:good:
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You do a disservice when you put words in the mouth of those who don't say it!
Do you just say based on the laws of my jurisdiction the boundary is now the fence line, stake that line, issue a plat and leave? I don't.
Who says that every fence represents a boundary line?
Keith
That was meant in a rhetorical sense, it was not meant to be a quote from you or anyone else. My apologizes if you took it the wrong way.
I do agree with a lot of what you say, but I believe it is our responsibility as professionals to inform the client of the facts and our opinion and let them make the decision on how to handle a problem. Sure most clients will agree with my recommendations, but that doesn't give me or anyone the right to make it for them.
And yes fortunately most times, at least in New Jersey, a fence is just a fence.
I provided my take on the premise of Dr. Hermansen's article in the [msg=196436]"Ad Nauseum"[/msg] thread, so I won't repeat it here. There are some other comments raised in the article that I'd like to address, however.
>Where the lines of occupation differ from the record boundary, the doctrines of adverse possession, estoppel, practical location, acquiescence, or unwritten agreement could cause the title or ownership to coincide with the lines of occupation.
This statement promotes a common myth perpetuated amongst our profession. The doctrines of "estoppel, practical location, acquiescence, or unwritten agreement" NEVER affect "title or ownership" of property. The courts across multiple jurisdictions have forever made it clear that these doctrines are not "title doctrines." They are "boundary establishment doctrines."
We have confused ourselves by believing that the location of the boundary and title to the property are somehow interrelated. They are not. Title law is a completely separate body of law. Title law answers the question of "what" the boundary is; boundary law answers the question of "where" the boundary is located. Title law is principally statutory in nature designed to prove "who" owns the property and what "rights" are associated with the ownership. Boundary law is principally common law with every boundary being established in accordance with one of the above four doctrines.
>Consequently, a few surveyors take upon themselves the task of analyzing the extent, nature, and history of possession to determine if ownership should conform to the lines of occupation rather than the record lines.
This is another myth. The purpose of gathering and analyzing the evidence is not to "determine if ownership should conform to the lines of occupation." By definition, a boundary is the furthest extent of two contiguous properties. Title law determines ownership of the properties and the nature of the properties; boundary law determines where the boundary lies.
The purpose of gathering the documentary evidence from the title and survey records, the physical evidence of survey markers and occupation lines, and the testimonial evidence of the landowners is to determine the factual circumstances surrounding the establishment of the boundary. The factual circumstances are what determine whether or not any of the boundary law principles have been fulfilled. Application of these principles will tell us "where" the boundary is, every time.
>The question then is whether a surveyor should take on the responsibility of showing lines of possession as the ownership boundary when the surveyor is fairly convinced such is the case.
"Ownership boundary" - another myth. Every boundary, by definition separates two contiguous properties. The courts do not differentiate between a boundary established by deed, by survey, or by occupation. Sometimes deeds provide the best available evidence of the established boundary, sometimes survey markers, and sometimes occupation lines. The task given to the surveyor is to determine which time the evidence presents. Where is the boundary - this time?
>There are several arguments offered for the position that the surveyor should take it upon themselves to recognize the lines of occupation as the boundaries to the property. ...
Following this statement, Dr. Hermansen recites two paragraphs of reasons why surveyors should consider boundaries established by occupation evidence. The reasons recited can be nearly quoted from twelve different court cases from OR, MI, AZ, IL, UT, CA and ID, decided since 1950 which discuss the "great public calamity" caused by surveyors who fail to consider such boundaries. When will we begin to listen to the courts? The reasons given are the reasons the surveyor SHOULD consider and apply boundary establishment principles.
>... First, such actions are relatively easy, inexpensive, and straight forward.
Another myth. Yes, jumping on any old fence and accepting it without gathering the necessary supporting evidence is a common misdeed perpetuated by the "fence line surveyor." The same can be said by the "deed staker" jumping on any deed line despite the conflicting evidence. Both are wrong. In order to evaluate any occupation line, it takes much more than fist-glance appearance. It takes investigation. The investigation is a vital step that cannot be avoided. This same step can be said of the record deed or of the recovered survey marker. They all take evidence to determine the intent behind them and to corroborate their purpose. The principles of law designed for determining the boundary require more than an old fence. They require additional evidence to prove the elements in support of the principle.
Any surveyor who takes it upon themselves to gather the necessary evidence to prove an established boundary will soon discover that the task is no easy one. It requires great diligence, acquired skills, experience, and expertise. All are attributes of a surveyor who, alone, is given the responsibility of determining the boundary. No other profession can do it. We cannot shirk our responsibility by short-cutting the process. The process is NOT "relatively easy, inexpensive, [or] straight forward."
>Given these reasons and others, it is often hard for some surveyors to accept that a surveyor is without authority and may be liable for failing to disclose where the lines of occupation differ from the location of the boundary as established by the operative records.
This statement is true, but misguided. Yes, the surveyor has no "authority." Our opinions are binding upon no one. We confuse our "authority" with our "responsibility." Our chief responsibility is to determine the location of the established boundary. There is no such concept as a boundary being "established by the operative records." Boundaries are established by the process of running the lines on the ground and physically establishing them through the common actions of the landowners. "Operative records" do not result in physical evidence of the boundaries. "Actions" result in physical evidence.
>What must be realized is that where the lines of occupation differ from the boundary as located by the record, the marketability of the title is brought into question. Marketable title is defined as title free and clear from reasonable doubt as to matters of law and fact and is not one clouded by an outstanding contract, covenant, interest, lien, claim of possession, or mortgage sufficient to form basis of litigation.
While I completely agree with the latter sentence (which does contain a footnote to a commonly recited title doctrine), the first sentence promotes another myth resulting from intermixing title doctrines with boundary doctrines.
The context of the later sentence dealing with marketability of title is just that - TITLE LAW. Title law is designed to prove ownership of property. The inclusion of "claim of possession" in this context refers to adverse possession which may affect ownership of the entire parcel of land, thereby making the title "unmarketable." Those are title questions which do not involve the surveyor nor do they involve the determination of the boundary locations which are governed by boundary law.
>Where the occupation lines differ from the record lines the title is not marketable.
Another myth. Notice there is no footnote citation made for this statement. Instead were are told that we are governed by a "reasonableness" standard. I have never read any court case where any "reasonableness standard" is employed to determine what occupation should be our concern or which should not. I have also never read a court case which supports the conclusion that a fence one foot off of the boundaries of a "one-quarter acre residential lot will likely make the title unmarketable."
>Because there are conflicting boundaries and improvements, ownership is questionable, subject to dispute, and the marketability of the title is put into doubt. The surveyor has a duty to prepare opinions and communications that are objective and truthful for the client and reasonably foreseeable third parties.
Conflicting evidence is recovered on every survey we perform. There are conflicts in the written record (patent ambiguities), there are conflicts discovered when applying the description to the ground (latent ambiguities). The rules of law govern how the surveyor is to deal with these conflicts in evidence. This does not, however, equate a conflict in evidence with marketability of title. Owner A is on one side of the boundary and owner B the other. There is no question of who they are or whether their property was unmarketable when they acquired it. Conflicting evidence with regard to the location of the boundary is frequently discovered. The resolution of that evidence is found in boundary law.
I agree that it is the surveyor's duty to prepare their opinions in accordance with the prevailing legal principles and to communicate that opinion in such a way that discloses the conflicts as well as their resolution. I don't agree that it means the surveyor is to document the conflicting evidence in a way that thrusts the landowners at each others' throats in a courtroom before they receive a just application of the legal principles.
I would summarize that it is the surveyor's responsibility to apply the appropriate rule of law designed for the very purpose of resolving the conflicting evidence and, at the same moment, resolving the location of the boundary. It is not within our authority to determine which law should be applied and which law should not. The law is determined by the court, not by the surveyor. It is simply our duty to apply the law as the courts have determined it should be applied. It is out duty to determine the location of the boundary.
JBS
> Do you just say based on the laws of my jurisdiction the boundary is now the fence line, stake that line, issue a plat and leave? I don't. You explain the facts to your client, explain your opinion as to what a court of law may say and explain to him his possible options. He may decide to do nothing and acquiesce to the fence line, he may wish to enter into a boundary line agreement with parcel B, maybe the owner of parcel B is willing to relocate the fence or maybe the owner of parcel A is willing to give B permissive use of the property. The key is these are decisions for the land owners to make not the surveyor.
>
> You do not hire a professional, be it a Doctor, Lawyer, Accountant or Surveyor to make decisions for you, but rather to advise you, so that you can make educated decisions.
Dan is right on the money here and is very close to what I espouse. I would, however, interject a few caveats.
It is well within the surveyor's purview (in fact it's their responsibility) to formulate their opinion "based upon the laws of my jurisdiction." When that opinion conflicts with the opinion of one or both landowners, I have a responsibility to meet with them and to explain my findings. If they are in agreement with my findings, I can then proceed to complete the survey. If I am in any way made uncomfortable by the extent of the conflicting evidence recovered, then I will require additional documentation from the owners before I will complete my survey.
If the owners are agreeable, then there are a number of ways the documentation can take place. I remain in the game while awaiting resolution of the issue. Once resolved, I will make reference to the resolution and complete the survey. If they are not agreeable, then I'll wait for their resolution whether through mediation, arbitration or litigation. Once resolved to my satisfaction, then I'll complete my survey.
Nothing in the law requires me to monument a line of possession, a line run by prior survey, or a line described in a deed. I'll monument the boundary only when I am satisfied that the evidence is sufficient to support it.
JBS
Now that is a statement that I have no problem backing!
Looks like a lot of myths??
Great post and I agree.
This problem of understanding boundary law and title law goes way beyond land surveying. Much of the title industry wants it all the same also. The record title is paramount to them. The record title (paper) is all controlling. The earth should conform to record title not the physical earth.
Bottom line is once all has been done to locate the established boundary and all landowners are on board and satisfied and the established boundary known to all you will still run into a brick wall as soon as the title folks get a hold of it or need to issue some insurance. Or maybe the planners see some difference in the record lines and the established lines. SO THEN you pass around the quit claim deeds to transfer the title to the boundary (there had to be some transfer of title in there somewhere). And twenty years from now it will measure a bit different and again they will want the quit claim deeds. And in another twenty years..............................
Why do all this understanding the law and such when ultimately we are going to be required to fix every boundary/title issue with a shotgun loaded with quit claim deeds? Why carefully cure the patient when you can solve the problem by simply killing him?
Yeah, we can get the landowners fixed up on where the established boundaries are. Hell, many of them will tell you before you start where the established boundary is, just open your eyes and see. BUT how we ever going to get it into the maps (recorders, assessors or GIS). SORRY, but these folks ain't budging without the quit claim deeds. Ain't going to map anything other than the record/title lines/gaps/overlaps/mess. The landowners don't have a seat at this table, all they do is own the land.