Dave Karoly, post: 359799, member: 94 wrote: An encroachment is something that crosses over the line, such as a building or a wall if it crosses the line then turns and runs along the line. A fence all on one side is not an encroachment. It is either owned by the property it is on or it is a trespass.
And the definition of encroachment is illegal so trespass would be applicable and therefore, making some protrusions/intrusions, illegal.
I hate it when survey's i follow state "ENCROACHMENT".
I dont think its our job to say that word.
I just show the facts and let someone else call it one way or another.
Randy
To me, we want to show the encroachments I mean improvements of note that could potentially affect property rights, and highlight them for the client. I believe we have a bigger obligation than to just have them sketched on the plat.
I don't use the word because I have been advised not to, but I don't think it's as big of a deal as so many of us make it. "Note Encroachment" with an arrow to the offending improvement spotlights it for our client whom we want to make certain sees the items of concern.
If you think about it, calling something a "property line" or even a "deed line" is a legal opinion which can be overturned by the courts. This improvement "offends" the property line or deed line or whatever the hell line your staking. It might not be a personal offense to the owner, but it is to the property.
Similar to adverse possession being "hostile" to the property. It doesn't take a physical fight with the owner to be "hostile" to the boundary. Such is an encroachment (in my not-legal surveyor's opinion).
foggyidea, post: 359810, member: 155 wrote: Why can't you just call it a fence without making a judgment as to encroachment/extrusion/protrusion and just show it as it meanders? It's just a fence.
Out here in the wild west a fence is generally viewed as a property line by the ranchers. This fence was probably built about a hundred years ago. The owner and neighbor are friendly. The owner doesn't seem to care about that "couple of acres" in the overall scheme of things.
I think the question may be which one actually "is" the boundary. You obviously have two locations if the ranchers reckon it's the fence and the records say it's straight. Without knowing who claims ownership of the physical structure of the fence, how can you distinguish what constitutes an "intrusion" or a "protrusion?"
We are surveyors. We take a "Snapshot in time" That time is our visit to the site. I have an old job, where I suspect a client, of burying old rusted wire, to "Make an adverse claim".
We document what we find, at a given time.
There are OTHERS who, know more of the story. Who built the fence. Who did what when, and under what circumstances. Thus, we make an opinion, based on the found corners we found at that given time.
So, you might lay out a subdivision, based on an ancient pipe. And then, somebody MIGHT move that pipe, after we uncover and flag it. NOW, we have a conflict in the making. Your "deed lines" are based on monuments. Monuments, that may not exist, in their original location.
The fence, MIGHT be based on information we are not privy to, and the "Time of our snapshot".
So, I like simply mapping the site. If I think it is an encroachment, maybe it is, or not. Maybe it is a "Permissive use". Is that an encroachment? Were you privy to the verbal agreement, between the landowners, as they built the barn, the fence, the garden, or whatever.
So, document it. refrain from "Knowing" stuff that you do not know.
"Corner of roof, is 2.0' north of Deed Line". At this point, you have MADE a professional judgement, as to where that deed line is. BUT the roof corner, is a relative position, to this "Deed Line". You cannot escape your own opinion. As to the history of the roof, you don't know. As to the deed, you have to know. So, don't take on more than you have to.
My 2 centavos!
N
Nate The Surveyor, post: 359844, member: 291 wrote: "Corner of roof, is 2.0' north of Deed Line". At this point, you have MADE a professional judgement, as to where that deed line is. BUT the roof corner, is a relative position, to this "Deed Line". You cannot escape your own opinion. As to the history of the roof, you don't know. As to the deed, you have to know.
I see what you are saying.
I may use this line of thought but re-word it, as the "deed line" may not be the superior entity in this case. The owners give more weight to the fence than I do. Perhaps my thinking is wrong.
Determine the boundary.
If the roof extends over the boundary then there are a number of possibilities.
I don't use the word "encroachment" because that states a specific finding of fact and law which may not be true.
If only the roof extends over it is not a trespass but it may be a private nuisance.
If the property owners want a solution I would suggest some alternatives they could agree to 1) remove the encroachment, trespass, or nuisance, 2) adjust the boundary, 3) agree an equitable easement exists, or 4) grant of easement.
6 Miller & Starr Calif. Real Est. å¤17:2
ÛÏEncroachmentÛ defined. An encroachment is the extension of a building or other structure 1 beyond the boundaries 2 of
the land on which it was rightfully constructed onto adjoining land, or into its airspace, without the permission or consent
of the adjoining landowner. 3 Since the owner of the surface of the land also owns and has a right to use the airspace above
the surface, 4 an intrusion into the airspace of adjacent property may be an encroachment. 5 The same may be true of the
subsurface, 6 where the owner of the fee simple estate also owns the subsurface. 7
Trespass or nuisance. When an encroachment actually rests on adjoining land, it constitutes a permanent trespass. 8 When
the encroachment merely intrudes into the airspace above the adjacent property, it is not a trespass, but a nuisance if the
owner of the burdened property is obstructed in the free use of his or her property. 9 An encroachment usually is both a
trespass and a nuisance. Nuisance is distinguishable from trespass in that the mere intentional entry on land may violate the
right of exclusive possession and create a right of action for trespass, while conduct or activity cannot amount to a nuisance
unless it substantially interferes with the use and enjoyment of the land. 10
Comment:
The distinction between trespass and nuisance has a significant effect on the time within which an injured party must take
legal action against an encroachment and on his or her rights of removal or abatement. 11
Evidence to prove an encroachment. To establish the existence of an encroachment, it is only necessary to prove that the
encroaching structure actually extends beyond its legal boundaries 12 without a legal right 13 and without the consent of the
person occupying the adjoining land. There cannot be a trespass if the owner consents to the encroachment. 14
It is not necessary to prove that the encroachment is the result of negligence or an omission by the owner of the encroaching
structure or that it constitutes a hazard to the occupier of the adjoining property, 15 but such factors may be material to
the question whether the injured party is entitled to a mandatory injunction compelling the removal of the encroachment or
merely to damages resulting from the interference with the use and enjoyment of his property. 16 Where a federal agency as
a joint tortfeaser is a necessary party, but cannot be joined due to immunity, a state court action may be dismissed. 17
Effect of intrusion into the area required for setback from property lines. A court may grant a mandatory injunction
for the removal of a structure that violates a governmentally-imposed setback limitation even though the structure may not
encroach over the boundary line of the adjoining landowner. 18 However, a neighbor has no right to enforce or to recover
damages for violation of an ordinance prescribing minimum side yard setbacks. An adjacent owner cannot recover damages
for the construction of improvements on neighboring property that exceed height and side yard restrictions of the Building
Code because the code does not grant any property rights in adjacent property. 19 A property owner has no rights regarding
the location of improvements on adjacent property in the absence of an easement or enforceable restriction. 20 Also, the city
does not incur liability merely because its action causes a diminution in the value of the neighbor's property. 21
vern, post: 359835, member: 3436 wrote: Out here in the wild west a fence is generally viewed as a property line by the ranchers. This fence was probably built about a hundred years ago. The owner and neighbor are friendly. The owner doesn't seem to care about that "couple of acres" in the overall scheme of things.
It sounds like you have talked to your client about this, have you talked to the neighbor? Being as they are "friendly", now is the time to help them understand the situation. Assist them in resolving it & document the solution.
vern, post: 359850, member: 3436 wrote: I see what you are saying.
I may use this line of thought but re-word it, as the "deed line" may not be the superior entity in this case. The owners give more weight to the fence than I do. Perhaps my thinking is wrong.
Vern, I will show the fences, give an acreage, and distances off the line.
I don't use the word encroachment, however, I doubt you will get into too much trouble using it in a case like this.
A 2300 AC ranch probably will be interested in these issues, but not loosing sleep over it and often they know there are issues.
A crooked fence can't be on line, often the rancher can see it bends and knows that anyway.
Did they want line points, are they considering refencing?
Usually two ranchers won't have much problem getting it back "online",,,,,,of course, the reverse happens.
[USER=700]@MightyMoe[/USER], You said "I don't use the word encroachment, however, I doubt you will get into too much trouble using it in a case like this."
My issue is that I don't want to give an attorney any more ammo to shoot at me than necessary. An attempt to discredit someone in depositions or on the stand because they didn't know the meaning of a word they used in a professional context is surely not something I want to happen. To that end, you never know which ones are going to end up in court.
It is not our job (land surveyors) to determine whether there is encroachment or not but clearly state the location of the fence, property line and any type of possession (lawn, garden, etc). This must be interpreted by attorney with consideration of possibility of unwritten rights .
gregkogan, post: 359875, member: 9416 wrote: It is not our job (land surveyors) to determine whether there is encroachment or not but clearly state the location of the fence, property line and any type of possession (lawn, garden, etc). This must be interpreted by attorney with consideration of possibility of unwritten rights .
What if I told you the information you need to properly investigate and determine is readily available to you at the law library? All you have to do is read it. We take that information and connect it to reality, the ground. Attorneys are not licensed to do that.
It is better to identify potential solutions than just identify problems.
gregkogan, post: 359875, member: 9416 wrote: It is not our job (land surveyors) to determine whether there is encroachment or not but clearly state the location of the fence, property line and any type of possession (lawn, garden, etc). This must be interpreted by attorney with consideration of possibility of unwritten rights .
I respectfully disagree. It IS our job, but some of us dare not use the word encroachment, per our own preferences. We must still identify those things which intrude onto or protrude from the property. I seek the alternative word.
A local survey company shows "area of concern" on almost every survey they prepare. I don't care for that one either.
Show fence. Label as "Fence intrusion" if fence is owned by the adjoiner.
