A thought . . . another scenerio
"THESE" lines . . . that is the lines from 20 years ago, are not the problem.
They are what they are and they are what they were 20 years ago . . . lines between lots.
These lines were intended to be lines between property owners, but obviously that has all changed.
Now the lines are nothing more than lines between lots, whether or not property owners agree with those "old", lines is another issue.
Today's property lines are not yesterday's property lines. The might never have been the property lines.
But this doesn't mean the "lines" have changed, it just means property ownership lines have changed.
This might be easier to envision if everyone's drives were placed 10 feet from where they should've been on 50.00' wide lots . . . somehow.
So now E-V-E-R-Y-O-N-E, wants to accept lies that are actually 10 feet from the original location . . . let's not even worry about the end property owners.
Do you now continue to say that the line between lot 14 and 15, as originally staked, has shifted 10 feet or do you say that while the original line location HAS NOT shifted, that the boundary lines have shifted?
What about a property owner's interest, whether he wants to see if a court will validate, or not, in this 10' spacing?
I say that unless the interest(to the original line), is officially(by proper document), extinguished,a surveyor could be laying his neck out.
I say a surveyor would show/stake the original lines and leave it to the property owners to maintain their own set of lines.
There's nothing I know that says a surveyor cannot aid the property owners in re-establishing their property lines.
BTW . . . in Ohio "boundary line agreements" must be in writing to be valid.
I'm sure that a solid agreement between land-owners would be applied by courts. . . but then . . . that would be in writing too eventually.
Scenario
"Unwritten rights" of possession trump all.
You must not deal much with severed Mineral Rights...especially those that are still part of the Public Domain.
Or lands that adjoin the Public Domain for that matter...
As always... IT DEPENDS!
🙂
Loyal
Scenario
We deal with severed Mineral Rights occasionally but they are a different animal. I was speaking in relation to the situation at hand.
A thought . . . another scenerio
In Ohio, the doctrine of acquiescence applies if the landowners have recognized a division line as their boundary for 21 years. Therefore, the surveyor can opine that the boundary line is where the landowners "agreed" (implied agreement) it to be. In order for it to be enforceable, it must be in writing.
David
Agreed!
I was just commenting on what I perceived as being an overly broad statement. The contrary can often be shown.
Severed Mineral Rights are quite COMMON here in the West, and Imperial Entanglements (surface and/or sub-surface) are a way of life.
No offense intended,
Loyal
David
None taken. :beer:
Scenario
That is an interesting problem.
Suppose there are original monuments around a section corner such that it could be double proportioned. Further suppose that there is a non-original monument of unknown origin which is the established section corner for the surface owners. The original is lost. The established monument could be a perpetuation of the original but it is impossible to tell.
Would the mineral rights be tied to the established monument or the double proportioned location?
I dunno Dave...
I would be inclined to accept the “established monument” if at all possible.
Where things get dicey, is in situations where you have a LONG established “corner” that has been accepted and relied upon for many years by the surface owners, and then you (or others) turn up the ORIGINAL monument (CORNER) in a different location.
Inasmuch as the subsurface owners may very well have NOT been a party to the actions of the surface owners, there is plenty of room for argument.
This is one of those (rare) situations where TWO monuments (corners) may be in order. I hate the idea of TWO CORNERS, but sometimes that is just the way it shakes out.
Loyal
A thought . . . another scenerio
Sorry, Retired, but I agree 100% with David on this. Everything he's posted here is right on the money.
> "THESE" lines . . . that is the lines from 20 years ago, are not the problem.
>
This is the first fallacy that often misleads our thinking. There is only one set of lines. That is the boundary between the two lots, also the boundary between two owners; the common boundary between two parcels of land held in separate ownership. In order for a "second" set of lines to appear, the law requires that the "line" be created by a proper conveyance made in writing. The Statute of Frauds requires it. In this scenario, there has been no other conveyance made with the intent to create an alternate boundary, therefore, there is only one boundary to discover. The "current" boundary in its "current" location. We must answer the question, "Where is the boundary?" Where the boundary was 20 years ago is entirely irrelevant, unless nothing has happened in 20 years to establish its location.
> They are what they are and they are what they were 20 years ago . . . lines between lots.
>
This is the second fallacy that often muddles our thinking. We expect that we live in a static world with a static environment where nothing around us changes, despite all the contrary evidence with which we are barraged. We surveyors, too often believe that, once we set the points, they will forever remain in their undisturbed condition for time immemorial. Well, that's simply not reality and the law recognizes that reality. We need to understand what the law already recognizes and we need to understand how to gather and interpret the evidence that will tell us where the boundary line "is" instead of focusing our efforts on telling the world where the boundary line "should have been" or "was." We are wasting our time while simultaneously creating complete havoc whenever we do this.
> These lines were intended to be lines between property owners, but obviously that has all changed.
>
This is a true statement. What was originally intended has been altered by circumstances. We can no longer expect the original intent to control. The circumstances have either established the line or they have not. If they have, then the line is as established by the circumstances. If not, then then the line is as established by the original intent. It's the surveyor's duty to gather the evidence necessary to prove where the line "is" established.
> Now the lines are nothing more than lines between lots, whether or not property owners agree with those "old", lines is another issue.
>
I'm not quite sure what you're getting at here. But, because there has been no separate conveyance document creating a second line, there is only one line location to discover. It's irrelevant if we call it the "lot line" or the "old" line or the "new" line. It is the "boundary" between owners A and B. Their title documents say that boundary is the dividing line between two lots; therefore it is the lot line. The lot line isn't expected to be some static element frozen in time. It's just a boundary, no different than any other boundary.
> Today's property lines are not yesterday's property lines. The might never have been the property lines.
>
This is the third fallacy. We surveyors seem to be taught that there are "lot lines" and "property lines" and "fence lines" and "occupation lines" and "tax lines" and "deed lines" and "junior lines" and "senior lines" and ... ad infinitum. Yet, there is nothing in the law that creates this multiplex of "lines." The law recognizes one line; the "boundary" between owner A and owner B. All the other stuff is simply evidence. Some of the evidence will conflict with the boundary location, other evidence will corroborate the location. The best available evidence will lead you to the established location of the boundary. Once discovered, it is the boundary. There are no other "lines".
> But this doesn't mean the "lines" have changed, it just means property ownership lines have changed.
>
This is the fourth fallacy. You cannot separate the ownership of the property from its boundaries, and you cannot separate the boundaries from the ownership. Yet, the two are determined by entirely different bodies of law. If you want to determine ownership, you resort to evidence such as the chain of title, historical occupation, probate records, etc. If you want to determine the boundary location, you call a surveyor who will consider the documentary evidence, the historical survey evidence, the occupational evidence, and the testimonial evidence. The surveyor will analyze the evidence in accordance with the rules of law, will determine the factual circumstances which affect the boundary location, and will apply the appropriate legal principle to determine the location of the boundary between A and B.
The "property ownership lines" are the same as they've always been; located squarely upon the furthest extent of parcels A and B. The boundary doesn't "change" even though its position may have been established upon evidence far or long removed from the original intent.
(to be continued in Part 2)
JBS
A thought . . . another scenerio
(cont. from Part 1)
> This might be easier to envision if everyone's drives were placed 10 feet from where they should've been on 50.00' wide lots . . . somehow.
>
> So now E-V-E-R-Y-O-N-E, wants to accept lies that are actually 10 feet from the original location . . . let's not even worry about the end property owners.
>
The owners, E-V-E-R-Y-O-N-E in your scenario, have already "accepted" the lines where they were established and relied upon when they placed their "drives." The boundaries are established where they were known to exist at the time the drives were placed on the ground. They have not accepted "lies." They nay have acted upon information that was not reliable, but it was relied upon, non-the-less. The boundaries, having been established, are no longer a subject for debate. Negligence, misrepresentation, causation and damages are now the valid question to ask. Who get to compensate the end owners for their loss? That's not a boundary question. That's a tort law question.
> Do you now continue to say that the line between lot 14 and 15, as originally staked, has shifted 10 feet or do you say that while the original line location HAS NOT shifted, that the boundary lines have shifted?
>
Yes. The boundary "as originally staked" or as originally intended was not known to the owners when they relied upon the markers. They relied upon the evidence they were given and their reliance was made in good faith. The location of their boundary is known as it has been established by their good-faith actions under the circumstances presented. Sure, a surveyor can play mathematical gymnastics all day long and can determine where the boundary "should have been." That is entirely irrelevant unless the determination is made solely for the purpose of measuring the damages that should be paid in compensation. In this scenario, if it can be proven that the utility company disturbed the monuments, thereby causing the damages, they could be found liable for the compensation paid. That, again, will never change the boundary as established. It will, however, provide compensation for the damages.
> What about a property owner's interest, whether he wants to see if a court will validate, or not, in this 10' spacing?
>
Unfortunately, under our present legal system, the owner could certainly "roll those dice." Also, unfortunately, he can probably find an "expert surveyor" who will support the misconception that the evidence is insufficient to prove that the boundary was established. By default, the boundary would then resort to its originally intended position (if that can be determined). But, if the evidence is insufficient to prove establishment has occurred, then the surveyor should have recognized that and should not be defending a boundary position where it is not located. Conversely, if the surveyor does believe the evidence meets the requirement for establishing the boundary, then their opinion should reflect the current boundary and there is no other boundary ("10' spacing") to defend.
> I say that unless the interest(to the original line), is officially(by proper document), extinguished,a surveyor could be laying his neck out.
>
This is the fifth and perhaps the greatest fallacy. What a surveyor thinks should, could, would, or ought to be is not only irresponsible, but borders on arrogance. I don't mean this in any personal way, but corporately. Who are we to think we are above the law or that we have the right to dictate what the law should require. We are a profession of servants of the law. We are expected to know the law, to understand the law and to apply the law with equity.
There is no requirement in the law that the written document must be corrected to reflect the precise conditions discovered by the surveyor on the ground. The law is, in fact completely contrary to this concept, almost seemingly to a fault. Every surveyor should study the "doctrine of reformation" until we truly understand. There are appropriate ways to introduce new evidence into the record, just as there are appropriate times to introduce it. The only time the surveyor could be found "laying his neck out" is when he holds out a position for the boundary which is contrary to the law and the evidence.
> I say a surveyor would show/stake the original lines and leave it to the property owners to maintain their own set of lines.
>
This is the sixth fallacy. We have somehow forgotten our duty as professional land surveyors. There are multitudes of cases which have for time-immemorial instructed us not to "plunge whole neighborhoods" into dispute. What is proposed here can do nothing but drive a stake (pun intended) between neighbors leaving them with no alternative for resolution other than combat. Re-read Skelton, where we are admonished, "It is much easier to prevent a fight than to stop one, and for a party to defer action than to back down from an untenable position."
> There's nothing I know that says a surveyor cannot aid the property owners in re-establishing their property lines.
>
True, however, there are numerous laws against misleading the property owners by making them believe they have a problem, when the only problem is an opinionated surveyor (that includes all of us) when their opinion is not in concert with the law or the evidence. There are laws against misrepresentation, fraud, insight, trespass, and maintenance which prevent the surveyor from advocating the establishment of a boundary in contradiction with its current position. The statute of frauds prevents it.
> BTW . . . in Ohio "boundary line agreements" must be in writing to be valid.
>
This would be a seventh fallacy. Ohio law recognizes boundary establishment principles the same as the other states (each having slight variations, of course). Boundaries can be established under the doctrines of acquiescence (implied agreement), estoppel, practical location and oral agreement McGregor v. Hanson, No. 99-G-2228 (Ohio App. Dist.11 06/19/2000). A boundary agreement can come in three forms: written, oral or implied. It's simple contract law which applies to boundary locations. The only thing that must be made in writing is a conveyance of the property. That falls under the Statute of Frauds. Boundary agreements establishing the location of the boundary do not convey property.
> I'm sure that a solid agreement between land-owners would be applied by courts. . . but then . . . that would be in writing too eventually.
This would count as number eight. Any agreement establishing the location of the boundary, as long as the agreement is valid (meets the legal requirements of a valid contract), will be upheld. This includes all agreements whether implied or expressed (written or parol). The agreement is valid, that's why the court upholds it. The courts recognition of the prior agreement does not become the written agreement, although it may more fully express the terms of the agreement and may be the only document which memorializes the agreement. A court ruling is not required to "sanction" the agreement. The agreement is just as valid the day it was entered into as it was the day the surveyor visited the ground as it was the day the judge slammed his gavel.
JBS
Okay
In the Western Reserve all surveys were private. The original survey of townships as well as the surveys of all the individual lots . . . if it matters.
The dividing line between T7 and T8, is described as the north line of T7.
The line is not well marked from one mile to another. There's a lot of area between roads and section corners that just aren't well marked.
Now, I have a client who placed a fence about 50-60 years ago and he claims the fenceline is the property line. I agree that he has a potential claim to this property.
I gather from what you're saying, the fenceline has now become more than a line dividing property owners. It is now, additionally, the new dividing line between the townships and subsequently the dividing line between the counties.
As in the scenerio put forth, I disagree that the county line now incorporates a jog in the line. I tend to believe that if the claim is valid, the claimant owns a little bit of property in the next county and not that the section, township and/or county line has changed.
I don't disagree with the land ownership involved in the 25 lot subdivision either.
Throughout this whole discussion I have never advocated not accepting the occupational lines for the property lines.
I just say that the line agreed to between owner A and owner B, is not the line that was staked 20 years ago and that the line that existed 20 years ago is still a valid line, even though it's not the property line between two owners.
I could as well agree with the idea of ignoring the staking of the original lot lines for the sake of forestalling a range war, but I've been in court enough to know that this 21 years caarap isn't as so absolute as a lot people think it is.
I have seen what appeared to be valid claims of much longer time-periods vanish in an instant and you know, in every case, there were attorneys on both sides who were certain of the strengths of their cases.
I have even been involved in a case where a long term "agreement"(?) to a common line, involving only a single individual(two properties originally owned, but signed for at different times and in a different way) which ended up making for a 2500' long "due east", line end up with a whopping 250' jog. There were two attorneys with strong cases involved with this one too.
What happens after 50 years from now when the drives are removed and all the evidence of the long-standing occupations disappear before the next surveyor, who comes in only 5 years(after that), has to re-establish the presently "unmarked", unoccupied lines and begins by finding all the pins that haven't been disturbed?
A delema(sp)?
Almost 30 years ago, I was involved in a land dispute involving adverse possession.
This post isn't about this case, which by the way was won by the party making the claim, even though they had actually vacated the "claimed" land some years prior, and moved all their stuff to another area(some hundreds of feet away, where the property owner claimed they "should" have been. They actually got the claimed land "plus", the land where the owner said they "should" have been. A double win.
Oh . . . the claimant got his 20+ years of claim because as a 7-year old child, he remembered helping the "old man", mow his lawn, which included this property. He was only about 30 years old and had only owned this property since about 1983 or so. The owner had died.
ANYWAY . . . during the course of this survey I ran across a series of deeds for property about a thousand feet north.
This was property originally owned by mom & dad . . . with rentals(?), and mo & dad split the property for their kids.
Don't ask me why, but mom & dad described the properties as having 70' frontage, the 110' frontage, then 70' frontage and finally and 110' frontage.
The rears were 110' rear, 70' rear, 110' rear and 70' rear.
Very odd indeed. Especially so because the houses and drives were pretty much equally spaced and squared with the road.
Problem is, the described lines(per deed), went through each and every house.
So, as a matter of making my job more complicated, I kinda played with this set of lots, just because I was intrigued.
I found that if all the numbers were reversed, that all the houses, along with the front portions of their drives(not the back), were now on their respective properties. Maybe someone just got confused. Other, more squared configurations(using the 110' & 70'), didn't work either.
As I said, I had/have nothing to do with these properties.
BUT, I often wonder what I would've have done if I was asked to survey one or all of these properties.
I wonder how would I proceed if everyone wanted to fix the problem . . .
and . . .
I often wonder how would I proceed if everyone was at war . . .
A delema(sp)?
If everyone was already in a legal battle when you were hired by one of them you would serve as an expert. As soon as the legal battle was resolved (settlement or judgment) then you would set corners per the settlement or judgment.
Funny you say you poured your heart out.
We had a project that someone worked on (office only) then when it came time to do the field work the boss assigned it to the other crew because the original crew was too loaded up with other projects.
He said, "But I poured my heart and soul into that project, how come I don't get to do it?"
Okay
I don't really want to see this develop into a lob and volley of "what-ifs" or "ya-buts." They could go on as long as we've both been surveying. Every fact set stands upon it's own circumstances and there is a rule of law that will be applicable to each set of facts which is designed for the very purpose of resolving the matter in each case.
> Now, I have a client who placed a fence about 50-60 years ago and he claims the fenceline is the property line. I agree that he has a potential claim to this property.
>
The erection of a fence, alone, will not establish the boundary. That single act doesn't fulfill any rule of law. Waiting 50-60 years after the fence goes up, alone, will not establish the boundary either. There are other factors required. The only one left for establishment of the boundary under the doctrine of acquiescence (implied agreement) is the mutual recognition by the adjoining owner. Without that evidence, we'll never know if the boundary has been established or not.
The scenario also omits all of the evidence of what was relied upon to locate the fence initially. That evidence is critical to understanding the significance of the fence. Does it perpetuate survey evidence? Was it a random guess? Was the purpose of the fence one of convenience? All of this evidence is necessary to determine the boundary location. Was it an intentional trespass? Was fraud involved? Or, was the fence located in good faith by the owner along a line that was poorly marked?
If the evidence shows the latter, then the age of the fence is irrelevant. The fence didn't encroach when it was constructed but merely was intended to mark the boundary using the best effort that the circumstances could afford. The fence marks the boundary. Before the fence was constructed, there was no physical bound; once constructed, the physical bound established the boundary.
> I gather from what you're saying, the fenceline has now become more than a line dividing property owners. It is now, additionally, the new dividing line between the townships and subsequently the dividing line between the counties.
>
The fence is not a "new dividing line." The boundary, whose location being now established, "IS" the dividing line between owner A and B. The law does not recognize two lines. No "new" line has been created by the process of establishing the boundary location. The boundary has been established. The premise that there are two lines is a complete myth that our profession has embraced. The law simply recognizes the boundary as it has been established.
> As in the scenerio put forth, I disagree that the county line now incorporates a jog in the line. I tend to believe that if the claim is valid, the claimant owns a little bit of property in the next county and not that the section, township and/or county line has changed.
>
Carrying this "myth" forward to its illogical conclusion results in a county claiming jurisdiction over some insignificant portion of the client's property intended to lie in another county. We need to deal with taxation issues, police and fire issues, public utility issues, ... [and the list goes on]. This portion also extends across the section line into another person's patented area so we need to deal with title problems, mortgage problems, lienhold problems, ... [and the list goes on]. We now have "jogs" and "bends" in what was a theoretically invisible line of no width which has been impossible to locate on the ground with precision or certainty. We have trespass and encroachment issues to deal with. How long will the list of problems be if we give support to this "myth" that there are two lines, one perfect and invisible, the other established in good-faith at a time when the evidence of the boundary was more likely known?
The resolution to all of this list of problems is completely dissolved by the application of a simple premise: There is one boundary between two adjoining estates. That is the boundary as it has been physically established on the ground in good-faith by the landowners. No county jurisdiction problems, no title problems, no encroachment problems, no ... [the list of potential problems is eliminated]. The law is simple in its approach and simple in its application. We need to simply apply the law and believe the resolution provided.
> I just say that the line agreed to between owner A and owner B, is not the line that was staked 20 years ago and that the line that existed 20 years ago is still a valid line, even though it's not the property line between two owners.
>
This depends upon what you deem as the definition of "valid." Under the law, any former position of the boundary would be "irrelevant" once the line has been legally established. Sure, you could spend all sorts of time digging holes, reviewing documents, and making measurements in support of the former location of the boundary. If subsequent actions of the landowners have sufficiently fulfilled the legal requirements to establish the boundary based upon other evidence, the established boundary will prevail and the former position becomes "irrelevant." Validating the fact that an original marker may have relevance to other boundaries established in reliance upon it may make it relevant for those boundaries, but for the boundary at issue, it is irrelevant. Validity has nothing to do with relevancy.
> I have seen what appeared to be valid claims of much longer time-periods vanish in an instant and you know, in every case, there were attorneys on both sides who were certain of the strengths of their cases.
>
Every boundary has two sides and every boundary dispute has two attorneys. Their job is to advocate for their client. They've already convinced their client that their case is the best they've seen, otherwise, they're sending billable hours out the door.
Opposing attorneys are a fact of boundary disputes which can be argued several ways by both sides. The law which governs the boundary location, however, is not up for argument. It's our duty, as surveyors, to simply administer the law in a just and equitable manner, no matter who the attorneys are or who the client is. We are a disinterested profession and must remain indifferent to the outcome. The boundary is located where the law says it is located under the facts at hand.
> What happens after 50 years from now when the drives are removed and all the evidence of the long-standing occupations disappear before the next surveyor, who comes in only 5 years(after that), has to re-establish the presently "unmarked", unoccupied lines and begins by finding all the pins that haven't been disturbed?
The passage of time changes evidence. When evidence changes, other evidence rises to take its place. When other evidence is relied upon to subsequently establish the boundary, then the boundary is where is is established to be. The law requires no more than a good-faith effort. No new boundary has been created. There are not multiple lines to choose from. All former positions of the boundary have faded into distant past and are no longer binding. What is binding is the evidence made known, recovered and relied upon to establish the position of the (singular) boundary at the time its location is being determined.
JBS
Okay
AMEN Brother!!
While i agree with you...usually.
I don't think 5 years is enough time to pass. I will look into CT case law on it.
David, I know how you felt.
IF you invest alot into it, well, it should be yours??? yeah, but this world is not what it used to be!
N
