On a survey I recently did I discovered the following situation. A tract was "disposed" of in 1957 by the US government, meaning they no longer needed it and sold it to a private buyer. It had two dwellings on it, and some other buildings. In 1994 it was subdivided into two lots, one for each dwelling. The adjoiner on all sides is the US. This is shown below, the green is the US line, the red line is the now private tract. The adjoiner of the US is a RR to the south, and the city to the east. All of the monuments were recovered and match the record (1990 plat), except there is a distance discrepancy on MON 9 (on the US line) to MON 12 (on the line between the US and the City) of about 10 feet. But no discrepancy on the private tract metes, they all agree to within several hundredths, and all corners are in.
But, both private owners are occupying the properties as shown below:
Both areas are fenced, although the area on the west side is just mowed and taken care of (it has the old US flagpole on it as well). The area on the east looks like this looking west, the fence in the left background is along the road:
and like this looking east (chicken coops and sheds), the fence in the background is the line between the US and the city:
So, there were some recent posts about never calling an encroachment an encroachment, that is left for lawyers to determine.
So how is this called out? The purpose of the survey had nothing to do with these two private tracts or the apparent encroachments, but I found them when I was there. Interestingly, the owner of the lot with the stuff in the pictures above is a lawyer, and she is in a bunch of lawsuits with the city (zoning) and also battling her neighbor, but that is a whole another story that has nothing to do with the above. Both lots are totally fenced in with high fences, including the US owned portions.
John Hamilton, post: 386883, member: 640 wrote: On a survey I recently did I discovered the following situation. A tract was "disposed" of in 1957 by the US government, meaning they no longer needed it and sold it to a private buyer. It had two dwellings on it, and some other buildings. In 1994 it was subdivided into two lots, one for each dwelling. The adjoiner on all sides is the US. This is shown below, the green is the US line, the red line is the now private tract. The adjoiner of the US is a RR to the south, and the city to the east. All of the monuments were recovered and match the record (1990 plat), except there is a distance discrepancy on MON 9 (on the US line) to MON 12 (on the line between the US and the City) of about 10 feet. But no discrepancy on the private tract metes, they all agree to within several hundredths, and all corners are in.
But, both private owners are occupying the properties as shown below:
Both areas are fenced, although the area on the west side is just mowed and taken care of (it has the old US flagpole on it as well). The area on the east looks like this looking west, the fence in the left background is along the road:
and like this looking east (chicken coops and sheds), the fence in the background is the line between the US and the city:
So, there were some recent posts about never calling an encroachment an encroachment, that is left for lawyers to determine.
So how is this called out? The purpose of the survey had nothing to do with these two private tracts or the apparent encroachments, but I found them when I was there. Interestingly, the owner of the lot with the stuff in the pictures above is a lawyer, and she is in a bunch of lawsuits with the city (zoning) and also battling her neighbor, but that is a whole another story that has nothing to do with the above. Both lots are totally fenced in with high fences, including the US owned portions.
I'll say it again. Lawyers like the word encroachment. But you can put the meaning you want on the map. Note: Definition of "encroachment" as indicated on this map is "an improvement across this surveyors opinion of the deed lines of this parcel." Or whatever you want it to mean. Attorneys don't care, they just like to see that word on the map.
I use the word encroachment on maps, it doesn't bother me.
John Hamilton, post: 386883, member: 640 wrote: lawyer, and she is in a bunch of lawsuits
I would run like hell!
An encroachment extends over the line such as a building or fenced yard.
Occupying the neighbor's property entirely without permission or legal right is not an encroachment, it is a trespass. Maybe the lawyer has a permit or lease, who knows.
Lawyers are funny. I once had one call me because he wanted to take the land adjacent to his property. The land was owned by the public utility company.
He wanted me to survey his property, but also include a nice size area from the utility company parcel. And he was going to show me where he wanted to take and have me drive pins into the ground at the points....
I declined the job.
A proper survey, in my opinion, should delineate the boundary of a property and reflect improvements any apparent use upon that property. Let's say there is a drive, or a portion of a drive, upon the property being surveyed but favoring access to property other than the subject tract. I believe all we can do as surveyors is accurately indicate and reflect the location upon our survey. Even if title work does not address any rights or documentation for the drive to be there does not conclude that rights do not exist. I believe tossing everything into the "encroachment" category is an uneducated stretch. Most people viewing the survey may jump to a conclusion that a fence, drive or use by an adjoiner labeled as an "encroachment" is an indication of some unauthorized or hostile use. Although it may very well be, it may very well NOT be also.
If others want to pursue contesting whether an improvement (or use) upon a piece of property is adverse to title, let them. All we can do is show the facts.
All I put in the report was that the land was being "used" by the adjoiners, and described what that use was. It is of course more complicated than I explained due to the personalities involved. The nearby government employees take the view that the guy on the west side is doing them a favor by mowing that area adjacent to his property (even though it is fenced and only he has access), and he also keeps the much larger area further west (old lock wall) mowed and picks up garbage. That area has turned into a defacto park and fishing wall, although not officially. The lawyer lady claims she has a lease or something, but no one seems to know anything about that. She is trying to start an upscale B&B, but zoning doesn't allow it, hence the battles with the city and her neighbor. The real problem for her is lack of parking for a B&B.
It seems that the problem is that surveyors are calling something an encroachment when in fact it is an apparent encroachment. If it is an encroachment, it is an encroachment. I agree that we should not automatically assume that improvements that appear to belong to one owner that are on adjoining property are always encroachments. There may be an agreement between owners or it may not be what it seems. If I know the necessary facts, I would call it an encroachment. If it is an apparent encroachment, that is what it is called. Assumptions is what gets us into trouble.
I typically note on the plat that there is an observed use of________, or observed pedestrian ingress or egress, or observed vehicle ingress or egress at the time of the survey and i define the limits of those uses on the plat. I do not like to tag the use as an encroachment, because they may have a non-recorded agreement or those uses might have been going on long enough to not be encroachments, just because I did not get any documentation from the Title report, or did not find documentation during my research that allows those uses, doesn't mean they are encroachments.
I just report the facts that I know and do not want to present a legal opinion of what I do not know.
We are not a court, nor are we a judge or jury, and certainly not the executioner. When the legal definition of something is "illegal", then unless we have parole evidence to prove that it is illegal, it's a protrusion/intrusion/use by another.
According to
BlackÛªs Law Dictionary, an encroachment is, ÛÏ...an illegal intrusion in a highway or navigable river with or without obstruction...an encroachment upon a street or a highway is a fixture,such as a wall or a fence, which illegally intrudes into or invades the highway or incloses[sic]a portion of it, diminishing its width or
area, but without closing it to public travel.Û The word Û÷encroachÛªis defined,ÛÏTo enter by gradual steps or stealth into the possessions or rights of another; to trespass or intrude. To gain or intrude unlawfully upon the lands, property or authority of another."
.Û
Maybe the question should be why do surveyors feel the need to use the E word?
I've never used it, but I've always felt lucky, the local title people seem to understand these issues better than most.
Some out-of-staters have requested many odd things, but I've still avoided the E word and no one ever demanded it's use.
Kris Morgan, post: 386949, member: 29 wrote: We are not a court, nor are we a judge or jury, and certainly not the executioner. When the legal definition of something is "illegal", then unless we have parole evidence to prove that it is illegal, it's a protrusion/intrusion/use by another.
According to
BlackÛªs Law Dictionary, an encroachment is, ÛÏ...an illegal intrusion in a highway or navigable river with or without obstruction...an encroachment upon a street or a highway is a fixture,such as a wall or a fence, which illegally intrudes into or invades the highway or incloses[sic]a portion of it, diminishing its width or
area, but without closing it to public travel.Û The word Û÷encroachÛªis defined,ÛÏTo enter by gradual steps or stealth into the possessions or rights of another; to trespass or intrude. To gain or intrude unlawfully upon the lands, property or authority of another."
.Û
No doubt that Black's Law Dictionary is a great source. It is not the only source. No argument that our court system was better when Black's was the authority. Like most things now it depends.
Wordnet]
2. Entry to another's property without right or permission.[Wordnet]
3. Influencing strongly.[Wordnet]
4. The act of entering gradually or silently upon the rights or possessions of another; unlawful intrusion.[Websters]
5. That which is taken by encroaching on another.[Websters]
6. An unlawful diminution of the possessions of another.[Websters].
Sources: WordNet 3.0 Copyright å© 2006 by Princeton University. All rights reserved. Webster's Revised Unabridged Dictionary (1913)
Noah Webster 1: [Noun] The entering gradually on the rights or possessions of another, and taking possession; unlawful intrusion; advance into the territories or jurisdiction of another,by silent means, or without right..
2: [Noun] That which is taken by encroaching on another.. Source: Webster's 1828 American Dictionary.
Administration (1) Any physical object placed in the floodplain that hinders the passage of water or otherwise affects flood flows, such as fill, excavation, storage of equipment and materials, or buildings. (2) The advance or infringement of uses, plant growth, fill, excavation, buildings, permanent structures or development into a floodplain which may impede or alter the flow capacity of a floodplain. (references)
Environment An unlawful and adverse intrusion within the boundary of a property, such as cultivation of the soil, enclosure by fence, the construction of an improvement, extension of a tunnel, underground operation or comparable act. (references)
Finance The act of intruding gradually and without permission upon the rights, land or other possessions of another. Encroachment is often used to describe the spread of one type of neighborhood into an adjoining but different type of neighborhood. A change made to one property may encroach upon the rights or value of a second property. (references)
Law 1: A fixture, such as a wall or fence, which illegally intrudes into or invades on public or private property diminishing the size and value of the invaded property. Source: European Union. (references)
2: ENCROACHMENT. An unlawful gaining upon the right or possession of another; as, when a man sets his fence beyond his line; in this case the proper remedy for the party injured is an action of ejectment, or an action of trespass. (references)
Mining A. To work coal or mineral beyond the boundary that divides one mine area from another; to work coal from a barrier pillar that has been left as a safety measure. Also called trespass b. The advancement of water, replacing withdrawn oil or gas in a reservoir. (references)
John Hamilton, post: 386883, member: 640 wrote: On a survey I recently did I discovered the following situation. A tract was "disposed" of in 1957 by the US government, meaning they no longer needed it and sold it to a private buyer. It had two dwellings on it, and some other buildings. In 1994 it was subdivided into two lots, one for each dwelling. The adjoiner on all sides is the US. This is shown below, the green is the US line, the red line is the now private tract. The adjoiner of the US is a RR to the south, and the city to the east. All of the monuments were recovered and match the record (1990 plat), except there is a distance discrepancy on MON 9 (on the US line) to MON 12 (on the line between the US and the City) of about 10 feet. But no discrepancy on the private tract metes, they all agree to within several hundredths, and all corners are in.
But, both private owners are occupying the properties as shown below:
Both areas are fenced, although the area on the west side is just mowed and taken care of (it has the old US flagpole on it as well). The area on the east looks like this looking west, the fence in the left background is along the road:
and like this looking east (chicken coops and sheds), the fence in the background is the line between the US and the city:
So, there were some recent posts about never calling an encroachment an encroachment, that is left for lawyers to determine.
So how is this called out? The purpose of the survey had nothing to do with these two private tracts or the apparent encroachments, but I found them when I was there. Interestingly, the owner of the lot with the stuff in the pictures above is a lawyer, and she is in a bunch of lawsuits with the city (zoning) and also battling her neighbor, but that is a whole another story that has nothing to do with the above. Both lots are totally fenced in with high fences, including the US owned portions.
"So how is this called out?"
It isn't "called out". It is depicted graphically on the drawing just as any other feature would be, possibly with a dimension to the property line. You don't need to give it a name...
[USER=6823]@lmbrls[/USER] You said "No doubt that Black's Law Dictionary is a great source. It is not the only source. No argument that our court system was better when Black's was the authority. Like most things now it depends" I disagree patently with this statement. Most of the laws that we apply, and adhere to, were drafted when Blacks WAS the authority, and as such, must be applied with it AS the authority. I do not use the word encroachment unless I know there is some form of adverse possession or something else, or to put it another way, nearly never. The last think I ever want is some attorney to hammer me with word play and actual law definitions, recognized by the court.
Kris Morgan, post: 386960, member: 29 wrote: [USER=6823]@lmbrls[/USER] Most of the laws that we apply, and adhere to, were drafted when Blacks WAS the authority, and as such, must be applied with it AS the authority. I do not use the word encroachment unless I know there is some form of adverse possession or something else, or to put it another way, nearly never. The last think I ever want is some attorney to hammer me with word play and actual law definitions, recognized by the court.
I have no problem with any surveyor not using words when they are not comfortable with them. My main point is that the problem is when someone calls it an encroachment just because it is over the line. Once again, assumptions will usually cause problems.
I only wish that the courts today would submit to Blacks as the authority. We are in agreement that they should.
I like intrusion and protrusion.
Look up in Black's Weasel Dictionary the phrase "droit droit" yes two of them. It's from Law French.
"Droit Droit" is that perfect title where the occupation matches the place, the lines, and the area described by the deed.
It's all a surveyor does -- determine whether the occupation matches the deed or if there are discrepancies between the two, and what is the timeline of said discrepancies and what common law boundary principles apply to the situation, and in our opinion where is the line today? The adjoiners will decide whether they want to rely on our opinion, or if they want to go to court, where the court will consider our opinion.
Everything else we do is the work of technicians or engineers.
"Encroachment" is a "fightin' word" and attorneys love that, because they profit from conflict.
"Encroachment" connotes that someone is doing something illegal, which is not our call to make.
I've seen a couple of situations where a surveyor called something "encroachment" without asking how long the fence had been there, and, in reliance on that opinion, the client chainsawed or bulldozed down his neighbors fence, maybe got arrested, maybe had to pay for the fence, maybe sued the surveyor for the damages of relying on an erroneous opinion, maybe the adjoiner sues the surveyor for the anguish as well.
"Encroachment" is not a word that helps The People's opinion of land surveyors.
"Discrepancy between occupation and title" is a much clearer way to put it. It leaves options open without accusing anyone of wrongdoing.
And I'll say it again: Surveyors determine whether occupation on the ground matches title in the record. Nothing more. Nothing less. Nothing else.
I've used the term encroachment on maps too, never had a problem with it. Maybe it is better to describe it something like, observed use by others and specify the nature of that usage.
Black's is a secondary authority. Under encroachment it cites West's key cite topic, Trespass key 12. This is used to find cases, it can be narrowed to a State easily.
It also cites C.J.S. Trespass section 13 (C.J.S. is a legal encyclopedia, another type of secondary authority).
No Court would make decisions solely using a dictionary because the issues are usually of a complexity beyond the scope of a dictionary.
