy is large enough then it may be advisable to get the owners to do a boundary line agreement but when this point is reached is a matter of judgment and opinion. I can't name a number; I will know it when I see it.
Dave
> My understanding of Richard's message is...
>
> Deed says 100'. Physical evidence (whatever it is, fences or monuments) measures 101'. 101' doesn't match 100' therefore you need to correct the description.
>
> This is a novel concept I have never heard from anyone else.
>
> Most realize the physical evidence will never measure exactly what the record says, heck I could measure it today and then tomorrow and then get a slightly different answer. I could change my assumptions in Star*Net a little and change the answer. We would clog up the public records with correction documents if we file one every single time things vary.
>
> I will say if the discrepancy is large enough then it may be advisable to get the owners to do a boundary line agreement but when this point is reached is a matter of judgment and opinion. I can't name a number; I will know it when I see it.
What you say is steeped in the basic and fundamental tenants of professional land surveying and the ability of ascertaining the location of a parcel based upon the original location of that parcel based upon the original surveyor. --- that is not Richards argument -- He believes that parcel lines move - literally.
Dave
This whole issue about fences being boundaries reminds me of my Dad back in the 50's when we were out on the yearly round of fixing fences and I saw a BLM iron post and it was not on our fence line. I asked Dad why that was and he said the common way to build fences was to put it 10 feet or so on his side of the line so that he could maintain it and own it. I have no idea if that was the common way of building fences in Montana, but was the way he did it. I also remember helping him sight over two sticks to line them up between found monuments, so we did know where the boundary was.
Sort of puts a kink in the line of thinking that the fence is always the boundary.
I have accepted fences and roads too when I was in the field and as far as I can remember, they were only accepted when there was no evidence of corner monuments. I also thought of Dad and his methods whenever I was considering a fence for the boundary.
My take on this is of course as a BLM land surveyor and we did not have boundary line agreements.
Keith
Dave
Then there's the case where there is a north south fence at the corner and a fence going west 20' south of the fence going east. So which fence corner post is the section corner? Maybe one, maybe none.
Keith
I hear that frequently from landowners too. They put the fence on their side of the line so it's "their" fence. They are not giving the property between the fence and the deed line to their neighbor, they just want to contain their property with a fence that their neighbor can't mess with.
That's interesting about boundary agreements, too. I was involved a couple of years ago where there was an old Mineral Survey that had been retraced by the GLO and then a private surveyor had surveyed the Forest Service property that surrounded it amd there were Corner Records by the County Surveyor and none of it fit together worth beans. The owner of the patented mining claim and I met with the BLM and Forest Service and the USFS offered to pay half of my fee if the owner would pony up the other half to try to sort it out. One problem was the owner didn't have that kind of money and the other problem was that my survey would only be one more opinion unless the USFS could enter into a boundary agreement with the owner. The USFS representative said they can't do that, so I wondered what good another private survey would do without some kind of agreement or judicial order that my survey defined the "true" boundaries, if I could even figure it out at all.
Steve
Fence line surveying has its problems of course and that is why we have corner monuments....they mean things.
I am not aware of any concept whereas the BLM land surveyor could make a boundary line agreement.....or anybody else in BLM. Who would do it and under what law or regulation?
Obviously, it is not the same as two adjacent land owners agreeing to their boundary.
Keith
Steve
What does the BLM do if it is uncertain?
If the corner is lost then they do a double proportion but say the private owner is occupying something different in good faith. I suppose that is where the BLM can survey a metes and bounds tract?
Dave
If a corner is really lost, and that means no evidence, proportion is the only solution. If in fact a landowner is occupying his land in good faith and has evidence of his boundaries, it can be accepted and will be used as the boundary.
That is bona fide rights and is the basic law in resurveying that BLM holds to.
Don't go off on metes and bounds tracts like Richard does. That is mostly having to do with Independent Resurveys and nobody can do them and I doubt that BLM even does them anymore.
Keith
Dave
OK, I was just asking.
A problem was presented at our Chapter meeting a few years ago by Lance Bishop (so my memory may be faulty) where they couldn't find any of the corners in the Township or maybe only a few and I thought Lance said when they could settle with a land owner (there were only a few patents in the entire township) they could somehow give him a new patent (but I could be misremembering the exact details). I do remember Lance saying the agreed upon parcel had to be substantially the same shape and size as the original patent.
Dave
I went to that meeting when Lance was talking about bona fide rights and good faith and stuff. If the BLM was doing a dependent resurvey and found evidence that the corners they are concerned with were established in good faith in accordance with the language of the patent, they are going to accept them was my interpretation of his talk. Several of us tried to corner him in the parking lot to hash it out a little further but understandably, he had to get going.
Dave
I am not sure if the word "settle" is appropriate, but of course BLM can review the evidence on the ground that a land owner may be relying on and accept the landowner's bona fide rights. And of course, this is true, ". . . agreed upon parcel had to be substantially the same shape and size as the original patent." BLM can't just unilaterally change the shape of the original boundaries to satisfy a landowners dream of what is owned.
Keith