Does anybody know of a court case where an "erroneously placed" boundary prevailed over a properly placed boundary?
Example:
I surveyed "A" in 2004. Owner of "B" claims his 2001 survey (as shown) is true boundary.
I'm asking about a case where the improper boundary prevailed, NOT an adverse possession case. Does anybody have any memory of such?
thnx
Did A agree to the 2001 (erroneous) boundary with B?
Agreed Boundary would be the most likely way to overcome the (correct) boundary but there typically must be uncertainty and a mutual agreement to the established boundary. If A didn't agree to the new boundary given the short time frame from 2001 to 2004 then your survey should prevail.
A lot of this hinges on the common law boundary doctrines as they exist in Oklahoma. Your local law library should have OK boundary treatises which summarize the doctrines, their requirements and provide case cites.
A and B are at odds. Everybody is in the process of lawyerin' up.
In my mind this is slam-dunk, but I'm too old to believe in such a thing. I would just like to review any similar cases to see if there are any pitfalls.
> Does anybody know of a court case where an "erroneously placed" boundary prevailed over a properly placed boundary?
Sure. Dykes v. Arnold 129 P3d 257 (Or. App. 2006).
Have a look at United States v. Doyle (468 F2d 633).
You might also check out Merriman v. Cokeley (WA Supreme Court) for a discussion of an erroneous survey.
BTW, Paden's "local law library" is the University of Oklahoma and it is one seriously nice place to spend a quiet afternoon.
DYKES V ARNOLD. :-D. (running for cover!)
Awww norm beat me to it!
I have one that is the same scenario as yours. The problem is I can't recall the name right now. Let me look for a while.
I would focus more on the various Boundary Doctrines and less on finding exact fact matches which seem to be rarely available. For example, if the corner to Sections 4 and 5 could not be found but the corner to 32 and 33 was obvious then maybe B would have a point but maybe not if he had no idea about the corners before his Surveyor came blundering along. Cases explain the Doctrines and give insight into how your State's Courts apply them to fact sets.
From Doyle
These two paragraphs seem to conflict, beyond a reasonable doubt versus exhausting every last scrap of evidence...
"...Practice 3 states that a lost corner is one whose position cannot be determined, beyond reasonable doubt, either from traces of the original marks or from acceptable evidence or testimony bearing on the original position, and whose location can be restored only by reference to one or more interdependent corners.
The authorities recognize that for corners to be lost "[t]hey must be so completely lost that they cannot be replaced by reference to any existing data or other sources of information." Mason v. Braught, supra, 146 N.W. at 689, 690. Before courses and distances can determine the boundary, all means for ascertaining the location of the lost monuments must first be exhausted. Buckley v. Laird. 493 P.2d 1070, 1075 (Mont.); Clark, Surveying and Boundaries § 335, at 365 (Grimes ed. 1959); see advisory comments of the supplemental manual, supra at 10."
Found it
> Thurlkill v Wood
Interesting. But decided on the basis of 80 years of undisputed occupation rather than any survey.
I remember Merriman, an Acquiescence case probably somewhat limited to Washington. They don't mention it but it seems to me they didn't have the required 10 years besides the reasons given for the reverse, essentially the boundary wasn't obvious enough.
Found it
Yes, an Arkansas Acquiescence case.
The question would be 1) what does the OK acquiescence doctrine, if any exists, require and 2) have the requirements been met?
If it isn't an acquiescence, agreed boundary or A.P. boundary on the "erroneous" boundary then Paden's survey is most likely the true boundary.
So, Surveyor of "B" made a mistake. Is he not big enough to go tell the owner of "B" he did? Or is Mr. "B" just telling you he has a survey?
I contend ...
that (except in the case of an original GLO corner set by a government authorized surveyor) a surveyor's mistake does not create title. Of course my background is from a M&B states and don't know much about what a GLO is!
Dodds v. Lagan, 595 P2d 452, 1979, is a good case to review, it lists the various boundary settlement doctrines in Oklahoma with case cites.
From Drury v. Pekar...
"The doctrine of practical location is based principally upon agreement, express or implied, of adjoining land owners, whereby for many years they recognize or acquiesce in a certain line as their true boundary. The doctrine is closely akin to that of adverse possession, although the authorities recognize a clear distinction between them: Carstensen v. Brown, 32 Wyo. 491, (236 P 517). Mutual acquiescence and recognition by the adjoiners is essential to practical location. Furthermore, there must be, at the time of location, a disputed, indefinite, or uncertain boundary line between the adjoining owners. It is said in Adams v. Warner, 209 App. Div. 394 (204 NYS 613):
`When a disputed or uncertain line is fixed 44*44 by practical location, it is binding, not by way of transfer of title, but by way of estoppel.'" Kincaid v. Peterson et al., 135 Or 619, 628, 297 P 833.
Here is a quote from Beckmann v. Metzger on the doctrine of acquiescence...
The quoted rule of law is sound and is adhered to by a vast majority of the courts. However, the facts in the case now before us are not analogous. Here, there was no fence or marker nor was there an indication of acquiescence from 1932 until 1948. It was in the latter year that plaintiffs built the fence. And, about two or three years later, there was so much objection raised by the defendants that plaintiffs had their trees cut back and trimmed. The essential elements, necessary for the application of the rule contended for by plaintiffs, was contained in the following holding of the Utah Court, in the case of Nelson v. Da Rouch, 87 Utah 457, 50 P.2d 273, to wit:
"To establish boundary line by acquiescence other than true one as called for by conveyances relating legal title, claimed boundary line, varying from true one, must be open to observation marked by monuments, fences, or buildings, and knowingly acquiesced in as recognized true line for long period of time."
It appears that Oklahoma's doctrine of acquiescence isn't as specific about requirements as Arkansas but still I doubt B has met the requirements based on the OP without additional evidence.
I contend ...
That is correct. It takes mutual agreement by the property owners to fix a boundary; a surveyor running a boundary doesn't do anything by itself without mutual recognition of it as their common boundary line by the property owners.
If B's surveyor ran the boundary and A and B then mutually agreed or behaved as if it is the common boundary then it could be the boundary. This is highly State specific as we see from the cases cited in this thread.
Thanks guys
I have my day of reading cut out for me.
This one will probably get interesting. I don't feel the least bit uncomfortable about how I surveyed the "West Half of Gov't. Lot 4". I couldn't have surveyed it any other way.
There are a few stray pasture fences in the area, but none anywhere of importance except a very old one in an established tree line on the N-S section line (Tract A's west boundary).
I think B is in possession of a lousy survey (the "2001" surveyor filed no corners). It will be interesting to talk to whomever performed B's survey, if he is indeed still alive.
> Does anybody know of a court case where an "erroneously placed" boundary prevailed over a properly placed boundary?
>
>
> I surveyed "A" in 2004. Owner of "B" claims his 2001 survey (as shown) is true boundary.
>
> I'm asking about a case where the improper boundary prevailed, NOT an adverse possession case. Does anybody have any memory of such?
>
> thnx
A question the attorney for "B" may now have in his arsenal:
"Mr. Cash, is it true you performed your survey in 2004, and as a result of the survey you made a determination of the boundary location?"
"Why yes, yes I did"
"Then why, can you explain to this court, why did you post questions in 2013, on a public forum for all to see, as to what the principles of law are, which govern boundary location, for the work you performed in 2004?
Mr. Cash, is it true that you really didn't understand the law governing boundary location when you performed your survey in 2004, just as you apparently did not understand the law when you asked these questions 9 years later in 2013?"
Best of luck...
You might find the Mary Hancock case in the IBLA records interesting.
"A desire to review like cases in no way indicates my ignorance of law or proper boundary location. I might suggest that if the plaintiff's surveyor had sought the opinions of other surveyors on a public forum he might have placed his survey in a different location.
I, however, would place the boundary in the exact same location today if asked."
AND...if I could get a word in edgewise, I'd probably ask him how many cases he reviewed and did he ask the opinion of any of his fellow professionals.