How is it that a Professional Surveyor will ignore evidence in favor of a deed with rounded numbers? They then set corners in agreement with those rounded numbers making a 60 year old fence an encroachment. And then, with a straight face, they tell a potential client that calls for a quote that they have to go out and look for evidence and they can't just stake what the deed says?
Rant off. Sorry. It's been one of those Monday mornings.
[sarcasm]What ARE you doing working in Idaho anyway?!!!![/sarcasm]
I though everybody knew that the deed held over the evidence. That's common knowledge, Whats wrong with you?;-)
We have a little something called the Land Court here in MA. The math holds above all else. Sometimes a revision can be made based on monuments (call the Land Court, they decide), but there is no change to a boundary by a 60 year old fence.
Does meets and bounds have any sway? What a confusing mess you must have with fences!
A farmer decided to cut out a small tract of land in 1950 and he meets the buyer out at the site and they pace off a certain distance, let's say 300' square (deed reads 300') and the buyer builds a fence where they decided those corners would be. 60 years later a surveyor comes out and measures 325' along the fence. Why does a surveyor think he has to set monuments at 300'? That's rediculous! That is not where the boundaries are! The boundaries are along the fence.
> A farmer decided to cut out a small tract of land in 1950 and he meets the buyer out at the site and they pace off a certain distance, let's say 300' square (deed reads 300') and the buyer builds a fence where they decided those corners would be. 60 years later a surveyor comes out and measures 325' along the fence. Why does a surveyor think he has to set monuments at 300'? That's rediculous! That is not where the boundaries are! The boundaries are along the fence.
Or was the farmer's intent to convey 300' and the buyer just got a little anxious with his fence building?
As always..It depends.
Possibly, but how would you know if you didn't evaluate the evidence any further than reading the deed?
I would say that the intent was what they walked off together, not what they put in the deed. It's just like those old deeds that give acreage. They have an idea of what might have been out there but the math was a little fuzzy. I would definitely hold the fence as a monument. Don't see how you can avoid that one.
I agree that you hold the fence, but only in the absence of any way to prove intent was to be something different. I am thinking more along the lines of what we do today. I know I do a lot where the intent is to be 2 acres. This needs to be conveyed on the plan that the intent is 2 acres so that 30 years from now those guys with fancy tools don't come and make the lot 2.05 acres because one of the pins moved an inch.
If the evidence and records show there were no other surveys peviously performed and the tract in question was the first one in the area, then senior rights apply and deed distances will hold. A fence established in 1952 may or may not be intended to represent the boundary line between two properties. Every situation is different, I am just pointing out how the surveyor in this case could be right.
I understand that, sure do. The way I am looking at that is that the 300' they paced and set something to mark those and later erected a fence.
Surveying? Or deed staking? - Penry
>...then senior rights apply and deed distances will hold.
I am not disputing that, but there is still the fact that a lot of the retracing that is done is not accomplished using the original starting monuments that created the senior cut.
That is another possibility. Again though, the surveyor can't make that decision without examining the evidence further. That decision can't be made by only reading the deed. That is the point here. A point that shouldn't have to be made granted, but the point nonetheless.
If the deed states 300' square and I find a fence at 325' square. I would certainly not map the 325' fence as the boundary without the original grantor standing next to me saying he will record a corrective deed because he really wanted the 325' fence as the boundary. I feel we just can't give away that much real estate without a call to that fence...
FLS, that's kind of my approach in such situations. Inform the client of your findings and opinion. Offer the solution of quitclaim deeds to/from adjoiners, then re-write a new description(s) to incorporate all that good stuff.
Sometimes that 25 ft discrepancy can go the other way. What if it's 275 ft, and not 325? Then you'll have some real 'cplaing to do.
You were the messenger of the problem situation created by others, and soon become the hero with the solution.
No confusion, a judge has decreed land courted land. It is all surveyed and mapped to become registered with the court. You cannot adversely possess the land, you cannot change boundaries without a court appearance.
Back to your fence: if I want a fence on my land and a 25' vegetated buffer to my neighbor, then why should some surveyor hold the fence? Of course, I'd set a monument at my corner, but some surveyor should find that from the deed information.
The question is whether the boundary line has been established or not. The owners may have done the original survey when they stepped it off. With 60 years of occupation the question may be whether for that 60 years did they treat the fence as the boundary. There is so much that needs to be sorted out. Whether an official survey in the record has been done is not the only evidence to seek out.
If the original location of the fence by the owners didn't establish the boundary then there may be other things that fixed the boundary like acquiescence or even an oral agreement between the landowners sometime during the 60 years. All this needs to be searched out and then evaluated before a surveyor upsets the status qua. Maybe that boundary hasn't been established but after 60 years there probably is a huge hill to climb over to set it aside.
I'd be finding out all I could about the fence and how the present and past owners have treated it. After 60 years I'd say you need to disprove the fence with evidence other than just blow it off with the deed numbers. The law presumes a survey was done when the parcel was created. The owners could have done it themselves. You'd need to overcome that presumption, prove the fence is not the original evidence of the original survey, record or not.
Definitely a Parole Evidence situation. But if the fence is 60 years old and has been relied on for that long as a boundary, I am not likely to argue with the fence.
B-)