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Rhetorical Question

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Norm
 Norm
(@norm)
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Posted by: @bill93

only an uncertainty in the parcels' boundary is in play.

There needs to be caution used in stating that as well. When there are no indications other than measurements or protraction that a boundary has ever been anywhere other than where it is for as long as anyone can remember there is no uncertainty. The law treats that as a presumed original location. The manual states as much as well - not that it matters. There are way too many that use unwritten rights excuses pro or con when the measurements don't fit the evidence the way they want it to. It has to be that way by necessity particularly in states where most if not all original survey marks have been obliterated. 

This post was modified 2 months ago by Norm
 
Posted : December 20, 2024 7:30 am
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(@monte-king)
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@norm I agree with you.

In a situation with a stone wall, my question is does the title refer to the wall or a line that the wall occupies. If the wall is referenced then it is the monument. If a line is referenced then the wall is physical best available evidence of the original boundary.

 
Posted : December 20, 2024 8:27 am
MightyMoe
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AP and acquiescence are treated quite differently depending on the state. It's important to know the statutes and court cases that deal with those issues. Practically, acquiescence isn't a thing here whereas AP is. 

Frankly I try to steer my clients away from anything that results in trips to courtrooms.

I consider it one of my main functions as a surveyor.

 

 
Posted : December 20, 2024 9:11 am
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Norman_Oklahoma
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The Washington case of Merriman v. Cokely illustrates things here. In that case, the boundary had been surveyed erroneously, and left undisturbed for the statutory period. Eventually, the state Supreme Court ruled against holding the monuments, which were not called out in the relevant legal descriptions, stating:

"....the Court of Appeals majority held that the survey markers and adjacent posts were sufficient to establish a certain, well-defined, and physically designated boundary. But where the disputed area is overgrown, more than isolated markers are required to prove a clear and well-defined boundary...."

If there had been a stone wall one could hardly say that the boundary was not certain, well-defined, and physically designated.  Uncalled for monuments acquire dignity through unwritten boundary establishment doctrines, all of which require property owners to be aware of their presence and act upon them - even if those acts are nothing more than actively remaining inactive, if you will.  

 

 

 

 

 
Posted : December 20, 2024 9:57 am
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holy-cow
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A question I've had for along time but never asked before is:  Who is ultimately responsible for the maintenance of the stone wall if both adjoining parcels call out "to a stone wall"?

 
Posted : December 20, 2024 1:25 pm

peter-lothian
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Posted by: @holy-cow

A question I've had for along time but never asked before is:  Who is ultimately responsible for the maintenance of the stone wall if both adjoining parcels call out "to a stone wall"?

Mending Wall

Something there is that doesn’t love a wall,
That sends the frozen-ground-swell under it,
And spills the upper boulders in the sun;
And makes gaps even two can pass abreast.
The work of hunters is another thing:
I have come after them and made repair
Where they have left not one stone on a stone,
But they would have the rabbit out of hiding,
To please the yelping dogs. The gaps I mean,
No one has seen them made or heard them made,
But at spring mending-time we find them there.
I let my neighbor know beyond the hill;
And on a day we meet to walk the line
And set the wall between us once again.
We keep the wall between us as we go.
To each the boulders that have fallen to each.
And some are loaves and some so nearly balls
We have to use a spell to make them balance:
‘Stay where you are until our backs are turned!’
We wear our fingers rough with handling them.
Oh, just another kind of out-door game,
One on a side. It comes to little more:
There where it is we do not need the wall:
He is all pine and I am apple orchard.
My apple trees will never get across
And eat the cones under his pines, I tell him.
He only says, ‘Good fences make good neighbors.’
Spring is the mischief in me, and I wonder
If I could put a notion in his head:
‘Why do they make good neighbors? Isnt it
Where there are cows? But here there are no cows.
Before I built a wall Id ask to know
What I was walling in or walling out,
And to whom I was like to give offense.
Something there is that doesn't love a wall,
That wants it down.’ I could say ‘Elves’ to him,
But its not elves exactly, and Id rather
He said it for himself. I see him there
Bringing a stone grasped firmly by the top
In each hand, like an old-stone savage armed.
He moves in darkness as it seems to me,
Not of woods only and the shade of trees.
He will not go behind his fathers saying,
And he likes having thought of it so well
He says again, ‘Good fences make good neighbors.’

 

 
Posted : December 20, 2024 1:35 pm
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(@bstrand)
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Posted by: @norman-oklahoma

But where the disputed area is overgrown, more than isolated markers are required to prove a clear and well-defined boundary...."

So only where it's overgrown do monuments not count?  How bizarre and I'm surprised this wouldn't open a bunch of other cans of worms for property owners all over the state.

Washington is a recording state so I'm a little surprised a ROS didn't satisfy the "more than isolated markers" part of the ruling.

 
Posted : December 20, 2024 1:41 pm
peter-lothian
(@peter-lothian)
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Besides Robert Frost, we have instructions from the Massachusetts government:

Massachusetts General Laws, Chapter 49,

Section 1. The mayor of each city, subject to confirmation by the city council, and the selectmen of each town shall annually appoint two or more fence viewers, to hold office for one year and until their successors are qualified.

Section 2. Fences four feet high, in good repair, constructed of rails, timber, boards, iron or stone, and brooks, rivers, ponds, creeks, ditches and hedges, or other things which the fence viewers consider equivalent thereto, shall be deemed legal and sufficient fences.
Section 3. The occupants of adjoining lands enclosed with fences shall, so long as both of them improve the same, maintain partition fences in equal shares between their enclosures, unless they otherwise agree.

Section 4. If a person refuses or neglects to repair or rebuild the part of a partition fence which under this chapter he is required to maintain, any person aggrieved may complain to the fence viewers, who, after notice to each party, shall view the fence; and if they determine that it is insufficient and that a partition fence is required, they shall so state in writing to the delinquent occupant, and direct him to repair or rebuild his part within such time as the fence viewers may determine; and if the fence is not so repaired or rebuilt, the complainant, after having repaired or rebuilt his part of said fence, may repair or rebuild the part of such occupant.

Section 5. If a deficient fence which has been built up or repaired by a complainant is, after due notice to each party, adjudged sufficient by the fence viewers, and the value of the part of the delinquent occupant, together with the fees of the fence viewers, has been ascertained by a certificate under their hands, the complainant may demand either of the owner or of the occupant of the land where the fence was deficient double the amount so ascertained; and upon the neglect or refusal to pay the same for one month after demand, he may recover the same, with interest at one per cent a month, in an action of contract.

 

I'll spare you Sections 6 - 42.

 
Posted : December 20, 2024 1:46 pm
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MightyMoe
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Posted by: @peter-lothian

Massachusetts General Laws, Chapter 49,

 

Fence statutes are similar out west. 

 

 
Posted : December 20, 2024 2:12 pm
Norman_Oklahoma
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Posted by: @bstrand

So only where it's overgrown do monuments not count? 

Hardly. This was simply the circumstances of this particular case.  It does highlight that the markers must be clearly apparent to one and all. Remember that we are talking about "markers" not called for in the deed set at the behest solely of one of the adjoining owners, and that therefore the various doctrines of unwritten boundary establishment apply. 

After all, one owner commissions a survey,  which places yellow plastic caps while the other owner is at work one day, and does nothing more. Is it reasonable to assume that other owner knows anything about the survey and its "markers"?  

As for Washington being a recording state - do you really think that the average property owner knows anything about that?

 
Posted : December 21, 2024 9:16 am

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