For those who may be interested in the distinction drawn in Texas law between designed enclosures and casual fences, there's a link below to a Texas Supreme Court decision from 1990 in the matter of RHODES v. CAHILL, 802 S.W.2d 643 (1990). Quoting the court:
>"Under the applicable case law, there are two kinds of fences: "casual fences" and fences that "designedly enclose" an area. If the fence existed before the claimant took possession of the land and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a "casual fence." [...] Repairing or maintaining a casual fence, even for the express purpose of keeping the claimant's animals within the enclosed area, generally does not change a casual fence into a designed enclosure.
(Note that this decision should not be relied upon in Rhode Island.)
I'm not sure I would call it surveyor error, more of a lack of surveying services for purposes of building a fence. The distinction of types of fences is an interesting way to handle the problem. In Butler, the fence became a designed inclosure even though a lessee had made the change to the fence under a different owner than the one claiming adverse possession (although the claimant did inherit the property rather than purchase it). It is impossible to see how AP is justified under Butler and not Moenke. And that's why I disagree with those who would say the law is clear and outcomes predictable in unwritten rights situations. It is also a clear indication again of the need to win at the trial court on the facts and credibility of witnesses.
From Butler v. Hanson (cited in Rhodes), Supreme court Texas 1970, under similar facts to Moenke:
"We agree with the Court of Civil Appeals that the fence between Sections 46 and 3 was not a "casual fence" under Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954). It is true that there is no testimony as to who built the fence. There is no testimony that the elder Hanson, who was dead at the time of trial, did not build it; and his tenant, Clyde Berry, testified that the fence, which joined with other fences to make the enclosure, was there when he went into possession in 1932 and had been there ever since. Bud Hanson testified, as set out above, to the changing of the fence to a "net fence" in 1934, and his putting new posts around the ranch, including the fence in question, in the period between 1949 and 1952.
While the opinion of the Court of Civil Appeals adequately distinguishes the Orsborn case, we might emphasize these elements:
[ 455 S.W.2d 946 ]
in Orsborn, cattle only occasionally strayed down to the 57 acres in question, whereas here, there was testimony that this land was constantly used for grazing. In Orsborn between the land unquestionably owned and that claimed by adverse possession, there was a 60 acre tract, unfenced, that belonged to the State of Texas; so the adverse possessor had to skip an unfenced tract to claim the 57 acres. Here the tracts are contiguous and were operated as a unit. In Orsborn, the adverse possessor simply made use of the fence somebody else built. Here, as set out above, the character of the fence was changed to a "net fence" and new posts put between each old post which would certainly be evidence that Hanson had made it his fence. And finally, the undisputed evidence, not only from Hanson, but from the tenants on both sides of the fence (Jack Cook and Clyde Berry) was that this fence was Hanson's fence, and that the general reputation in the community was that the property down to that fence was Hanson's property."
> I'm not sure I would call it surveyor error, more of a lack of surveying services for purposes of building a fence. The distinction of types of fences is an interesting way to handle the problem.
The land that was the subject of Butler v. Hanson is in Glasscock County. The Hanson Ranch has been operated as such for more than 100 years. My guess is that the record does not reflect the key fact in the case which I found in a google search:
>The Will Hanson family was recently honored as Glasscock County Pioneer Family of the Year for the 78th annual Howard-Glasscock Old Settlers Reunion.
>In 1886, young Will Hanson from Portage, Wisconsin was hired to oversee a train shipment of horses from Wisconsin and heard of land that was available for homesteading. He returned to Wisconsin to marry Cora Preston, and the couple returned to homestead a parcel of land about eight miles west of Garden City.
>Over the years, Hanson was active in the efforts to form Glasscock County, serving as county clerk and county judge.
>The Hanson’s children are Phoebe Clark, Christine Bigby, Bud Hanson, Katherine Heath and Willie Edith (“Tump”) McDaniel. Grandchildren are Billie Clements, Leonard Hanson and Bruce Hanson.
>The 100-year-old-plus Hanson ranch, which raises sheep, cattle and horses, is still operated by their family.
In other words, the court may have known that the fence was a Wisconsin fence, not a Texas fence. We will all recall, I trust, the special powers of Wisconsin fences as described by the late Richard Schaut of Green Bay.
It would probably be instructive to examine the original surveys of the land grants that make up the Hanson ranch and particularly those whose common line was at issue in Butler v. Hanson. I'd bet, sight unseen, that there is a good chance that the line was originally located by protraction or office survey as described in the patents.
Edit: I didn't find anything available on line in the Texas GLO records, but the boundary at issue in Butler v. Hanson appeared to be the line between two blocks of surveys made by the Texas & Pacific Rwy. Co. in the 1870's, making extensive use of protraction to locate surveys (sections) in the blocks.
The Butler section was patented to the Texas & Pacific Rwy Co. Just for a bit of West Texas flavor, here are the field notes returned by W.C. Powell, Deputy Surveyor for the Texas & Pacific Railway Co describing his location of Survey 3, Texas & Pacific Railway Co. Block 35, Township 4 South, made in January of 1876, the land grant that Butler claimed to own:
>Beginning at a stake Earth Md & 4 Pits the N.W. Cor of Survey No. 2,
>Thence S77°W at 950 vrs St. Earch Md & 2 Pits 1900 vrs to Cor St. & Rock Md.
>Thence S13°E 1900 vrs to Cor St & Earth Md
>Thence N77°E 1900 vrs to cor St & Earth Md
>Thence N13°W 1900 vrs to the place of beginning.
Link to Texas GLO file for Suvey 3, Blk 35, Twp4S
The patent was issued by the State of Texas using those field notes and no corrected field notes have apparently ever been filed in the GLO.
Is your comment about "no corrected field notes" just a comment that the description of the boundary hasn't been changed or do you think that there is an error in the notes?
I wonder why he monumented the first course at 950 varas.
> Is your comment about "no corrected field notes" just a comment that the description of the boundary hasn't been changed or do you think that there is an error in the notes?
>
> I wonder why he monumented the first course at 950 varas.
Tyler,
The 950 varas appears to be a passing call for an adjacent survey, although he didn't specifically call for that survey. The entire length is 1900 varas.
Yeah, as I mentioned, it is an interesting way to handle the problem. Wouldn't it be easier for Texas to pass a law that says once a boundary has modern surveys (post Wisconsinonian era) in the area (even if not on that particular line) they will always hold over attempts to fence the line that go astray.
I mean, the string of cases posted is a fairly embarrassing picture of the Texas courts trying to muddle their way through this casual v. design fencing thing in order to determine title.
Alternatively, as you say, the courts could just look to see if it was erected by an immigrant from Wisconsin. But that seems a bit unfair to the native Texans, such as myself who immigrated from Arizona. Of course I've been through Wisconsin since then, so if I move back to Texas I should now be able to purchase a fenced property without a survey.
As you probably guessed by now, I'm just not sure the Texas system is less arbitrary than the Wisconsin one. I'm not getting the picture that one should always hold the fence in Wisconsin and never hold the fence in Texas.
I think if we want precise measurements to control boundaries we need requirements that precise and accurate monuments delineate those boundaries rather than merely monumenting corners thousands of feet apart.
> Is your comment about "no corrected field notes" just a comment that the description of the boundary hasn't been changed or do you think that there is an error in the notes?
>
> I wonder why he monumented the first course at 950 varas.
The absence of corrected field notes in the GLO file just means that those linked remain the basis of the patent and any rights an owner might claim by virtue of the patent.
The monument at 950 varas may mean that they didn't run the full mile, but offset around some obstruction. The original field books still exist in the records of the T&P Land Trust, as do copies at the GLO, so it's one of those questions that can be answered.
> As you probably guessed by now, I'm just not sure the Texas system is less arbitrary than the Wisconsin one. I'm not getting the picture that one should always hold the fence in Wisconsin and never hold the fence in Texas.
The obvious distorting factor in Texas law is that in the 1870's and 1880's when much of West Texas was being laid off into blocks of land grants, the early surveyors realized that perhaps 50 or 100 years later someone would want to know exactly where the land grant boundaries were when oil and gas wells were producing hefty royalty checks. So, rather than put an end to a livelihood for legions of later surveyors and attorneys, they simply opted to do the most minimal work possible, collect their meager pay, and go off and try to forget about it all.
In Wisconsin, one would think that if the land were fenced, there would be a fortune in cheese being produced upon it immediately thereafter, so knowing that your neighbor was selling only the cheese that was rightfully his (more important in Northern European culture than actually selling cheese yourself, one is given to understand) meant that extreme measures needed to be taken to summarily dispose of any questions about land titles lest a generation rise up to make their livings as surveyors instead of dairymen.