I would like to once again thank everyone that replied to my original post below.
I still have not found a similar case where a property, surveyed from the wrong section corner, was in conflict with the boundary of a properly surveyed property.
The crux of this type of issue seems to migrate away from the "800 lb. gorilla in the room" (the surveyor of "B" screwed-the-pooch) boundary-in-error issue. The legal issue overwhelmingly becomes an acquiescence or AP issue. At the center of most of those fences were involved. In my case the only fence is on the correct section line.
In fact in a number of these cases I have read (until my eyeballs needed a shot of WD40) surveys that disagreed are ever present. And amazingly their disagreement had little or nothing to do with the outcomes of the cases. It's always nice to know we're usually overlooked (!?)...
I am of the opinion that, to a surveyor, a boundary originally placed in the wrong place is still wrong. I do understand that occupation and acquiescence can be a factor in the court's disposition of a plaintiff-defendant boundary dispute. That is entirely out of my realm of expertise. I will not (and cannot) offer professional legal advise. There are others that do that.
The folks that purchased the tract that I surveyed in 2004 may come out smelling like a rose, they may not. Courts are funny like that. I can, and will defend my location of the "West Half of Gov't Lot 4". It really can't be anywhere else.
BUT....for anybody that wants to read more about the nature of incongruent boundaries in Oklahoma that have made it to the history books; I offer these diddies up for your reading enjoyment:
McDONALD v. MARTIN - 2011 OK CIV APP 55: 2011: Oklahoma
Lewis v. Smith, 1940 OK 276, 103 P.2d 512
EUBANKS v. ANDERSON No.?104,599.- October 19, 2007
Jackson v. Williams, 1985 OK 103, ¶?9, 714 P.2d 1017, 1020
Johnson v. Ward, 1975 OK 129, ¶?42, 541 P.2d 182, 188.
Lake Benton v. Crosser, 1950 OK 49, 216 P.2d 583
Berry v. Mendenhall, 1998 OK CIV APP 134, 964 P.2d 974
As for the "Doctrine of Acquiescence" in Oklahoma in the case of Oaks Country Club v. First Presbyterian Church, 2002 OK CIV APP 112, ¶?9, 60 P.3d 506, 508, One judge was quoted as saying, "It has been said that this doctrine seems to occupy a middle ground between adverse possession and estoppel in pais.”
An astute observation, fer sure, your Honor.
Also, for those that think a fence or acquiesced boundary generally prevails (as I did), you would be surprised. It's about 50/50. As with all things in surveying, it depends.
well that certainly clears that up....:-)
Thanks, I like your observations and conclusions. It depends, again shows experience with wisdom gained from that experience. Have one of these here that will rise its head someday, this one created by a landowner without the benefit of a surveyor. Expect it will lie there in wait for new owners, a fence in place so possession might become ownership on this one, even so, the standard corners and closing corners involved will stand as Platted by the GLO.
jud
Speaking for myself only, I didn't mean to imply it is acquiescence or one of the other boundary doctrines, just that that would be the most likely reason a boundary from the correct corner to an incorrect corner would be the boundary if all of the requirements were met. In your case it appears that the 2001 survey wouldn't have any probative value on this particular boundary.
Where boundaries are is a question of fact, that is us. If not the surveyor, then who?
What boundaries are is a question of law. This can be a subject of expert testimony but experts are there to assist the Court so the Judge may not allow expert testimony on the what if it would not be helpful to allow such testimony.
The boundary that runs along the line as you surveyed it is the original GLO boundary. The what of the boundary is it is an original boundary.
The boundary that runs from the correct corner on the south to the incorrect corner on the north isn't the original boundary because that isn't where the GLO boundary is located. It could be the boundary "where" for another reason, though, such as acquiescence, agreed boundary, practical location, estoppel or adverse possession. All of those, in law, are the same boundary as called for in the Deeds (a weird legal concept surveyors obviously have trouble grasping) except for adverse possession which is the only doctrine which is a transfer of title.
An aside, I noticed Arkansas requires clear, cogent and convincing evidence in acquiescence cases which is a higher standard than that typically required in boundary cases (preponderance of the evidence) except for adverse possession.
From opposing attorney:
"Well, Mr. Cash isn't your location of the line in question just an opinion on your part?"
"Sir, I believe that I am the only person in this courtroom legally licensed under the laws of the State of Oklahoma to hold and state such an opinion, and yes that is my opinion."
I'm just paraphrasing what I saw here in Ohio when an attorney just walked into the same situation. The judge cracked up and the result was a foregone conclusion after that. No, I was not the surveyor but I now have that in my arsenal if needed.
:good: Word.
I wish I could remember phrases of significant value such as those. Heck, I wish I could remember where I set my glasses....
Mr Cash,
You will let us know the outcome, won't you?
thanks,
Terry
