I'm starting a survey where there has already been a lawsuit over a center section line to the south.
I need to find previous aliquot parts surveyed in Section 12. The lawsuit involved Section 13. An old fence was built in about 1930 within a foot of a half mile west of the township line which has GLO brass caps along it (resurvey). The court settled the case via acquiescence and doesn't really say where the quarter corner is between Sections 12 and 13. My data in the area shows the sections are indeed short east/west. So I'm going to look for the å? stone according to the notes (topo calls). The notes say its 80 chains east/west but it's short maybe 250-300 feet. The topo calls do seem to match the terrain looking at it on Google Earth without real data yet.
One thing I'm not going to do is consider the end of the fence as the å? corner for my section even though the court made that the boundary corner in Section 13.
Here is the case:
Here is the survey details from the case:
6. Prior to 1929 someone built a continuous north/south fence ("the Fence") on or near the middle of Sections 13 and 24. The Fence consisted of cedar posts, barbed wire and wire net. The northern end of the Fence was located almost exactly one-half mile west from the northeast corner of Section 13. The Fence was visible and straight.
7. Witnesses at trial testified that at various times they observed the Fence in its present location, including 1929, 1961, 1979, 1980 and on many occasions since 1980.
. . . .
9. Since 1929[,] the owners of the land on both sides have occupied and used their land up to, but not beyond, the Fence. No evidence was presented at trial that owners of land in the western halves of Sections 13 and 24 had objected to the location of the Fence prior to 1980.
10. In about 1980[,] . . . Formen Corporation subdivided the western halves of Sections 13 and 24 into a number of lots. The subdivision plat which was prepared in 1980 by R.K. Johanson shows that the eastern edge of those subdivision lots on the eastern edge of the Subdivision are located east of the Fence: i.e., that the Fence is located within the boundary of the Subdivision. A 1998 survey prepared by Ryan W. Savage ("the Savage Survey") shows that the Fence is located along the western boundary of the Ranch and that the Subdivision lots encroach onto Plaintiffs' property east of the Fence. Thus[,] the Johanson survey shows that the Fence encroaches on the Subdivision and the Savage Survey shows that the Subdivision lots encroach on the Ranch property.
. . . .
12. To the extent that Johanson and Savage Surveys are inconsistent with one another, the Court finds that the Savage Survey is accurate. However, the Court makes no findings as to whether Sections 13 and 24 are "full" or "short" sections. The Johanson survey of the Subdivision is not accurate in that it did not correctly identify the boundary between the east and west halves of Sections 13 and 24.
13. The owners of property located on either side of the Fence acquiesced in the use of the Fence as a boundary between property owners no later than 1929 until 1980. During that time the Fence was used as a substantial enclosure or monument.
Based on these findings, the trial court concluded that plaintiffs had established a boundary by acquiescence.
LRDay, post: 382885, member: 571 wrote:
One thing I'm not going to do is consider the end of the fence as the å? corner for my section even though the court made that the boundary corner in Section 13.
Do you really want to be definitively saying this at this time? I get where you are coming from, different section, court not being definitive as to location, etc. but wonder if you just consider the "end of the fence" and the court testimony as just another form of evidence at this point until you assess all available evidence and can substantiate your statement.
May I ask you what is compelling you to undertake this survey?
I can't imagine that this could be profitable or fun. It will take a lot of time, you probably won't have a definitive answer at the end (I'm not saying you won't - just that it sounds unlikely), if you don't end up with a defensible definitive location then you probably won't want to assert boundaries, your client won't be happy with the ambiguity, nobody will want to pay the bill, and you may get sued.
It must be love... I can't see it being money.
I've previously done some work in Section 1. The north 80 chains (GLO) measures 4893.5 feet between resurveyed and found original monuments. Yet the north south distance is near a real 80 chains. The sections are short east/west. My survey is basically the SW1/4 of Section 12 but it was subdivided on aliquot lines and a survey done (not recorded). I've found some å? rebar with T Post and talked to the original developer and these where the original corners. So if I can find them and a consistent pattern I'd accept them as the original corners in the interior of the section.
Where the boundary of my survey and the East å? of Section 13 come together there is the fence, a east/west fence and then the subject lawsuit fence going south. Taking the case into account that should be easy, the fence is the boundary. I'll either extend or trim any of the lines from Section 12 along these fences.
Maybe after all the field work I'll have a different take on the situation but really not expecting one.
Anyone here really ready to reject that fence location going back to 1929?
Unless the court looked at and ruled on all the lines that could be affected by the subject fence based corners (and it sounds like they didn't since they ruled boundary by acquiescence) the court basically concluded the fence is the section line called in the deeds for the properties immediately east and west of the line. So I agree that one could reject the fence in regards to other properties. It's the nature of the PLSS that 1 corner or line can potentially affect thousands of acres. What the neighbors did with their fences shouldn't necessarily affect boundaries of parcels in neighboring sections.
Even if the court had ruled that the fence was the section line, it would be the line only for the parties to the trial should you found a better solution, wouldn't it?
Were the deeds to the 2 properties reformed post trial? I assume not.
LRDay, post: 382901, member: 571 wrote: Anyone here really ready to reject that fence location going back to 1929?
I accept that there is an old fence going back to 1929. I don't see evidence here demonstrating that the fence relates to the PLSS (did I miss that somewhere?). So I'm not ready to reject or accept anything but I can tell you that in IBLA 93-407 (William D. Brown) the IBLA ADMINISTRATIVE JUDGE ARNESS reiterated that:
"As we recognized in James O. Steambarge, supra at 193, a corner cannot be said to be obliterated based on such evidence, unless it be shown that an old fence was built "to an accepted corner restablished by [an original] survey or that any fence started at and terminated at established corners of that survey."
We all remember that:
An obliterated corner is one at whose point there are no remaining traces of the monument or its accessories, but whose location has been perpetuated, or the point for which may be recovered beyond reasonable doubt by the acts and testimony of the interested landowners, competent surveyors, other
qualified local authorities, or witnesses, or by some acceptable record evidence.
Fence longevity doesn't turn the fence into a cadastral line. (BajaOR - where does the court conclude that the fence is the section line? - I'm not seeing that).
Don't confuse the acquiesced ownership boundaries with the cadastral lines. Just because a line is a boundary in the eyes of the court does NOT means that that boundary is a PLSS line (section, 1/4, or whatever).
I'm in agreement JK. I misspoke and should have said quarter section line.
Regarding your question, the court may or may not have concluded the fence was the quarter section line. They did say the Savage survey was correct (they said "accurate"), so if Savage accepted the fence as the quarter section line the court apparently did too. If so, they could have stopped there. Between the results of the Johanson survey and the mention of full or short sections they apparently knew enough to conclude the quarter section line location was uncertain and therefore made the acquiescence ruling and fixed the boundary location regardless of what it is or isn't in PLSSia.
One thing is certain, the prorate isn't where the original was set; that assumes the original WAS set.
Lots of corners weren't monumented and were paper surveys, knowing the area and the history of the PLS there goes a long way in what will be accepted, it wouldn't be unusual here for the 1/4's to be stubbed out from the township lines and not run west-east line the notes claim, topography might give a clue.
I looked at the Savage survey today, supposed to be emailed but didn't get here yet.
The survey doesn't show the fence as a PLSS line, in fact the survey set a corner for the 1/4 corner (proportion I suppose). The survey showed the fence which the court determined to be the boundary and I'd agree under Utah law that the fence is the established boundary.
The fence is the established boundary line. I have no plans to use the fence as any sort of PLSS corner or line, just as a boundary line. I'm going to search for the original 1/4 stone. Just looking at where it is on the land, it should be there unless the fence building took it out. I suspect after going through the notes that the corner is probably not near the split, probably 40 chains stubbed out from one side or the other and the whole line is maybe 300 feet short. There are three topo calls in the notes, a ridge and two drains, that make me think the line was actually run. One of the drains is listed to a tenth of a chain the other calls are at even chains.
Based on all the other surveys I've looked at, finding the actual 1/4 is probably just academic though, a bunch or surveying has been done based upon whatever, I'm going to try and sort out the original developers stuff if possible which I'd consider the "original survey" which the lots where sold from.
The Johanson survey of the Subdivision is not accurate in that it did not correctly identify the boundary between the east and west halves of Sections 13 and 24.
Curious what was used for control in the incorrect survey. In the statement above it seems to me the court is saying the correct boundary is between the east and west halves and the other survey identified the correct boundary. Food for thought.
linebender, post: 383250, member: 449 wrote: The Johanson survey of the Subdivision is not accurate in that it did not correctly identify the boundary between the east and west halves of Sections 13 and 24.
Curious what was used for control in the incorrect survey. In the statement above it seems to me the court is saying the correct boundary is between the east and west halves and the other survey identified the correct boundary. Food for thought.
I have the survey but not sure I want to post it online. It is a public document but not available online from the county.
The survey shows the center section line much as per the Johanson plat. The survey also shows the location of the old fence.
The survey doesn't really say the fence is the boundary but does give a description for the overlap area. So it was what ever happen in court that determined that the fence was the boundary.
I might note that the names on the winning side of the case are well known to Utahan's. I'm sure they had the best council you could get.
Since this case all happened a surveyor in 2009 found the section corner to the west 12/11/13/14. Up until then I see no use of the actual section corner at the SW Cor Sec 12. The more actual stuff we find the more complicated the mess is. It's going to be a little interesting for sure. The SW Cor Sec 12 is my surveys corner. Haven't been there yet but almost positive things are not going to match up with all the rest that has gone on out there. I suppose the real thing will be whether we need to adjust deeds to make it how it is and not how it was supposed to be.
