Perhaps so. I have only looked at the two terms today, and have not the case laws on this sort of thing.
If typos like NW instead of NE, or other "blunders" that a competent surveyor can find is a case of objective uncertainty, then I have read more deeds or seen more plats that have it than I have seen that don't. I have my own level of certainty after I find the typo, and solving the typo makes it so it will fit on the ground.
What about calls like thence 120.0 feet to the NW corner of....blah, blah, blah, and I find the ambiguity that it is only 110 feet to that corner? That is an ambiguity that needs to be resolved. yes, there is the case law or sometimes a statute that dictates a priority of calls, but that (priority of calls) is merely a way to resolve "Objective Uncertainties" if my intuitive understanding of the term is correct.
When I read the term "OU" I pictured cases where I can't come up with a solution that melds the ground evidence and the ambiguities in the deed into a relative certain boundary. That is to say, a case like Kent describes where two different, but competent, surveyors can't come up with the same solution.
Uncertainty is one required element of the Common Law Boundary Doctrines of Acquiescence or Implied Boundary Line Agreement. In California the Agreed Boundary Doctrine requires "that there be an uncertainty as to the true boundary line, an agreement between the coterminous owners fixing the line, and acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position." -Ernie v. Trinity Lutheran Church, 51 Cal.2d 702, 707 (1959)
If your particular case does not satisfy the other requirements of a doctrine tested, then that doctrine does not apply although there may be objective uncertainty present.
Obviously, in a given case, when the parties become aware of an uncertainty then they can take action to establish and agree on the boundary location. In the case of an obvious typo and the boundary is not already established on the ground the Surveyor can take action to give effect to the parts of the Description which are correct and ignore or correct those which are not correct. I would put this under Deed construction; we have thousands of cases that deal with construction of Deeds with problems.
Utah doesn't require Objective Uncertainty
Kent, Both surveys in the case agreed as to the location of the "lot line." Both surveys showed the fence and the lot line. Neither survey showed the "boundary."
There was no disagreement between the surveys, yet the boundary was "subjectively uncertain." The landowners relied upon a known survey marker on the street, they didn't know the location of their rear corner. In order to solve their "uncertainty," they got copies of the maps and measured it themselves, determining the unknown corner location.
No law requires they hire a surveyor and no law forbids them from entering into such an agreement. It's unfortunate that the surveyor failed to set a monument that survived long enough to be used to construct the fence.
JBS
Utah doesn't require Objective Uncertainty
> Both surveys in the case agreed as to the location of the "lot line."
Actually, the whole point is that case report indicated that the two Utah surveyors who were engaged as experts were NOT able to place the lot line in the same position on the ground. So, the fact that the boundary as represented in the written title was unable to be reproduced with any certainty is an important circumstance that I've gathered from previous posts may well be a general characteristic of Utah surveying. If so, that would explain why the courts there prefer professional fence builders to the scattered opinions of surveyors.
Utah doesn't require Objective Uncertainty
This seems to be the paragraph on point:
¶ 9 While the Bahrs were embroiled with the Imuses over the tree, the Bahrs obtained a survey of their property, which showed a.2-foot discrepancy between the platted boundary and the physical location of the Imus-Bahr boundary fence at the front end of the fence that gradually expanded to a 4.7-foot discrepancy at the back end of the fence. The Imuses subsequently sought their own survey, which similarly revealed a discrepancy, though the Imuses' survey showed a 1.12-foot discrepancy at the front end of the fence and a 4.37-foot discrepancy at the back end.
It looks to me like the lot line was surveyed the same but the differences are probably due to differences in sloppy topo shots on the fence. I am just speculating, though.
Utah doesn't require Objective Uncertainty
> This seems to be the paragraph on point:
>
>
> ¶ 9 While the Bahrs were embroiled with the Imuses over the tree, the Bahrs obtained a survey of their property, which showed a.2-foot discrepancy between the platted boundary and the physical location of the Imus-Bahr boundary fence at the front end of the fence that gradually expanded to a 4.7-foot discrepancy at the back end of the fence. The Imuses subsequently sought their own survey, which similarly revealed a discrepancy, though the Imuses' survey showed a 1.12-foot discrepancy at the front end of the fence and a 4.37-foot discrepancy at the back end.
>
> It looks to me like the lot line was surveyed the same but the differences are probably due to differences in sloppy topo shots on the fence. I am just speculating, though.
Well, in my world, where the whole purpose of a survey is to show the differences between the location of a fence and the lot line as platted, differences of:
At Front (Distances from lot line to fence) :
0.2 ft. vs. 1.12 ft.
At Rear (Distances from lot line to fence):
4.7 ft. vs. 4.37 ft.
those differences would not be best explained by how the fence was located, but by a difference in locations of the lot line by those amounts. I realize that this is my world I have in mind, not Utah, but since the court chose to mention these gross differences in the two surveys, it seems reasonable to think that there were the gross differences as would appear from the record.
Kent
you aren't the average unlicensed survey crew. Personally I measure over to the line with a pocket tape but most probably just topo it.
But you could be right, it could be two different versions of the same line, I doubt it though because the rear difference is closer in terms of a ratio than front difference, if you see what I mean.
It's possible the facts got scrambled (the numbers I mean) from the witness stand to the transcript to the opinion's statement of facts.
My point is that paragraph doesn't conclusively show there are two versions of the surveyed line, it just shows differing measurements from the line (which could be the same line) to the fence. If there is one line as surveyed by two surveyors then the uncertainty present is subjective.
Kent
> My point is that paragraph doesn't conclusively show there are two versions of the surveyed line, it just shows differing measurements from the line (which could be the same line) to the fence. If there is one line as surveyed by two surveyors then the uncertainty present is subjective.
Well, it seems more reasonable to me that if the two surveyors had agreed as to the location of the lot line, the judge would have noted that fact instead of reciting facts that indicate disagreement.
Kent
Well our cases don't look like they were written by a third grader!
BAZINGA!
Having read them, I think both turn on the one question of what the intent of the parties was.
I think the courts in both decisions make clear that objective uncertainty is not needed in CA. All that is needed is that adjoining owners do not know where the boundary is located. There is no requirement to retain a surveyor to try and find it.
As shown by these cases, this is a bit unfortunate for CA landowners because they certainly can not understand the ramifications of their actions. The decision of whether there is an agreed line turns on too small a spindle.
In Hoggatt the uncertainty is resolved by a developer pointing to a berm and saying it is the line. Then both parties say okay lets put the fence on that line. So the parties are not agreeing to a line other than the true one, but are merely mistaken. This is not an agreement to settle an uncertainty that would bring it outside the statute of frauds. The parties can later claim to the true line.
In Kliban the uncertainty is not resolved by the architects string line. The parties do not acknowledge the string line as the boundary, mistaken or not. In this case they make a new line by their own actions by modifying the string line to go around stumps, one large tree, and a tree row of elms. The parties clearly create a new line between their properties and agree to honor it as the line between the parcels.
Both cases turn on testimony that might not be available, and if the testimony were not available then both cases would fail under the agreed boundary doctrine because there would be no corroborating evidence of what the fence in either case was intended to mark(as shown in Bryant v. Blevins).
This is another good example of why objective uncertainty should be required under the agreed boundary doctrine. If one can't afford a survey and can agree with the neighbor to build a fence somewhere, that's okay. However, that decision should not affect the true line as applied to good faith purchasers or lenders relying on the record.
Kent
The whole point being, if either one (or both) of the surveyors had been knowledgable about the laws in Utah and their responsibilities as professional surveyors, this meaningless debate wouldn't be happening.
Kent
> The whole point being, if either one (or both) of the surveyors had been knowledgable about the laws in Utah and their responsibilities as professional surveyors, this meaningless debate wouldn't be happening.
Yes, absolutely! In Utah, when contacted by the client, the surveyor's first question should have been "is there a fence on the line?". If the answer was anything that even remotely sounded like "yes", the Utah surveyor should have immediately asked "well, what do you need a survey for?" :>
> In Hoggatt the uncertainty is resolved by a developer pointing to a berm and saying it is the line. Then both parties say okay lets put the fence on that line. So the parties are not agreeing to a line other than the true one, but are merely mistaken. This is not an agreement to settle an uncertainty that would bring it outside the statute of frauds. The parties can later claim to the true line.
>
> In Kliban the uncertainty is not resolved by the architects string line. The parties do not acknowledge the string line as the boundary, mistaken or not. In this case they make a new line by their own actions by modifying the string line to go around stumps, one large tree, and a tree row of elms.
>
> Both cases turn on testimony that might not be available, and if the testimony were not available then both cases would fail under the agreed boundary doctrine because there would be no corroborating evidence of what the fence in either case was intended to mark(as shown in Bryant v. Blevins).
>
> This is another good example of why objective uncertainty should be required under the agreed boundary doctrine.
Both excellent points and an excellent conclusion.
Kent
Apparently you either haven't read the case that clearly outlines the boundary law principles, or you are willingly ignoring it.
Carry on.
Kent
> Apparently you either haven't read the case that clearly outlines the boundary law principles, or you are willingly ignoring it.
Not really. The obvious overhead on boundaries that are claimed to have been fixed by verbal agreement is that they aren't fixed against all lienholders and all innocent purchasers until the parties spend tens of thousands of dollars defending them in court if a written agreement can't be recorded (as was evidently the case here). So, if you're going to spend tens of thousands (you know, at least twenty times more than an actual survey would have cost in the first place and even a larger multiple than the cost of just moving the fence), you will need to have a survey made to demonstrate the relationship between where you agreed to build the fence in ignorance of the true line and where the true line actually was before you made a mess of things that will cost tens of thousands to resolve.
Kent
> Apparently you either haven't read the case that clearly outlines the boundary law principles, or you are willingly ignoring it.
>
Obviously it is the latter.
“Faced with the choice between changing one’s mind and proving that there is no need to do so, almost everybody gets busy on the proof.”
Kent
The FACT is that both surveys, in fact any surveyor with the slightest bit of measuring ability, could "stake the lot line." There are two brass caps with x's in monument wells in the center of two intersections which check within 0.03' of the platted record distance. The bearing on the street is "East" and the record bearings on the lot are "North, South, East and West." If you took the time to read the case attached to my handout, there is a copy of one of the surveys attached. Any surveyor, whether from TX or UT could certainly measure the record distance, turn 90, confirm the original front lead plug in the gutter, and set a back corner in the platted distance. Both surveyors did that. Their measurements to the fence differ simply because they're measuring to different parts of the fence. In FACT, parts of the "fence" are a cinder block wall. One surveyor measured to the east face, the other to the west face. Maybe a third surveyor would measure to the center. Bottom line is, the lot line determined by both surveyors was the SAME line in the SAME location.
>
> The obvious overhead on boundaries that are claimed to have been fixed by verbal agreement is that they aren't fixed against all lienholders and all innocent purchasers until the parties spend tens of thousands of dollars defending them in court if a written agreement can't be recorded (as was evidently the case here).
Kent, you're talking out of your complete ignorance of both the facts of the case and the surveyor's obligation in light of the circumstances of the case and the law. And you get this diatribe from where? You certainly didn't get it from the court case or any other law.
The FACT is that agreements have no effect on TITLE, therefore, they have no effect on "lienholders and all innocent purchasers." As if the landowners' agreement to establish their line is some sort of criminal act. Nothing is further from the truth! It's their constitutional right to fix their boundary and they did it by constructing a fence which stands as primary evidence of their agreement. The "innocent purchaser" is fully on notice of the conditions at the time of the purchase (as was the prior owner and the current owner of this case). But then, you'd have to actually read the case to discover that FACT.
>So, if you're going to spend tens of thousands (you know, at least twenty times more than an actual survey would have cost in the first place and even a larger multiple than the cost of just moving the fence), you will need to have a survey made to demonstrate the relationship between where you agreed to build the fence in ignorance of the true line and where the true line actually was before you made a mess of things that will cost tens of thousands to resolve.
Again, NO. The landowner, had they hired a surveyor who would provide a competent survey in accordance with the law, would have suggested they record their oral agreement which would have cost them around $400 for the preparation and recording. Instead, the surveyors failed to offer this simple remedy and thrust the landowners into a dispute costing 10's of thousands of dollars. The surveyors "made a mess of things" that had been in complete peace and harmony for just shy of 20 years. Not the owners. The owners had a lawful agreement settling the location of their boundary that the surveyor refused to acknowledge. It's the surveyor who kicked the sleeping dog, not the owners.
JBS
Kent
> > The whole point being, if either one (or both) of the surveyors had been knowledgable about the laws in Utah and their responsibilities as professional surveyors, this meaningless debate wouldn't be happening.
>
> Yes, absolutely! In Utah, when contacted by the client, the surveyor's first question should have been "is there a fence on the line?". If the answer was anything that even remotely sounded like "yes", the Utah surveyor should have immediately asked "well, what do you need a survey for?" :>
What a moronic statement. That's not the surveyor's duty and that's not what the law requires. Again, Kent, if you're going to refuse to acknowledge the law or attempt to understand the law of boundaries, then you'd best focus on control surveys which fall within your true area of expertise. Leave the boundaries to surveyors who are willing to make a good-faith effort to apply the rules which govern their profession.
JBS
Kent
Obviously it was unclear enough to need to go through a trial and two appellate opinions to get there so I don't blame the Surveyors very much if at all. The Doctrines typically are thought to reduce litigation but, frankly, nothing seems to reduce litigation. I realize the Supreme Court here is laying down the law, so to speak, so that maybe legal practitioners will heed it and stay out of court. The facts always seem to provide some basis for litigating, though.
I am not convinced that it is a viable practice model on a large scale to expect Land Surveyors to chase down the evidence leading to a subjective end. I understand that is the law in most States but it doesn't make for a very efficient practice model. 1/10th of 1% seem to have a grasp of these issues. To do this efficiently on a large scale would take a different professional culture and a different education scheme (which is mostly Engineering oriented).
If we could just get Land Surveyors to recognize objective uncertainty and make the correct choices there then that would be a huge improvement.
Our current ad hoc system of boundary surveying with hidden monuments and widely varying standards of quality seems to encourage this sort of thing. The Civil Engineers don't put in the water valve themselves then wait for it to be paved over; they have a system where a contract gets let out and the valve is built to certain construction standards and put in a box with iron lid.
Skelton said we should establish a system of public monuments in 1930 and we still haven't done it.
My feeling is Kliban would've lost had this been tried down in Southern California.