> "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.
"Excellent points Mr. Cash. However the big difference between myself asking questions of my peers and what you have done here, is that I will ask those questions BEFORE I make my decisions. Here you have asked the questions many years after you have made your decisions."
"I have no further questions of this witness your honor."
Does Surveyor "B" Still Have His License?
Was 2001 the first time "Tract B" was surveyed?
Did you find evidence of the 2001 survey in 2004?
Was any evidence set that you did not find?
Was any record made that you did not study?
Have you surveyed "Tract B" to find conflicting evidence?
The survey of "Tract B' has had 12 years of repose.
Worry less about the law and start with yourself. If you did not do it right you cannot anticipate that the law will bail you out.
Paul in PA
> I remember Merriman ... essentially the boundary wasn't obvious enough.
That is right. The disputed strip was only a foot or so wide at the wide end. But it was on pricey ocean front real estate. 105 feet of Oklahoma acreage may be no more noticable.
I think that Tract B's argument is going to hinge an what was said and done by the parties between the 2001 and 2004 surveys. The only chance Tract B has of prevailing is if he can prove an acceptance of the 2001 line, possibly by estoppel between the 2001 survey and the 2004 survey.
That may take the form of a long standing acceptance of the 2001 line beginning in 1986 or prior. 15 years is the statutory period in OK. He isn't going to prevail on the strength of the 2001 survey alone.
The Oklahoma Court decides boundary cases on the basis of Recognition and Acquiescence more often than on the basis of AP. Land is cheap here, and fences are expensive. There doesn't have to be a really substantial fence present if it is, or ever was, sufficient to "turn the stock".
> From Drury v. Pekar...Kincaid v. Peterson et al.
These are Oregon cases. The Oregon court has stated that unless there is first some disagreement about a property line there can be no subsequent agreement. They call this condition occupation by mutual mistake.
Occupation by mutual mistake is considered prima facia proof that the occupation was hostile, as an element of AP, but would preclude a boundary by agreement. In Oregon.
> "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.
Agreed
That was just my 5 minutes of research on Oklahoma Acquiescence on Google Scholar. Those cases are cited in the Oklahoma case so the Oklahoma Courts are drawing heavily from other States.
I'm not used to seeing that so missed it. The California Courts stay in California the majority of the time since our case law is so voluminous.
Mr. Cash asked for pitfalls and given his fact set the only likely possibilities are practical location, estoppel, acquiescence, agreed boundary or adverse possession. I would look at what the Oklahoma Courts have said about those. If they can't be used then his boundary is best.
Thanks guys
> 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).
In Nooteboom v. Bulson there was very little left of an old fence at the time of survey, but substantial evidence that a good fence had existed decades before when AP was perfected.
> 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.
Was there, in fact, any professional survey? Or was this a do it yourself job? Or a moonlighting party chief?
Clearcut may have a point. I would stick to the fact that you surveyed the record boundary in accordance with accepted survey principles and BLM procedure and saw no evidence of occupation to contradict your findings.
I disagree again. I'm not asking questions concerning the proper location of the west line gov't. lot 4. I'm merely wanting to study the outcome of similar cases. I can't imagine another surveyor locating the west section line anywhere else.
Ownerships, acquiescence and boundary agreements are beyond the mechanics of what I was asked to do in 2004. BTW, I did note fences and apparent occupation in my survey, and they agree with what I found.
I am not second guessing myself. Expo-facto research of similar case law is by no means an indication I'm trying to decide what to do nine years ago.
Does Surveyor "B" Still Have His License?
The 2001 survey was the first survey of that particular property.
As for everything else: then and now, my work keeps me sleeping like a baby every night.
:good:
> I'm not asking questions concerning the proper location of the west line gov't. lot 4. I'm merely wanting to study the outcome of similar cases. I can't imagine another surveyor locating the west section line anywhere else.
A very good retort to the lawyers question. Another might be "I was merely seeking confirmation from fellow professionals that my thinking was correct, and got it."
Does Surveyor "B" Still Have His License?
> keeps me sleeping like a baby every night.
Does that mean your wake up every 2 hours with a load in your shorts? 😀
I contend ...
> ...a surveyor running a boundary doesn't do anything by itself ...
I agree with your statement generally, but the surveyors work does do something. It gives the parties an objective basis on which to base their agreement. And if a map is produced it memorializes the scope of the agreement. But I agree that the surveyor doesn't make it binding, the agreement of the adjoining owners does.
well...
you know..at my age that can happen. Have you been talkin' to my wife? 😉
Just playing the devil's advocate, simply provoking thought.
My goal playing the opposing attorney is to discredit you as an expert witness. I don't want to debate survey principles or title law with you. I just want the judge to think you didn't understand OK case law then nor now and pretty much anything that comes out of your mouth should be met with suspicion. By discrediting your knowledge base, I get the judge to think you aren't the expert your client was expecting. Once done, your remaining testimony will be met with sketicism. Having diverted the judge away from focusing on your understanding of location of title, I then pounce on the principles of law I want to sell.
This forum is a great tool for sharing thoughts and questions. Sometimes we lose sight that it is not exclusive to survey practitioners. I was recently surprised by questions from a client as to pin-cushions and assorted survey issues. Guess where this well-read layperson did his research prior to hiring me? Its not a stretch of the imaginiation to believe your discussion regarding this survey might actually resurface somewhere down the line when confrontation escalates to litigation.
Thinking like a surveyor is a fine quality. Sometimes however, thinking only like a surveyor can be a liability.
For the record, I believe in the sanctity of the written instrument. However, it is far easier to defend title lines in my state than in some others. Hopefully that holds true for yours too.
Best of luck.
I contend ...
If the evidence used to base the agreement turns out to be faulty or even fraudulent, is their agreement binding? Suspect it is not but would not block a new agreement holding the same line.
jud
I contend ...
> If the evidence used to base the agreement turns out to be faulty or even fraudulent, is their agreement binding?
If the survey was an essential part of the agreement and turned out to be faulty I suspect the agreement would not be binding. I'm not aware of any case law on that subject.
SORRY TO DISAGREE WITH THE SCHOLARS BUT
ORIGINAL FEDERAL SURVEYS DID CREATE BOUNDARYS. THERE IS NO ERROR IN ORIGINAL MONUMENTS OR THE LINES RUN AND MARKED UPON UPON THE GROUND. THE LINES RUN AND MARKED UPON THE GROUND ARE UNCHANGEABLE EVEN BY A COURT. Now, having said that, there are times when the actions of the owners defeat the intent of the original survey. Is this your case? Is the evidence of the original survey at odds with the evidence and claims of the current owners? Let's be clear here, the owner does not get to claim in a willy nilly fashion that their boundary is here or there just to suit their whim. They do have rights,but these rights do not give them carte blanc to run rough shod over the rights of others.
As the OP indicted THE ADJOINERS DO NOT AGREE. The surveyor'opinion is not binding upon owners and it certainly is not binding on owners who are in ALREADY ENGAGED IN DISAGREEMENT. If both parties do not accept you determination, then they will be head to mediation and/or court.